PANORAMA CONSTRUCTIONS Vs. ORIENTAL INSURANCE COMPANY LTD

JUDGEMENT

(1.) The challenge in this Appeal is the order of District Forum, South Goa, dated 20.3.1998, in Complaint No.401/93, whereby the same was dismissed by the Forum.

(2.) The complainant/appellant had approached the Forum as the owner of a light motor vehicle, bearing No. GA-02-T-5354, of make Mahindra Alwyn Nishan which was insured with the respondent for the period from 7.9.1992 to 8.9.1993. On 26.5.1993 the vehicle met with an accident and fell in a river of salt water, near Mashem temple, at Canacona, while trying to avoid a dash against a stray cattle. A complaint was lodged on the same day in the police station and the Panchanama was drawn on 27.5.1993. The respondent was also informed about the accident by letter dated 27.5.1993. At the time of the accident the vehicle was driven by one Jose Maric Fernandes, driver of the appellant, who was holding a valid driving licence to drive light motor vehicles for the period from 2.11.1992 to 1.11.2012. The appellant's further case is that the said driver was authorised to drive transport vehicles as a professional through an endorsement to that effect which was valid till 13.5.1996. After the accident the respondent deputed to the spot Surveyor Shri Diwane who visited the site, perused the xerox copy of the licence of the driver, drew photographs and authorised the appellant to remove the vehicle from the salt water. Thereupon the appellant submitted the claim form to the respondent on 7.6.1993 alongwith the estimate sheet of damages prepared by M/s. P. G. Virgincar and Co. for an amount of Rs.2,33,222.31. In addition the appellant spent a sum of Rs.7,000/- to remove the vehicle from the site of the accident. The respondent deputed their Surveyor Shri Y. S. Kamat who inspected the vehicle once again. Thereafter the respondent allowed the complainant to get the vehicle repaired through their letter dated 5.7.1993 and asked to submit the police Panchanama and the driving licence in original, which were sent to them by the appellant. On 16.9.1993 the appellant wrote to the respondent to expedite the settlement of their claim but the respondent, by their letter dated 22.9.1993, informed the appellant about their inability to clear it on the ground that the driver was not holding an effective driving licence and, thus, they have contravened the provision of Sub-section (1) of Sec.3 of Motor Vehicles Act.

(3.) The respondent's stand is that the appellant's vehicle is a transport with public goods carrier permit. Since the driver of the vehicle Jose Mario Fernandes was not having an effective licence to drive such vehicles, the appellant's claim was disallowed. Under Sec.3 of Motor Vehicles Act, 1988, a person holding a non professional licence could not drive a transport vehicle or a public service vehicle. Thus the violation of Sec.3 of the Motor Vehicles Act has rendered the policy void for breach of its terms and conditions and the insurer stood discharged from any liability arising under the policy. The respondent further claimed that, under Sec.5 of the Motor Vehicles Act, the appellant was duty bound not to cause or permit any person who does not satisfy the provisions of Sec.3 to drive vehicles. Therefore, the conduct of the appellant in entrusting the vehicle to a non qualified driver could not be said to be bona fide. They also denied that there was delay in processing the appellant's claim.