This Complaint coming up before us for hearing on                     27-06-11 in the presence of Sri K. Siva Prasad, advocate for  complainant and of Sri K. Srinivasa Rao, advocate for opposite party upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint U/S 12 of Consumer Protection Act seeking the personal accident benefit of Rs.1,00,000/- together with interest @18% p.a., from 14-03-09 on account of death of her husband and compensation besides costs.

1. In brief the averments of the complaint are these:

        One Mohammad Jaffar (husband of the complainant) took insurance policy for his vehicle bearing No.AP 16YA TR 2323.   The said Jaffar died on 24-01-09 at about 11 p.m near Brahmanapalli village, Piduguralla Mandal, Guntur district.   The SHO, Piduguralla PS registered the said accident as Crime No.15/2009 U/S 304-A IPC against the said Jaffar.   The said Jaffar took insurance policy for his vehicle covering personal risk also for a sum of Rs.1,00,000/-.   The opposite party on 14-03-09 repudiated the claim contending that the said Jaffar did not possess valid and effective driving license at the time of accident.  The opposite party received additional premium from the said Jaffar covering personal risk.   As the opposite party received additional premium covering the personal risk it has to settle the claim of the complainant.   The repudiation of claim by the opposite party is unfair.  The complaint therefore be allowed.

3.    The contention of the opposite party in brief is thus:

        Husband of the complainant Mohammad Jaffar was owner of motor cycle bearing temporary registration No.AP 16 YA T/R 2323.   The said vehicle was insured with the opposite party vide policy No.OG-09-1802-1802-00014296 for the period from 05-09-08 to 04-09-09.   The said policy also covered risk of personal accident to a tune of Rs.1,00,000/- subject to certain terms and conditions.   The said Jaffar did not possess valid driving license at the time of accident.   Even the copy of the learner’s license submitted by the complainant expired on 30-08-08.   The accident took place on 24-01-09.   The said Jaffar therefore did not possess any driving license at all.   The insurance policy between the insured and the insurer represents a contract.  As the said Jaffar violated the terms and conditions of the policy, the opposite party is justified in repudiating the claim.   Rest of the allegations contra mentioned in the complaint are all false and are invented to suit their claim.

4.   Exs.A-1 to A-5 and Exs.B-1 to B-4 on behalf of complainant and opposite party were marked respectively.

5.      Now the points that arose for consideration in this complaint are:

1. Whether the repudiation of claim of the complainant by the opposite party is justified?
2. Whether the complaint is entitled to compensation?
3. To what relief?

6.    Admitted Facts in this complaint are: 

1. Mohammad Jaffar was the owner of the vehicle bearing No.AP 16YA T/R 2323 (Ex.B-4).
2. The said Jaffar insured the said vehicle with the opposite party vide policy No. OG-09-1802-1802-00014296 and it was valid from 05-09-08 to 04-09-09 (Ex.A-1= B-1).  The said policy covered Personal Accident cover for owner/  driver upto Rs.1,00,000/-.
3. The said Jaffar died in road accident on 24-01-09 (Ex.A-2 & A-4).
4. The opposite party on 14-03-09 repudiated the claim (EX.A-5).

7.   POINT NO.1:-    Under Ex.A-5 the opposite party repudiated the claim for the following reasons:

        “1. On verification of the driving license of the driver Mr. Mohammad Jaffar S/o Mohammad Jahurulla the said learners’ license was valid from 29/02/2008 to 30/08/2008, where as at the material time of accident the driver was not holding the valid license to drive tempo.

          2. As per Motor vehicle Act “(a) No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle (other than a Motor cab or motorcycle) hired for his own use or rented under any scheme made under sub-section  (2) of section 75) unless his driving license specifically entitles him so to do.

          3. Further as per Policy Schedule under Driver Clause: 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, 1989”.

8.     Ex.A-2 is the copy of FIR in Crime No.15/09 on the file of Piduguralla PS.   The said report was given by one Sk. Khasim resident of Kondapalli village, Ibrahimpatnam.   The relevant portion in Ex.A-2 is extracted below for better appreciation:

9.     The contents of Ex.A-2 revealed that the Jaffar hit the stationed lorry bearing No.AP 26Y 2459.  Ex.A-4 is copy of inquest report.  Ex.A-4 revealed that said Jaffar died in road accident.   The cause of death was not in dispute.

10.   In order to prove that the deceased did not possess valid driving license the opposite party filed Ex.B-3.  Ex.B-3 is the copy of learner’s license issued by Transport Department.  Under Ex.B-3 the learner’s license was valid from 29-02-08 to 30-08-08.   The opposite party issued a notice to the complainant to produce driving license of the deceased Jaffar.   The complainant did not choose to file driving license of the Jaffar.  In the absence of any other document contrary to Ex.A-1 we have to infer that the deceased Jaffar did not possess any driving license at all.

11.   Along with policy the opposite party filed the conditions showing the personal accident cover for owner and it was subject to,

1. The owner-driver is the registered owner of the vehicle insured herein,
2. The owner driver is the insured named in this policy.
3. The owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.

  Ex.B-1 policy is a contract between the insured and the insurer and those terms has to be strictly adhered to.   

12.  In New India Assurance Company Limited vs. S.C. Agarwal           2009 (4) CPJ 14 (SC) it was held:

        “As a matter of fact, in view of the clear mandate of Section 3 of the Act, the deceased driver was not even permitted to drive the insured vehicle in a public place. Furthermore, the claimant not only committed breach of the terms of the policy, he also violated the provisions of Section 5 of the Act by entrusting the vehicle to a person who did not hold a valid licence on the date of the accident”.

        The decision was followed by the NCDRC in New India Assurance Company Limited vs. Haryana State Agricultural Board 2010 (4) CPR 165 (NC) held that insurance company is not liable to pay any compensation if driver is not having valid driving license at the time of accident.       

13.   In view of the above decisions, the decisions relief on by the complainant reported in Oriental Insurance Company Limited vs. A.J. Thomas (2011 ACJ 428), Oriental Insurance Company Limited through Manager vs. Kamper Concast Limited 2009 (3) CPR 118 (NC), National Insurance Company Limited vs. Suman Kanwar 2008 (4) CPR 248 (NC), LIC of India and another vs. Kailash Chandra Kar  2009 (3) CPR 53, LIC Bilaspur and another vs. Sarojan Devi 2009 (3) CPR 87, B.V. Nagaraju vs. Oriental Insurance Company Limited 1996 ACJ 1178, V. Kishan Rao vs. Nikhil Super Speciality Hospital and another 2011 ACJ 500 are distinguishable on facts and as such are not applicable to the facts on case.

14.   Taking a clue from the decision reported in  New India Assurance Company Limited vs. Haryana State Agricultural Board 2010 (4) CPR 165 (NC) we are of the view that the repudiation by the opposite party is justified.   Therefore we hold that the opposite party did not commit any deficiency of service.    In view of the afore mentioned discussion this point is answered against the complainant.

15.   POINT No.2:-   In view of above findings the complaint is not entitled to any compensation hence this point is also answered against the complainant.

16.  POINT NO.3:-   In view of above findings, in the result the complaint is dismissed without costs.     

Dictated to junior stenographer, transcribed by her, corrected by me and pronounced in the open Forum dated this the 27th day of June, 2011.         

Sd/-XXX                                   Sd/-XXX                                 Sd/-XXX

MEMBER                                             MEMBER                                        PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:        

                                                                                              Sd/-XXX

                                                                                                                    PRESIDENT