Dt. 18.11.2014

   Sri J. Bag, Ld. Member

The present appeal is directed against the Order dated 23.03.2011, passed by the Ld. District Consumer Disputes Redressal Forum , Burdwan , in DF Case No. 50/2009 , whereby the complaint was allowed with cost on contest against the OP Insurance Company .

            The Complaint case , in brief, was as follows:

            The Complainant’s husband Alok Banerjee during his life time purchased one Bajaj make two-wheeler from M/s Saluza Automobiles (OP No.1) and the vehicle was insured with the OP Insurance Company . The policy was for Personal Accident Coverage extended to the owner and driver in case of death for 100% or to a limit of Rs. 1,00,000/- during any one period of insurance and the policy was valid from 15.05.2006 to 14.05.2007. On 18.06.2006 at about 8 p.m. the husband of the Complainant, while returning from his place of business met with a serious accident near Barmuria within Galsi P.S. because of rash and negligent driving by an errant driver of bus No. WB 41A 1455.  He succumbed to his injuries on 21.06.2006 at SSKM Hospital . A police case under No. 71/06 dated 19.06.2006 under the provisions of Sections 279 / 337 / 338 / 427 /304 (A) of IPC was started. The occurrence of the accidental death was informed to M/s Saluza Bajaj and also to the agent of the Insurance Company. The Insurance Company was requested to settle the claim of Rs. 1,00,000/-. Inspite of submission of necessary documents including the  copy of the FRT and sending of follow up letters , no step was taken by them . On 29.03.2007 the Insurance Company sent a reply saying that due to non-submission of claim in time the policy condition has been violated and the claim stood repudiated. Another request was made through registered letter dated 19.04.2007 for settlement of the claim, but to no effect. No claim form was issued by the OP Insurance Company for the purpose of filing claim. Having no alternative, the Complainant, being the wife and nominee of the deceased insured, filed a petition of complaint on ground of deficiency in service on the part of the OPs, praying for direction upon the OPs to pay the sum assured as per policy with interest, and other reliefs .

            OP No.2 contested the case by filing W.V.  denying , inter alia, all material allegations and contending that the terms and condition of the policy in question were not fulfilled by the Complainant for which the claim was repudiated. It was also emphasized that though as per policy condition notice should have been given in writing to the Company immediately upon the occurrence of the accident , but the Complainant failed to comply with the policy condition and moreover it appeared from the report of the Surveyor that the insured Alok Banerjee was driving his vehicle at the material point of time without being accompanied by any pillion rider with effective driving licence  which is an utter violation  of the policy condition as per Driver’s Clause.

        Ld forum below having considered the pleadings of both parties and materials on record, observed, relying upon the decisions of Hon’ble Apex Court and Calcutta High Court (particulars of citation not mentioned) that though the offending vehicle was driven by a person holding a Learner’s Licence, the Insurance Company’s liability existed. Accordingly, it was ordered that the OP No.2 i.e,. Insurance Company should pay a sum of Rs.1,00,000/- to the Complainant together with interest (rate not mentioned) accrued thereon from July 2006 till the date of payment along with litigation cost of Rs.2,000/-.

            Being aggrieved by and dissatisfied with the Order of the Ld. Forum below, the Appellant has come up before this Commission with the prayer for direction to set aside the impugned order .

