State Consumer Disputes Redressal Commission
Rajesh Jaiswal vs Branch Manager & Others on 1 May, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/13/200
Instituted on : 14.03.2013
Rajesh Jaiswal, S/o Chote Lal Jaiswal,
R/o : Village - Domhat, Post - Chandora,
P.S., Tehsil - Pratappur, Dist. Surguja (C.G.) ... Appellant
Vs.
1. Branch Manager, Cholamandalam M.S. General
Insurance Company Limited, Registered & Head Office
- Dare House, Second Floor, N.S.C. Bose Road,
Chennai 600001 (India)
2. Branch Manager, Cholamandalam M.S. General
Insurance Company Limited, First Floor, Rajiv Plaza,
Bilaspur (C.G.)
3. Deputy Manager, Cholamandalam M.S. Gereral
Insurance Company Limited, Manendragarh Road,
Ambikapur, District Surguja (C.G.) .... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Ashutosh Dubey, for appellant.
Shri Manoj Prasad, for respondent.
ORDER
Dated : 01/05/2014 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against order dated 14.02.2013, passed by District Consumer Disputes Redressal Forum, Surguja, Ambikapur (C.G.) (henceforth District Forum") in Complaint Case No.126/2012.
// 2 // By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
2. Briefly stated, the facts of the case of the complaint filed before the District Forum are : that the appellant (complainant) purchased a vehicle Tata (Ace) with the help of finance provided by the respondents (OPs). The appellant (complainant) is registered owner of the vehicle and the vehicle was insured with the respondents (OPs) under Insurance Policy No.3379/00490099/000/00 for the period from 26.10.2010 to 25.10.2011. The Insured Declared Value of the vehicle was Rs.2,90,000/-. On 15.12.2010, the said vehicle met with an accident o and extensively damaged. The matter was reported at Police Station, Balrampur on 16.12.2010 at about 16.10 P.M. by driver Devsharan Uikey and First Information Report No.134/2010 was recorded for offence under Section 279, 337 against the Vijay Yadav, Supervisor. The appellant (complainant) sent intimation to the respondents (OPs) also. Thereafter he took the vehicle at Masuk Garage , Ambikapur for repairing work and got the vehicle repaired. The appellant (complainant) submitted claim before the respondents (OPs) and the respondent (OPs) repudiated the claim of the appellant (complainant) on the ground that the driver who was driving the vehicle was not having valid and effective driving licence at the time of accident, therefore, the appellant (complainant) filed consumer // 3 // complaint before the District Forum and prayed for granting relief, as mentioned in the complaint.
3. The respondents (OPs) filed their written statement before the District Forum and pleaded that the District Forum has no jurisdiction to adjudicate the matter because the appellant (complainant) is not a consumer within the purview of the Consumer Protection Act, 1986 and the appellant (complainant) has failed to disclose all material and correct facts. Therefore, the complaint of the appellant (complainant), is liable to be dismissed. The respondents (OPs) further pleaded that the driver, who was driving the vehicle at the time of accident, was not possessing valid driving licence, therefore, the respondents (OPs) have repudiated the claim of the appellant (complainant) and did not commit any deficiency in service.
4. After having considered the material placed before it by the parties, learned District Forum dismissed the complaint.
5. Shri Ashotosh Dubey, learned counsel appearing for the appellant (complainant) argued that the impugned order passed by the District Forum, is contrary to law and is liable to be set aside. The driver of the vehicle in question was possessing valid and effective driving licence at the time of accident. The ground taken by the appellants (OPs) for repudiation of the claim of the respondent // 4 // (complainant) is illegal. Therefore, the appellant (complainant) committed deficiency in service and the appellant (complainant) is entitled for the compensation, as mentioned in the complaint. He further argued that the driver, who was driving the vehicle at the time of accident was holding driving licence to drive Light Motor Vehicles, therefore, he was authorized to drive the vehicle in question, therefore, the impugned order, passed by the District Forum, is erroneous. He placed reliance on Bajaj Alliance General Insurance Co. Ltd. vs. Ashok Kumar Dhruv, 2013 (3) C.G.L.J. 332; Rajendra Sapre vs. Janki Patel and others, 2007 ACJ 497 decided by High Court of Madhya Pradesh at Jabalpur; M. Balasubramanya vs. Pradyumna and others, 2007 ACJ 176, decided by High Court of Karnataka at Bangalore.
