Kerala

StateCommission

A/14/389

FUTURE GENERALI INDIA INSURANCE CO LTD - Complainant(s)

Versus

SAJEEV K VAVACHAN - Opp.Party(s)

SREEVARAHAM G MAHESH

02 Apr 2019

ORDER

 

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,  SISUVIHAR LANE VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NO. 389/14

 

                                          JUDGMENT DATED: 02.04.2019

 

 

(Appeal filed against the order in CC No.458/2013 on the file of

CDRF, Ernakulam Order dated 13.05.2014)

 

 

PRESENT:

 

SRI. T.S.P MOOSATH	:	JUDICIAL MEMBER
SRI. RANJIT. R	:	MEMBER

 

APPELLANT:

 

1.	M/s. Future Generali India Insurance Co. Ltd., 1st Floor, Muscat towers, Kadavanthara, Cochin.

 

(By Adv. Sreevaraham G. Satheesh)

 

VS

 

 

RESPONDENT:

 

1.	Sajeev K. Vavachan, Kallara House, PGT Hindi Jawahar Navodaya Vidyalaya, Kulamavu P.O., Idukki – 695 601.

 

(By Adv. Tom Joseph)

 

 

 

 

JUDGEMENT

 

 

SRI. RANJIT  R.          :   MEMBER

 

 

            Appeal is filed by the opposite party against the order in CC No.458/2013 dated 13.05.14 on the file of Consumer Disputes Redressal Forum, Ernakulam by which the District Forum directed the opposite party to reconsider the insurance claim of the complainant on the basis of Ext. A9 under non-standard basis.

          Complainant has preferred the complaint before the Forum alleging deficiency of service on the part of opposite party in repudiating his insurance claim of Rs.3,43,261/- (Rupees Three Lakh Forty Three Thousand Two Hundred and Sixty One), on the ground that the driver of the vehicle at the time of accident was not possessing valid driving license to drive the vehicle.

          Opposite party filed version refuting the arguments in the complaint and contenting that complainant is not entitled to get the insurance claim since he was not holding valid driving license at the time of accident.

          Evidence consists of Ext. A1 to A4 marked on the side of the complainant and Ext. B1 to B4 marked from the side of the opposite party.

          The Lower Forum on the basis of the legal position laid down by the Hon’ble Supreme Court of India, in Amalendu Sahu Vs. Oriental Insurance Company Ltd. II (2010) CPJ 9 (SC) by which the Supreme Court has ordered that if there is any breach of the policy conditions as stipulated in the “limitations use”, insurance company is to settle the claim on non-standard basis.  The Forum on the basis of this conclusion passed the impugned order.

          Heard both parties.  Perused the records.

          The learned counsel for the appellant contented that non possession of valid driving license is not a minor irregularity which can be settled for 75% as found by the Forum below.  The dictum of the decision of the Hon’ble Supreme Court is applicable only to minor irregularity, such as where a private vehicle was used for hire.  The Forum below erroneously applied the same principle in the present case of driving without valid driving license.  It is a settled position that no liability can be fixed upon the insurer, if the driver was not possessing valid driving license.

          Admitted the complainant was not holding valid driving license at the time of the accident that is on 22.02.2013.  This is a breach of policy condition.  The driver clause mentioned in policy deed (Ext. B1) states 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.  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, 1989”. 

          The learned counsel for the appellant relying on the decision of the National Commission in National Insurance Company Ltd. Vs. Sansarchand III (2010) CPJ 256 (NC) which states that driver not holding a valid and effective license is in violation of section 10 (2) of Motor Vehicles Act which is a fundamental breach of terms and conditions of the policy and hence claim cannot be settled on non-standard basis.  In the referred case the National Commission has referred the case of Hon’ble Supreme Court in the matter of Oriental Insurance Company Ltd. And Jharu Nisha and others IV (2008) ACC 781 (SC) in which case, even though a person driving a two wheeler, who held license to drive heavy motor vehicle was not considered eligible for driving a two wheeler on consideration of the issue but the person driving the person driving a two wheeler had a license for a vehicle which was a totally different clause of vehicle in terms of section 10 (2) of Motor Vehicles Act, 1998.

          In view of this preposition of law, following observations were made by Hon’ble Apex Court.

          “In the light of the settled preposition of the law, insurance company cannot be held liable to pay compensation to the claims for the cause of death of Shukurallah in road accident which had occurred due to rash and negligent driving of Ramsurat who admittedly had not valid and effective license to drive the vehicle on the day of accident.  He was possessing driving license to drive heavy motor vehicle and he was driving a totally different class of vehicle which was act of his non violation of section 10(2) of Motor Vehicles Act, 1998.  Applying this ratio in this case the appellant insurance company is not liable to indemnify the loss suffered by the complainant in the accident.

          The Lower Forum wrongly applied the decision of the Apex Court in the matter of Amalendu Sahu Vs. Oriental Insurance Company Ltd. II (2010) CPJ 9 (SC).  In that case there is violation of “limitation as to use” wherein a private vehicle was used for hire which a minor violation where claim can be settled under non-standard basis.   In the instant case the violation is a fundamental breach of the terms and conditions of the policy and claim cannot be settled on non-standard basis as laid down by the Apex Court in various case.  The Hon’ble Supreme Court in the matter of Pappu and others Vs. Vinodkumar Lambu and others 2018(1) CPR 153 (SC) held that if the driver is not authorised or does not have a valid license, the insurer will not be liable to pay compensation.  The decision relied by the District Forum in passing the impugned order has no application in the facts and circumstances presented in the instant case.

          The Lower Forum without appreciating the above, settled legal position passed the impugned order which is unsustainable in law that deserves to be set aside. 

          In the light of the above discussions, the direction of the District Forum directing the appellant to settle the claim on non-standard basis is set aside.  Consequently by which complaint is dismissed.  The other aspects raised in the case do not arise for consideration.

          In the result appeal is allowed and order of the District Forum is set aside.  The consumer complaint 458/2013 on the file of Consumer Disputes Redressal Forum, Ernakulam stand dismissed.

          Statutory deposit of Rs.25,000/- (Rupees Twenty Five Thousand) made by the appellant is to be released to them on its application.

          Parties to suffer their respective cost.

 

T.S.P MOOSATH	:	JUDICIAL MEMBER
RANJIT. R	:	MEMBER

 

 

 

 

SL