(AS PER A.A.JAIN, HON’BLE MEMBER)
Complainant filed this complaint against Opposite.Party for seeking various relief as per prayer clause . Above both cases are similar in nature. In both the cases complainant, Opposite Party, Cause of Action are related with claim of same accidental vehicle and driver is also same, so it was decided to pass order in common judgment.
1 Complainant's case in short is that she is owner of Tata Indica Car bearing Registration No. MH-35/M-245 and the vehicle was insured with the Opposite party vide Policy No.163801/2006/1789 which is valid from 02/05/2005 to 01/05/2006
2 That on first time the above mentioned vehicle met with an accident on 06-12-2005 near village Sadak Arjuni and on second time on date 19-12-205 met with an accident near Village Neelaj Phata. Both places are between Gondia – Kohmara Road State Highway No.275. Complainant submitted her claim of accident to the Opposite Party in first case for Rs.16512/- (C.C.No.53/07) and in second case she has submitted the claim of Rs.32675/- (C.C.No.52/07). In both cases the O.P. has registered the claim and appointed surveyor for enquiry regarding the claim etc.
3 On date 07-04-2006 the O.P. has intimated in both the cases to complainant that her claim was repudiated by O.P. with reason that the driver of the accidental vehicle of the complainant was not having valid driving license at the time of accident and as such there was breach of condition of policy on the part of complainant.
4 The complainant filed this complaint for seeking the relief of Rs.49187/- as claim, Rs.20000/- towards compensation for mental torture and financial loss and Rs.4000/- towards cost for both the cases (Ex.1).
5 In response to notice U/s. 13 of C.P.Act.1986 the O.P. appeared and filed its reply on (Ex.5) for first case and (Ex.5) for second case . The O.P. denied all the allegations. The O.P. submitted that there are licensed insurance surveyours approved/ empanelled by insurance regulatory and development authority. They are independent surveyor who are inspecting and assessing the losses as per their technical expertise and use to give their expert opinion to insurance company regarding the losses. In these cases Shri. Sanjay Shrivastava and Mr.Pramod Jain were appointed by the O.P. and they have estimated the loss of Rs.17070/- in first case and Rs.3661/- in the second one.
6 The O.P. further submitted that on receipt of claim form the complainant submitted that her vehicle was driven by Shri Ayub Khan Karim Khan having driving license bearing No.A/1093/R/85 issued by licensing authority Raipur. The representative of O.P. has paid the requisite fees of Rs.50/- in each case to licensing authority Raipur and obtained the certificate from the licensing authority in which it was mentioned that the dreiving license was valid up to 04-12-2002 and after wards it was not renewed. The O.P. submitted that the driving license of driver Mr.Ayub Khan was not valid and effective at the material time of accident i.e. on 06-12-2005 and 19-12-2005, hence the O.P. has repudiated the claims.
7 On verifying all records, hearing argument from both parites and gone thoroughly through the case laws submitted by both the parties the only point arose for our consideration whether the complainant is entitled for any relief and our finding is “Negative” due to following reasons.
REASONS
8 The O.P. has submitted original claim form filed by the complainant (Ex.7 Doc.No1) in which it was stated that the driver of the accidental vehicle was Mr.Ayub Khan Karim Khan R/o. Raipur, driving license No.A/1093/58 and date of issue 02-09-89 and date of renewal…………
Blank…… then date of expiry was 04-12-2006. There is no endorsement regarding the renewal between the period 1989 to 2006 whether the driving license was renewed or not and this driving license was effective on date 06-12-2005 and 19-12-2005 or not.
9 The O.P. filed investigation report issued by licensing authority of Raipur that the driving license of Mr. Ayub Khan was valid from 10-09-1985 to 09-09-1990 then from 05-12-1990 to 04-12-2002 (Doc.No.7)
10 The complainant has submitted driving license of driver in (Doc.7) issued by licensing authority Durg in which it was endorsed that Original dat of issue is 09-09-1985 and duplicate issued on 03-05-2006 and date of validity was 04-12-2006. In this license whether this license was valid or not at the time of accident i.e. on date 06-12-2005 and 19-12-2005 not indicated. The complainant failed to produce the original driving license before this Forum, thus our finding is that the license was not valid at the time of accident.
11 The complainant filed two case laws which are as below.:-
i) [2004(5)ALL MR (s.c.)251]
National Insurance Co.Ltd.V/s.Swaran sing & others
(A) Motor Vehicles Act (1988). Ss. 149, 165, 168-Chapter XI providing for Third party risks-Object of –Insurer is entitled to raise defense in claim petition inter alia in terms of S.149(2)(a)(ii) – insurer bust prove breach of policy conditions to avoid his liability and also breach on the part of owner-Such breaches muts be shown to have contributed to cause of accident-Vehicle if driven by a person holding learner’s license, insurer is liable to satisfy decree in favor of third party –compensation claims-Jurisdication of tribunal-Nature of.
ii) [2006(2)Civil Lj522]
Lali Devi and others V/s. Oriental Insurance Co. and others
Motor Vehicle Act, 1988, Section 149- Liability of Insurance Company-Driver of offending vehicle held a fake license-Violation of conditions of insurance policy not shown to be in the knowledge of owner of the vehicle –Insurance Company not exonerated to indemnify the liability of the insured.
These both case laws were discussed for third party claim. In the cases in hand the claim is for own damages so these both case laws are not applicable to the present case in hand.
12 On the other part the O.P. filed two case laws which are as below :-
i) [AIR 2007 SUPREME COURT 1563]
National Insurance Co.Ltd.V/s. Laxmi Narain Dhut
(A) Motor Vehicles Act (59 of 1988), Ss. 149, 173(2)- Liability of insurer-own damage claim-logic of fake license, let insurer first pay etc. applied to claims relatable to third parties-Does not apply.
Section 149 is part of chap.XI which is titled insurance of motor vehicle against Third Parties. A significant factor which needs to be noticed is that there is no contractual relation between the insurance company and the third party. The liabilities and the obligations relatable to third parties are created only by fiction of Ss. 147 and 149 of the Act. Section 149 is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake license has to be considered differently in respect of third party and in respect of own damage claims. The restrictions relating to appeal in terms of S 173(2) does not also apply to own damage cases. The inevitable conclusion therefore is that the decision in Swaran Singh’s case 2004 AIR SCW 663, has no application to own damage cases has to be kept in view. The concept of purposive interpretation has no application to cases relatable to S.149 of the Act.
(B) Motor Vehicle Act (59 of 1988) Ss. 15, 149-Driving license-Renewal-Cannot cure fatality inherent in fake license- once initial burden on insurer to show that license is fake is satisfied-Natural consequences have to flow.
(C) Interpretation of Statutes- Purposive construction – more logical than golden rule of literal construction.
(ii) [2002 (I)Mh.L.J.]
Rajendra Raghunath Girme V/s. Pramila Dattu Surse and others
Motor Vehicle Act. (59 of 1988) , Section 149- Plea on Insurance Company that driver of the offending Tractor did not have valid driving license- Insurance company was required to prove by bringing substantial evidence in that respect- Mere submission of application calling upon driver to produce driving license not sufficient to discharge the burden-Insurance Company could not legitimately claim exoneration –Insurance Company held liable to satisfy the award as made. AIR 1985 SC 1281, Rel.
The above case laws are applicable to claims of third party case and not to own damage cases. The present both cases are for own damages claim and not for third party claim.
Hence we pass the following Order ORDER
1 Both the complaints are hereby dismissed.
2 Under the circumstances there is no order as to costs.
