Oral Order: (Honble Justice D. Appa Rao, President)
1) This is an appeal preferred by the opposite party insurance company against the order of the Dist. Forum directing it to pay Rs. 2,36,000/- amount covered under the policy.
2) The case of the complainant in brief is that he is the owner of Maruthi van, and got it insured under comprehensive insurance policy covering the period from 19.7.2005 to 18.7.2006. While so, it met with an accident on 14.11.2005 in the State of Tamil Nadu. The said fact was informed to the insurance company whereupon a surveyor was drafted. The insurance company by its letter dt. 30.1.2006 repudiated the claim on the ground that the driver was not having valid and effective driving license. Assailing the repudiation, he claimed the amount covered under the policy together with compensation and costs.
3) The appellant insurance company resisted the case. While admitting issuance of policy and the factum of accident and the appointment of surveyor John Simpson it alleged that the surveyor informed that the driver Nagendra was authorised to drive LMV (Non-transport) however, the vehicle in question is a passenger carrying vehicle, he must have LMV (Transport) license with badge. However, the complainant tried to produce the driving license of one A. Raghuramudu and tried to mis-represent for claiming damages. Moreover the vehicle was under hire purchase agreement with M/s. Cholamandalam Investment Finance Ltd. and that the name of the financier was mentioned as owner in the registration certificate, and that the complainant was not having any locus standi to file the complaint, and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A12 marked while the appellant filed Exs. B1 to B8.
5) The Dist. Forum after considering the evidence placed on record opined that the driving license of Nagendra shows that he can drive the LMV and therefore authorised to drive the vehicle in question, and directed the insurance company to pay Rs. 2,36,000/- covered under the policy.
6) Aggrieved by the said order , the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the driving license of the driver does not authorise him to drive a passenger carrying LMV (Transport) vehicle and therefore the complainant was not entitled to the amount and prayed for dismissal of the complaint with costs.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant had taken a comprehensive insurance policy Ex. A1 for a sum of Rs. 2,36,788/- covering the period from 19.7.2005 to 18.7.2006. The certificate of insurance shows that it was a âpassenger carrying commercial vehicleâ. Exs. B5 further confirms the same. It is also not in dispute that the vehicle met with an accident on 14.11.2005 in the State of Tamil Nadu during the currency of the policy. A surveyor was appointed who in his enquiry opined that Nagendra who was driving the vehicle was not having valid driving license to drive the vehicle in question. It seems that on 28.11.2005 the complainant again informed the insurance company that in fact Mr. A. Raghu Ramudu was driving the vehicle, the complainant despite the fact that the surveyor in his report Ex. B1 mentioned that one Nagendra was driving and noted the driving license, the complainant later asserted that it was one A. Raghu Ramudu who was driving the vehicle. The complainant did not file the report given to the police obviously he was afraid that it would reveal that Nagendra was driving the vehicle. Nagendra was admittedly not having driving license to drive the LMV (transport) vehicle. The complainant did not file the report that was given to the police in order to prove that A. Raghu Ramudu is driving the vehicle. The record discloses that the driver was not authorised to drive LMV (Transport) vehicle for which the policy was given, a violation of conditions of the policy.
9) At the outset, we may state that the this is not a third party claim where driving license of the driver may not have any significance. This is a claim made by the very insured for the damage sustained to his vehicle. The stipulation in the policy is that at the time when the accident took place the driver must have valid and effective driving license. When admittedly the driver was only having LMV (non-transport) license, and was not having any license for driving transport vehicle which in fact registered as transport commercial vehicle it must be held that it is a fundamental breach of terms of the policy. The driver holding license to drive non-transport vehicle cannot drive transport vehicle. Necessarily he has to obtain an endorsement to that effect in his license. It is made clear in New India Assurance Company Ltd. Vs. Prabhulal reported in I (2008) CPJ 1 (SC). The Supreme Court observed :
âIn our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a Light Motor Vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.
We may state that the Supreme Court had relied two more decisions in the above Prabhulals case which we excerpt.
In the matter of Nasir Ahmed (SLP No. 7618 of 2005), the vehicle was a luxury taxi passenger carrying commercial vehicle. There also the driving licence issued in favour of the driver was to ply Light Motor Vehicle (LMV) and hence the driver could not have driven the vehicle in question. In that case too, the licence was renewed for a period of twenty years i.e. from February 5, 2000 to February 4, 2020. Again, there was no endorsement as required by Section 3 of the Act. A specific plea was taken by the Insurance Company but the Authorities held the Insurance Company liable which could not have been done. The reasoning and conclusion arrived at by us in the matter of Prabhu Lal (SLP No. 7370 of 2004) would apply to the case of Nasir Ahmed. That appeal is, therefore, allowed.
In Chandra Prakash Saxena (SLP No. 17794 of 2004), the vehicle involved in accident was a Jeep Commander made by Mahindra and Mahindra, a passenger carrying commercial vehicle, and in view of the fact that the driver was holding licence to drive Light Motor Vehicle (LMV), he could not have plied the vehicle in question. For the reasons recorded hereinabove in the main matter of Prabhu Lal i.e. SLP(C) No. 7370 of 2004, the Insurance Company could not have been held liable and that appeal also deserves to be allowed.
10) In the light of decision of Honble Supreme Court cited above, we are of the opinion that as the driver was not having requisite valid and effective driving license to drive the transport vehicle we hold that the complainant is not entitled to any compensation. It is violation of terms and conditions of the policy as well provisions of M.V. Rules.
11) The Dist. Forum despite the fact that the matter was remanded for fresh enquiry observed that â Ex. B4 and B5 were dt. 8.12.2009 and these exhibits were issued by the concerned long after the disposal of the original complaint and opined that same could not be considered. The fact remains that the vehicle was transferred in favour of one N. Subramanyam with effect from 22.2.2007 and necessary registration certificate was issued on the same day while the accident took place on 14.11.2005. We may state that this would not have any bearing in the sense the complainant being owner at the time of accident, subsequent sale would not be of any material. In view of the fact that the driver who was driving the vehicle at the time of accident was not having valid and effective driving license a violation of policy conditions, the complainant was not entitled to any amount.
12) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently, the complaint is dismissed. However, no costs.