State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs M/S Dharam Singh Mohar Singh. on 27 August, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.78/2015
Date of Presentation: 10.06.2015
Date of Decision: 27.08.2015
..............................................................................
National Insurance Company Limited,
Near Y-Point, Paonta Sahib, District Sirmour, H.P.,
Through its Administrative Officer,
Divisional Office, Himland Hotel,
Circular Road, Shimla, District Shimla, H.P.
.......... Appellant .
Versus
M/s. Dharam Singh Mohar Singh,
Resident of Village Pamta, Post Office Shawga,
Tehsil Kamraoo, District Sirmour, H.P.
.......... Respondent.
..............................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1 Yes.
For the Appellant:
Mr. Jagdish Thakur, Advocate.
For the Respondent:
Mr. Bipin Negi, Senior Advocate with
Mr. Raj Negi, Advocate.
.......................................................................................
O R D E R:
Justice Surjit Singh, President (Oral) This appeal, by National Insurance Company Limited, is directed against the order dated 17.03.2015, of learned District Consumer Disputes Redressal Forum, Sirmour at Nahan, 1 Whether Reporters of the local papers may be allowed to see the order? National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________ whereby, a complaint, under Section 12 of the Consumer Protection Act, 1986, filed against it (the appellant) by respondent, M/s. Dharam Singh Mohar Singh, has been allowed and a direction given to it to pay a sum of `8.50 lacs, on account of insurance claim, for the loss of insured excavator, with interest at the rate of 9% per annum, from the date of filing of complaint, to the date of payment of the aforesaid amount of money and also to pay `25,000/-, on account of compensation and litigation cost.
2. Undisputed facts are that respondent owned an excavator, which was insured with the appellant for the period from 06.09.2008 to 05.09.2009. On 24.08.2009, when the excavator was being operated by one Esmile Khan, who held a licence to drive light motor vehicle (both transport and non-transport) it overturned and according to the respondent, it was completely damaged and, thus, this was a case of total loss.
3. Matter was reported to the police, as also the appellant. Claim was, however, not settled. Complainant, therefore, filed a complaint, under Page 2 of 12 National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________ Section 12 of the Consumer Protection Act, 1986, seeking a direction to the appellant to pay a sum of `13.60 lacs, for which sum, the vehicle had been insured and also to pay compensation for deficiency in service. Litigation expenses were also claimed.
4. Appellant contested the complaint and pleaded that the alleged damage to the insured excavator was caused due to overturning and that the risk of overturning had not been covered under the insurance policy, as the policy was not endorsed for IMT-47. Also, it was stated that Esmile Khan, who was operating the excavator at the relevant time, did not possess a valid and effective driving licence.
5. Learned District Forum, vide impugned order, has allowed the complaint and given the aforesaid direction, with the finding that Esmile Khan possessed a valid driving licence and that the policy covered the risk of overturning also, as extra premium for IMT-47 was shown to have been paid.
6. We have heard learned counsel for the parties and gone through the record. Page 3 of 12 National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________
7. Insurance policy is Annexure OP-1. Policy bears a mention that IMT endorsement-47 alongwith certain other IMT endorsements are applicable. Therefore, the first objection raised by the appellant, is not valid and in fact, learned counsel representing the appellant also concedes this fact.
8. Dispute is only with regard to the validity of driving licence, which Esmile Khan, who was operating the excavator at the relevant time, possessed. Copy of licence is Annexure-C/Y, as also C-5. Esmile Khan, as per copy of licence is authorised to drive light motor vehicle, both transport and non-transport. Licence was valid and effective on the date of the accident.
9. It is submitted on behalf of the appellant that vehicle, in question, was an excavator and, therefore, a construction equipment vehicle, within the meaning of Sub-Rule (ca) of Rule-2 of the Motor Vehicles Rules, 1989, and therefore, a special endorsement, authorizing the holder of the licence to drive the excavator was required to be made on the driving licence, which was not there. Learned Page 4 of 12 National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________ counsel submits that an excavator would fall within the category of "Motor Vehicle of a specified description" as referred to in Section 10(2) (j) of the Motor Vehicles Act, 1988. He also places reliance upon Form-6, forming part of Central Motor Vehicles Rules, 1989, which has been prescribed in accordance with Rule 16(1) of the aforesaid Rules.
10. Learned counsel representing the respondent, on the other hand, submits that the vehicle falls in the definition of LMV, as defined in Section 2(21) of the Motor Vehicles Act, 1988, read with Sub-Sections 2(26) & 2(28) of the Motor Vehicles Act, 1988, as its gross weight, as per certificate of registration, Annexure C-1, is 7460 Kgs.
11. Section 10(2) of the Motor Vehicles Act, 1988, says that a driving licence shall be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle; Page 5 of 12
National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified
description.
12. Rule 2(ca) of the Motor Vehicles Rules, 1989, defines construction equipment vehicle and excavator is included in this definition. However, Rule 2(ca), nowhere says that this definition of construction equipment vehicle is in the context of Section 10(2) (j) of the Motor Vehicles Act, 1988, i.e. motor vehicle of a specified description.
