National Consumer Disputes Redressal
Reliance General Insurance Co. Ltd. vs Shivakumara S on 7 March, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2450 OF 2010 (Against order dated 13.04.2010 in First Appeal No. 1291/2010 of the State Consumer Disputes Redressal Commission, Karnataka, Bangalore) Reliance General Insurance Co. Ltd. 60, Okhla Industrial Area, Phase-III New Delhi Petitioner Versus Shivakumara S Door No. 144, 8th Main, 5th Cross, Bhuvaneshwari Nagar, T. Dasarahalli, Bangalore Respondent BEFORE: HONBLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. H.N. Keshava Prashanth, Advocate For the Respondent : Mr. V. Subhash Reddy, Advocate PRONOUNCED ON : 07th MARCH, 2014 at Delhi ORDER
DR. S.M.KANTIKAR, MEMBER Arguments in this case were heard at Circuit Bench Bangalore on 13.02.2014 and order was reserved.
This revision is directed against the order dated 13.04.2010 of the Karnataka State Consumer Disputes Redressal Commission Bangalore in Appeal No. 1291 of 2010.
2. Briefly stated facts relevant for the disposal of this revision petition are that the respondent complainant insured his motor cab / taxi with the opposite party.
The unladen weight of the insured vehicle was 980 kgs. The aforesaid vehicle was involved in an accident with a bus on 20.09.2007 and it was damaged beyond repairs. FIR in respect of the accident was registered and intimation was also given to the petitioner insurance company. At the time of accident, the vehicle was being driven by one Manjunath G. who was having a driving license authorising him to drive a light motor vehicle. The driving license, however, did not have an endorsement authorizing the driver to driver transport / passenger carrying vehicle. The petitioner insurance company taking note of the aforesaid fact repudiated the claim filed by the respondent complainant claiming that at the time of accident, the vehicle was being driven by a person not having an effective driving license which amounted to the violation of the conditions of the insurance policy. Being aggrieved of the repudiation of the claim, the petitioner filed a consumer complaint.
3. Learned District Forum on consideration of the pleadings of the parties and the evidence produced was of the view that repudiation of insurance claim amounted to deficiency in service and directed the petitioner to pay to the respondent complainant IDV of the vehicle i.e. Rs.3,13,790/- after adjusting the cost of the salvage within 60 days. It was also directed that in the event of the petitioner not complying with the order, he shall pay interest on the aforesaid amount @ 8% p.a. from the date of the order.
4. The petitioner being aggrieved of the order of the District Forum preferred an appeal before the State Commission. The appeal, however, was dismissed vide impugned order.
5. Learned counsel for the petitioner has taken us through the insurance policy and submitted that as per the drivers clause of the insurance policy, the insurance contract was subject to the condition that insured vehicle shall be driven by a person holding an effective driving license authorising him to drive the vehicle of such category. Learned counsel has contended that the vehicle in question was covered by Commercial Vehicle (passenger carrying ) package policy. Admittedly, the driver was holding a driving license of LMV without any endorsement authorising him to drive a transport / passenger vehicle. Therefore, at the time of accident, the driver was not having an effective driving license. He has thus contended that petitioner was justified in repudiating the claim and the foras below have passed the judgment ignoring the above stated facts. Learned counsel has thus urged us to accept the revision and set aside the impugned orders being based upon incorrect appreciation of facts and insurance contract. In support of his contention, learned counsel for the petitioner has relied upon the judgments of the Supreme Court in the matter of Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd. reported in (1999) 6 SCC 620 and New India Assurance Co. Ltd. Vs. Prabhu Lal reported in 2008 (1) T.A.C. 401 (SC).
6. On the contrary, learned counsel for the respondent/complainant has argued in support of the impugned orders of the fora below. He has contended that the issue in this case is no more res-integra and has been settled by the Supreme Court in the matters of National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria alias Nesaragi (2008) 3 SCC 464 and New India Assurance Co. Ltd. Vs. Roshnabhen Rahemansha Fakir & Anr. (2008) 8 SCC 253.
Learned counsel for the respondent / complainant has thus urged us to dismiss the revision petition.
