State Consumer Disputes Redressal Commission
B.M. Cholamandalam Gen.Insurance vs Vinod Malik & Anr. on 6 April, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/14/620
Instituted on : 15.09.2014
1. Branch Manager,
Cholamandalam MS General Insurance Company Ltd.
2nd Floor, Simran Tower, In Front of LIC Office, Pandri,
Raipur (C.G.) 492001
2. Cholamandalam MS General Insurance Company Ltd.
Dare House, 2nd Floor, No.2, NSC Bose Road,
Chennai, Pin 600001 ... Appellants.
Vs.
1. Vinod Malik, S/o Shri Mathura Prasad Malik,
Aged about 40 years,
R/o : Manendragarh Road,
Ambikapur, District Surguja (C.G.)
2. Indusind Bank Limited,
Ambedkar Chowk,
Ambikapur, District Surguja (C.G.) ... Respondents
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Manoj Prasad, for the appellants.
Shri Shishir Bhandarkar, for the respondent No.1.
None for the respondent No.2.
ORDER
Dated : 06/04/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 08.07.2014, passed by District Consumer Disputes Redressal Forum, Surguja-Ambikapur //2 // (C.G.) (henceforth "District Forum"), in Complaint Case No.2013/103. By the impugned order, the complaint of the respondent No.1 (complainant) has been partly allowed and the District Forum has directed the appellants (O.P.No.1 & 2) to pay within a period of two months from the date of order a sum of Rs.3,28,956/- jointly or severally to the respondent No.1 (complainant) along with interest @ 6% p.a. from the date of filing of the complaint i.e. 24.10.2013 till realisation. The respondent No.3 (O.P.No.3) has been exonerated from the liability of payment of compensation to the respondent No.1 (complainant) because case has not proved against it. The District Forum has further directed the appellants (O.P.No.1 & 2) to pay a sum of Rs.1,000/- as advocate fees and cost of litigation to the respondent No.1 (complainant).
2. Briefly stated the facts of the case are that the respondent No.1 (complainant) is owner of Bolero vehicle bearing registration No.C.G.15- A-8714. The said vehicle was insured with the appellants (O.P.no.1 & 2) for the period from 04.06.2010 to 03.06.2011. On 10.06.2010, the said vehicle dashed with a culvert near Police Station Bahri, District Sidhi (M.P.) due to which the vehicle was damaged. The matter was reported to Police Station Bahri, District Sidhi (M.P.). The intimation regarding the incident was also given to the appellants (O.P.No.1 & 2). The appellants (O.P.No.1 & 2) appointed a Surveyor, who inspected the vehicle in question and assessed the loss. The respondent No.1 (complainant) obtained estimate of repairing to the tune of Rs.323,956/-, but the appellants (O.P.No.1 & O.P.No.2) has refused to pay the //3 // compensation to the respondent No.1 (complainant). A sum of Rs.4,50,000/- will be incurred on the repairing of the vehicle in question, but the appellant (O.P. No.1 & 2) did not pay the compensation to the respondent No.1 (complainant) and thus committed deficiency in service. Therefore, the respondent No.1 (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The appellants (O.P.No.1 & 2) appeared before the District Forum, but have not filed their written statement.
4. The respondent No.2 (O.P.No.3) has filed its written statement before the District Forum and denied the allegations made against it by the respondent No.1 (complainant) in the complaint.
5. After having considered the material placed before it by both the parties, learned District Forum has partly allowed the complaint and directed the appellants (O.P.No.1 & 2) to pay compensation to the respondent No.1 (complainant) as mentioned in para 1 of this judgment.
6. The respondent No.1 (complainant) has filed documents. The documents are Tax Invoice dated 04.06.2008 issued by Auto Centre, Schedule Motor Policy issued by Cholamandalam MS General Insurance Company Limited, Certificate of Insurance issued by Cholamandalam MS General Insurance Company Limited, Certificate of Registration of vehicle bearing registration No.C.G.15/A-8714, Bill dated 30.05.2008 //4 // issued by Star Automobiles, Ambikapur (C.G.) in favour of the respondent No.1 (complainant), Intimation regarding the incident given by the respondent (complainant) to SHO, Police Station Bahri, District Sidhi (M.P) on 10.06.2010, Form 6 - form of driving licence of Shri Hans Raj, letter dated 01.11.2010 sent by the appellants (O.P.No.1 & 2) to the respondent No.1 (complainant), Estimate 16/07/2010 given by Auto Centre, Bilaspur (C.G.).
