State Consumer Disputes Redressal Commission
G. Ambajee, S/O G. Chinnaji,R/O 2-2-56, ... vs 1. National Insurance Co. Ltd,D.O. Iii, ... on 9 February, 2010
A
P.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
FA 1372/2007
against CC No. 1037/2005
on the file of the
District Forum I, Hyderabad
Between:
G. Ambajee,
S/o G. Chinnaji,
R/o 2-2-56, Mangalpet,
Narayankhed, Medak District,
Presently come down to Hyderabad
Appellant/complainant
And
1.
National
Insurance Co. Ltd
D.O.
III, 4th floor, Taramandal Complex
Saifabad,
Hyderabad.
2.
Automotive
Manufacturers (P) Ltd,
R. P. Road, Secunderabad . 500 003
.. Respondents/ OPs.
Counsel for the Appellant : M/s. A. Srinivasa
Rao
Counsel for the Respondents
: Mr. T. Ramulu
for R-1
M/s.
M. Papa Reddy for R-2.
CORAM :
Sri Justice D. Appara
Rao Honble President
Sri Syed
Abdullah Honble Member
And Sri R. Lakshminarasimha Rao Honble Member Tuesday, the Nineth Day of February, Two Thousand Ten Oral order : ( as per Sri Syed Abdullah, Honble Member ) ******** Being aggrieved by the order dated 24.11.2006 passed in CD 1037/2005 by the District Forum I, Hyderabad dismissing the owners claim for damages of the motor vehicle, the appellant/complainant filed this appeal questioning the legality and propriety of the order.
The facts of the case are that the complainant had purchased Mahindra Maxx vehicle by availing finance advanced by OP.2 and on the advice of the financier, the said vehicle was insured with respondent/OP 1. The said vehicle was used for private and domestic purposes. The complainants relative by name Pandurang wanted to go on pilgrimage along with the family so he spared the vehicle and sent his driver V. Ganapathirao to go on journey. On the way to Pandarpur, the vehicle met with an accident near Solapur, Pune road on 06.06.2003 as a result of one person died and others sustained injuries including the driver. The police registered a crime against its driver. On coming to know of the accident, the complainant informed to the insurance company/OP.1 and it appointed a surveyor to assess the loss cussed to the vehicle. After inspection of the vehicle by the surveyor the vehicle was sent to workshop of OP.2 for repairs and that sum of Rs.2,35,127/- was incurred for repairing it. A claim was preferred by the complainant but it was repudiated on 5.5.2004. So he approached the Insurance Ombudsman who also fail to consider his claim. There is no violation of the policy conditions to repudiate the claim. Non payment of the insurance claim is attributed as deficiency in service.
OP. 1 Insurance company had resisted the claim . Its version is that though the vehicle was registered as private vehicle but the policy was taken as commercial passenger vehicle. As the vehicle was used for commercial purpose, the driver should possess valid and effective driving licence to drive the commercial vehicle. At the time of accident the vehicle was overloaded exceeding its capacity. It is carrying passengers on hire or reward. It was plied as taxi without permit. As it was used in contravention of the terms of the policy, it is not permissible to pay the insurance claim, so it was repudiated.
Further, the complainant is not a consumer and that the complainant did not produce the documents before the surveyor. As per the FIR details the vehicle was used for carrying passengers on hire or reward. Further the driver though drove the vehicle in rash and negligent manner which resulted causing the death of one person. The driver had obtained licence to drive LMV vehicles only.
During the enquiry Ex A1 to A21 and B1 to B3 documents were filed along with respective evidence affidavits by the complainant and insurance company respectively.
Going through the evidence on record, the District Forum dismissed the complaint holding that there was a violation of policy conditions as the driver was not having valid driving licence to drive the commercial vehicle and therefore the insurance company is justified in repudiating the claim.
The appellant reiterating the contentions raised in the appeal grounds has urged that the vehicle in question was registered as LMV and the driver was having valid driving licence to drive it. On the contrary, there is no evidence to establish that the vehicle was used for hire or reward and the recitals in the FIR in which the passengers said to have stated that they have taken the vehicle on hire to go on pilgrimage to Pandarpur cannot be accepted as a conclusive evidence. Apart from it, the FIR was recorded in Marathi language which is not known to the informant nor the other persons from whom the statements were recorded by the police.
The undisputed facts of the case are that the vehicle bearing No. AP 10 AMTR /R 1699 was registered on 16.05.2003 as LMV and the insurance policy Ex A2 was taken for passengers/carrying commercial vehicle B. policy package under which there is a limitation that either the owner or the driver driving the vehicle should have valid driving license to drive it . The policy has covered the accident arising out of any act or any claim arising out of the accident to an extent of Rs.7,50,000/-.
The respondent company resisted the claim and supported the findings of the District Forum based on the admitted facts and contends that Ex A2 policy itself was obtained for commercial vehicles and that the vehicle as private LMV vehicle was used on hire or reward so it assumes the character of commercial vehicle for which the driver requires valid driving licence required under Sec. 3 of MV Act and it is also necessary to have permit to drive the vehicle as passenger carrying vehicle.
It is pointed out that the recitals of FIR are crystal clear that the informant and the passengers in the vehicle have stated that the vehicle was taken on hire to go on pilgrimage to Pandarpur.