       Ld. Advocate appearing for the Appellant submitted that the owner of the vehicle, since deceased, did not comply the warning  as noted in Learner’s licence at the time of accident . Though the policy stipulated that the driver of the vehicle must possess a valid and effective driving licence at the time of accident, if any, from the FRT it is evident that the deceased was riding the Motor Cycle and there was no other person as a pillion rider possessing a valid driving licence to drive a two -wheeler and competent to give instructions to the learner as to how to drive . There was a serious violation of Rule 3 of the Central Motor Vehicles Rules which is mentioned both in the Policy of Insurance as well as in the Learner’s Licence itself. Ld. Advocate also emphasized that as per settled principle of law, if a driver at the time of accident is not possessing a valid driving licence, then the insurer is not liable to pay any claim to the insured or in case of death P.A. claim to his or her legal heirs. Ld. Advocate referred to the decision of Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No. 1433 of 2008 and also relied upon decisions of Hon’ble Apex Court reported in 2008 (1) TAC 717 and 2008 (1) TAC 401 . The decision of the Ld. Forum below was arbitrary and against the settled principle of law as reflected in various judgments of the Hon’ble Apex Court as well as in the decisions of the Hon’ble National Commission. The impugned order is liable to be set aside .

            Ld. Advocate appearing for the Respondent/Complainant submitted that the policy purchased by the Complainant was valid when the insured met with the accident. It was argued that the Complainant’s husband  was not responsible for the accident as the bus coming from the opposite direction hit the two-wheeler and injured the insured. In such case the rulings cited by the Ld. Advocate of the Appellant are not applicable since the Learner’s Licence itself was valid and the insurance company is bound to release the PA coverage claim in favour of the Complainant. Repudiation of the claim by the insurance company is unjust and the order passed by the Ld. Forum below deserves to be upheld .

                                                Decision with Reasons

            We have gone through the memorandum of appeal together with copies of the impugned order , the petition of complaint, W.V. filed by OP No.2 i.e., Bajaj Allianze General Insurance Company Ltd., and other documents including the certificate-cum-policy schedule. We have heard Ld. Advocates appearing of both parties .

            There is no dispute that the Respondent / Complainant’s husband obtained an insurance coverage from the OP  Insurance Company . The two-wheeler bearing No. WB42J-3773 was being driven by the insured with a Learner’s Licence at the time of accident. As per condition of the Learner’s Licence as noted under Rule 3 of the Central Motor Vehicle Rules and also in the Learner’s Licence itself, the  insured was required to have beside him a person possessing a valid driving licence. This was also noted in the FRT . The use of a Learner’s Licence is strictly subject to such condition as would help the learner lessen the risk of his meeting with any untoward situation . In the present case the absence of such an accompanying  person holding a valid driving licence was to a great extent responsible for the accident and the same was against the policy condition as well as legal requirement. Ld. Advocate appearing for the Appellant cited several decisions of the Hon’ble National Consumer Disputes Redressal Commission and the judgment of the Hon’ble Supreme Court in Revision Petition No. 1433 of 2008 and the judgment of the Supreme Court reported in 2008 (1) TAC 717 (SC) and another judgment  of the Hon’ble Supreme Court reported in 2008 (1) TAC  401 (SC) .

            The Appellant Insurance Company appears to have sent a letter dated 30.08.2007 to the Complainant asking for an explanation as to why her claim should not be repudiated on the ground inter alia of violation of policy condition which reads as follows:

            …. that the person holding an effective Learner’s Licence may also drive the vehicle and that such a person satisfies the requirement of Rule 3 of the Central Motor Vehicles Rules .

            In fact, the Learner’s Licence itself carried the warning as provided under Rule 3 of the Central Motor Vehicles Rules, 1989, which prohibited him from driving any motor vehicle unless he had  beside him a person duly licensed to drive the vehicle  

        It was not enough that the insured possessed a valid Learner’s Licence while he met with an accident. It was more important that he should have taken beside him a person with an effective driving licence in fulfillment of the policy condition.  Hence, though the insured possessed a Learner’s Licence which was valid at the time of accident, his violation of the policy condition as well as the condition of using a Learner’s Licence has been overlooked by the Ld. Forum below which is tantamount to material irregularity, legal infirmity  and jurisdictional error.  

            We are of the considered view the appeal succeeds and the impugned order is liable to be set aside. Hence,

                                                            Ordered

that the appeal be and the same is allowed on contest . The impugned order is set aside. Consequently, the complaint stands dismissed.