State Consumer Disputes Redressal Commission
Kailash Chandra Kalkhundia vs Oriental Insurance Co. Ltd. on 3 January, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 53 / 2007
Sh. Kailash Chandra Kalkhundia
S/o Shri Jai Dutt Kalkhundia through
Jai Motor Transport Company,
Cement Road, Tanakpur, Tehsil Shri Poornagiri,
District Champawat.
......Appellant
Versus
1. Branch Manager, The Oriental Insurance Co. Ltd.,
Siddhu Place, First Floor, 24, Awas Vikas,
Nainital Road, Rudrapur, District Udham Singh Nagar.
2. M/s Mega Motors, C.V.D., Haldwani
District Nainital.
.....Respondents
Sh. Harish Chand Dhaundhiyal, Learned Counsel for the Appellant
Sh. Niranjan Prakash, Learned Counsel for Respondent No. 1
Sh. Deepak Ahluwalia, Learned Counsel for Respondent No. 2
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 03/01/2008
ORDER
(Per: C.C. Pant, Member):
This appeal is directed against the order dated 05.02.2007 passed by the District Consumer Forum, Udham Singh Nagar in Consumer Complaint No. 59 of 2004. Vide its majority decision, the District Forum has dismissed the complaint.
2. In brief, the facts of the case leading to filing of the consumer complaint are that the appellant - complainant had purchased a mini truck - Tata 1109, in the year 2002 bearing the registration No. U.A.03/0921. The vehicle was insured with the respondent No. 1 - the insurer under the policy cover note No. 31/2003/448 and was 2 effective for the period from 08.05.2002 to 07.05.2003. The vehicle met with an accident on 03.11.2002 between Bagarihat and Khulbiyari, near Joljibi, Thana Askot, District Pitthoragarh and got badly damaged. The cause of the accident, as stated by the complainant, was failure of the vehicle's brakes. Appellant informed the insurer immediately and lodged a claim for the loss. A spot survey was conducted by the surveyor on 06.11.2002 and the photographs of the accidented vehicle were also taken on 22.11.2002. As stated by the appellant, on the basis of the surveyor's report the insurer had offered the appellant a sum of Rs. 1,67,000/- against the claim, which the appellant refused to accept because the authorized service centre had estimated the cost of repairs at Rs. 3,97,000/-. Appellant sent letters to the insurer on 26.03.2003, 19.04.2003, 23.05.2003 and 26.08.2003 for settling his claim, but the insurer did not take any action. Appellant also sent a letter dated 19.04.2003 to the customer service centre. Ultimately, on 03.02.2004, the insurer - respondent no. 1 repudiated the claim on the ground that the driver of the vehicle did not hold a valid driving licence at the time of the accident and, thus, the insured - appellant had violated the terms of the policy. Upon this, the appellant filed the aforesaid Consumer Complaint before the District Consumer Forum. The District Forum dismissed the complaint on the ground that the driver of the vehicle did not hold a valid driving licence at the time of the accident. Aggrieved by the said order, complaint has preferred this appeal.
3. We have heard the counsel for the appellant and the respondents and perused the material placed on record.
4. There is no dispute regarding the ownership of the vehicle, effective period of the insurance policy and the date of the accident. This appeal is to be decided on facts as well as in view of the legal 3 point involved in the case. On facts, firstly, it is to be seen whether the vehicle in question, which is a transport vehicle, is a light motor vehicle stated by the complainant - appellant or a medium motor vehicle as concluded by the District Forum in its order. In sale certificate issued by the seller in Form - 21 (Paper No. 40), prescribed under Rule 47(a) and (b) of the Motor Vehicle Rules, class of vehicle has been mentioned as "LCV". A careful perusal of the certificate reveals that initially the vehicle was classified into some other category and then that category has been erased and "LCV" has been written. The signature of the person attesting this cutting is different from the signature of the person issuing the certificate. As per details given in this certificate, the unladen weight of the vehicle is 4020 kg and gross weight is 10500 kg. We also perused the certificate of Registration of the vehicle in Form No. 23 (Paper No. 38), wherein also the class of vehicle has been shown as "LCV" and the unloaded weight and gross vehicle weight are mentioned as 4020 kg and 10500 kg respectively. Under Section 2(15) of the Motor Vehicles Act, 1988 "gross vehicle weight" has been defined as the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle. As per definition, gross vehicle weight of the vehicle in question is 10500 Kg. Under Section 2(21) of the Motor Vehicles Act, 1988, "light motor vehicle" has been defined as 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 Kg. Certainly, the vehicle in question cannot be classified as "LCV". We fail to understand as to why the seller had shown it a "LCV" and how the office of the Registering Authority failed to detect this error (or manipulation) in Sale Certificate. A Seller of the motor vehicle is supposed to know the provisions of the Motor Vehicles Act, 1988. The purchaser - appellant had certainly purchased the vehicle in 4 question for a commercial purpose. So he is also supposed to know the provisions of the relevant statutes before starting commercial activity. There seems a least probability that both seller and purchaser of the vehicle were ignorant of loss and they had a bonafide belief that vehicle in question was a light commercial vehicle (LCV). This matter was referred to the Regional Transport Office, Kumaon Region, Haldwani by the learned President of the District Forum vide his letter No. 74/C.F./2006 dated 19.05.2006, who, in reply to this letter had also confirmed vide his letter No. 1037/T.R./Transport/06 dated 06.06.2006 that the vehicle in question with gross vehicle weight of 10500 Kg under the category of medium motor vehicle.
