PER SHRI B.A.SHAIKH, HON’BLE PRESIDING MEMBER.

1)        This appeal is filed by the original opposite party i.e. the Insurance Company, against the order dated 22/03/2012 passed by the District Forum Amravati in Consumer Complaint bearing No.99/2011, by which complaint has been partly allowed and direction has been given to the opposite party/appellant to reconsider the insurance claim submitted by the complainant  within one week and to make good of the loss of the complainant or otherwise to pay him compensation of Rs.91,000/- and cost of complaint of  Rs.1000/-.

            The facts which are not disputed in brief are as under.

2)        The original complainant who is the respondent in this appeal had insured his pic-up van used for public transport, with the opposite party/appellant. The said vehicle met with an accident during the period of policy. Therefore it was damaged and its intimation was given to the opposite party by him. Police also registered crime and made the investigation and recorded the statements of the complainant and witnesses. The complainant repaired the vehicle and submitted the claim to the opposite party. The opposite party repudiated the claim vide letter dated 17/12/2010 on the ground that  Shri Yogesh Thakre, who was driving that vehicle at the time of accident was holding driving license in the category of LMV-NT and not LMV-TR as required for driving the transport vehicle.

            Thus, alleging deficiency in service on the part of opposite party consumer complaint was filed before the Forum by the complainant.

3)     The complaint was resisted by the opposite party by filing reply on the same ground which is mentioned in the repudiation letter by it. The Forum after hearing both the parties and considering the evidence brought on record passed the impugning order specified above. The Forum observed in brief in impugning order that, the F.I.R. shows that, the complainant was driving the vehicle, but the opposite party did not examine his deriving license. Therefore, it constitutes deficiency in service on the part of the opposite party. Therefore, the Forum directed the opposite party to re-consider the claim as above or otherwise to pay the compensation of Rs.91,000/- with cost of Rs.1000/-.

4)        Notice of this appeal was sent to the complainant/respondent and after receiving the same his Advocate Shri B.K. Awari had appeared before Commission on 10/10/2012 and filed his power on that day. On that day, the appeal was admitted and both parties were directed to file written notes of argument. Though the appeal came to be adjourned from time to time, the original complainant and his Advocate failed to file written notes of argument. The appellants/opposite party Advocate filed written notes of argument. Moreover, none appeared for original complaint for final hearing. Therefore we have heard the learned    Advocate for the appellant and proceeded to decide the appeal on merit.

5)        The learned Advocate for the appellant has drawn our attention to the complaint filed before the Forum, where in it is not stated by the complainant that, he was driving the vehicle at the time of accident. The learned Advocate of the appellant submitted that, as per the said complaint, the driver Yogesh Thakre was driving the vehicle and his driving license was submitted to the opposite party by the complainant. The learned Advocate for the appellant has also drawn our attention to the copy of the F.I.R. and additional statement of the complainant recorded by the police. He has not stated specifically in that FIR that,

he was driving the vehicle at the time of accident. On the contrary in his additional statement recorded by the police, he had stated that Yoges Thakre was driving the vehicle at the time of the accident. Therefore, the learned Advocate submitted that, the Forum without proper consideration of the case of the complainant and the aforesaid documents erred in holding that, it was the complainant who was driving the vehicle. The learned Advocate has also produced the copy of driving license of Yogesh Thakre which shows that, he was holding the driving license in the category of LMV (NT) which means that, he was holding license to drive Light Motor Non   transport vehicle. Therefore, Advocate for the appellant submitted that, the opposite party has rightly repudiated the claim on the ground that, the driver of the vehicle was not holding the driving license to drive LMV transport vehicle, as vehicle insured with appellant was transport vehicle.

6)        After considering the evidence brought on record, we find substance in the afore said submission of the Advocate of appellant. It was not the case of the complainant/respondent before the Forum that, he was driving the vehicle at the time of the accident. Moreover, in his additional statement recorded by police, he has very specifically stated that, his driver Yogesh Thakre was driving the vehicle. He had also submitted the copy of the driving license of Yogesh Thakre to the opposite party for settlement of insurance claim. The said license shows that, it is not issued to drive the transport vehicle of the present case.

7)        The Hon’ble Supreme Court in the case of, New India Insurance Co.Ltd…..V/s……Prafulal, reported in (I) 2008 CPJ 1 (SC),  has held that, the Driver holding license to drive Light Motor vehicle is not entitled to drive Light Motar transport vehicle and therefore repudiation of the claim is justified. We find that, the said decision is applicable to present case. Moreover, the Hon’ble National Commission made a similar observations in the following two cases.

• National Insurance Co.Ltd. ……V/s…… Sarita Devi and other, reported in (III) (2016) CPJ 329 (NC).
• Sahibsing………V/s……..ICICI Lombard General Insurance Co.Ltd, reported in (II) (2016) CPJ 264 (NC).

8)       Thus, we find that, the Forum without any basis and without any case of complainant came to the conclusion that, the complainant was driving the vehicle at the time of accident and that the appellant has not examined his driving license. Thus, we hold that, as Yogesh Thakre who was driving the vehicle at the time of the accident was not holding the driving license at the time of accident, to drive transport vehicle of the present case, the repudiation of the claim by opposite party is justified. Thus impugned order deserves to be set-aside.  Hence we pass the following order.

// ORDER//

• Appeal is allowed.
• The Impugning order is set aside.
• The complaint stands dismissed.
• No order as to costs in the appeal.
• Amount if any deposited by the appellant during the pendency of the appeal, be refunded to the appellant after the period of revision is over, If no stay order is received from the Hon’ble National Commission.

Copy of this order be supplied to both parties free of costs