State Consumer Disputes Redressal Commission
Hamidaben J Kevar vs Hdfc E R G O Gen Ins Co Ltd on 10 November, 2023
Details DD MM YY
Date of Judgment 10 11 2023
Date of filing 26 04 2017
Duration 15 06 06
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 2
Appeal No.356/2017
Hamidaben Jusab Kevar
Resi: Machhyara Fadiya,
Bhaj- Katchh. ...Appellant.
Vs
Manager shri,
HDFC Ergo General Insurance Co. Ltd.
C. G. Road, Ahmedabad. ...Respondent.
CORAM: Hon'ble Ms. A.C. Raval, Presiding Member
APPEARANCE : Mr.Anand Parikh, Ld. Advocate for the Appellant Mr. M. J. Parikh, Ld. Advocate for the Respondent.
Order by Ms. A. C. Raval, Presiding Member
1. Appellant has filed this appeal under section 15 of the Consumer Protection Act 1986, being aggrieved by and dissatisfied with the judgment and order dated 15/03/2016 K.Navlakha A-17-356 Page 1 of 12 Passed by the Consumer Disputes Redressal Commission, Kutchh-Bhuj, in consumer complaint No. 151/2013.
2. The appellant in this appeal is an original complainant where as the respondent is original opponent in the complaint. Hence for the sake of the convenience, parties are hereinafter referred to by their original nomenclature/status.
Facts of the case:
3. It is the case of the complainant that the husband of the complainant Mr. Jusub Ayub Kevar was owner of the vehicle having registration No. GJ-12-Y-1182. The husband of the complainant had taken insurance for the said vehicle from the respondent insurance company. The period for insurance was 06.04.2011 to 05.04.2012. In the policy life risk of the driver cum owner was covered for Rs. 2,00,000/-. The said vehicle met with an accident on 06.04.2011, during policy period. The insurance company was informed about the accident and complainant lodged the personal accident claim for the death of her late husband. The application was made on 06.08.2011, again on 24.08.2011, 24.10.2011 and 11.11.2011. The complainant sent a reminders to the insurance company for availing the personal accident risk insurance amount of Rs. 2,00,000/- The opponent insurance company did not reply any of the application of the complainant, hence the complainant preferred CC. No. 151 of K.Navlakha A-17-356 Page 2 of 12 2013 before the Ld. District Commission Bhuj, where the opponent insurance company took the plea that the vehicle was not having the valid fitness certificate and the driver was not having proper endorsement in the driving license for at the time of accident, therefore, the claim is not maintainable. That considering the other factual aspects, Ld. District Commission dismissed the complaint of the complainant vide order dated 15.03.2016. Being aggrieved and dissatisfied with the order passed in Ld. Di. Commission dated 15.03.2016 in CC No. 151/2013 the original complaint has preferred this appeal.
Arguments of the appellant:-
4. The Learned advocate appearing for the appellant argued that the complainant is entitled to get the amount of personal accident claim under the coverage of accidental risk for owner cum driver under the policy issued for the vehicle No. GJ-12-Y-1182. The RC Book is produced on record from where it can be seen that the vehicle was manufactured in the year 2006 and is in fit condition to ply on the road.
Looking to the policy papers the accident has not been occurred due to any mechanical problem. The driving license is also produced on record which is valid for transport vehicle. It is not the case of the insurance company that the vehicle was not in proper condition and the driver was not the skilled driver. It is a case of accident death and the family K.Navlakha A-17-356 Page 3 of 12 members of the deceased may not be able to produce the documents which were possessed by the deceased owner cum driver for his vehicle. The insurance company has also raised the contention deceased was not possessing the driving license with the endorsement of 'commercial' purpose. As per the RC Book the weight of the vehicle is 520kg, this is the less than 7500kg, therefore, the person if not possessing the license with the endorsement of commercial vehicle, can legaly ply the said vehicle. At the most it can be considered the breach of conditions and not the fundamental breach of policy contract. Hence at least the complainant is entitled to compensation on the non-standard basis. The advocate of the complainant relied upon the following judgments.
