State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. Regional ... vs Dharam Singh Punia Son Of Shri Lila Ram ... on 3 April, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.909 of 2008 Date of Institution: 03.04.2008 Date of Decision: 03.04.2012 New India Assurance Co. Ltd. Regional Office, SCO No.36-37, Sector 17-A, Chandigarh, through its duly constituted attorney. Appellant (OP) Versus Dharam singh Punia son of Shri Lila Ram Punia, Resident of VPO Satrod Punida, Tehsil and District Hisar. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri D.K. Dogra, Advocate for appellant. None for respondent. O R D E R
Justice R.S. Madan, President:
Case called several times since morning but none put in appearance on behalf of the respondent-complainant though the case is fixed for arguments. It is already 1.00 P.M. This appeal relates to the year 2008. Heavy pendency of appeals/complaints as well as non-cooperative attitude of the parties/their counsel is the reason for heavy cause list. Under these circumstances we do not think it appropriate to adjourn this appeal indefinitely and therefore we proceed to decide the same after hearing the This appeal has been preferred against the order dated 01.02.2008 passed by District Consumer Forum, Hisar.
Undisputed facts of the present case are that Mahendra Max passenger carrying commercial vehicle of the respondent (complainant) was insured with the appellant-opposite party for the period of 25.04.2004 to 24.04.2005. On 27.03.2005, the vehicle damaged in the accident. Claim submitted by the complainant with the opposite party was repudiated on the ground that at the time of accident, the driver of the vehicle namely Rajinder son of Kirpa Ram was not having a valid and effective driving license. Rajinder was having driving license for driving, motorcycle and car which was valid upto 17.11.2004 and thereafter the said driving license was not renewed till accident. It was also noticed that the vehicle was commercial vehicle and could not be driven by the person having LMV driving license. District Consumer Forum accepted complaint with the observation that the driver of the vehicle had no concern with the accident.
Aggrieved against the order of the District Forum, the opposite party has come up in appeal.
Heard.
Undisputedly, the driving license of Rajinder son of Kirpa Ram-driver who was driving the car, was not holding any driving license to drive the commercial vehicle. Rajinder was only having the driving license to drive car, motorcycle and scooter which was valid upto 17.11.2004 and thereafter the same was not got renewed by Rajinder son of Kirpa Ram and thus on the date of accident, when he was driving the ill-fated vehicle of the complainant, Rajinder was not having any valid and effective driving licence to drive commercial vehicle.
While accepting the complaint, District Consumer Forum has recorded a finding that as per the report of the surveyor, the driving licence of the driver was verified and for that reason the opposite party was not justified in repudiating complainants claim on the ground that the driver was not holding a valid and effective driving licence at the time of accident. District Consumer Forum has also observed that at the time of accident, Rajinder was driving the vehicle and all of a sudden tyre of jeep got burst due to which the vehicle went out of control and overturned down in the ditches resulting damage to the vehicle. In our view this observation of the District Forum is not sustainable because the surveyor has nowhere stated in his report that the driving licence of the driver Rajinder was verified from the Licensing Authority. More so, the controversy involved in the instant case is not with respect to the genuineness of the driving licence but the same is with respect to the validity of the driving licence on the date of accident on the basis of which complainants claim was repudiated. In the entire complaint, the complainant has not stated that the driving licence of Rajinder was valid on the date of accident.
Complainant has not produced any evidence that the driving licence of Rajinder was renewed after 17.11.2004. The manner of accident is not significant under the facts and circumstances of the case.
So far as the kind of driving licence of Rajinder which was valid upto 17.11.2004 is concerned, admittedly, it was for Scooter, Motorcycle and car and thus was a L.M.V. licence and not a commercial licence. Rajinder-driver was driving Mahendra Max passenger carrying which is commercial vehicle. This fact is established from the copy of Insurance Cover Note Annexure A-1, Surveyors Report Annexure A-2 and Motor Claim Form Annexure A-3.
The controversy with respect to commercial driving licence had arisen before Honble National Commission in case of New India Assurance Co. Ltd. versus Ladu Kishore Sahu, 2004(1) Judicial Reports Consumer 34 (N.C.) wherein following observations were made:-
5. Section 10, Clause (d) and Clause (e) mention that these two distinct clauses thus clearly signifying that these two are mutually exclusive clauses. In this case, Jubaraj was issued a licence valid for 20 years. There is also no specific entitlement in the driving licence to drive a taxi. Obviously, it was not a licence to drive transport vehicle. Having his act in driving a taxi was illegal and such driving was in contravention of the terms of the policy conditions. In our view, the Insurance Company was right in repudiating the claim. The Revision petition is allowed and the order of the State Commission is accordingly set aside.
Further reference was made to case law cited as National Insurance Co. Ltd. v. Smt. Kusum Rai & Ors, JT 2006(4) SC 9, wherein the Honble Supreme Court has observed that for driving a taxi, the driver should have possess a driving licence to drive commercial vehicle. Para 11 of the judgment is as under:-
11. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle.
The driver of the said vehicle, thus, was required to hold an appropriate licence therefore. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence.
Honble National Commission while deciding similar situated case cited as ABRAR AHMED ANSARI versus NEW INDIA ASURANCE CO. LTD. & ANR. I(2007) CPJ 288 (NC), relied upon the judgment rendered by Honble Apex Court in Kusum Rais case (Supra) and observed as under:-
4. Copy of survey report dated 18.1.2002 (filed on 25.7.2006) would show that the driver was possessing Light Motor Vehicle (personal) driving license. Admittedly, matador in question was being used as commercial vehicle at the time of accident. Decision in National Insurance Co. Ltd. V. Kusum Rai, II(2006) CPJ 8 (SC), rendered by the Supreme Court has a bearing in this case. In this decision driver of the jeep used as a taxi was granted license for driving light motor vehicle. Stand taken by the Insurance Company was that it was not liable to pay the claimed amount as the driver was not possessing driving license for running commercial vehicle. Claim was by a third party. Considering various decisions rendered by the Apex Court itself noticed in the judgment, the Court held that in a case of this nature the owner of vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid license or not.
.
5. Applying the ratio of this decision to the facts of present case, the respondent-Insurance Company was fully justified in repudiating the claim on ground of driver who was possessing license for L.M.V. (personal) not holding a valid license to drive a matador used for commercial purpose.
The facts of the instant case are fully attracted to Ladu Kishore Sahus case (Supra), Kusum Rais case (Supra) and AHMED ANSARIs case (Supra).
Photo state copy of the Registration Certificate of the vehicle at page 35-36 reflects that the sitting capacity of the vehicle is 9+1 and thus the vehicle falls in the category of Light Transport Vehicle. But the driving licence of Rajinder which was valid upto 17.11.2004 only and was not renewed thereafter, was a L.M.V. driving licence. Thus, it is fully established that the complainant had handed over his vehicle to a person who was not authorised to drive the same and therefore, the appellant-Insurance Company cannot be held liable to pay any Insurance Benefits to the complainant against the terms and conditions of the Insurance Policy as well as against the provisions of Section 3 of the Motor Vehicle Act. District Consumer Forum has not considered all these aspects and erred in allowing the complaint. Hence, the impugned order cannot be allowed to sustain.
For the reasons recorded above, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/-
deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 03.04.2012 President B.M. Bedi Judicial Member