State Consumer Disputes Redressal Commission
Sh. Desh Raj vs The Oic Ltd on 28 July, 2010
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Appeal No. 461/2009. Date of Decision 28.7.2010. In the matter of: Sh. Desh Raj son of Shri Ram Lal R/o Vill. Thamoh, PO Killar, Tehsil Pangi, Distt. Chamba, HP. Appellant. Versus The Oriental Insurance Company Ltd. Kullu, Distt. Kullu, HP. Respondent. Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member. Honble Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? No. For the Appellant: Mr. Naveen K. Bhardwaj, Advocate. For the Respondent. Mrs. Seema Sood, Advocate. O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
Consumer Complaint No. 52/2007 filed by the appellant has been dismissed vide impugned order dated 21.8.2009, by the District Forum below. Vehicle involved in this case is a tractor bearing Registration No. HP-45-0107. It was insured in the sum of Rs. 2 lacs with the respondent when it met with accident on 17.11.2005, at Shukru Bridge over Chanderbhaga River Alwas, Killar Road,Tehsil & PO Killar, Distt. Chamba. From the record of the complaint file it is established, that this was a case of total loss because tractor was not traced after accident as it has gone into the river. Accident was reported on the next day, i.e. on 18.11.2005 to the police. Copy of the FIR registered at Police Station, Pangi is at pages 38 and 39 of the complaint file.
2. After accident intimation was given by the appellant to the respondent is again admitted, because thereafter latter deputed Er. Mohinder K. Sharma to assess the loss. His report is Annexure OP-7. After taking note of IDV at which the tractor was admittedly insured, he assessed the liability of the respondent-insurer at Rs. 1.98 lacs.
Instead of settling the claim of the appellant, it was repudiated vide Annexure OP-13 on 24.7.2007. This resulted in filing of the complaint before the District Forum below.
3. While contesting the complaint filed by the appellant, stand of the respondent was that the vehicle in question though insured as a private service vehicle, but the appellant was regularly paying necessary token tax, thus it was being used for commercial purpose. Use of vehicle for commercial purposes could not be disputed on behalf of the appellant in the face of copy of the registration certificate filed along with the complaint. Its perusal shows that he was paying regular token tax from time to time. Copy of the registration certificate is at pages 52 to 56 of the complaint file.
In addition to this, further stand of the respondent as insurer was, that the driver who was on the wheel at the time of accident, i.e. Shri Raj Kumar was not holding a valid and effective driving licence whereby he was licensed to drive a tractor for commercial purposes, as such there being violation of the policy conditions, it was not liable to indemnify the appellant. District Forum below after taking note of all the facts has dismissed the complaint, hence this appeal.
4. Mr. Bhardwaj learned counsel for the appellant submitted that so far insurance of the tractor as a private vehicle is concerned, his client had no role to play. As according to him whatever premium was demanded by the Agent/Development Officer of the respondent while insuring the vehicle at the relevant point of time was paid as a result of which cover note was issued. In case higher premium had been demanded, and or his client was informed at that point of time, that in case of a commercial vehicle insurance premium would be higher, his client would have gladly paid the same. While buttressing this submission, Mr. Bhardwaj also urged that there is no evidence produced by the respondent to the effect, that despite having been put to notice, the appellant chose to pay the premium that was chargeable for insuring a private service vehicle. Regarding licence of the driver Mr. Bhardwaj submitted that the tractor in question was a light motor vehicle and looking to its unladen weight, it is duly covered by Section 2 (21) of the Motor Vehicles Act, 1988. Thus according to him there was no infirmity in the licence of Sh Raj Kumar driver and he was legally entitled to have driven the tractor at the time of accident. By referring to the driving licence, Mr. Bhardwaj pointed out that even the licence was endorsed whereby the driver was licensed to drive a tractor as well. Therefore, according to him impugned order is the result of misreading and mis-appreciation of evidence by the District Forum below.
5. All these pleas were seriously contested by Mrs. Sood learned counsel for the respondent. According to her whatever policy was asked for by the appellant was issued. In case it was intended to ply the tractor as a commercial vehicle, as is the situation in this case, it was the duty of the appellant to have disclosed this fact, so that proper policy could be issued while insuring the tractor in question.
