Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
Heard Mr.Mehta, Advocate for the appellant and Mr.Ashutosh Marathe, Advocate for the respondent.
2. This appeal has been filed by the appellant/Insurance Company against the award passed on 21/05/2010 by District Forum, Mumbai Suburban in consumer complaint No.473/2008, Mr.Deepak Kishan Goradia V/s. IFFCO Tokio General Insurance Co. Ltd.. By allowing the complaint partly, opponent/Insurance Company has been directed to pay `1,26,237/- with interest @ 9% p.a. from 08/10/2007 till realization of the entire amount and has been further directed to pay costs of proceeding of `2,000/- to the complainant. As such Insurance Company has filed this appeal.
3. The facts to the extent material may be stated as under :-
The complainant owned a car bearing No.MH-04-CJ-5692. It was insured with the appellant/Insurance Company. On 14/09/2007 while he was traveling by his car, a car ahead of his own car stopped abruptly and driver of the complainant’s car tried to take his car to the right side and in the process the complainant’s car dashed against taxi which was coming from opposite side. Complainant’s car was extensively damaged and complainant got it repaired by paying `1,26,237/- and lodged claim with the Insurance Company. The Insurance Company repudiated the claim on the ground that driver of the vehicle has not having valid and effective driving licence. Therefore, complainant has filed consumer complaint in the District Forum.
4. Opponent/Insurance Company filed written version and admitted that the complainant’s car was insured with it and policy was effective. Opponent pleaded that driver of the complainant’s car was not holding valid driving licence as his licence had expired on 09/08/2007 and licence came to be renewed only on 20/09/2007 after 6 days of the accident. So, at the time of accident, driver of the complainant’s car was not holding valid and effective driving licence and on that ground claim was repudiated by the Insurance Company. However, District Forum allowed the complaint relying on the judgement of the National Commission reported in 2007 NCJ 434 NC (Rajasthan Housing Board and Anr. V/s. Pramod Shankar Pareekh). In that case it was found that driver licence was fake driving licence and District Forum allowed the complaint, State Commission however, dismissed the complaint by allowing the appeal and held that Insurance Company was not liable to reimburse the persons who are having fake driving licence. However, National Commission relying on the Supreme Court judgement in the case of United India Insurance Company V/s. Lahru and others, (2003) 3 SCC-338 held that the Insurance Companies cannot expect the owners to make the inquiries as to the validity of the driving licence. The National Commission also relied on the judgement of the Supreme Court in the case of National Insurance Company ltd. V/s. Swaran Singh & Ors., (2004) 3 SCC 297, in which it was held that the insurer is required to establish willful breach of condition on the part of insured. In this case, complainant’s driver was holding effective driving licence till 09/08/2007, but not on the date of accident. No doubt he was having effective driving lincence on 20/09/2007. If the driving licence is renewed within one month from the expiry of the previous driving licence, there is a grace period and the period covered under the grace period is taken to be having driving licence to the holder who has renewed the driving licence within grace period of one month. In this case, within one month grace period, driver had not renewed his driving licence. He should have renewed his driving licence on or before 08/09/2007 within the grace period available, but he renewed his driving licence ultimately on 20/09/2007 beyond the grace period and therefore, it may be held that the driver of the complainant was not having effective driving licence at the time of accident and therefore, insurance claim was rightly repudiated by the Insurance Company/appellant herein. The rulings relied upon by the Learned District Forum are not applicable to the facts and circumstances of this case. In the above cases, it was held by the Supreme Court and the National Commission that the owner was not supposed to know that driver was not having fake driving licence and therefore, it was held that owner having driver with fake driving licence could be granted compensation on the basis of non-standard basis. In this case, fake driving licence is not involved. In this case driver was not having effective driving licence which is the material breach of policy condition as per policy produced on record issued by the appellant herein.
5. Advocate Mr.Marathe for the respondent tried to submit that Driver Clause mentioned in the policy reads as under :-
“Any person including insured: provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective learner’s licence may also driver the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.”
6. This clause does not permit Advocate Mr.Marathe to submit that even if the driving licence was not there, the driver was not disqualified from obtaining the driving licence on any ground whatsoever and since he had effective driving licence before the accident and he renewed driving licence with effect from 20/09/2007 it should be held that driver of the complainant/respondent was holding effective driving licence. We cannot buy this assertion of arguments advanced by the respondent’s Advocate. There is clear-cut violation of material condition of the policy. The insured vehicle must be driven by the person having effective driving licence. In this case, default was committed by driver of the complainant. Therefore, there appears to be not substance in the arguments advanced before us by Advocate Mr.Marathe. Moreover, Learned Advocate Mr.Vidyarthi relied upon the judgement of the Supreme Court in the case of Oriental Insurance Co. Ltd. V/s. Sony Cheriyan, AIR 1999 (SC) 3252, wherein the Hon’ble Supreme Court clearly held that there is liability of insurer only when the terms of policy are strictly followed by the parties. However, if the insured truck carried Ethyl solvent in contravention of the terms of the policy and in the process of travelling the truck has caught fire and insured had suffered loss, it was held that insurer was not liable to compensate for the loss suffered because said truck was not permitted to carry hazardous goods like Ethyl solvent which are hazardous goods. Therefore, insured had committed breach of terms and conditions of the policy. This case is strictly applicable to the facts and circumstances of our case and relying on this ruling the of the Supreme Court, we hold that respondent was not entitled to get insurance claim from the appellant/Insurance Company for the simple reason that at the time of accident, driver of the respondent was not holding effective driving licence which was condition precedent for granting any claim under the insurance policy. In the circumstances, we find that the award passed by the District Forum is bad in law and by allowing the appeal, said judgement and award will have to be quashed and set aside. Hence, we pass the following order :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 21/05/2010 is quashed and set aside. Consumer complaint stands dismissed.
2. Amount deposited by the appellant be refunded to the appellant with accrued interest, if any after appeal period is over.
3. No order as to costs.
4. Copies of the order be furnished to the parties.
Pronounced
Dated 18th September 2012.