7. The respondent No.2 (O.P.No.3) has also filed document which is Statement of Account.
8. Shri Manoj Prasad, learned counsel appearing for the appellants (O.P.No.1 & 2) has argued that the vehicle in question was insured with the appellants (O.P.No.1 & 2) as Goods Carrying Vehicle and Shri Hans Raj, the driver of the vehicle in question was having driving licence for driving Light Motor Vehicle, therefore, Shri Hans Raj, the driver of the vehicle in question was not authorized to drive Goods Carrying Vehicle. The vehicle in question was being driven by Shri Hans Raj, who was not having valid and effective driving licence to drive the vehicle in question. Shri Hans Raj was required to hold requisite driving licence to drive the vehicle in question, as per provisions of the Motor Vehicles Act, 1988, but in the instant case, the driver of the vehicle in question was not holding valid and effective driving licence, therefore, the appellants (O.P.No.1 & 2) have rightly repudiated the claim of the respondent No.1 (complainant), but learned District Forum has erroneously allowed the //5 // complaint and directed the appellants (O.P.No.1 & 2) to pay compensation to the respondent No.1 (complainant). The impugned order passed by the District Forum, is contrary to the law and is liable to be set aside. He placed reliance on judgment of Hon'ble Supreme Court in New India Assurance Co. Ltd. vs. Prabhu Lal, I (2008) ACC 54 (SC); Oriental Insurance Co. Ltd. vs. Angad Kol & Ors., II (2009) ACC 313 (SC).
9. Shri Shishir Bhandarkar, learned counsel appearing for the respondent No.1 (complainant) has supported the impugned order passed by the District Forum, and submitted that it does not call for any interference by this Commission.
10. Before us none appeared on behalf of the respondent No.2 (O.P. No.3) on 10.03.2015, in spite of service of notice by registered A/D post.
11. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
12. In the instant case the respondent No.1 (complainant) filed a document i.e. Certificate of Registration (placed at Page 27 in record of the District Forum) in which the registered number of the vehicle is mentioned as C.G.15/A-8714 and against column of class of vehicle LGV is mentioned. The driving licence of driver Hans Raj (placed at page 30 in record of the District Forum), which has been filed by the respondent No.1 (complainant) in which it is mentioned that the driver Hans Raj is //6 // authorized to drive Light Motor Vehicle only. In the instant case the vehicle in question is a Light Goods Vehicle.
13. Now we shall examine whether the driver Hans Raj was competent to drive vehicle in question ?
14. In the case of S. Iyyapan vs. M/s United India Insurance Company Ltd. and another (Civil Appeal No.4834 of 2013) decided on 01.07.2013, Hon'ble Supreme Court, has observed thus :-
"16. In the case of National Insurance Company Ltd. vs. Annappa Irappa Nesaria alias Nesaragi and Others, 2008 (3) SCC 464, the vehicle involved in the accident was a matador having a goods carriage permit and was insured with the insurance company. An issue was raised that the driver of the vehicle did not possess an effective driving licence to drive a transport vehicle. The Tribunal held that the driver was having a valid driving licence and allowed the claim. In appeal filed by the insurance company, the High Court dismissed the appeal holding that the claimants are third parties and even on the ground that there is violation of terms and conditions of the policy the insurance company cannot be permitted to contend that it has no liability. This Court after considering the relevant provisions of the Act and definition and meaning of light goods carriage, light more vehicles, heavy goods vehicles, finally came to conclusion that the driver, who was holding the licence duly granted to drive light motor vehicle, was entitled to drive the light passenger carriage vehicle, namely, the matador. This Court observed as under :
"20. From what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle". The light motor vehicle continued, at the relevant point of time to cover both "light passenger carriage vehicle" and "light passenger carriage vehicle"
//7 // and "light goods carriage vehicle". A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well."
18. Reading the provisions of Section 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person, who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation as awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside."