13. Learned counsel for the appellant has drawn our attention to a communication sent by Dr. B.K. Gairola, Deputy Director General, National Informatics Centre, Government of India, New Delhi, to Shri S.K. Mishra, Director, Department of Road Transport & Highways, Government of India, which is dated 1st December, 2005, and a D.O. letter dated 29th December, 2005, written by Shri S.K. Mishra, Director, Road Transport and Highways, to Dr. B.K. Gairola, in response to his aforesaid communication dated 1st December, 2005, whereby the latter was allowed to go ahead to incorporate Page 6 of 12 National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________ the proposed clarification in the software. Proposed clarifications were in the nature of two annexures mark (I) & (II), which were enclosed with the aforesaid communication dated 01.12.2005. In these annexures, all types of motor vehicles have been categorized into thirty-four numbers and excavator is included in the category of other vehicles, which implies the category, referred to in clause (j) of Sub-section 2 of Section 10. Reference may be made to item No.19 in Annexure (I), as also Annexure (II). As per these annexures, separate endorsement is required for driving an excavator.
14. It is true that communication dated 01.12.2005, D.O. letter dated 29th December, 2005 and two annexures to these communications, give the impression that an excavator falls in the category of 'motor vehicle of a specified description', but the fact remains that communications, referred to above, are in the nature of correspondence between two functionaries of the Government of India. No notification is shown to have been issued by the Government of India to accept the proposal, made Page 7 of 12 National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________ in communication dated 01.12.2005, by the Deputy Director General, National Informatics Centre, Government of India, New Delhi. Communications suggest that what has been done, is that categorization of vehicles has been uploaded in the software, pertaining to issuance of driving licences, but without getting the proposal approved from the competent authority and also, without notifying it to general public, particularly, the stakeholders, i.e. the drivers, already holding licenses to drive different kind of vehicles. Therefore, on the strength of these two communications and the annexures to these communications, it cannot be said that the vehicle, in question, falls within the category of 'motor vehicle of a specified description', within the meaning of Section 10(2) (j) of the Motor Vehicles Act, 1988.
15. As already noticed, according to certificate of registration, gross weight of the vehicle is 7460 Kgs. Section 2(21) of the Motor Vehicles Act, 1988, defines a light motor vehicle. As per this definition, a light motor vehicle means a transport vehicle, or omnibus, gross vehicle weight Page 8 of 12 National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________ of either of which or a motor car or a tractor or road-roller, the unladen weight of any of which, does not exceed 7500 Kgs. Excavator is a non- transport vehicle. It is also not an omnibus, nor a tractor or a road-roller.
16. Now, the only vehicle, which remains in the category of a LMV according to its definition in Section 2(21) of the Motor Vehicles Act, 1988, is a motor car. Though, term as it is used in common parlance, would give an impression that an excavator cannot be a motor car, the definitions clause of the Motor Vehicles Act, 1988, when construed in literal sense, show that an excavator is included in the definition of a motor car. Section 2(26) defines a motor car to mean any motor vehicle other than a transport vehicle, omnibus, road-roller and tractor, which are included in the definition of light motor vehicle. The definition also includes motorcycle, which is defined separately in Section 2(27) and an invalid carriage, which is again defined separately in Section 2(18).
17. That means, according to Section 2(26) all motor vehicles, other than the transport vehicle, Page 9 of 12 National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________ omnibus, road-roller, tractor, motorcycle or invalid carriage, fall in the definition of 'motor car'. Term 'motor vehicle', which appears in the definition of motor car, is defined, vide Section 2(28) to mean any mechanically propelled vehicle adapted for use upon roads, whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer. Exceptions, as per this definition are a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimeters.
18. Excavator, in question, which could have been driven on road, does not fall, in the category of vehicles, excluded from the definition of motor vehicle, per Section 2(28) of the Motor Vehicles Act, 1988. That means, the excavator, in question, was a motor car, for the purpose of Motor Vehicles Act, 1988. And according to Section 2(21), which defines a light motor vehicle, a motor car is a Page 10 of 12 National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________ light motor vehicle, if its unladen weight does not exceed 7500 Kgs.
19. Admittedly, the unladen weight of excavator, in question, is less than 7500 Kgs., because in the certificate of registration, its weight is written as 7460 Kgs. Thus, the vehicle comes within the definition of LMV. Esmile Khan, possessed a licence to drive a LMV, both transport and non- transport.
20. Above stated position apart, the vehicle, in question, at the time when it overturned, was not being driven, but was being used as excavation equipment, as is made out from First Information Report, which was lodged by a person, present on the spot, in the capacity of a servant of the respondent. Therefore, in our considered view, the objection, with regard to validity of the licence of the person, who was operating the excavator, at the relevant time, could not have been made a ground for rejecting the claim.
21. No material has been placed on record by the appellant to show that this was not a case of total loss. Respondent had consented to accept a Page 11 of 12 National Insurance Co. Ltd. Versus M/s. Dharam Singh Mohar Singh (F.A. No.78/2015) __________________________________________________________ claim for `8.50 lacs, though the vehicle was insured in the sum of `13.60 lacs. It is because of this reason that learned District Forum has directed the respondent to pay only this much amount of money.
22. As a result of the above discussion, appeal is dismissed.
23. A copy of the order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member August 27, 2015.
*dinesh* Page 12 of 12