New India Assurance Company Limited, Through Divisional Manager, Pune Vs. Smt.Sunita Dashrath Shinde, Pune - Court Judgment

SooperKanoon Citationsooperkanoon.com/1111116
CourtMaharashtra State Consumer Disputes Redressal Commission SCDRC Mumbai
Decided OnSep-15-2009
Case NumberFirst Appeal No.17 of 2009 @ M.A.No.29 of 2009 (In Consumer Complaint No.38 of 2005)
JudgeMr. P.N. Kashalkar, Hon’ble Presiding Judicial Member, Mrs. S.P. Lale, Hon’ble Member.
AppellantNew India Assurance Company Limited, Through Divisional Manager, Pune
RespondentSmt.Sunita Dashrath Shinde, Pune
Advocates:Mr. R.P. Bafna, Adv. for the Appellant.
Excerpt:
oral order: per mr. p.n. kashalkar, honble presiding judicial member 1) this is an appeal by the original o.p./new india assurance company limited, pune against the judgment and award passed by district consumer forum, pune in consumer complaint no.38/2005 decided on 29/8/2008. while allowing the complaint, the forum below directed original o.p./insurance company to pay to the complainant rs.1,36,215/- together with interest at the rate of 9% per annum from 19/8/2004 till realization thereof. 2) facts to the extent material may be stated as under 3) complainant smt. sunita dashrash shindes son vijay shinde was owner of vehicle no.mh-12-tc-146/a. said vehicle was insured with o.p./insurance company from 7/11/2003 to 6/11/2004. the premium amount was already paid by the complainant which included personal accident cover to the driver/owner of rs.1 lakh. complainants son met with an accident on 23/11/2003. he was driving the vehicle with his friend yogesh kadam and they were going from pashan towards bavdhan. from opposite direction, sumo jeep came in excessive speed and gave dash to the vehicle driven by vijay. he sustained serious injuries in the said accident and succumbed to the injuries on 25/11/2003. complainant therefore preferred insurance claim with the o.p. claiming rs.1 lakh on account of accidental death of vijay and rs.36,215/- on account of repairs carried out the vehicle. however, o.p. repudiated the claim on the ground that as per motor vehicle act and rules framed there under, the rider of the two wheeler who has only a learners license can drive vehicle only when he is accompanied by pillion rider if he is a permanent license holder. in the case of complainant, vijay was having learners license and he was not accompanied with a pillion rider who was having permanent license and therefore claim was repudiated. hence, she filed consumer complaint. 4) o.p. filed written statement and admitted most of the facts but pleaded that complainant was called upon to furnish driving license of the pillion rider of the motor cycle because complainants son was simply having learners license while driving the said vehicle and when accident took place. but complainant did not produce permanent driving license of the pillion rider because pillion rider did not possess any such permanent license. so, there was breach of condition of policy and therefore the insurance company pleaded that claim was rightly repudiated by it. 5) on the basis of affidavits and documents placed on record, the forum below applying ratio of honble supreme court reported in the case of national insurance company limited –v/s- swaran singh and ors. (i 2004 clt 1 (sc) held that even if a vehicle was being driven at the time of accident by a person having learners license, the insurance company would be liable to satisfy the decree and therefore the forum below allowed the complaint and passed impugned award. as such, the insurance company has filed this appeal taking strong exception to the said judgment and award. 6) we heard submissions of mr. r.p. bafna, adv. for the appellant and none was present for the respondent. 7) there is a delay of 69 days in filing of appeal. delay is properly explained by stating just and sufficient cause. insurance company is also filed affidavit in support of condonation of delay application. since, just and sufficient cause has been shown to our satisfaction, we are inclined to allow the application subject to some payment of cost. miscellaneous application no.29/2009 for condonation of delay is allowed subject to payment of cost of rs.1,000/- payable by the insurance company to the legal aid fund of this commission. 8) we are finding that the learned district forum erroneously applied ratio of swaran singhs case to the instant facts and circumstances. in the said case, apex court laid down that insurance company would be liable to pay insurance claim in respect of third party claims even if the driver of the vehicle was having learners license but when owner is claiming insurance claim and he is not having effective driving license then such claim would not be payable and this has been laid down by the honble supreme court in the case of national insurance company limited –v/s- laxmi narain dhut, reported in 2001 acj 721. thus, relying upon the latest ruling of honble supreme court, we hold that if a driver or owner of the vehicle is not having effective driving license at the time of accident, then owners claim for compensation can well be repudiated lawfully by the insurance company. in our case, deceased who was the owner of the vehicle was driving the vehicle with learners license only. he should have driven the vehicle with pillion rider having permanent driving license. this is requirement of rule 3 of central motor vehicle rule, 1989 and this was clearly printed on the policy issued to the insured vijay shinde. he violated the important term of policy and complainant failed to establish by adducing evidence before insurance company or in the forum below that vijay shinde was driving the vehicle with pillion rider having permanent driving license at the time of accident. on this count itself, the complaint should have been dismissed but it was erroneously allowed relied on swaran singh judgment of honble supreme court. however, in the case of national insurance company limited –v/s-laxmi narain dhut, the honble supreme court clarified that the swaran singhs case would apply to those claims preferred by third party under third party risk u/s 149(1) but it would not apply to own damage claim and therefore relying on this ruling of honble supreme court, we hold that the insurance claim was not payable to the respondent because respondents son was having learners driving license and he was not accompanied with a pillion rider having permanent driving license at the time of accident. in the circumstances, we hold that appellant insurance company rightly repudiated the insurance claim but the forum below erroneously allowed the claim of the complainant and as such the said judgment will have to be quashed and set aside in view of latest ruling of honble supreme court mentioned supra. as such we pass following order. order: 1) m.a.no.29/2009 which is for condonation of delay is allowed. 2) delay is condoned subject to payment of cost of rs.1,000/- payable by the appellant/insurance company to the legal aid fund of this commission. 3) appeal is allowed. 4) impugned judgment and award passed by the forum below in consumer complaint no.38/2005 is hereby quashed and set aside. 5) complaint stands dismissed. 6) inform the parties accordingly. 7) the amount if any deposited by the appellant/insurance company be refunded to it.
Judgment:

