NEW INDIA ASSURANCE COMPANY LIMITED vs DAVENDER KUMAR

THIS appeal is directed against the order dated 8. 11. 2002 passed by the District Consumer Disputes Redressal Forum, Hisar whereby while accepting the complaint of the respondent-complainant directions have been given to the appellant-opposite party to pay Rs. 40,000 along with interest @ 15% per annum after three months of the lodging of the claim till its realization. In addition, Rs. 5,000 has been awarded as compensation on account of mental agony and harassment caused to the complainant and Rs. 1,100 as cost of proceedings.

PUT shortly, the facts of the case are that the complainant is the owner of vehicle Tata-407 bearing Registration No. HR-39/2326 insured with the opposite party. On 23. 9. 1996 the said vehicle met with an accident near Narela-Delhi. Necessary intimation was given to the opposite party which appointed Shri Ashok Kumar, Surveyor, who visited the spot and submitted report to the opposite party. Thereafter, another surveyor was appointed who assessed the loss to the tune of Rs. 27,000. Grievance of the complainant is that he had spent Rs. 40,000 on the repair of the vehicle and had submitted necessary documents to the opposite party but the claim was repudiated on the ground that the driver of the vehicle was not having valid driving licence at the time of accident. It is under these circumstances the present complaint was filed wherein the complainant sought direction against the opposite party to pay Rs. 40,000 along with interest @ 18% per annum from the date of accident till the date of realization and further to pay Rs. 10,000 as damages. The complaint was contested by the opposite parties. In the written statement filed it justified the repudiation of the claim after intimating to the complainant that it was a case of ''no Claim''. It was further explained in the written statement filed that the matter was got investigated through Shri Ashok Kumar and Shri Rajeev Gupta, Surveyors and Loss Assessors and also Mr. N. K. Pare, Advocate, Delhi, who was on the panel of the opposite parties. A report was received that the driver of the vehicle had no valid driving licence to drive Tata-407 and the complainant was accordingly informed vide letter dated 3. 7. 1997. Accordingly, it was prayed that the complaint merited dismissal. The District Forum found no substance in the stand of the opposite parties and issued the directions to the opposite parties as per order dated 8. 11. 2002 noticed above. It is against this order the present appeal has been filed by the opposite parties. Learned Counsel representing the parties have been heard at length. At the threshold of the arguments learned Counsel representing the appellant-opposite parties vehemently urged that the driving licence of driver Mahinder Singh submitted by the complainant was only valid for driving motorcycle, scooter, car, jeep and tractor and for that reason said Mahinder Singh was having no valid driving licence to drive Tata-407 which was a transport vehicle and this fact has been totally ignored by the District Forum and the order was liable to be set aside. Learned Counsel representing the respondent-complainant could not controvert the submissions made during the course of arguments. The insured had submitted the driving licence of Mahinder Singh bearing No. 22209/fbd authorizing him to drive motorcycle, scooter, car, jeep and tractor. The said driving licence will come under the category of LMV because light motor vehicle has been defined in Section 2 (21) of the Motor Vehicles Act, 1988, "light Motor Vehicle means a transport vehicle or omnibus, the vehicle gross weight of either of which or a motor car or tractor or road roller the unladen weight of any of which does not exceed 6000 kgs. " No doubt the unladen weight of the vehicle was 2515 kgs. At the same time the specific provision of Section 3 of Motor Vehicles Act, 1988 cannot be ignored because it is stated therein, " (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle and no person shall so drive a transport vehicle [other than a motor car hired for his own use or rented under any scheme made under Sub-section (2) of Section 75] unless his driving licence specifically entitles him so to do. "

It is clear from the driving licence produced on record that there is no endorsement on his driving licence of LMV or transport vehicle on the licence of Mahinder Singh. This factual position was communicated to the complainant as per letter dated 2. 3. 2000 issued by the opposite parties while repudiating the claim of the complainant.

THE position of law in this regard has been well settled in case of National Insurance Co. Ltd. v. Kusum Rai and Ors. , II (2006) CPJ 8 (SC)=iii (2006) SLT 162. The facts of the above mentioned case were that the respondent No. 3 was the owner of jeep bearing registration No. BR 03 P 9011. The said vehicle was admittedly used as taxi and was a commercial vehicle. Ram Lal driver had a driving licence of Light Motor Vehicle. Said taxi met with an accident on 14. 8. 2000. The Hon''ble Supreme Court on the facts of the case observed, "ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence. " The Hon''ble Supreme Court further noticed that the Tribunal had not gone into the said question. It further took notice of the observation made in cases National Insurance Co. Ltd. v. Swaran Singh and Ors. , I (2004) SLT 345=109 (2004) DLT 304 (SC)=i (2004) ACC 1 (SC)= (2004) 3 SCC 297, Malla Prakasarao v. Malla Janaki and Ors. , I (2006) SLT 356=i (2006) ACC 300 (SC)= (2004) 3 SCC 343, National Insurance Corporation Ltd. v. Kanti Devi and Ors. , IV (2005) SLT 369=ii (2005) ACC 712 (SC)= (2005) 5 SCC 789, and concluded in para No. 13 of the order as under: "in a case of this nature, therefore, the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not. "

ON the basis of facts of that case though it was held that the appellant was not liable to pay the claimed amount as driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution of India. The ratio of the above mentioned case would fully apply to the facts of the present case. Under the circumstances of the case, the complainant cannot come out of his responsibility to ascertain that the driver Mahinder Singh possessed a valid driving licence at the time he had taken the vehicle. It has been mentioned in the Registration Certificate as a Public Carrier. As the driver of the vehicle did not possess the requisite licence to drive the transport vehicle Tata-407, it has to be held that he did not possess a valid driving licence on the date of accident and thus committed breach of the terms of the insurance policy and for that reason the opposite parties were not liable to pay the insured amount claimed in the complaint. For the aforesaid reasons while accepting the appeal the impugned order is set aside and the complaint is dismissed. Appeal allowed.