ORDER

SHASHI NARANG (MEMBER)

1. Brief facts of the present complaint are that complainant purchased MOHINDRA BOLERO CAMPER DX Vehicle NO.PB09H9773 Model 2007 for Rs.505000/- and got the same

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insured with opposite party No.3 on 16/5/2007 vide certificate No.GE-5023333 valid upto 15/5/2008 and the policy was for Rs.479750/-.

2. That on 18/12/2007, the vehicle was met with an accident and FIR No.203 dated 18/12/2007 under Sections 304-A/279/337/338/427 IPC was registered in Police Station, Sultanpur Lodhi. The said vehicle was got repaired from M/S Avtar Autotech on payment of Rs.116989/-. The complainant lodged a claim with the opposite party and also fulfilled all the formalities but the opposite party failed to pay the insurance claim. This act of the opposite party amounts to deficiency in service on their part. Hence this complaint.

2. Notice of the complaint was issued to the opposite parties who appeared through counsel and filed written statement raising as many as three preliminary objections by refuting all the allegations made in the complaint. However, it is admitted that vehicle in question was insured with the opposite party. The main defence plea of the opposite party is that driver of the vehicle was not holding valid and effective driving license to drive the above said vehicle which amounts to violation of the terms of the insurance contract and breach of the policy terms and conditions wherein it is mentioned that

"any person including the 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 a license."

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Hence the claim of the complainant was repudiated. All other allegations made in the complaint have been emphatically denied.

3. The counsel for the complainant has tendered into evidence affidavit of complainant Ex.CA along with documents Ex.C1 to Ex.C9 and closed the evidence.

4. On the other hand the opposite parties tendered into evidence affidavits Ex.OPA and OPB along with document Ex.OP1 to OP8 and closed the evidence.

5. We have heard learned counsel for both the parties. The counsel for the opposite parties admitted that the complainant informed the opposite parties about the accident and furnished the documents of insurance policy i.e. bills of workshop was also submitted. However, the claim of the complainant was refused or repudiated on the ground that Karnail Singh driver of the vehicle was not holding a valid and effective driving licence to drive the vehicle at the time of accident. The counsel for the opposite parties further argued that his driving licence was valid for scooter and car, whereas at the time of accident, he was driving L.C.V. MOHINDRA BOLERO CAMPER DX Vehicle. Hence the claim of the complainant was rightly rejected by the opposite parties and in the preliminary objections of written statement, the opposite parties have mentioned a judgment of Hon’ble Supreme Court titled as National Insurance Co. Ltd. vs. Meena Aggarwal. In Meena Aggarwal’s case, driver of the Maruti Van was not having any driving license and he was driving vehicle for commercial purpose, so the facts of Meena Aggarwal’s case are not similar to the facts of the present case.

On the other hand, the counsel for the complainant has

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relied upon a full Bench authority of Hon’ble High Court cited as 2005 (1) R.C.R. (Civil) page 485 case titled as National Insurance Co. Ltd Petitioner Vs. Parveen Kumar and others Respondents. In this authority, the Hon’ble judges had discussed a motor accident. It was discussed in this authority that if the driver do not possess the requisite type of licence (i.e. licence for Motor Cycle but driving tempo)- Insurance Company is liable if cause of accident was Mechanical failure and not because driver was not possessing requisite type of licence.

The insurance company is liable to pay compensation if the driving method and mechanism of both the vehicles for which the driver was having valid driving licence at the time of accident and the other one which was being driven at the time of accident is the same. In the present case, we have to see what is the driving method and mechanism of the vehicle for which the driver was having a valid driving licence and the other vehicle which was being driven by the same driver at the time of accident. In the present case, Karnail Singh was having a valid driving licence for driving a scooter or a motor car only and this driving licence of Karnail Singh was valid up to 11.5.2010. So on the day of accident, this licence was valid and the driving method and the mechanism of MOHINDRA BOLERO CAMPER DX Vehicle which was involved in the accident in the present case and motor car is same. The counsel for the complainant has also relied upon a Supreme Court judgment cited as 2002 (2) R.C.R. (Civil) page 114 where the same principle of the driving of

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method and mechanism was discussed by the Hon’ble judges of the Apex court.

6. The counsel for the complainant has relied upon another judgment tiled as -

"National Insurance Company Limited Vs. Swaran Singh and others 2004 (2) RCR (Civil) 114 (SC). It was held in the judgment of the Hon’ble Apex Court that in each case the evidence before a court, a decision has to be taken whether a driver possess licence for one type of vehicle, but found driving another type of vehicle was the main or contributory cause of accident.

7. In the present case, the driving method and mechanism of both the vehicles for which the driver was having a valid licence was the same. The insurer will not be allowed to avoid its liability merely for technical breach of the condition concerning the driving licence. A motor car and MOHINDRA BOLERO CAMPER DX Vehicle comes under the category of light motor vehicle and their method of driving and mechanism is almost the same.

8. The counsel for the appellant argued that in the present case the driver Karnail Singh was having a valid driving licence for driving a motor car and he was driving a MOHINDRA BOLERO CAMPER DX Vehicle and the method and mechanism of both these vehicles is the same and soon after the accident, the local police investigated the matter and the police came to the conclusion that the present occurrence/accident took place due to the fault of the Qualis vehicle because the driver of Qualis vehicle was under the influence of liquor. So the local police registered a case against the

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driver of the other vehicle and not against the driver of MOHINDRA BOLERO CAMPER DX Vehicle Karnail Singh.

9. In this case, Karnail Singh was having a valid driving licence for driving a motor car and a person who is having a valid driving licence for driving a motor car, he can easily drive a MOHINDRA BOLERO CAMPER DX Vehicle because the method and mechanism of both the vehicles is the same. Both the vehicles are right hand driven having floor gears.

So we are of the view that Karnail Singh was having a valid driving licence to drive MOHINDRA BOLERO CAMPER DX Vehicle as per the authority National Insurance Co. Ltd Petitioner Vs. Parveen Kumar and others Respondents decided by the Full Bench of Hon’ble High Court.

We are of the view that it would be proper to declare the claim of the complainant as "Non Standard". Consequently we direct the opposite parties to pay to the complainant a sum of Rs.87750/- (Round figure) i.e. almost 75% of the amount assessed by the Surveyor of the Insurance Company along with interest @ 8% P.A. from the date of filing the present complaint i.e. 6.11.2009 till the date of realization besides Rs.3000/- as costs of litigation within one

month from the receipt of the copy of the order.

Copy of the order be sent to the parties through registered post free of costs. File be consigned to the record room.

Dated: Shashi Narang Gulshan Prashar Paramjit Singh

15.4.2010 Member Member President