Oral Order:

Per Mr. P.N. Kashalkar, Honble Presiding Judicial Member

1) This is an appeal by the original O.P./New India Assurance Company Limited, Pune against the judgment and award passed by District Consumer Forum, Pune in Consumer Complaint No.38/2005 decided on 29/8/2008. While allowing the complaint, the Forum below directed original O.P./insurance company to pay to the complainant Rs.1,36,215/- together with interest at the rate of 9% per annum from 19/8/2004 till realization thereof.

2) Facts to the extent material may be stated as under

3) Complainant Smt. Sunita Dashrash Shindes son Vijay Shinde was owner of vehicle No.MH-12-TC-146/A. Said vehicle was insured with O.P./insurance company from 7/11/2003 to 6/11/2004. The premium amount was already paid by the complainant which included personal accident cover to the driver/owner of Rs.1 Lakh. Complainants son met with an accident on 23/11/2003. He was driving the vehicle with his friend Yogesh Kadam and they were going from Pashan towards Bavdhan. From opposite direction, Sumo jeep came in excessive speed and gave dash to the vehicle driven by Vijay. He sustained serious injuries in the said accident and succumbed to the injuries on 25/11/2003. Complainant therefore preferred insurance claim with the O.P. claiming Rs.1 Lakh on account of accidental death of Vijay and Rs.36,215/- on account of repairs carried out the vehicle. However, O.P. repudiated the claim on the ground that as per Motor Vehicle Act and rules framed there under, the rider of the two wheeler who has only a learners license can drive vehicle only when he is accompanied by pillion rider if he is a permanent license holder. In the case of complainant, Vijay was having learners license and he was not accompanied with a pillion rider who was having permanent license and therefore claim was repudiated. Hence, she filed consumer complaint.