6. Shri Manoj Prasad, learned counsel appearing for the respondents (OPs) has supported the impugned order and argued that according to the First Information Report, at the time of the accident, the vehicle in question was not driven by Devsharan Uikey and the vehicle was driven by one Vijay Yadav, who is Supervisor of the said company and it appears that the vehicle in question was being driven by an authorized person. He further argued that the vehicle in question was being driven by the unauthorized person at the time of accident and he has no valid driving licence in question and therefore, finding recorded by the learned District Forum is just and proper and does not call for any interference of this Commission.
// 5 //
7. We have heard learned counsel for the parties and have perused the record of the District Forum.
8. The appellant (complainant) filed documents before the District Forum. Document A-1 is Certificate of Registration of vehicle bearing registration No.C.G.15-AC-0586, document A-2 is Certificate of Fitness of vehicle bearing registration No.C.G.15-AC-0586, document A-3 is Schedule - Motor Policy, document A-4 is First Information Report (Under Section 154 Cr.P.C.), document A-5 is letter dated June 10, 2011 sent by the Cholamandalam M.S. General Insurance Company Ltd. to the appellant (complainant), document A-6 is driving licence of Vijay Kumar, document A-7(i) to (viii) are bills issued by Sandhya Motors & other.
9. The appellant (complainant) filed driving licence of Vijay Yadav. As per above driving licence, the driver was authorized to drive MCW gear and Light Motor Vehicles. According to certificate of registration and certificate of fitness, the vehicle was light goods vehicle.
10- In the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Ashok Kumar Dhruv & Others 2013 (3) C.G.L.J. 332, Honble High Court of Chhattisgarh held thus :-
// 6 // "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)." 11- Hon'ble Supreme Court 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, 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 // 7 // 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"
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 // 8 // 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."
12. Document A-1 is Certificate of Registration and document A-2 is Certificate of Fitness. In both the documents, the vehicle number of the vehicle is mentioned as C.G.15.AC-0586 and the nature of the vehicle is mentioned as Light Goods Vehicle (Truck Half Body). Document A-3 is copy of the Insurance Policy. In the insurance policy the policy type is mentioned as "Package - Goods Carrying Vehicle". In the Certificate of Registration (document A-1) U.L.W. (Kgs) 840 K.G. and G.V.W. (Kgs.) 1550 K.G. is mentioned. Looking to // 9 // the above documents it appears that the weight of the vehicle in question is less than 7500 Kgs and Vijay Yadav was holding driving licence for driving Light Motor Vehicles, therefore, he was also competent to drive the vehicle in question.
13. Now we shall examine whether the appellant (complainant) is entitled to receive any compensation from the respondents (OPs).
14. According to the appellant (complainant), he only reported the matter to Police Station, Balrampur and he had not pleaded that the respondents (OPs) were also intimated by him immediately regarding the incident. In the complaint, the appellant (complainant) only pleaded that he took the vehicle to Masuk Garage, Ambikapur and got the vehicle repaired there and thereafter he submitted his claim before the respondents (OPs). It appears prior to get the vehicle repaired, the appellant (complainant) did not send intimation to the respondents (OPs). The appellant (complainant) did not inform the respondents (OPs) (Insurance Company) regarding the incident immediately, therefore, the respondents (OPs) (Insurance Company), could not appoint Surveyor for assessment of the loss caused to the vehicle in question in the accident and the Insurance Company was deprived of its right to appoint Surveyor.
