State Consumer Disputes Redressal Commission
Reliance General Insurance Co. Ltd vs Sh. Naveen Sharma on 4 April, 2013
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. F.A. No. : 136/2012 Date of Decision: 04.04.2013 Reliance General Insurance Co. Ltd. Anil Dhirubhai Ambani Group, S.C.O. 135-136, Sector -9C, Chandigarh. Appellant Versus Sh. Naveen Sharma, S/o Sh. Jagdish Chand Sharma, R/o Village Lunadha, Post Office Fatepur, Tehsil Sarkaghat, District Mandi, H.P. . Respondent CORAM Honble Mr. Chander Shekhar Sharma, Presiding Member
Honble Mrs. Prem Chauhan, Member Whether approved for reporting?[1] For the Appellant : Mr. Ratish Sharma, Advocate For the Respondent : Mr. Surinder Saklani, Advocate O R D E R:
Mr. Chander Shekhar Sharma, Presiding Member:
Present appeal is directed against the order dated 21.12.2011, passed by the District Consumer Disputes Redressal Forum, Mandi, H.P. camp at Sarkaghat, in Consumer Complaint No. 319/2010, whereby the complaint was allowed and the opposite party was directed pay `1,99,125/- within 30 days from the deposit of salvage by the complainant failing which to pay the amount alongwith interest at @ 9% per annum from the date of institution of the complaint till realization. The opposite party was further directed to pay to the complainant Rs. 5,000/- on account of compensation and harassment and Rs. 3000/- as costs of complaint. (Parties are hereinafter referred to as per their status in the complaint).
2. Factual matrix of the case is that the complainant who is owner of vehicle bearing No. HP-28-2462 had got the vehicle insured for a sum of Rs. 2,65,000/- with the opposite party for a period commencing from 11.07.2009 to 10.07.2010. This vehicle met with an accident on 06.08.2009 while being driven on Bhadrna-Sandhole Road and thereafter the matter was reported to the police and case was registered. Since the opposite party had not indemnified the complainant, despite the fact that the vehicle being total loss, as such, deficiency of service had been alleged on the part of the opposite party for not indemnifying the complainant.
3. That in this background complaint under Section 12 of the Consumer Protection Act was filed for deficiency in service against the opposite party, wherein the relief in the relief clause had been claimed for indemnifying as well as for awarding the compensation and litigation costs.
4. That this complaint was contested and resisted by the opposite party and it was pleaded that Sh. Pawan Kumar, who was driving the vehicle at that relevant time was only authorized to drive the Light Motor Transport Vehicle, while the vehicle in question was Medium Goods Vehicle. Hence, the driver was not competent to drive the vehicle involved in the accident as he was not having valid and effective driving license for the same, as such, there is violation of the terms and conditions of the policy and the claim was rightly rejected.
5. That the rejoinder to the reply was also filed, wherein, the averments made in the complaint were reiterated.
6. Brief resume of the evidence lead by the parties in nut-shell is that the complainant in support of his case has filed his own affidavit and placed reliance upon number of documents Annexure A to E. Opposite party in support of its case has filed affidavits of Sh. Krishan Kant, Deputy Manager (Legal) of the Insurance Company; Sh. Mohinder Kumar Sharma and Rajinder Kumar Sharma both surveyors in the present case and placed reliance on number of documents viz. consent affidavit, Copy of FIR, Copy of Driving License, receipt of Passenger & Goods Tax, Route Permit, Registration Certificate, Copy of Fitness Certificate, Insurance Policy etc.
7. We have heard the learned counsel for the parties and gone through the record of the case minutely.
8. Mr. Ratish Shamra, counsel for the appellant in the present case argued that the order of the Ld. Fora below is not legally sustainable and it deserves to be set aside, since the judgment of the Apex Court given in Amlandu Sahoo VS. Oriental Insurnace Company, 2010 (1) CPC 653 had been wrongly relied upon by the Ld. Fora below and is not applicable in the present case. Sh. Pawan Kumar, Driver who was on the wheel of the vehicle at the time of accident was only having license for Light Motor Vehicle (Transport), whereas the vehicle which was involved in the accident and was being driven at the time of the accident by Sh. Pawan Kumar was Medium Goods Vehicle. As per registration certificate Annexure-A, Laden Weight of the vehicle was 8,000 kg., since the driver was not having effective and valid driving license for driving the medium goods vehicle, as such, it is fundamental breach of the terms and conditions of the police. He had also placed reliance upon number of judgments of National Commission:
i) Oriental Insurance Company Ltd. Vs. Ashok Verghese III (2009) CPJ 73 (NC).
ii) Oriental Insurance Company Ltd. & Anr. Vs. M.D. Srinivasa III (2010) CPJ 78 (NC).
In these judgments, it was held that the driver who was holding a license for driving Light Motor Vehicle, driving the medium goods vehicle at the time of accident without endorsement for driving the same in the driving license, as such, there is clear cut violation of the terms and conditions of the policy. As per him, the gross weight of the transport vehicle is to be taken into consideration in deciding whether the vehicle is light transport vehicle or medium goods vehicle and he had placed reliance upon the decision the National Commission given in case titled United India Insurance Company Ltd. Vs. Ved Prakash III(2010) CPJ 52(NC). He had also drawn our attention to the definition of the light motor vehicle as given in Section 2(21) and medium goods vehicle as given in Section 2(23) of the Motor Vehicles Act. These definitions are also reproduced below for ready reference:
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;
MEDIUM GOODS VEHICLE" means any goods carriage other than a light motor vehicle or a heavy goods vehicle.