Regarding licence her submission was two-fold. Firstly the driver was authorized to drive a light motor vehicle, and secondly the tractor was used for commercial purposes, therefore unless it had the endorsement whereby the driver was authorized to drive a transport vehicle, the driver could not have driven the tractor. Regarding endorsement whereby the driver is stated to have been licensed to drive the tractor, her submission was simple that this endorsement is not endorsed/signed by any competent authority. Further according to her, who have made such an endorsement and at what point of time, there is nothing on record.
6. We have gone through the record of the complaint file and have also heard learned counsel for the parties. We find substance in the submission of Mr. Bhardwaj that whatever premium was asked for by the Agent/Development Officer of the respondent while insuring the tractor in question, it was paid by his client. Had the appellant been put to notice qua the applicable premium in case of a commercial vehicle, we see no reason why the appellant would not pay the same. It may be appropriate to mention that looking to the compensation being awarded in case of motor vehicle accidents by the tribunals constituted under the Motor Vehicle Act, 1988 owners tried to get themselves insured for being indemnified in case of any mishap. In case the respondent wanted to take advantage that the appellant had got insured as a private vehicle, in such a situation proposal form and other contemporaneous official record maintained in its office ought to have been placed on record. Non production of such record compels us to draw adverse inference against the respondent to the effect, that had the same been produced, it would not have supported its case. Hence this plea on behalf of the appellant is upheld.
7. Now comes the question of licence. On a perusal of the licence copy whereof has been filed by the respondent as Annexure OP-12, we are prima facie satisfied that as per this licence, driver Raj Kumar was authorized to drive a light motor vehicle, besides motorcycle/scooter. In the licence copy whereof is at page 35 of the complaint file, there is handwritten endorsement showing that the driver was authorized to drive tractor/LMV/MC/Scooter. However immediately next to it in this driving licence there is mention, the licence to drive a motor vehicle other than transport vehicle is valid from 18.8.2003 to 17.8.2003. This shows that the licence was issued for the period of 5 years whereas in case of a transport vehicle under the Motor Vehicles Act, 1988 validity period is three years, and it has to be got renewed thereafter in accordance with law. That being the position, we are satisfied that the driver was not authorized to have driven the tractor in question.
8. Another reason to take this view is, that in the licence it is one of the category of the vehicles for driving which Raj Kumar was licensed, given is tractor before car/jeep. If he had actually been authorized to drive the tractor, it would have found mention there itself and there was no need to make endorsement in hand at the bottom of the driving licence.
9. Now comes the question whether the appeal is to be dismissed in its entirety or the impugned order calls for interference. This question need not detain us in the face of the decision of the Honble Supreme Court in the case of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC). From the above facts violation of the policy condition in this case on the part of the appellant is made out. Therefore such violation is covered by, any other breach of warranty/condition of policy including limitation as to its use.
In the face of this position, we are of the view that appellant will be entitled to 75% of the sum insured, i.e. Rs. 1,50,000/-. Reason for taking this view is, that the tractor in question was insured on IDV basis which position was not disputed on behalf of the respondent as well. And as already noted, this is a case of total loss because the tractor had gone into the river after accident and has not been retrieved till date, according to learned counsel for the appellant. In these circumstances, we are of the view that salvage cannot be ordered to be returned by the appellant to the respondent.
10. No other point was urged.
In view of the aforesaid discussion while allowing this appeal order passed by District Forum, Chamba in Consumer Complaint No. 52/2007, dated 21.8.2009 is set aside and as a result of it this appeal is allowed and it is ordered that the respondent is liable to pay a sum of R. 1.50 lacs with 9% interest from the date of filing of the complaint, i.e. 1.12.2007 till the date of payment/deposit whichever is earlier. Appeal is disposed of in these terms.
Before parting with this case, we clarify that if at any point of time hereafter the tractor is retrieved from the river, respondent-Insurance Company shall be entitled to its possession and to deal with the same as its absolute owner. Thus the appellant is directed to execute a letter of subrogation in favour of the respondent as well as a power of attorney to enable the latter to deal with the tractor in case it is retrieved in future. In this behalf appellant is directed to do the needful by or before 31.10.2010. It is made clear that in case needful is not done by this date, interest on the awarded amount shall cease to be payable by the respondent. Regarding registration certificate if it is available with the appellant he will hand it over, otherwise he will obtain its duplicate and provide the same to the respondent at its Chamba office along with documents.
Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.
Shimla, July 28, 2010. ( Justice Arun Kumar Goel ) (Retd.) President.
(Saroj Sharma) Member.
( Chander Shekher Sharma ) /Karan/ Member.