// 10 //
15. Document A-5 is letter dated 10.06.2011 sent by Cholamandalam MS General Insurance Company Limited, to the appellant (complainant). Looking to the said document, it appears that the appellant (complainant) submitted his claim before the Insurance Company after getting the vehicle repaired from the repairer. Looking to the facts and circumstances of the case, it appears that the appellant (complainant) did not comply the terms and conditions of the insurance policy and it is the duty of the appellant (complainant) to intimate the respondents (OPs) regarding the incident immediately and due to delayed intimation by the appellant (complainant), the respondents (OPs) could not appoint Surveyor and could not assess the damages caused to the vehicle in question, therefore, the respondents/OPs have rightly repudiated the claim of the appellant (complainant).
16. The appellant (complainant) filed bills i.e. document i(i) to (vii), but the appellant (complainant) did not file affidavits of Proprietor of Masuk Garage, Sandhya Garage, Jainson Tyers & Lubricants etc. Merely on the basis of filing photocopy of the bills, it cannot be held that appellant (complainant) purchased the parts for repairing of the vehicle in question. The appellant (complainant) has failed to prove that actually he has incurred expenditure as mentioned in the complaint in repairing of the vehicle in question, therefore, the // 11 // appellant (complainant), is not entitled for any compensation from the respondents (OPs) and learned District Forum, has rightly dismissed the complaint of the appellant (complainant).
17. From the above discussions, it is clear that the vehicle in question was a light goods vehicle and the weight of the vehicle in question is less than 7500 kgs and it was light goods vehicle and Vijay Yadav was having driving licence for driving Light Motor Vehicle, therefore, he was competent to drive the vehicle in question. But in the instant case, the authorized driver of the vehicle is Devsharan Singh Uikey, and in the First Information Report, it is mentioned that : "eSa xzke [kksjek Fkkuk izrkiiqj dk jgus okyk gwWaA d{kk 10 oh dh i<kbZ fd;k gwWaA esjk Mªkbfoax yk;lsal uacj C.G. 15/20100002239 gSA eSa djhc 6 ekg ls vkbZfM;k dEiuh dh xkM+h pyk jgk gWwaA dy eSa fnukad 15-12-2010 dks dEiuh dk xkM+h VkVk ,l-bZ-xksYM dks ysdj cyjkeiqj cktkj ls vkbZfM;k fle dk izpkj&izlkj o fle fcdzh gsrq vk;k FkkA lkFk esa dEiuh dk lqijokbZtj fot; ;kno Hkh vk;k FkkA cyjkeiqj cktkj esa izpkj&izlkj djus ds ckn 'kke dks okil tkus yxsA okil tkrs le; xkM+h dks fot; ;kno lqijokbZtj pyk jgk FkkA tks xkM+h dks cgqr rst xfr ls pyk jgk FkkA ftls /khjs pykus ds fy, dbZ ckj cksyk fQj Hkh rst xfr ls pyk jgk Fkk fd djhc 8%30 cts xzke ny?kksok 'kq:
taxy ds ikl ,l- xksM+ ds ikl lkeus rjQ ls ,d Vªd vkus yxh ftls // 12 // lkbZM nsrs gq, le; xkM+h dks rst xfr o ykijokghiwoZd pykrs gq, jksM+ ds fdukjs isM+ xfr o ykiokgh iwoZd pykrs gq, jksM+ ds fdukjs isM ls Bksdj ekjdj nq?kZVuk dj fn;kA ftlls esjk ukd dku dikj rFkk nkfgus gkFk vaxqBk esa pksV yxk gSA xkM+h dk lkeus okyk Hkkx dkQh {kfrxzLr gks x;k gSA xkM+h pykus okyk fot; ;kno dks flj iSj esa pksV yxk gSA eSa viuk fjiksVZ i<dj ns[kk vkSj esjs crk;s vuqlkj fy[kk x;k gSA dk;Zokgh pkgrk gWaAw ". Appellant (complainant) did not file driving licence of Devsharan Singh Uikey and Vijay Yadav is not authorized driver of the appellant (complainant).
18. In view of above discussions, we find that the impugned order, passed by the District Forum does not suffer from any infirmity or illegally and does not call for any interference by this Commission.
19. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, is liable to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
/05/2014 /05/2014