NATIONAL INSURANCE COMPANY Vs. SURINDER KUMAR

JUDGEMENT

(1.) THIS is an appeal by the National Insurance Company (in short Insurance Company ) against the judgment and order of the District Forum, Amritsar dated 4.4.2001, by which the complaint of the complainant was allowed in the following terms : "The complaint is allowed with costs of Rs. 500. The opposite party is directed to pay to the complainant amount of Rs. 45,086.32 paise with interest @ 9% p.a. from the date of expiry of one month from the date of Surveyor till actual payment. The amount be remitted to the complainant by way of bank draft or crossed cheque within one month from the date of receipt of copy of order."

(2.) THE facts of this case are in a very narrow compass. The accident of the vehicle, in question, took place during the subsistence of the insurance policy, which was for the period from 20.9.1998 to 19.9.1999 (wrongly mentioned in the order of the District Forum as 21.9.1999 to 20.9.2000). The tuck in question had met with an accident on 13.6.1999. The only ground for repudiating the claim of the claimant -complainant was that the driver of the vehicle was holding a driving licence, which was valid from 16.2.1996 to 15.2.1999 and the same had not been renewed after its expiry. In other words, the driver of the vehicle did not hold any driving licence. These facts are not in dispute. Learned Counsel for the appellant argued that as per the terms and conditions of the policy, the driver of the vehicle must hold a valid driving licence, when a mishap may occur. In the present case, admittedly on 13.6.1999 the driver did not have any licence whatsoever inasmuch as his licence stood expired on 15.2.1999. Since, according to the learned Counsel for the appellant, there was a breach of condition of the policy, the repudiation of the claim was well based.

(3.) ON the other hand, learned Counsel for the respondent relying upon the judgment of the Apex Court in National Insurance Co. Ltd. v. Swaran Singh and Ors., 2004 1 SLT 345, argued that "even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of the driving licence is/are so fundamental as are found to have contributed to the cause of accident. We had also an occasion to consider the similar point in New India Assurance Co. Ltd. v. Dr. J.P. Jain,2006 2 CPJ 92. In that case, after noticing Swaran Singh s case , we observed as under : "8. Faced with this situation, learned Counsel for the respondent, argued that in such cases, relying on the judgment of the Apex Court in Swaran Singh s case , argued that in cases where it was alleged by the Insurance Company that the driving licence held by the driver was fake or the licence was invalid or he had no licence, it must further be proved by Insurance Company that it was because of the breach of the condition that had contributed to the accident. In other words, the breach of the terms and conditions of the policy was the fundamental cause of the accident. In other words, it was the lack of driving skill on the part of the driver that was primarily and fundamentally responsible for the accident. There is nothing on the record to show that the lack of driving skill of the driver of the complainant s vehicle was the fundamental cause of the accident. Added to this fact, there is another circumstance that in fact in the present case later on after the accident the driver did get his licence renewed. In other words, there was nothing wrong in his driving skill or he was in any way disqualified even at a later stage for getting his driving licence. We may also notice the argument of the learned Counsel for the appellant that the observations made in Swaran Singh s case are only qua the 'third party claim and not in case of 'own damages . We had an occasion to deal with similar argument in Oriental Insurance Co. Ltd. v. Mehardeen, Appeal No. 1315 of 2000, decided on 9.9.2005 wherein, after relying on two judgments of the National Commission in New India Assurance Co. Ltd. v. Krishan Bhai, 2005 1 CPJ 81 and National Insurance Co. Ltd. v. Sant Kumar Goyal, 2005 1 CPJ 79, it was held that the observations made by the Apex Court in United India Insurance Co. Ltd. v. Lehru and Ors., 2003 AIR(SC) 1292 and National Insurance Co. Ltd. v. Swaran Singh , not only applied to third party cases but in the cases of 'own damage also."