National Consumer Disputes Redressal
National Insurance Co. Ltd vs Shiv Shankar Soni on 7 May, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 2718 of 2007 (From the Order dated 08.03.2007 in Appeal Nos. 548/06 & 828/05 of the State Consumer Disputes Redressal Commission, Rajasthan) National Insurance Co. Ltd. Branch Jodhpur, 4-E, Kalptaru Shopping Centre, Opp. Anchal Complex, Residency Road, Jodhpur REGIONAL OFFICE National Insurance Company Ltd. Delhi Regional Office 1, Jiwan Bharti Building Tower II Level-IV, 124, Connaught Circus New Delhi-110001 .. Petitioner VERSUS Shiv Shankar Soni, S/o Shri Ram Prasad Soni, R/o House No.223-B, Shiv Jewellers, Near Krishna Mandir, Ratanda, Jodhpur (Rajasthan) .. Respondent AND REVISION PETITION No.2093 of 2007 (From the Order dated 08.03.2007 in Appeal Nos. 548/06 & 828/05 of the State Consumer Disputes Redressal Commission, Rajasthan) Shiv Shankar Soni, S/o Shri Ram Prasad Soni, R/o House No.223-B, Shiv Jewellers, Near Krishna Mandir, Ratanda, Jodhpur (Rajasthan) Address for Correspondence: Jitendra Mitrucka, Advocate S-6. Ankur Apartments, Jyoti Nagar Ext. Jaipur, Rajashtan .. Petitioner VERSUS National Insurance Co. Ltd. Branch Jodhpur, 4-E, Kalptaru Shopping Centre, Opp. Anchal Complex, Residency Road, Jodhpur .. Respondent BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER HONBLE MR. JUSTICE J.M. MALIK, MEMBER For the Insurance Company : Mr. S.K. Gupta, Mr. R.K. Gupta and Mr. Manish Gupta, Advocates For the Complainant : Mr.Sabyasachi Mishra, Advocate PRONOUNCED ON: 05.2012 O R D E R
ASHOK BHAN, J., PRESIDENT This order will dispose of cross Revision Petitions filed by the Complainant and the Opposite Party against the same impugned order. Revision Petition No.2718/07 has been filed by the National Insurance Co. Ltd. which was the opposite party before the District Forum while the Revision Petition No. 2093/07 has been filed by Shiv Shankar Soni who was the Complainant before the District Forum. Complainant would be referred to as the Complainant whereas the Opposite Party would be referred to as Insurance Company.
FACTS:-
Complainant got his Tata Indica Car bearing registration No.RJ-19T-2643 insured with the Insurance Company for the period from 1.02.02 to 02.02.03 by paying the premium of Rs.7,831/-. On 02.09.02, the said car met with an accident in the route of Roheet to Jodhpur with a truck bearing registration No. RJ-07G-1970 and sustained damages. An FIR was lodged with the Police Station Rohat and intimation about the accident was also given to the Insurance Company. On being intimated, Insurance Company appointed a surveyor to assess the loss. Surveyor assessed the loss at Rs.1,45,000/- on total loss basis. However, the Insurance Company repudiated the claim on the ground that the driver of the car did not have a valid and effective driving licence to drive the taxi at the time of the accident. Complainant filed the complaint before the District Forum alleging that the vehicle at the time of accident was being driven by an unauthorized person Sunil whose service had been terminated by the Complainant a few days earlier. That person had stolen the vehicle and an FIR to the said effect was lodged with the Police Station, Mahamandir on 2.09.02. If that unauthorized person did not have a valid and effective driving license then it had no impact on his claim.
Insurance Company, on being served, put in appearance and filed its written statement resisting the complaint, inter-alia, on the grounds; that at the time of accident the vehicle was being driven by one, Anil Sankhla who did not have a valid and effective driving licence to drive a taxi; that report of theft of vehicle was fake; that there was no deficiency in service in repudiating the claim and the complaint was liable to be dismissed.
District Forum after taking into consideration the pleadings and the evidence led by the parties came to the conclusion that the vehicle in question was a taxi and at the time of accident it was being driven by a person who was possessing LMV licence without endorsement authorizing him to drive a transport vehicle. Since the vehicle was being driven by a person who did not possess the valid and effective driving licence to drive the said vehicle, the Insurance Company was not liable to reimburse the loss caused to the vehicle.
It was also held that the Complainant had failed to prove that the vehicle was stolen. Accordingly, complaint was dismissed.
Complainant, being aggrieved, filed the appeal before the State Commission.
State Commission allowed the appeal and directed the Insurance Company to pay a sum of Rs.1,45,000/- to the complainant along with interest @ 9% p.a. from the date of filing of claim. State Commission held as under :-
After having scanned the legal position, we find that the driver was fit to drive LMV as per the licence. Although he had not obtained authorized to drive light transport vehicle but this breach being found to be of a technical nature, the insurance company only on this ground cannot absolve itself from the liability to pay the insured sum.
Dis-satisfied with the order passed by the State Commission, the complainant as well as the Insurance Company have filed separate Revision Petitions.
R.P. No.2718/07 has been filed by the Insurance Company for setting aside the order of the State Commission while the R.P.No. 2093/07 has been filed by the Complainant for enhancement of the compensation.