//8 //
15. In Bajaj Alliance General Insurance Co. Ltd. Vs. Ashok Kumar Dhruv & Others, 2013 (3) C.G.L.J. 332, Chhattisgarh High Court has observed thus :-
"6. Admittedly, the offending vehicle was a light motor vehicle; was used at the time of accident, as passenger carrying vehicle. To drive the said vehicle, a licence to drive transport vehicle is required under the provision of Motor Vehicles Act. As per evidence adduced in this case, the driver was possessing licence to drive Light Motor Vehicle as well as Heavy Goods Vehicle. Therefore, it cannot be said that he was disentitled to drive a transport vehicle. The Supreme Court, in the case of Oriental Insurance Co. Vs. Zaharulnisha & Ors. AIR 2008 SC 2218, in a case where the offending vehicle was a Scooter and the Scooter driver was not holding any licence to drive the Scooter and was holding licence to drive Heavy Motor Vehicle, has held that the driver was not possessing valid and effective driving licence. However, the facts of the present case are different. In the instant case, the driver of the offending vehicle was possessing to drive light motor vehicle as well as licence to drive heavy goods vehicle, and therefore, in the opinion of this Court, when a driver, who apart from holding driving licence to drive light motor vehicle, also holds a licence to drive Heavy Goods Vehicle, is entitled to drive light motor vehicle (transport vehicle)."
16. In National Insurance Co. Ltd. vs. Kudesia Hashmi and others, 2015 ACJ 667, Lucknow Bench of The High Court of Judicatue at Allahabad, observed thus :-
"6..................it is true that Dhan Singh alias Dhana Singh, the driver of the truck was holding a driving licence of LMV. It may be mentioned that in the case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., 2000 ACJ 319 (SC) and National Insurance Co. Ltd. v. Annappa //9 // Irappa Nesaria, 2008 ACJ 721 (SC), it was contended that a person who is having a licence to drive light motor vehicle can drive the commercial vehicle also.
7. Further, in the case of S. Iyyapan v. United India Insurance Co. Ltd., 2013 ACJ 1944 (SC), it was observed by the Hon'ble Supreme Court that :-
(18) Reading the provisions of section 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
(19) In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra maxicab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra maxicab, which is light motor vehicle, the High Court has //10 // committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, is therefore, liable to be set aside".
17. The judgments cited by the appellants (O.P.No.1 & 2) are quite distinguishable from the facts of the instant case, hence the same will not help the appellants (O.P.No.1 & 2).
18. In Section 2(14) of the Motor Vehicle Act, 1988, there is mention regarding goods carriage. It runs thus :-
(14). "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods".
19. In Section 2(21) of the Motor Vehicle Act, 1988, there is mention regarding Light Motor Vehicle. It runs thus :-
"(21). "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor-car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kilograms".
20. From bare perusal of provisions of Section 2(14) and 2(21) of the Motor Vehicles Act, 1986, Light Motor Vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor-car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms. In the instant case, the U.L.W. of the vehicle in //11 // question is 1800 Kg and G.V.W. of the vehicle in question is 2510 Kg and the driver of the vehicle in question was having driving licence for driving light motor vehicle.
21. In the instant case, the vehicle in question is Light Good Vehicle and driver of the vehicle in question namely Hans Raj was having driving licence to drive Light Motor Vehicle, therefore, he was competent to drive Light Goods Vehicle also. It appears that driver Hans Raj was having valid and effective driving licence at the time of accident.
22. Now we shall examine, whether the District Forum has rightly awarded compensation in favour of the respondent No.1 (complainant) to the tune of Rs.3,28,956/-.
23. The respondent No.1 (complainant) pleaded in the complaint that estimate was obtained by him to the tune of Rs.3,23,956/- in respect of repairing of the vehicle in question. The appellants (O.P.No.1 & 2) appointed Surveyor, who inspected the vehicle in question and gave his report, but the appellants (O.P.No.1 & 2) could not file report of Surveyor, therefore, on the basis of estimate filed by the respondent No.1 (complainant), the District Forum has awarded compensation to the tune of Rs.3,28,956/- which includes cost of litigation also, which is just, proper and reasonable. The finding recorded by the District Forum, does not call for any interference by this Commission.
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24. Therefore, the appeal filed by the appellants (O.P.No.1 & 2) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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