1.         These two appeals arise out of the same order dated 03/01/2007 passed by the District Consumer Forum Amravati, partly allowing the Consumer Complaint bearing no. 132 of 2004 there by directing the opposite party Bajaj Allianz General Insurance Company/ Appellant in appeal bearing no. 181 of 2007 to pay Rs. 41,020/- towards cost of Hero Honda Splendor Motorcycle with 8 percent interest P.A. thereon and Rs. 1,000/- more towards cost of proceedings.

2.         Appellant Bajaj Allianz General Insurance Company in appeal no. 181 of 07 be referred as OP and appellant Aruna Dilip Wankhede and two others in appeal no. 262 of 07 be referred as complainants for the sake of brevity.

3.         Brief facts giving rise to this appeal are:-

     Complainant Aruna Wankhede is the Widow of Dilip kashinath Wankhede who died on 03/08/2003 in a road accident. The deceased had purchased Hero Honda Motorcycle of Splendor Model on 03/10/2002 for Rs. 41,020/- and insured the same with the opposite party for the period from 26/09/2002 to 25/09/2003 and also paid premium of Rs. 942/- towards the said insurance. The owner/driver, Dilip Wankhede met with the fatal accident on 03/08/2003. The complainant being the widow of the owner of the vehicle submitted the motor insurance claim with the opposite party. The OP did not settle the claim. The complainants issued a legal notice on 22/05/2004 calling upon the OP to settle the insurance claim. The OP by reply notice dated 01/06/2004 informed the complainant to submit the valid driving license held by the deceased- driver on the date of accident and further informed the complainant that the insurance claim could not be settled since she failed to supply the necessary document in support of the insurance claim.

4.         The complainant, alleging deficiency in service, filed a consumer complaint seeking insurance claim of Rs. 41,020/- on total loss basis towards cost of vehicle and Rs. 1,00,000/- as compensation towards fatal accident and Rs. 50,000/- as compensation for mental and physical harassment and Rs. 10,000/- towards cost of proceedings.

5.         The OP resisted the complaint by filing his written version and though admitted the insurance specifically submitted that the said insurance is a contract between the insured and the insurer and is subject to policy conditions. One of the conditions mentioned in the policy reads as under. “ Driver’s clause-

Any person including insured: provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such license. Provided also that the person holding an effective learners license may also drive the vehicle and that person satisfies the requirement of Rule 3 of the Central Motors Vehicle Rules 1989”

The complainant failed to submit the details in respect of the effective driving license which may have been held by the driver of the vehicle. The complainant was also called upon to submit the said details by letter dated 06/02/2004. The complainant failed to submit the same. Therefore the OP had rightly “Closed” the claim. Therefore the OP had not rendered any deficiency in service and the complaint deserves to be dismissed being frivolous.

6.         The Forum after hearing both the sides and perusing documents on record, partly allowed the complaint as aforesaid. The Forum has held that if the accident is proved then the insurance company cannot repudiate the claim on the flimsy ground that as the driver was not holding effective/Valid driving license.

7.         Feeling aggrieved by the impugned order, the OP Bajaj Allianz Insurance Company has filed the appeal bearing no. 181 of 2007 seeking quashing and setting aside of the impugned order and being not satisfied of the impugned order complainant Smt. Aruna Dilip Wankhede and two others have filed appeal bearing no. 262 of 2007 seeking modification in the impugned order and enhancement of compensation.

8.         We heard counsel for both the sides and perused the copy of the complaint, written version, copy of the insurance policy, the claim form and other documents filed on record by both the parties.

9.          The insurance policy and the conditions mentioned therein, date of accident and the insurance claim lodged before the OP are not disputed. The only question that arises for our  consideration is whether the OP treating the insurance claim as ‘Closed’ for non submission of driving license is just and proper. We perused the copy of the Motor Insurance Claim Form submitted by the complainant and find that the clause seeking Driver Details also requires Driving License Number. This column is not filled in by the complainant and it is left blank. Therefore the OP on receipt of the said claim form had sent a reminder by letter dated 06/02/2004 to the complainant to submit “The copy of Driving License. The same should be submitted and be got verified from the original.” The only inference that can be drawn from such a situation is that the owner/driver of the vehicle was not holding effective driving license at the time of the accident. It is also not the case of the complainant that the driver was holding an effective learner’s license. Therefore in our opinion this is definitely a case of breach of policy conditions.

10.                       In support of this contention the appellant/original complaiants relied on the judgment of the Hon’ble Apex Court in the case of Ishwarchandra and Others Vs. Oriental Insurance Company Ltd. (2007(2)T.A.C. 393(SC)) and National Insurance Company Ltd. Vs. Vidyadhar Mahariwala and others (2008(4)T.A.C.378(SC)).We have perused the cited authorities but the ratio laid down cannot be applicable in this case because the facts are different.

11.                        Undisputedly there is a contractual relationship between the insurer and insured and both the parties are bound by the conditions mentioned therein. Therefore the Forum allowing the complaint inspite of there being undisputedly a breach of policy conditions cannot sustain in law. Therefore the findings of the Forum are illegal and improper and the impugned order cannot be sustained in law and therefore deserves to be quashed and set aside.

12.                       For the foregoing reasons we pass the following order.

ORDER

1.    Appeal bearing no. 181 of 2007 filed by Bajaj Allianz Insurance Company is allowed and the impugned order dated 03/01/2007, passed in Consumer complaint no. 132 of 2004 stands quashed and set aside.

2.    Appeal bearing no. 262 of 2007 is dismissed.

3.    In the peculiar facts and circumstances of the case, parties to bear their own cost.

4.    Copy of the order be given to both the parties free of cost.