7. Undisputedly, the subject vehicle was insured as commercial vehicle ( passenger carrying) package policy and its unladen weight was less than 7500 kgs. Thus, in view of section 2 (21) of the Motor Vehicles Act, 1988 ( in short, the Act), it was a light motor vehicle. As per the allegations in the complaint, the vehicle was involved in an accident resulting in huge damage to the car and also injuries to passengers travelling in the car. Admittedly, at the time of accident, though the driver of the vehicle was having driving licence authorising him to drive a light motor vehicle, but it did not have endorsement authorising the driver to drive a transport vehicle. The insurance claim of the respondent complainant was repudiated solely on the ground that the driver of the vehicle was not holding an effective driving licence, which amounts to violation of the terms and conditions of the insurance policy.
8. As per the insurance policy, the subject vehicle was insured under commercial vehicle ( passenger carrying) package policy. As per the allegations in the complaint, at the time of accident, the vehicle was carrying passengers who suffered injuries. It is undisputed that the unladen weight of subject vehicle was less than 7500 kgs. Thus, it was light motor vehicle as defined under section 2 (21) of the Act. It is not in dispute that the driver of the subject vehicle was having a driving licence authorising him to drive a light motor vehicle without any endorsement authorising him to drive transport light motor vehicle. The question is whether aforesaid licence was an effective licence authorising the driver to drive aforesaid vehicle for carriage of passengers for hire and reward?
9. In order to find answer to the above question, it would be useful to have a look on some relevant provisions of the Act. Section 2 (21) defines Light Motor Vehicle as under:
"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 7,500 kilograms.
10. Admittedly, the unladen weight of the vehicle in question was less than 7500 kgs. Therefore, it is squarely covered within the definition of Light Motor Vehicle.
11. Section 3 of the Act deals with the necessity for driving licence and it reads thus:
Necessity for driving licence.
(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub- section (2) of section 75] unless his driving licence specifically entitles him so to do.
12. From the above, it is clear that no person having a driving licence shall drive a transport vehicle other than a motor cab or motorcycle hired for his own use or rental under any scheme made under section 75 (2) unless his driving licence specifically entitles him to do so.
Undisputedly, in the instant case, the driver of the vehicle was not having an endorsement authorising him to drive a transport vehicle. Thus, the driver only had an effective driving licence authorising him to drive a Light Motor Vehicle other than a transport vehicle.
13. Section 2 (47) of the Act defines Transport Vehicle as under:
"transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
On reading of the above it is clear that public service vehicle is a transport vehicle.
Section 2 (35) of the Act defines Public Service Vehicle as under:
"public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage.
14. On bare reading of the above definitions, it is clear that in motor vehicle used or adapted to be used for carriage of passengers for hire or reward is a public service vehicle and it includes a motor cab. Admittedly, the subject vehicle is a motor cab which was used for carriage of passengers for hire and reward. Therefore, the subject vehicle at the time of accident was a public service vehicle. Therefore, it is squarely covered under the definition of a transport vehicle. Undisputedly, the driving licence of the driver of the subject vehicle at the time of accident was not having endorsement authorising him to drive a transport vehicle. Therefore, in view of section 3 of the Act, he cannot be termed as a person having an effective driving licence. Thus, it is clear that subject vehicle at the time of accident was being driven by a person not having an effective driving licence, as such, it is a clear case of violation of terms and conditions of the insurance policy particularly the Drivers Clause, which is reproduced as under:
Driver : Any person including insured:
Provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license.
Provided also that the person holding an effective learners licence may also drive the vehicle when not used for the transport of passengers at the time of the accident and that such a person satisfied the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.
15. From the above it is clear that the foras below have fallen in grave error in allowing the complaint ignoring the above provisions of the Act as also the terms and conditions of the insurance policy particular the Drivers Clause. Thus, the impugned orders cannot be sustained. In our aforesaid view, we find support from the judgments of the Supreme Court in the matters of Oriental Insurance Co. Ltd. Vs. Angad Kol and Ors. III (2009) SLT 586, New India Assurance Co. Ltd. Vs. Prabhu Lal (2008) CPJ 1 (SC), National Insurance Co. Ltd. Vs. Kusum Rai II (2006) CPJ 8 (SC), General Assurance Society Ltd. Vs. Chandanmall Jain and Another (1996) 3 SCR 500 and Ashok Gangadhar Maratha Vs.Oriental Insurance Co. Ltd. (1999) 6 SCC620.