The Judgments passed in
i. (i) Appeal No. 1349/2013 State Commission
ii. (ii) Civil Appeal No. 2703/2010 National Commission
iii. (iii) Appeal No. 546/2015 State Commission
iv. (iv) Appeal No. 550/2017 State Commission
Arguments of the Respondents:
i. 5. Ld. Advocate appeared for the respondent Insurance
Company argued that not possessing the fitness certificate or the endorsement in driving license for plying the commercial vehicle are not merely the breach of conditions this is the K.Navlakha A-17-356 Page 4 of 12 fundamental breach of the policy contract. Without fitness certificate the vehicle cannot be played on the road. 'No fitness no registration' rule is applicable in the case of the complainant. It is a violation of statutory provision of motor Vehicle Act. When it is a violation of statutory provision it should be considered as a fundamental breach. It is amount to ply the vehicle on public road without having the registration of the vehicle and when the vehicle is not registered is not entitled to any benefits under the vehicular insurance policy. Furthermore, the driver did not possess the driving license to ply the commercial vehicle. There should be an endorsement in driving license regarding entitlement of plying the commercial vehicle. Fitness certificate and endorsement in driving license are required at the time of processing the claim. Therefore, there is no deficiency in service or unfair trade practice on the part of the insurance company. Hence this appeal may be dismissed. The Ld. District Commission, has appropriately considered the version of the complainant, facts of the case and the law applicable in the case of the complainant. Hence, order passed by the Ld. Di. Commission is just, proper and valid and may not be interfered. The advocate for the respondents relied upon the following judgments. (i). IV 2016 CPJ 662 NC
(ii) appeal no. 1232 of 2014 State Commission.(iii) iv (2021)CPJ 10 (SC) ii. Merits of the case K.Navlakha A-17-356 Page 5 of 12
6. For deciding present case certain facts are undisputed that the period of insurance policy, the risk covered, the coverage of accidental death of owner cum driver in the policy and its amount i.e. Rs. 2,00,000/- and the accidental death of the husband of the complainant. It seems from the record and the written statement filed before the Ld. District Commission and from the impugned order that the claim of the complainant was repudiated on 2 main grounds namely:
i) The vehicle in question was not possessing valid fitness certificate.
ii) The driver cum owner of the vehicle not possessing valid driving license as the vehicle he was driving was a commercial vehicle and there is no endorsement in his driving license to drive the commercial vehicle. Both the grounds for the repudiation are discussed in light of the documents on record and the legal position.
FITNESS CERTICIATE:
7. The certificate of registration of the vehicle is produced at page No. 40. The vehicle was registered on 13.10.2006. The manufacturing of the vehicle is also in the year 2006 September. At page No. 46 the endorsement regarding fitness for vehicle No. GJ-12-Y-1182 has been mentioned. The fitness up to the date is mentioned as 15.05.2008 but at last, in the same certificate, the endorsement is made regarding Rs. 150/- paid and the receipt Number is mentioned. The date written below the endorsement is 26.05.2008. It shows that K.Navlakha A-17-356 Page 6 of 12 the owner has paid the fees for renewal of the fitness certificate on 26.05.2008 and there is a signature of officer dated 07/6. It seems that the insured has paid for the renewal of fitness certificate and it seems that the renewal is granted but the period is not mentioned. The Insurance company has relied upon the judgments reported in (iv) 2016 CPJ 662 NC and the judgment rendered by United India Insurance Co. Ltd. Vs. Surinder Kumar the judgment rendered by in this commission in appeal No. 1232/2014 and the judgement reported in iv (2021)CPJ10(sc) and argued that when the vehicle has been plyed without any fitness certificate, it is not only the fundamental breach of the insurance contract but also a breach as per the Motor Vehicle Act 1988. A statutory breach. The main purpose of having fitness certificate is to ensure that the vehicle used is in a fit to be driven in public without endangering the lives and property of the people. It is held in both the judgments that the transport vehicle was required to have fitness certificate otherwise the claim is not payable for violation of the statutory requirements under the Motor Vehicle Act. Here in the case on hand the deceased owner has already paid the renewal fees, but the renewed certificate has not been produced. At the same time the complainant has relied upon the judgment of the Hon'ble National Commission in Revision Petition No. 360/2012 in the case of New India Assurance Co. Vs. Balbir Banshtun relying upon the judgment rendering by K.Navlakha A-17-356 Page 7 of 12 the Apex Court in the case of Amalendu Shahu Vs. Oriental Insurance Co. Ltd. in case of any breach of terms and conditions of the insurance policy, the insurance company is liable to settled the claim on non-standard basis. The appellant also relied upon the judgment of this commission rendered in