Date  :  21.09.2012.

Per Mr.K.B.Gawali, Hon`ble Member.

1.       Present appeal is filed by original complainant namely Shri.Chaburao Arjun Thombe challenging the judgment and order dated 22.7.2011 passed by the District Forum, Ahmednagar in C.C.No.615/2010.  Present respondents are the original opponent No.1 & 2.

2.       The facts leading to the present appeal are briefed as under.

          That, the appellant/original complainant`s son deceased Deepak Chaburao Thombe had purchased motor-cycle of Hero Honda company having registered number MH-16-AB-6189 for Rs.37,762/-. He had insured the said vehicle with the respondent Insurance Company bearing No.17157823124841 for the period from 23.01.2008 to 22.12.2009 covering risk of vehicle for Rs.31,600/- and risk to the owner`s life for the sum insured of Rs.1 lakh. It is the case of appellant/complainant that on 23.9.2009 deceased Deepak Thombe while driving the motor-cycle on Nagar-Manmad road was dashed by the truck and he died on the spot.  Appellant therefore filed insurance claim of Rs.1,31,600/-with the appellant Insurance Company. Thereafter he constantly followed his claim with the Insurance Company and also filed application dated 21.1.2010 for the sanction of the said claim.  However respondent Insurance Company rejected the claim.  Hence he filed complaint before District Forum seeking direction to respondent Insurance Company to pay him policy amount of Rs.1,31,600/- along with interest @ 18% p.a. from 23.9.2009 and also Rs.13,400/- towards mental harassment and Rs.5000/- as cost of the complaint.

3.       Respondent No.1 & 2 appeared before the Forum and contested the claim. The fact of insurance policy and amount of coverage thereunder was admitted by the Insurance Company. However other contentions were denied. It was submitted that after having received intimation about the accident of the vehicle, it had appointed surveyor to assess the loss.  On the basis of the documents submitted by the complainant to the surveyor it was transpired that deceased Deepak who was driving the said motor-cycle was possessing learner`s license only to drive motor-cycle. He was not accompanied with the person holding permanent driving license at the time of accident. Hence it is the breach of condition of the insurance policy. His claim was therefore not sanctioned by appellant Insurance Company. It was therefore contended that there was no deficiency in service on the part of the Insurance Company.

4.       District Forum after perusal of the record and hearing the parties has dismissed the complaint vide its impugned judgment and order.

5.       Aggrieved and dissatisfied with the said judgment and order, appellant i.e. original complainant filed this appeal before this Commission. This appeal was finally heard on 28.8.2012.  Adv.Smt.Smita Kulkarni was present for the appellant whereas Adv.Shri.R.H.Dahat was present for both the respondents.  We heard both the advocates finally at the stage of admission.

6.       Learned counsel Smt.Kulkarni submitted that the said accident was caused having no fault of the deceased Deepak and therefore on the basis of the ratio laid down by the Hon`ble National Commission in “United India Insurance Co. Ltd.-Vs- Gajpalsing Rawat” reported in 2010 NCJ page 37(NC) which was produced before the District Forum, the insurance claim of the appellant ought to have allowed on non-standard basis. However District Forum has failed to appreciate the fact of accident and also the ratio given in the said case law of the Hon`ble National Commission.  She therefore contended that impugned judgment and order of the District Forum be quashed and set aside by allowing original complaint.

7.       On the other hand, learned counsel appearing for respondent Shri.R.H.Dahat submitted that the insurance policy is a contract between Insurance Company and the insured. The terms and conditions of the policy are binding upon both the parties. That, as per one of the conditions of the said policy, a person holding an effective learner`s license can also drive the vehicle provided that he has satisfied the requirement of Rule ‘3’ of Central Motor Vehicle Rules 1989.  He further submitted that as per the said rule the person having learner`s license while driving the vehicle requires to be accompanied by the person holding an effective and valid driving license. However in the present case the deceased Deepak Thombe was holding learner`s license and was driving the motor-cycle alone on the date of accident.  Therefore it being a breach of condition of the policy, the complainant was not entitled to receive any benefit under the said policy.  He therefore contended that the respondent Insurance Company has rightly rejected the claim. In support of his arguments he relied on ;

i)                   National Insurance Company Ltd. & Anr. –Vs- Daljit Singh Longia, III(2010) CPJ 368,

ii)                 United India Insurance Co.Ltd.  –Vs- Dhapubai & Ors., II(2002) ACC 29(DB).

8.       We have perused the record as well as considered the oral arguments as advanced by both the counsels. The insurance policy is not disputed by the respondent Insurance Company. The disputed fact is that the deceased Deepak Thombe having possessed learner`s license, not accompanied by a person having effective and valid driving license on the date of accident.  From perusal of the insurance policy one of the conditions that the person having learner`s license while driving the vehicle should be accompanied by person possessing the valid and effective driving license. However as mentioned above deceased Deepak Thombe was driving motor-cycle alone. The contention of the learned counsel  Smt.Kulkarni for the appellant that since deceased Deepak Thombe was not at fault for the said accident and considering the ratio given in the above cited case law the claim of insurance should have been granted on non-standard basis, cannot be accepted. The facts and circumstances in the said case law are that the accident took place due to "stone fall" was proved and considering that there was no nexus between license of the driver and accident, insurance claim was directed to be allowed on non-standard basis. However since the facts and circumstances of the present case are quite different, the ratio given in the said case law does support the contention of appellant`s advocate.

9.       In this case we rely on “United India Insurance Co.Ltd.  –Vs-  Rakesh Kumar Arora & Ors.” reported in 2008(7) Supreme 343, Supreme Court of India, in which it is held by Hon`ble Supreme Court that since the driver was not holding valid license, the insurer is not liable to pay compensation. The ratio given in this case law is quite applicable in the present case. Deceased Deepak Thombe who was holding learner`s license is authorised to drive the motor-cycle but subject to condition that he should have been accompanied by the person holding an effective and valid driving license. This was one of the conditions in the said insurance policy and therefore there was a violation of the said condition and hence the Insurance Company cannot be made liable to pay compensation. The District Forum has rightly considered all these aspects and has rightly passed the impugned judgment and order while dismissing the complaint of the present appellant.  We therefore find no grounds to interfere with the said judgment and order. In the result, we pass the following order. 

                                                O   R    D    E    R

1.     Appeal is dismissed. 

2.     No order as to cost.

3.     Copies of the judgment be issued to both the parties.