16. Learned counsel for the respondent in support of his contentions has relied upon the judgments of the Supreme Court in the matters of National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria alias Nesaragi (2008) 3 SCC 464 and New India Assurance Co. Ltd. Vs. Roshnabhen Rahemansha Fakir & Anr. (2008) 8 SCC 253. So far as judgment in the matter of Annappa Irappa Nesaria alias Nesaragi (supra) is concerned, it has taken a view contrary to the view taken by the Supreme Court in the above noted judgments. Further, on careful perusal of the judgments relied upon by the respondent, we find that in the aforesaid case, definition of public service vehicle and transport vehicle as provided in section 2(35) and 2 (47) of the Act were not considered by the Honble Supreme Court. In view of this we tend to rely upon the judgment referred above.
17. So far as the judgment in the matter of Roshnabhen Rahemansha Fakir & Anr. is concerned, the aforesaid judgment does not help the respondent because vide the said judgment, the Honble Supreme Court set aside the view taken by High Court of Gujarat and passed in favour of the claimant in exercise of its jurisdiction under Article 142 of the Constitution of India.
18. Lastly, counsel for the respondent placed reliance on the judgment in the Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. (2010) 4 SCC wherein the Apex Court has spelled out criterion for fixing the claim of the insured on non-standard basis as under:
Sl. No. Description Percentage of settlement
(i) Under declaration of licensed carrying capacity Deduct 3 years difference in premium from the amount of claim or deduct 25% of claim amount whichever is higher.
(ii) Overloading of vehicles beyond licensed carrying capacity Pay claims not exceeding 75% of admissible claim.
(iii) Any other breach of warranty condition of policy including limitation as to use Pay up to 75% of admissible claim.
19. Since the driver of the subject vehicle was not holding an effective driving licence to drive a transport vehicle which is fundamental breach of terms and conditions of the policy, the above judgment is not applicable to the facts and circumstances of the present case.
20. This Commission in the case of Mudipalli Ellappa Ravi vs. M/s Royal Sundram Alliance Insurance Co. Ltd., revision petition No. 1272 of 2012 decided on 6.9.2012, held:
We have heard counsel for the petitioner and have considered her submissions. She only submits that the violation of the terms and conditions of the policy could be waived by the respondent insurance company and the claim could have been settled at least on non-standard basis, if not, as full claim going by the decision of the Supreme Court in the case of Amlendu Sahoo vs. Oriental Insurance Co. Ltd. (decision dated 25.03.2010 in Civil Appeal No. 27032010).
We have noted down these submissions only to be rejected because if the nature and kind of breach of the terms and conditions of the policy did not entitle the petitioner even the settlement of his claim even on non-standard basis. The breach being of fundamental in nature, we see no merit in these contentions. The order passed by the State Commission is justified on record and does not suffer from any illegality, material irregularity, much less any jurisdictional error, which warrants interference of this Commission. Dismissed.
21. Aggrieved by that order, SLP bearing (civil) No. 39343 of 2012 was filed before the Supreme Court. The Supreme Court was pleased to dismiss the SLP vide order dated 14.1.2013 and upheld the order passed by this Commission.
22. Similar view was taken by the Commission in the matter of New India Assurance Co. Ltd. Vs. Prabhu Lal 1 (2008) CPJ 1 (SC). In that case also, the SLP No. 12832-12833 of 2012 was filed in the Supreme Court and the Supreme Court dismissed the SLP vide order dated 03.12.2012.
23. In view of the discussion above, we are of the view that the impugned orders of the foras below suffer from material illegality inasmuch as those orders have been passed without analysing the relevant provisions of the Act. Thus, the orders cannot be sustained. Revision petition is accordingly allowed, impugned orders of the foras below are set aside and complaint is dismissed.
.
(AJIT BHARIHOKE, J.) PRESIDING MEMBER ..
(S. M. KANTIKAR) MEMBER