oriental insurance company Vs. Shri Vasudsing Kanjibhai Parmar and argued that it would be unfair on the part of insurance company to repudiate the entire claim of the complainant on the ground of not possessing a certificate of periodical inspection is a minor breach on the part of the complainant. The entire liability of the insurance company cannot be outstate. The appellant also relied upon the judgment of State Commission passed in Appeal No. 550/2017 where it is observed that the insurance company cannot raised the ground of not having fitness certificate at the later stage of the settlement of the claim. In my view it seems from the fitness certificate produced at page No. 42 that insured has paid the fees for renewal on 26.05.2008 the receipt No. is also mentioned in the certificate but the term for which it is issued is not mentioned. Even otherwise the heirs and the family member of the deceased may not be in a position to produce or having the knowledge about the fitness certificate of the vehicle. The insurance company has called upon the complainant to produce the fitness certificate on record even during the proceedings before the Ld. District Commission in the CC No. 151/2013. The complainant is the K.Navlakha A-17-356 Page 8 of 12 wife of the deceased. She may not have knowledge about the fitness certificate or its renewal. The fitness certificate and the driving license are the public documents and the insurance company can obtain the same from the public authorities. In my view if it can be considered as a breach of conditions and not the fundamental breach of contract. Looking to the judgments relied upon by the appellant, the appellant is entitled to have her claim settled on the non-standard basis. Valid Driving License:
8. It is the case of the insurance company that the insured was possessing driving license for light motor vehicle (LMV). The license was valid till the date 13.02.2025. So, at the time of accident the driving license of the insured was valid driving license. The only hindrance as per the say of the insurance company is that there was no endorsement regarding commercial vehicle. That the vehicle driven at the time of accident was Atul Auto Rixa used for the Commercial purpose. The registration certificate of the vehicle is produced at page No. 40. Where Auto Rixa, D/van is mentioned in the column of brief description of vehicle. When the person is certified to drive the Auto Rixa of same weight and class of vehicle for a personal use he can drive the vehicle of the same class and same weight for commercial purpose the commercial purpose is the endorsement for the tax levy purpose hence that cannot be considered as fundamental breach and looking to the ratio in the judgment of the Hon'ble K.Navlakha A-17-356 Page 9 of 12 Apex court in the matter of Amlendu Shahu Vs. Oriental Insurance Co., the complainant is entitled to the claim settlement on the non-standard basis. I have considered the judgment of the Hon'ble Apex Court in the case of Mukund Vs. Oriental Insurance Co. Ltd. where in para 46 it is observed that:
"46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of „light motor vehicles‟ and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act „Transport Vehicle‟ would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to
(h) and our conclusion is fortified by the syllabus and rules which we have discussed.
Thus we answer the questions which are referred to us thus:
(i) „Light motor vehicle‟ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, „unladen weight‟ of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight"
of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.K.Navlakha A-17-356 Page 10 of 12
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression „transport vehicle‟ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
In light of the above discussion, I am of the view that if the claim can be settled on the non-standard basis at 75% of the insured amount the purpose of justice would be satisfied. The insured amount is Rs. 2,00,000/- hence the claim is required to be settled at Rs. 1,50,000/-(75% of 2,00,000).
9. I have considered the grounds stated in memo of appeal, reasons stated in impugned Judgment and order, documentary evidence produced on record, argument advanced by the learned advocates for both the parties, ratio laid down in the above referred citations and fact and circumstances of the case. Hence in the interest of justice following order is passed.
ORDER
1. Appeal no.915/2018 is partly allowed.
K.Navlakha A-17-356 Page 11 of 122. The order passed by the Ld. District Commission, quashed and set aside.
3. The respondent insurance company is directed to pay Rs.
1,50,000/- to the appellant/original complainant with 9% interest from the date of filing of complaint till its realization. The respondent is also directed to pay Rs. 5,000/- for the mental agony and Rs. 5,000/- for the cost of litigation.
4. Registry is directed to send certified copy of this judgment to the parties free of cost. Registry is further directed to send copy of this judgment to the District Commission, Kutchh- Bhuj, through E-mail in PDF format for taking necessary action.
Pronounced in open court today on 10/11/2023.
[Ms. A.C.Raval] Member K.Navlakha A-17-356 Page 12 of 12