4) O.P. filed written statement and admitted most of the facts but pleaded that complainant was called upon to furnish driving license of the pillion rider of the motor cycle because complainants son was simply having learners license while driving the said vehicle and when accident took place. But complainant did not produce permanent driving license of the pillion rider because pillion rider did not possess any such permanent license. So, there was breach of condition of policy and therefore the insurance company pleaded that claim was rightly repudiated by it.

5) On the basis of affidavits and documents placed on record, the Forum below applying ratio of Honble Supreme Court reported in the case of National Insurance Company Limited –V/s- Swaran Singh and Ors. (I 2004 CLT 1 (SC) held that even if a vehicle was being driven at the time of accident by a person having learners license, the insurance company would be liable to satisfy the decree and therefore the Forum below allowed the complaint and passed impugned award. As such, the insurance company has filed this appeal taking strong exception to the said judgment and award.

6) We heard submissions of Mr. R.P. Bafna, Adv. for the appellant and none was present for the respondent.

7) There is a delay of 69 days in filing of appeal. Delay is properly explained by stating just and sufficient cause. Insurance Company is also filed affidavit in support of condonation of delay application. Since, just and sufficient cause has been shown to our satisfaction, we are inclined to allow the application subject to some payment of cost. Miscellaneous Application No.29/2009 for condonation of delay is allowed subject to payment of cost of Rs.1,000/- payable by the insurance company to the Legal Aid Fund of this Commission.

8) We are finding that the learned District Forum erroneously applied ratio of Swaran Singhs case to the instant facts and circumstances. In the said case, Apex Court laid down that insurance company would be liable to pay insurance claim in respect of third party claims even if the driver of the vehicle was having learners license but when owner is claiming insurance claim and he is not having effective driving license then such claim would not be payable and this has been laid down by the Honble Supreme Court in the case of National Insurance Company Limited –V/s- Laxmi Narain Dhut, reported in 2001 ACJ 721. Thus, relying upon the latest ruling of Honble Supreme Court, we hold that if a driver or owner of the vehicle is not having effective driving license at the time of accident, then owners claim for compensation can well be repudiated lawfully by the insurance company. In our case, deceased who was the owner of the vehicle was driving the vehicle with learners license only. He should have driven the vehicle with pillion rider having permanent driving license. This is requirement of rule 3 of Central Motor Vehicle Rule, 1989 and this was clearly printed on the policy issued to the insured Vijay Shinde. He violated the important term of policy and complainant failed to establish by adducing evidence before insurance company or in the Forum below that Vijay Shinde was driving the vehicle with pillion rider having permanent driving license at the time of accident. On this count itself, the complaint should have been dismissed but it was erroneously allowed relied on Swaran Singh judgment of Honble Supreme Court. However, in the case of National Insurance Company Limited –V/s-Laxmi Narain Dhut, the Honble Supreme Court clarified that the Swaran Singhs case would apply to those claims preferred by third party under third party risk U/s 149(1) but it would not apply to own damage claim and therefore relying on this ruling of Honble Supreme Court, we hold that the insurance claim was not payable to the respondent because respondents son was having learners driving license and he was not accompanied with a pillion rider having permanent driving license at the time of accident. In the circumstances, we hold that appellant insurance company rightly repudiated the insurance claim but the Forum below erroneously allowed the claim of the complainant and as such the said judgment will have to be quashed and set aside in view of latest ruling of Honble Supreme Court mentioned supra. As such we pass following order.

Order:

1) M.A.No.29/2009 which is for condonation of delay is allowed.

2) Delay is condoned subject to payment of cost of Rs.1,000/- payable by the appellant/insurance company to the Legal Aid Fund of this Commission.

3) Appeal is allowed.

4) Impugned judgment and award passed by the Forum below in Consumer Complaint No.38/2005 is hereby quashed and set aside.

5) Complaint stands dismissed.

6) Inform the parties accordingly.

7) The amount if any deposited by the appellant/insurance company be refunded to it.