5. Thus, the vehicle in question is a medium motor vehicle, but it was being driven in hill roads by a driver, who was entitled to drive a vehicle of LMV category only in the hill roads of Kumaon Region as is evident from driver's licence (Paper No. 37).
6. Now, we come to legal aspect of the case. To decide this appeal, two questions need to be answered. Firstly, whether the insurer - respondent No. 1 is liable to indemnify the insured against the loss or damage to the vehicle under the terms of the policy in the aforesaid circumstances. Secondly, if the answer to this question is "Yes", then to what extent the loss can be compensated.
7. Appellant's contention in reference to first question is that he had the bonafide belief that the vehicle in question was a light commercial vehicle and the basis of his belief was the classification made by the seller and the Registering Authority. Therefore, he had appointed, after his satisfaction, a driver who had a valid licence to drive a Light Motor Vehicle in hill roads also. As such, the terms of the insurance policy have not been violated. By repudiating his just 5 claim, the insurer - respondent No. 1 has committed deficiency in service. Therefore, the prayer made by him in the consumer complaint was just and should have been allowed. In support of his contention, appellant has placed reliance on Hon'ble Supreme Court's decision in Jitendra Kumar Vs. Oriental Insurance Co. Ltd. and others; 2003 AIR SCW 3739.
8. In Jitendra Kumar's case (supra), the vehicle insured with the insurer had caught fire due to mechanical reasons. The insurance company had repudiated the claim lodged by the insured for payment of damages on the ground that the driver of the vehicle did not have a valid driving licence at the time of accident. On filing a consumer complaint, the District Forum came to the conclusion that the accidental fire, due to which the vehicle got damaged, was not caused due to any act of the driver, but was due to mechanical fault. The District Forum held that for this reason, the claim could not be repudiated by the insurer on the ground that the driver of the vehicle did not hold a valid driving licence at the time of the accident and accordingly ordered the payment of damages, compensation and cost.
9. We are of the opinion that facts of the appellant's case are different from Jitendra Kumar's case (supra). Appellant's vehicle, as per statement of the appellant, had lost control due to failure of the vehicle's brakes and had dashed against a rock. In support of his contention, appellant has not produced any evidence, such as a technical report, which may prove that the accident had occurred due to mechanical fault. In absence of such a report, it cannot be ruled out that the accident occurred due to driver's negligence or reckless driving. The onus to prove that the accident had occurred due to some mechanical reason, lies on the complainant - appellant. While in Jitendra Kumar's case (supra), the vehicle had caught fire for which, 6 in our opinion, a technical report is not necessarily required. Therefore, in our opinion, principle laid down by Hon'ble Supreme Court in Jitendra Kumar Vs. Oriental Insurance Co. Ltd (supra) is not directly applicable in appellant's case.
10. In matters of accidental claims, principles laid down by Hon'ble Supreme Court in National Insurance Co. Ltd Vs. Swaran Singh; I (2004) SLT 345 = I (2004) ACC 1 (SC) = 2004 (3) SCC 297, were being followed even in those cases where the driver of the accidented vehicle did not hold a valid driving licence. Hon'ble Supreme Court held in the said case that mere absence, fake or invalid driving licence or disqualification of the driver at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. But in its judgment in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut; III (2007) CPJ 13 (SC), Hon'ble Supreme Court made a distinction between insurer's liability in respect of third party damages and in respect of own damages in such cases of accidental claims, where driver did not hold a valid or hold fake driving licence at the time of accident and held that Swaran Singh's case (supra) has no application in own damage cases. In the light of this judgment, we are of the view that the claim lodged by the appellant - complainant was rightly repudiated by respondent No. 1 - the insurer.
11. In the result, the appeal is dismissed. No order as to cost.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN)