State Consumer Disputes Redressal Commission
The New India Assurance Co. vs Smt. Kinauri Devi on 18 June, 2008
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA Appeal No. 281/2005 Date of Decision 18.06.2008. The New India Assurance Co. Ltd. Hospital Road, Mandi through its Divisional Manager IIIrd Floor, Block No.7, SDA Complex Kasumpti Shimla-9. . Appellant Versus Smt. Kinauri Devi W/o Sh. Munshi Ram R/o Vill. Luhnu, PO Jarol, Tehsil Sundernagar, Distt. Mandi, HP. . Respondent. Honble Mr. Justice Arun Kumar Goel, President. Honble Mrs. Saroj Sharma, Member. Whether Approved for reporting? For the Appellant. Mr. Ratish Sharma, Advocate. For the Respondent. Mr. Shashi Bhushan Singh Chandel, Advocate. O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) Facts giving rise to this appeal are within very narrow compass. Reason being that vehicle which is subject matter of accident in this case was a Tata Mobile-207 bearing registration No. HP-31-6420. It is a transport vehicle is again not disputed between the parties. During the validity of Insurance policy, it met with accident on 4.8.2004 at Baddi, District Solan. After the accident intimation was sent by the respondent to the appellant. Surveyor was deputed who submitted his report, copy where of is at pages 25 to 29 of the complaint file. He had recommended net indemnity in the sum of Rs. 58,988/-. In this report it is also stated that the salvage value is Rs. 5,000/- plus 10% approximately.
2. Driver of the vehicle was admittedly holding a driving licence whereby he was licensed to drive a Light Motor Vehicle (LMV) only. It was issued on 9.6.2000 and was valid upto 8.6.2003. Further endorsement made on this licence indicates that it was got renewed from time to time. There is no endorsement in the licence as it was originally issued or thereafter when it was renewed to drive a LMV (Transport). In the aforesaid background after the claim had been repudiated, respondent filed complaint No. 36/2005 before the District Forum below at Mandi. By means of impugned order dated 25.8.2005 appellant has been directed to pay Rs. 59,000/- alongwith 6% interest from the date of repudiation of the claim i.e. 8.2.2005 till the entire amount was realized as also Rs. 1000/- as cost of litigation and compensation. Hence this appeal.
3. Mr. Sharma by referring to the decisions of the Honble Supreme Court in the case of National Insurance Co. Ltd. Vs. Kusum Rai & Ors., II (2006) CPJ 8 (SC), New India Assurance Co. Ltd. Vs. Prabhu Lal, I (2008) CPJ 1 (SC) and of National Commission in the case of New India Assurance Co. Ltd. Vs. Ladu Kishore Sahu, III (2003) CPJ 99 (NC), submitted that in the absence of endorsement on the licence whereby the driver was licensed to drive a transport vehicle this is a case of no licence, as such this appeal deserves to be allowed on this short ground alone and complaint dismissed. Contentions urged on behalf of the appellant have been seriously contested by Mr. Chandel learned counsel for the respondent. He relied upon two decisions of the National Commission in the case of SOLARTECH S-U Vs. Oriental Insurance Co. Ltd., I (2006) CPJ 69 (NC) and National Insurance Co. Ltd. Vs. Ramesh Kumar IV (2006) CPJ 400 (NC) and urged that the impugned order deserves to be upheld by dismissing this appeal.
4. So far endorsement by a driver who is on the wheel of a transport vehicle authorizing him to drive such a vehicle is concerned, the matter is no more res-integra in the face of the 2 decisions of the Honble Supreme Court (supra), and relied upon by Mr. Sharma. Faced with this situation Mr. Chandel referred to a recent decision of the Honble Supreme Court in the case of National Insurance Company Ltd. Vs. Annappa Irappa Nesaria alias Nesaragi & Ors, (2008) 3 SCC 464, and submitted that the driver in the instant case had obtained the licence in the year 2000 i.e. much prior to 28.3.2001, as such his licence was legal and valid, therefore, this appeal is liable to be dismissed with cost. After having examined the judgment relied upon by Mr. Chandel, we are of the view that in case accident had taken place between 2000 and 2003 when the licence was valid, his case was squarely covered by the decision of the Honble Supreme Court.
In the instant case admittedly after expiry of his driving licence the driver has got it renewed from time to time as required under law. Therefore the accident having taken place after 2003 makes this case distinguishable from the decision of the Honble Supreme Court on which reliance was placed by Mr. Chandel. As such no benefit can be derived by him from this decision. Regarding the two decisions relied upon by Mr. Chandel they do not hold the ground in the face of the 2 decisions of the Honble Supreme Court referred to hereinabove, those were relied upon by Mr. Sharma.
5. Next question that arises for consideration is, as to whether this appeal is to be allowed and consequently complaint to be dismissed or we can treat the present case as a non standard claim. Our reply to this poser would be in the affirmative.
6. Reason being that this is a case of breach of warranty of the policy of insurance subject to which the vehicle was insured with the appellant. General Insurance Corporation of India Ltd. had issued guidelines to all the Nationalized Insurance Companies like appellant as to under what circumstances the claim is to be treated as non standard claim. In our opinion present case is covered by guideline No. 10 (iii) of these guidelines. In this behalf we may notice that issuance of these guidelines is not in dispute. And as already observed, it is a case of breach of warranty on the part of the respondent because in terms of the policy subject to which the vehicle was insured, only duly licensed driver could have driven the vehicle. That having been held against the respondent on admitted facts, therefore, decision of this case need not detain us. Though at this stage Mr. Chandel submitted that looking to the meagre amount awarded to his client, the appeal may be dismissed by upholding the impugned order. This plea we are noticing simply to be rejected. Ordered accordingly.
7. So far decisions relied upon by Mr. Sharma are concerned, there the question regarding treating the cases where there is breach of warranty/conditions of the policy including limitations as to its use, was not considered by the Honble Supreme Court as also by the National Commission in the decisions relied upon by both the sides. As such none of these advances the case of the parties for either dismissing or allowing the appeal as claimed by their learned counsel.
8. No other point is urged.
In view of the aforesaid discussion while partly allowing this appeal, it is ordered that Rs. 44,250/- alongwith interest at the rate and from the date together with cost as assessed by the District Forum below, is payable by the appellant to the respondent subject to the conditions that either the respondent shall return the salvage and in case she fails to do the needful by or before 15th August, 2008 then Rs. 5,000/- being the cost of salvage shall be deducted out of the amount ordered to be paid in terms of this order. Subject to this modification in the order of the District Forum, Mandi, in Complaint No. 36/2005, dated 25.8.2005 the appeal stands disposed of.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Learned counsel for the parties have undertaken to collect the copy of this order from the Reader free of cost as per rules.
Shimla.
18th June, 2008. (Justice Arun Kumar Goel) Retd.
President.
(Saroj Sharma), d.kZ* Member.