L. Manoharan, President:
1. Opposite party in O.P. No. 387/1996 on the file of the Consumer Disputes Redressal Forum, Idukki is the appellant. Complainant’s autorickshaw which was insured with the opposite party for the period from 10.2.1996 to 9.2.1997 met with an accident on 14th April, 1996 whereby the autorickshaw sustained damage; for repair of the same he had to incur expenses towards labour charges and the value of spare parts. In view of the same he made a claim with the opposite party for an amount of Rs. 21,500/-. The claim was repudiated by the opposite party. Opposite party in their version contended that on receiving the claim they appo
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nted a Surveyor who assessed the damages at Rs. 10,258/-. But, since the driver of the vehicle at the time of the accident did not have valid licence to drive a transport vehicle, the complainant committed breach of the conditions in Ext. B1 insurance policy, consequently the complainant is not eligible to be indemnified. Before the District Forum complainant gave evidence as P.W. 1 and produced Exts. A1 to A3. Opposite party produced Exts. B1 to B3. On a consideration of the said material District Forum made a direction to the opposite party to pay Rs. 16,000/- along with costs Rs. 500/-. Interest @ 12% was also allowed on the principal amount, in case of default in payment of the said amount within one month of the receipt of the copy of the order. It is the said direction that is under challenge in this appeal.2. Learned Counsel for the appellant maintained that autorickshaw being a transport vehicle the driver should have badge under Rule 6 of the Kerala Motor Vehicle Rules, 1989. The condition therein had also to be satisfied. Reliance was made by the learned Counsel on the decision of the Kerala High Court in 2000 (1) KLT 224, Govindankutty Nair v. Gopalkrishnan, wherein it is held that the requirement of driver’s badge is mandatory to drive transport vehicle, autorickshaw. He also made reliance on the decision of the National Commission in New India Assurance Co. Ltd. v. Jadav Narendrabhai Jetha Bhai, I (1996) CPJ 230 (NC), wherein an autorickshaw was driven by a person not holding effective driving licence as the driving licence was not renewed in time caught fire while the autorickshaw was being plied. The National Commission held that the Insurance Company is justified in repudiating the claim. On the other hand learned Counsel for the respondent made reliance on the decision of this Commission in I (1999) CPJ 107, Oriental Insurance Co. Ltd. v. K.A. Kabeer, as well as the decision in I (1999) CPJ 688=1999 (1) CPR 449, Branch Manager, Oriental Insurance Co. Ltd. v. V.M. Joseph, to maintain that in the facts and circumstances of the case the principle laid down in the aforesaid decision would apply particularly in the view of decision of the Supreme Court in II (1996) CPJ 28 (SC), B.V. Nagaraju v. Oriental Insurance Co. Ltd. It may not as such be necessary to go into the applicability of the decisions in Oriental Insurance Co. Ltd. v. K.A. Kabeer (supra), and the decision in Joseph’s case (supra), if in the facts of this case the breach of the condition is not that fundamental as to relieve the insurer from the liability to indemnify the insured.3. The requirement of the driving licence is as per Section 3 of the Central Motor Vehicles Act, 1988. Sub-section (1) of the said section enjoins that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motor cab or motor cycle hired for his own use or rented under any scheme made under Sub-section (2) of Section 75] unless his driving licence specifically entitled him so to do. Since the autorickshaw is a transport vehicle, the driver of the vehicle should have had a badge. The accident in this case on 14.4.1996; the driver of the vehicle did not have badge on that particular date, though Ext. B3 photocopy of driving licence shows that he obtained licence to drive transport vehicle with effect from 2.7.1996 till 1.7.1999, before that he had licence to drive a motor vehicle other than transport vehicle valid from 27.9.1994 to 26.9.2014. At the time of accident he did not have badge.4. The specific case of the complainant is that at the time of the accident the vehicle was not being used as a transport vehicle, the complainant’s brother was required to take the vehicle to the house for parking the same when it met with the accident. In his evidence as P.W. 1 he has sworn consistent with his case and said that at the time of accident there was no passenger in the vehicle; in other words when the vehicle met with the accident the same was in his personal use, and while it was being taken for parking at his residence.5. P.W. 1 was not cross-examined on the aforesaid aspect neither is the aforesaid case in complaint denied in the version. The District Forum in the impugned order observes that “there were no passengers in it. It was being taken home to be parked for the day, after the day’s run. The facts are not disputed”.6. Now it becomes relevant and necessary to read the conditions in Ext. A1 cover note of the policy. As per the second proviso to the class of persons entitled to drive, a person holding learner’s licence when not used for transport of passengers and satisfies Rule 3 of the Central Motor Vehicle Rules, 1989 also can drive the vehicle. The District Forum is of the view, if a person holding a learner’s licence can drive the vehicle a person having licence to drive, in the circumstance, can also drive while there is no passenger in the vehicle. Here the admitted facts reveal that accident occurred while the vehicle was being taken for parking and there was no passenger in the vehicle. The person who drove the vehicle has licence to drive, though did not have badge. He certainly must be treated to be better skilled to drive than the holder of learner’s licence. Then the question is whether the breach of the condition is that fundamental as to relieve the insurer from his obligation to indemnify in the admitted facts of the case. Having regard to the aforesaid admitted facts and the particular circumstance of the case, we cannot hold that the breach of the condition is that fundamental as to exonerate the insurer from the liability to indemnify the insurer. In such circumstance, we are of the view that there is nothing to interfere in the impugned order. The appeal is liable to be dismissed which accordingly is dismissed. However, there will be no order as to costs.
"2001 (3) CPJ 40,"