Pronounced on:  23^rd  January  2020

ORDER

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1.     The present Revision Petition is against the impugned order dated 14.10.2011 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (hereinafter “State Commission”) in FA 699 of 2009, where the appeal was allowed and the order of the District Forum in CC. No. 9 of 2009 was set-aside.

2.     Brief facts relevant for the disposal of the case are that the complainants’ son had taken a policy from the OP for his vehicle on 27.03.2008. The period of insurance was 27.03.2008 to 26.3.2009. The insured had also paid premium to cover personal accident risk of owner- driver to the tune of Rs. 1 Lakh. On 6.04.2008 , the insured met with an accident which resulted in his death . The OP did not pay the claim amount to the nominees (complainants). Hence, a complaint was filed before the District Consumer Forum, Mahabubnagar (hereinafter referred as ‘District Forum’).

3.     The complaint was resisted by the OP. It was contended that neither the information about the accident was given nor any claim form was furnished. Moreover, the complainants were not entitled to the claim as the insured did not possess a license at the time of the accident. This was mandatory as per the terms of the policy.   

4.     The District Forum, after considering the averments of the parties, dismissed the complaint vide order dated 29.05.2009 by stating that the owner of the insured vehicle as well as the complainants had breached the terms and conditions of the policy. It observed as below:

9. ….The complainants did not file any evidence even before us to show that firstly they informed about the accident and later they submitted Claim Form along with necessary and required documents to enable the OP to decide the claim. Without following law and complying the conditions of the policy and procedure, the complainants cannot blame the OP for not settling the claim. Mere issuing legal notice without any prior intimation of accident as well as claim submission will not serve the purpose. In these circumstances, we are fully agreeing with the contentions of the OP that first of all the owner cum driver of the insured motor cycle was not holding driving license as on the date of accident and secondly the complainants have not informed about the accident and submitted any claim to the OP as such they breached the terms and conditions of the policy and they have filed the complaint without approaching the OP. In these circumstances, we are relying upon the decision of Hon’ble Supreme Court in the case of Sandari and Others Vs. Susheel Kumar and Others reported in CPJ 2008 (2) P.21 (SC) and also upon the decision of the Hon’ble APSCDRC in the case of R.R. Industrial Products and another Vs. National Insurance Co. Limited reported in 2008 (3) CPJ, P. 158, wherein it is held that Insurer can avoid its liability on the ground of violation of conditions of the contract of insurance. In view of the above case law, facts and circumstances of the case, we are of the considered opinion that the owner of insured vehicle and also complainants breached the terms and conditions of the policy and as such the OP Company is not liable to pay the amount under the policy. The complainants also failed to establish the deficiency of service on the part of OP and as such they are not entitled for any of the reliefs so prayed. Hence the complaint is liable to be dismissed.

10. In the result, the complaint is dismissed but in the circumstances of the case no order as to costs.

(paras 9 and 10 of the District Forum’s Order)

5.     Being aggrieved by the order of the District Forum, the complainants preferred an appeal to the State Commission.         

6.     The State Commission allowed the appeal and set- aside the order of the District Forum. It directed the OP to pay Rs. 1 Lakh with interest @ 9% p.a from the date of filing of the complaint i.e 16.12.2008 till the date of realization. Compensation of Rs. 10,000 for mental agony and Rs. 5,000 as costs was also awarded.                 

7.     Aggrieved by the abovesaid order of the State Commission, the OP has preferred the present Revision Petition.

8.     We have heard the ld. counsel for the petitioner. Despite service of notice, the respondents – complainants were not present. So, vide order dated 20.03.2017, they were proceeded ex- parte.

9.     On perusal of Certificate Cum Policy Schedule, it is seen that there is a clause which specifies about the driver. The same is reproduced below:

DRIVER : Any person including the insured Provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective Learner’s license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1939.

10.   Section 3(1) of the Motor Vehicles Act, 1988 necessitates a person driving a motor vehicle to possess an effective driving license. The section reads as:

(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than 1[a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do.—(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than 1[a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do.

11.   We would like to rely on the order passed in Liberty General Insurance Ltd. v. Pranali Popat Suryavanshi, as reported in II (2019) CPJ 333 (NC), wherein the following was held:

10. …I hold that in the event of death of the insured himself, in an accident at the time he is driving a vehicle without holding a valid and effective Driving License, no benefit under such a policy would be available. Had the accident resulted in death of someone other than the insured himself, or had he himself not been driving the vehicle, the position would have been entirely different. But, where the insured himself is driving a vehicle without possessing a valid Driving License and the vehicle meets with an accident resulting in his death, no benefit under such a policy would be available.             

12.   Prima facie, we note that the case is of violation of terms and conditions of the policy.  The insured was not in possession of an effective driving license at the time of the accident. The complainants too, have failed to annex any driving license of their son i.e the insured.  Even if it is taken that the driving license was damaged at the time of the accident, the complainants should have got the particulars by approaching the concerned Transport Authority. But, they failed to do so.  This in itself shows that they have not approached the consumer fora with clean hands.  No liability can be fastened on the OP for deficiency in service.

13.   On the basis of the foregoing discussion, the instant Revision Petition is allowed.

Per Hon’ble Mr. Dinesh Singh, Member

14.   The District Forum vide its Order dated 29.05.2009 had dismissed the complaint. In appeal, the State Commission, vide its impugned Order dated 14.10.2011, had set aside the Order of the District Forum and allowed the complaint.    

15.   The short point in this case is that, ex facie, the insured did not possess a valid driving licence at the time of the accident. A valid driving licence, or, if the same had in any way been damaged or misplaced, the salient particulars thereof (to show that the insured did in fact possess a valid driving licence at the time of the accident), were not adduced in evidence before the forum of original jurisdiction i.e. the District Forum. Not having a valid driving licence was a breach of an explicit condition of the insurance policy. It was also a violation of the Motor Vehicles Act, 1988.  As such, no ‘deficiency in service’ is made out against the petitioner insurance company.  

16.   The State Commission has erred in appreciating the facts and evidence and has given erroneous findings.  

17.   Based on the afore discussion, the revision petition is allowed, the Order dated 14.10.2011 of the State Commission is set aside, the Order dated 29.05.2009 of the District Forum sustains, the complaint stands dismissed.