9. Mr. Saklani, counsel for the respondent argued and drawn our attention to the definition of the Light Motor Vehicle (Transport) as defined in Section 2(21) of the Motor Vehicles Act as referred to above. According to him, as per registration certificate Annexure-A of the vehicle its unladen weight is 3210 Kg., as such, this vehicle is Light Motor Vehicle. The driver of who was on the wheel of the vehicle could have driven the same since he was having license for driving the Light Motor Vehicle (Transport), which fact is clearly evident from his license, which is placed at page No. 43 and 44 of the case file, hence, there is no violation of the terms and conditions of the policy. He had also placed reliance upon the judgment of our own High Court titled Oriental Insurance Vs. Smt Khiramani and others 2011(3) Him L.R. 1277, wherein it was held that since the driver had a license for heavy goods vehicle, as such this license is valid for all transport vehicles. However, in this judgment it is not held that a person holding LMV (Transport) is authorized to drive Heavy Goods Vehicle and accordingly the above decision is of no help to the complainant. There is no dispute about the legal propositions laid down in the aforesaid judgments, which is settled legal position in the matter.
10. After hearing the learned counsel for the parties and going through the record of the case file, we are of the considered view that the judgment of the Learned Fora below is not legally sustainable and deserves to be set aside. Reason being, that in the present case, the judgment of the Apex Court given in Amlandu Sahoo Vs. Oriental Insurance Company, 2010 (1) CPC 653 had been wrongly made applicable by granting the claim on non-standard basis, whereas, in the present case there is fundamental breach of the terms and conditions of the policy since the driver who was on the wheel of the vehicle at that relevant time was driving the Medium Goods Vehicle, which fact is clearly evident from the registration certificate Annexure-A and laden weight of this vehicle is 8000 kg. Since as per the judgment relied upon by the counsel for the appellant titled United India Insurance Company Ltd. Vs. Ved Prakash III(2010) CPJ 52(NC) , only gross weight of the vehicle is to be seen and not unladen weight for determining the nature of the vehicle.
11. As per the definition of Light Motor Vehicle as defined under Section 2(21) of the Motor Vehicle Act, the Light Motor Vehicles means transport vehicle, the gross weight of which does not accede 7500 kg, whereas as per the Annexure-A, which is registration certificate of vehicle bearing No. HP-28-2462 being driven by the driver at the time of accident, the laden weight of the vehicle is 8,000/- Kg. which is more than 7500kg., as such, this vehicle cannot be termed as Light Motor Vehicle.
12. The laden weight of the vehicle being driven at that time of accident by Sh. Pawan Kumar is 8,000/- Kg. so, this vehicle is registered as Medium Goods Vehicle. The driver who was on the wheel of the vehicle at the time of accident was not having valid and effective driving license for driving the same since he was holding driving license for Light Motor Vehicle (Transport) only, as such, there is a complete violation of the terms and conditions of the policy as well as Section 3 of the Motor Vehicles Act which requires specific endorsement for driving of vehicle of special kind. The bare perusal of the license which is at page No. 43-44 of the complaint file this fact is clearly evident that the license is only valid for Light Motor Vehicles (Transport) and there is no endorsement of Medium Goods Vehicle on the same, as such, there is fundamental breach of the terms and conditions of the policy and judgment of Amlandu Sahoo Vs. Oriental Insurnace Company, 2010 (1) CPC 653 was wrongly made applicable in the present case, whereas, in the decision given by the National Consumer Disputes Redressal Commission, New Delhi in case titled New India Assurance Company Ltd. Vs. Smt. Meera Banolta passed in Revision Petition No. 4055 of 2010 dated 11th April, 2011, it was held that where there is fundamental breach of terms and conditions of the policy, in that case judgment of the Apex Court given in case Amlandu Sahoo VS. Oriental Insurnace Company, 2010 (1) CPC will not be applicable, therefore the judgment of the Learned Fora below is not legally warranted.
13. Peculiar features of the case are that the opposite parties had not challenged the order of the Ld. Fora below and as such, the findings qua license of Pawan Kumar had become final.
14. In the present case Mr. Saklani, counsel for the opposite parties had submitted the judgment of our own High Court given in case titled Oriental Insurance Company Limited Vs. Dashoda Devi and Others 2009 STPL(HJ)2855 HP, in our chamber on 01.04.2013, wherein it was held that Light motor vehicle included both a transport and a non-transport vehicle. Vehicle in question, a light motor vehicle as covered under definition clause 2(21) of Act, as unladen weight of vehicle not exceed 7500 kgs. - Thus, driver possessed with a valid and effective driving license to drive possessed with a valid and effective driving license to drive light motor vehicle-No merit in appeal and dismissed. These conclusions are based upon the definition of the Light Motor Vehicles Act,1988. There is no dispute about the legal preposition laid down in this judgment. This judgment is not applicable in the present case in view of the peculiar facts and circumstances of the case.
15. In view of the aforesaid discussion and facts and circumstances of the case, we accept the present appeal and set aside the order of the Learned District Forum, Mandi dated 21.12.2011 passed in consumer complaint No. 319/2010. Our view is supported with the decision given by the National Consumer Disputes Redressal Commission, New Delhi in case titled New India Assurance Company Ltd. Vs. Smt. Meera Banolta passed in Revision Petition No. 4055 of 2010 dated 11th April, 2011 AND United India Insurance Company Ltd. Vs. Ved Prakash III(2010) CPJ 52(NC).
16. Copy of this order be sent to the parties free of cost as per rules.
(Chander Shekhar Sharma)
Presiding
Member
(Prem Chauhan)
GAURAV Member.
[1] Whether
reporters of the local papers may be allowed to see the order?