It is contended by the appellant that the FIR was recorded in Marathi language, while so the informant and other passengers are not aware of it, so the information as noted in it cannot be based as evidence to hold that the vehicle was used for carrying passengers on hire or reward. The sworn affidavits given by the informant and other passengers is very much harped that they did not state the details as noted in the FIR by the police. At the outset it can be said that the informant and other passengers have not denied the other factual aspects except the fact that they did not say that the vehicle was engaged on hire from its owner. Even assuming that the informant of the FIR and other passengers are not conversant with Marathi language, some persons who is knowing Hindi language must have been engaged to elicit the information or the informant and others themselves must have spoken in Hindi language which is a common language used in the day to day transactions. It is hard to believe that the police themselves have noted the details as mentioned in the FIR when other details are not denied. It is not possible to accept the contention that the police on their own accord have noted the details. Though, the informant and other passengers have filed third party affidavits, they have not denied that they are not at all conversant with Hindi language. It is quite possible that the police have communicated with the informant and the passengers in Hindi language to ascertain the details as to the cause of the accident and after eliciting the information the same was recorded both in the FIR and in 161 Cr. P. C. statement.
No doubt the accident vehicle was registered as Light Motor Vehicle (LMV) and for private use whose un-laden weight is not exceeding 7500 kgs and as per sec. 2(21) the Light Motor Vehicle (LMV) means a transport vehicle or omni bus 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 7500 kgs. However, the accident vehicles capacity is 10 seater excluding driver as such it is attracted by the definition of transport vehicle U/s.2(47). Transport Vehicle means a public service vehicle, a goods carriage, an educational institution bus or private service vehicle. As per the information recorded in FIR which were furnished by one Panduranga (the informant) he had taken the vehicle on hire from the complainant to go on pilgrimage along with his family members. Thus he has categorically stated that the vehicle was taken on hire to go on pilgrimage to Pandarpur. In case, a motor vehicle which carries passenger or passengers on hire or reward is to be treated as contract carriage as per the definition U/s. 2(7) of Contract Carriage which lays down as follows :
Where persons try to have the use of the vehicle as a whole on the basis of contract for the specific purpose of having a trip or trips from one place to another without stopping in the intermediary stations or places, the vehicle is termed as contract carriage.
For example, if a car under contract is used a for a agreed sum it would be a contract carriage as per the above definition. This aspect ahs been made clear in a decision In Re Ramachandran AIR 1942 Mad 276(2) at page 277. The definitions of the category of vehicle also is to be noted for better appreciation of the implications.
Sec. 2(22) had defined maxicab means any motor vehicle constructed or adopted to carry more than six passengers, but not, more than 12 passengers, excluding the drive for hire or reward.
Sec.2(25) motorcab means any motor vehicle constructed or adopted to carry not more than six passengers excluding the driver for hire or reward.
Even though the Maxicab and Motorcab also Light Motor Vehicles (LMVs) but on accounts of its use these vehicles are also comes within the definition contract carriage and transport vehicle as defined under 2(7) and 2(47) r/w. Sec. 2(35) which has defined public service vehicle. If any motor vehicle used or adopted to be used for the carriage of passengers for hire or reward it includes maxicab or motorcab or motor car it falls within the definition of public service vehicle. Thus ,any public service vehicle, a goods carriage, an educational institution bus or private service vehicle would falls within the definition of transport vehicle as defined U/s. 2(47). Irrespective of the fact that the said vehicle is a Light Motor vehicle as per its registration. If any vehicle comes under the category of transport vehicle the driver should require effective driving licence as defined U/s.
3 of MV Act. A. driving license as defined U/s..2 (10) is different from the effective licence as described U/s. 3 of M. V. Act. Driving license is defined Under S. 3 of the M. V Act which reads as follows :
No person shall driver a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing 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 under sub section of section 75 unless his driving licence specially entitles him so to do.
In respect of the owners claim for damages the Apex in its decision in National Insurance Company. Vs. Prabhulal reported in 2008 (1) SCC Crl. Page 308 has made it clear that though the driver holds a valid driving licence to ply LMV, if he does not have any endorsement on it authorizing him to drive a transport vehicle in the event of any damage to the vehicle the Insurance company cannot be made liable to pay damages in view of breach of conditions in terms of the insurance policy. In the said decision a reference was made to the facts of the case. In Chandra Prakash Saxena in SLP 17794/2004 where the vehicle involved in accident was a Jeep commander made by Mahindra and Mahindra a passenger carrying commercial vehicle for which the driver was holding a driving licence to drive Light Motor Vehicle so it was held that he could not have plied the vehicle in question and thereby made it clear that the insurance company cannot be made liable.
In the present case the C certificate of the accident vehicle is noted under the column . class of vehicle - omni bus private LMV and classified as Mahindra Maxx twwd. (10) - seat with its unladen weight of 1720 kgs. Even from the particulars of certificate of registration the accident vehicle is an omni bus falling within the definition U/s. 2(47) as transport vehicle. As it was transport vehicle Ex A2 policy was obtained as commercial vehicles Package Policy. So from the type of the policy it is to be inferred that the vehicle was used for commercial purposes. From the evidence it is clear that the said vehicle was engaged by Panduranga and his family members to go on pilgrimage and on the way it met with an accident.
While lodging a report the informant was not knowing whether the owner had obtained a permit or not for using it as a contract carriage.
So he disclosed the true factual aspects to the police that the vehicle was engaged on hire for their purpose. It can be said without any hesitation that the complainant had hired the vehicle to one Panduranga though the certificate of registration was taken for private purpose. The complainant had no necessity to take a commercial policy when the same was not used as contract carriage. Viewing from any angle both from factual aspect and the provisions of M.V Act when the driver was not having any effective driving licence to drive a transport vehicle, the complainant is not entitled to claim for owner damages and the repudiation of the claim is held as just and proper. For the afore said reasons and discussion we hold that the appeal is devoid of merits.
In the result, the appeal is dismissed confirming the order of the District Forum as justified. There is no order as to costs.
Sd/-
PRESIDENT Sd/-
MEMEBR Sd MEMBER DATED : 09.02.2010.