Learned Counsel appearing for the Insurance Company contends that since the driving licence possessed by the driver authorized him to drive a Light Motor Vehicle (LMV) only, he was not authorized to drive a passenger/transport vehicle. Insureds vehicle was a taxi, which would be a transport vehicle within the meaning of Section 2(47) of the Motor Vehicles Act 1988. That since the driver did not possess the driving licence to drive the passenger/transport vehicle, the Insurance Company is not liable to indemnify the loss suffered by the insured. In support of this contention, learned counsel for the Insurance Company relies upon the judgment of the Supreme Court in New India Assurance Co. Ltd. vs. Prabhu Lal 1(2008) CPJ 1 (SC).
Learned Counsel for the Complainant submits that since the vehicle was stolen, the owner did not know who was driving the vehicle and, therefore, the Insurance Company was liable to reimburse the loss to the insured irrespective of the fact whether the person driving the vehicle had a valid and effective driving license or not.
We have heard the Learned Counsel for the parties at length.
We find substance in this submission made by the Ld. Counsel for the Insurance Company. In Prabhu Lals case (supra), Supreme Court of India has held that insurance company is not liable to reimburse for the loss caused in case the driver did not possess an effective driving licence to drive the transport vehicle. In the aforesaid case, the driver had the licence to drive the LMV only, whereas he was driving a commercial vehicle to carry passengers.
Learned counsel for the Insurance Company also relies upon an earlier judgment of the Supreme Court in National Insurance Co. Ltd. vs. Kusum Rai (2006) 6 SCC 250 wherein it has been held that if the vehicle is a taxi and the driver of the said vehicle holds a driving licence to drive LMV only without there being any endorsement to drive the transport vehicle, then the insurance company cannot be directed to pay the compensation. Relevant observations of the Supreme Court in Prabhu Lals case (supra) are as under :-
35. The learned counsel for the insurance company also referred to a decision of this Court in National Insurance Co. Ltd. VS. Kusum Rai & Ors., II(2006)CPJ 8 (SC) = III(2006) SLT 162 = (2006)4 SCC 250, wherein this court held that if the vehicle is a taxi which is being driven by a driver holding licence for driving Light Motor Vehicle only without there being any endorsement for driving transport vehicle, the insurance company cannot be ordered to pay compensation.
44. In the matter of Nasir Ahmed, (SLP No.7618 of 2005), the vehicle was a luxury taxi- passenger carrying commercial vehicle. There also the driving licence issued in favour of the driver was to ply light Motor Vehicle (LMV) and hence the driver could not have driven the vehicle in question. In that case too, the licence was renewed for a period of twenty years i.e, from February 5,2000 to February 4, 2020. Again, there was no endorsement as required by Section 3 of the Act. A specific plea was taken by the Insurance Company but the Authorities held the Insurance Company liable which could not have been done. The reasoning and conclusion arrived at by us in the matter of Prabhu Lal (SLP No.7370 of 2004) would apply to the case of Nasir Ahmed. That appeal is, therefore, allowed.
45. In Chandra Parkash Saxena (SLP No.17794 of 2004), the vehicle involved in accident was Jeep Commander made by Mahindra & Mahindra, a passenger carrying commercial vehicle, and in view of the fact that the driver was holding licence to driver light Motor vehicle (LMV), he could not have plied the Vehicle in question. For the reasons recorded hereinabove in the main matters of Prabhu Lal i.e SLP (C) No.7370 of 2004, the Insurance Company could not have been held liable and that appeal also deserves to be allowed.
Admittedly, in the present case, the driver had a licence to drive LMV only and there was no endorsement on the licence authorizing him to drive the taxi, which was a transport vehicle to carry passengers. Since the driver of the vehicle did not have a valid licence to drive a transport vehicle, the insurance company is not liable to reimburse for the loss caused to the vehicle in the accident.
District Forum has recorded a finding that the Complainant had failed to prove that the vehicle was stolen. State Commission has not dealt with this point as the same perhaps had not been raised or argued before it. We take the finding recorded by the District Forum that the Complainant had failed to prove that the vehicle had been stolen, to be correct. Even if, it is taken for the sake of argument that the vehicle had been stolen, the Insurance Company cannot be fastened with liability to pay the amount as the vehicle was driven by a person not possessing a valid and effective driving licence to drive the transport vehicle. As per terms and conditions of the policy, the Insurance Company was liable to reimburse the loss only if the vehicle was being driven by a person having valid and effective driving licence. Plea taken by the Complainant that since he had not authorized the person who was driving the vehicle, the terms and conditions contained in the policy that the Insurance Company would not be liable to reimburse the loss if the vehicle was being driven by a person not having a valid driving licence, was not applicable, as the Complainant had not authorized him to drive the vehicle, cannot be accepted. Supreme Court as well as this Commission in various judgments where the owner had engaged a driver after verifying that the he had a driving licence which turned out to be fake later on, has held that the Insurance Company cannot be made liable to reimburse the loss rejecting the contention raised by the Complainant that since he had appointed the driver after verifying the fact that the driver had a licence and it not was his duty to verify whether the same was genuine or fake one held that the Insurance Company would be liable only if the driver had a valid driving licence.
For the reasons stated above, order of the State Commission is set aside and the Revision Petition No. 2718/07 filed by the Insurance Company is allowed. Consequently, Revision Petition No. 2093/07 filed by the Complainant is dismissed. No order as to costs.
Deposit, if any, made by the Insurance Company be refunded to them.
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(ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER .. . . . . . . . . . . .
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(J.M. MALIK J.) MEMBER Yd/