Judgment:
Oral Order:
Per Mr.P.N.Kashalkar, Honble Presiding Judicial Member
1. This is an appeal filed by the Oriental Insurance Co./original O.P. against the judgment and award passed by Additional District Consumer Forum, Pune in consumer complaint no.47/2005, whereby while allowing the complaint, Forum below directed Insurance Co. to pay an amount of Rs.54,630/- to the complainant with interest @ 9% p.a. from receipt of the order. O.P. was further directed to pay an amount of Rs.1000/- towards the cost. Facts to the extent material may be stated as under:-
2. Three complainants filed the consumer complaint against M/s.Oriental Insurance Co.Ltd. seeking insurance claim, cost and compensation from the Company. Case of the complainants in the Forum below in the complaint was that complainant Mr.Vijaykumar Ramesh Pathak was the owner of tempo three wheeler bearing Registration no.MH-14-V-8907. Said tempo met with an accident on 4/6/2004 at Mumbai Pune Highway, Near Khadki railway station. It dashed against luxury bus. In the said accident Mr.Jaikumar Ramesh Pathak, who was driving the tempo died. Complainant nos.1 and 2 are father and mother and no.3 is the brother of deceased Mr.Jaikumar Ramesh Pathak. According to complainants, said tempo was insured with the opponent by the policy no.161800/31/2004/10259. After accident, claim was preferred with the O.P. for the amount of Rs.54,630/-, but O.P. repudiated the claim by letter dated 10/12/2004, on the ground that at the time of accident three persons were traveling in the goods vehicle and it was beyond the scope of policy and hence complainants were required to file present complaint in the Forum below asking for Rs.54,630/- towards repairs of the tempo, Rs.20,000/- towards compensation and Rs.5000/- towards the cost.
3. Complainant no.3-Mr.Vijaykumar Ramesh Pathak filed his affidavit in support of the claim and also filed repudiation letter, insurance certificate, driving license of the deceased, police papers, etc.
4. O.P. Insurance Co. filed written statement and resisted the complaint. According to O.P. present matter involves question of law and facts and opinion of experts and therefore, it is required to be tried and decided by the Civil Court. O.P. pleaded that at the time of accident, vehicle was used for carrying passengers. There were three persons travelling in the said tempo and insurance cover was not provided for carrying passengers, also driver was not holding valid driving license and therefore, their liability was excluded on both the counts. Insurance company therefore pleaded that complaint should be dismissed with cost.
5. O.P. filed affidavit of Mr.Prashant G.Thorat in support of their stand taken in the written statement.
6. Upon hearing rival counsels and perusal of documents and affidavits, Forum below held that repudiation of insurance claim by the Insurance Co. amounts to deficiency in service and therefore, it allowed the complaint and directed Insurance Company to pay the amount of Rs.54,630/- with interest @ 9% p.a. and also to pay cost of Rs.1000/-. As such, Insurance Co. has filed this appeal.
7. We heard submissions of Mr.Sanjay Mhatre-Advocate for the appellant. None appeared for the respondent.
8. There is misc. application filed in this appeal seeking condonation of delay. Delay is of 27 days. Affidavit is filed in support of condonation of delay application. In the affidavit strong grounds have been made out seeking condonation of delay. Relying on the affidavit, we are inclined to allow misc. application for condonation of delay subject to cost of Rs.500/-. We allow the misc.application for condonation of delay on payment of cost of Rs.500/- payable by the appellant to the respondent.
9. We heard appeal on merits. We are finding that the driver of the vehicle was not having effective driving licence at the time of accident. Mr.Mhatre took us to the investigation report submitted by Advocate Ms.Neelakshi Panvalkar. In the investigation report, it has been mentioned that deceased driver Mr.Vijaykumar Pathak, who was driving the tempo containing vegetables, one Mr.Anna Bapu Mahajan, teacher in the Blind school was with the deceased and one Mrs.Sunita Ramesh Walunjkar was also travelling in the insured vehicle, but he was not aware, if she had given any fare to the driver of the tempo. Insurance Company produced the RTO certificate dated 22/1/2008. As per RTO certificate, deceased was having two licenses one was Motor Cycle license, which is renewed on 17/7/1998 and it was to expire on 16/7/2018 and another was Light Motor Vehicle transport license renewed on 10/2/1999 and it expired on 9/2/2002. In the certificate, it has been mentioned that the license of Light Motor Vehicle transport had expired on 9/2/2002 and it was not renewed by the driver and accident took place on 4/6/2004 in which deceased was killed in the accident. License of Mr.Jaikumar Ramesh Pathak was also produced on record, which shows that license of transport vehicle was valid from 10/2/1999 to 9/2/2002. This fact was not considered by the Forum below. Forum below held that along with the complaint, complainant had produced copy of driving license of deceased Mr.Jaikumar Ramesh Pathak and Forum below found that it was proper and valid, but we are finding that deceased Jaikumar Ramesh Pathak was having two licenses. One was Motor cycle license with gear and another was Light Motor Vehicle transport. For Motor cycle with Gear, license was renewed from 17/7/1998 to 16/7/2018 and for Light Motor Vehicle (transport), license was renewed from 10/2/1999 to 9/2/2002. It is further supported by Advocate Ambarkar, who had submitted report about motor driving license possessed by deceased Mr.Jaikumar Ramesh Pathak. Relying on these two documents and also after seeing copy of license placed on record, we are finding that license of the deceased Mr.Jaikumar Ramesh Pathak was renewed from 25/8/2003 to 24/8/2005, but it was license renewed to drive motor vehicles other than transport vehicles and admittedly, vehicle no.MH-14-V-8907 was transport vehicle and therefore, Forum below committed an error in law in allowing the complaint and passing award in favour of the complainant. Fact that deceased was not having effective driving license of driving LMV transport vehicle was not established from the available RTO record produced by the complainant in the Forum below. From the letter of Savita V. Ambarkar dated 25/1/2008, from the information she has collected from RTO, Chinchwad, it was clear that license of the deceased for driving Light Motor Vehicle expired on 9/2/2002. Letter of RTO, Chinchwad dated 22/1/2008 is also placed on record, which supports this statement of Advocate Ms.Savita V.Ambarkar and accident took place on 4/6/2004. Therefore, at the time of accident the deceased was not possessing effective driving license for driving LMV transport and admittedly, tempo in question was LMV transport. As such, since deceased committed breach of important terms and conditions of the contract of insurance, the claim allowed by the Forum below is unjust and improper. Therefore, by allowing this appeal, judgment and award passed by the District Consumer Forum will have to be quashed and set aside. Hence we pass following order:-
ORDER
1. Misc. application no.126/2009 for condonation of delay is allowed subject to payment of cost of Rs.500/- payable by the appellant to the respondent.
2. Appeal is allowed.
3. Impugned order is quashed and set aside.
4. Complaint stands dismissed.
5. Misc.application no.127/2009 for stay stands disposed of.
6. Copies of the order be furnished to the parties.