State Consumer Disputes Redressal Commission
Shri.Subodh S/O Madhukar Chaure vs New India Insurance Co. Ltd, Through Its ... on 2 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/15/308 (Arisen out of Order Dated 27/01/2015 in Case No. CC/171/2013 of District Nagpur) 1. SHRI.SUBODH S/O MADHUKAR CHAURE CRISTAN COLONY,KADBI CHOWK,NAGPUR NAGPUR ...........Appellant(s) Versus 1. NEW INDIA INSURANCE CO. LTD, THROUGH ITS DIVISIONAL MANAGER DIVIONAL OFFICE NO.3,GANDHIBAG,NAGPUR NAGPUR Maharashtra ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Mr Randive, Advocate For the Respondent: Smt Tamgadge, Advocate Dated : 02 Feb 2018 Final Order / Judgement Per Mr B A Shaikh, Hon'ble Presiding Member
1. This appeal is filed by the original complainant feeling aggrieved by the order dtd.27.01.2015, passed by District Consumer Forum, Nagpur in consumer complaint No.171/2013, by which the complaint has been dismissed.
2. The facts in brief giving rise to the present appeal are as under.
The original complainant) who is hereinafter referred to as respondent) had insured his light motor vehicle called as Maruti Omni Ambulance with the appellant for the period from 18.02.2010 to 17.02.2011. The said vehicle met with an accident on 15.01.2011 and it was damaged. Its intimation was given by the respondent to the appellant. The appellant also got repaired the said vehicle and then submitted all papers alognwith claim to the respondent. According to his case, he incurred total expenses of Rs.1,17,800/- for repairing. However, his claim came to be repudiated as per letter dtd. 21.07.2011 on the ground that the driver of the vehicle namely Manish Pal was not holding driving licence to drive transport category vehicle. The appellant alleged that the repudiation of the claim is illegal and therefore he filed consumer complaint, before the Forum below seeking direction to the respondent to pay him Rs.1,17,800/- with interest @ 18% p.a. and also to pay him compensation of Rs.25,000/- for physical & mental harassment and litigation cost of Rs.25,000/-.
3. The said complaint was resisted by the respondent by filing reply. It admitted that the vehicle insured with it met with an accident during the period of policy ad it was damaged and claim was submitted alongwith papers to it by the appellant. However, it is the case of the respondent in brief that the said insured vehicle was registered as commercial Light Motor Vehicle Transport (for short LMV-T) and the driver of that vehicle at the time of accident was not having endorsement on his driving lincence as issued for LMV-T. Hence, appellant committed breach of policy condition and thus claim has been rightly repudiated.
4. The Forum below after hearing both parties and considering evidence brought on record, accepted the aforesaid defence of the respondent and therefore dismissed the complaint by passing impugned order.
5. Feeling aggrieved, as observed, the original complainant has filed this appeal. The learned advocate of both parties filed their respective Written Notes of Argument. We have perused the entire record & proceedings of the appeal. Advocate Mr Randive appeared for the appellant and made oral submission on 16.01.2018 at the time of final hearing. The learned advocate of respondent did not appear to make oral submission, besides filing of Written Notes of Arguments by him.
6.The learned advocate of the appellant submitted that as admittedly the insured vehicle was of Light Motor Vehicle (LMV) category, its driver was not required to hold driving licence with endorsement showing that he is authorized to drive Light Motor Vehcle - Transport (LMV-T) category. He in support of his submission relied on the decision of the Hon'ble Supreme Court in the case of Kulwant Singh & Ors. Vs. Oriental Insurance Company Ltd., 2014(4) T.A.C. 676 (SC). In that case, the submission was made by the learned counsel of the appellant that the Hon'ble High Court erred in holding that licence for driving light motor vehicle entitled the driver to drive light goods vehicle. Reliance has been placed in that case on the decision of Hon'ble Supreme court in the case of S Iyyapan Vs. United India Insurance Co Ltd. & Anr., (2013) 7 SCC 62. The Hon'ble Supreme Court in Para No.10 of the said judgement observed that in aforesaid case of S Iyyapan (supra), the question was whether the driver who had a licence to drive light motor vehicle could drive light motor vehicle used as commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the Insurance Company could not disown its liability merely because the driver did not get any endorsement in the driving lincence.
The Hon'ble Supreme Court in the above case of Kulwant Singh finally concluded that there was no breach of any condition of insurance policy, in that case, entitling the Insurance Company to recovery rights against the owner.
7. Thus, relying on the said decision, the learned advocate of the appellant submitted that as in the instant case also admittedly the insured vehicle is LMV ambulance, aforesaid decision of the Hon'ble Supreme Court is applicable and hence Insurance Company cannot repudiate the claim on the ground of breach of policy condition. Thus, he argued that the Forum below has not considered the material aspect of the case in right perspective of the case and erred in dismissing the complaint. He, therefore, requested that the impugned order may be set aside and the complaint may be allowed.
8. On the other hand, the learned advocate of the respondent in his Written Notes of Argument submitted in brief as under.
i. The complainant had taken Commercial Vehicle Package Policy, which shows that the use of vehicle was for the commercial purpose only.
ii.The driver of that vehicle was not holding LMV-T as he was holding LMV-NT (Light Motor Vehicle - Non-Transport) category lincence only and therefore there is a violation of licence condition of the policy and hence, the claim has been rightly repudiated vide letter dtd.21.07.2011.
iii.Though the surveyor Mr S M Thatte after conducting survey, assessed the loss of Rs.26,380/-, the said amount is not payable to the appellant, due to breach of policy condition.
iv.The Investigator Mr Lalit Limay has obtained details of driver of the vehicle from RTO and he also found that the driver was not holding effective driving licence. There was no endorsement on his licence to drive LMV-T category vehicle i.e. to drive commercial vehicle and that the RTO on his application gave reply that the driver holding LMV-NT licence, cannot drive commercial vehicle. Thus, there is a breach of provisions of Section 3 of Central Motor Vehicle Act also. Hence, the appellant is not liable to indemnify the respondent under policy for the loss suffered by him due to damage caused to the insured vehicle in accident.
v.The appeal needs to be dismissed as it is devoid of merits.
9.We find that when Hon'ble Supreme Court in the case of Kulwant Singh & Ors. Vs. Oriental Insurance Company Ltd (supra) has clearly observed that Light Motor Vehicle covers both light passengers carriage vehicle and light goods carriage and that the Insurance Company cannot disown its liability and as there is no breach of policy condition. Hence, we hold that in the instant case as the driver of the vehicle was holding lincence to light motor vehicle, he can also drive light passengers carriage vehicle also and hence there cannot be breach of policy condition. Thus, applying the aforesaid decision of the Hon'ble Supreme Court to present case, we find that the repudiation of the claim can be said to be illegal and it constitutes deficiency in service on the part of the respondent. Hence, the impugned order deserves to be set aside. Therefore, we hold that the respondent is liable to indemnify the appellant for the loss suffered by him due to damage of his insured vehicle.
10.It is not disputed that the surveyor, appointed by the respondent, carried out survey of the insured damaged vehicle and reported the loss at Rs.26,380/-. There is no reason to disbelieve his assessment of loss. Hence, we hold that the appellant is entitled to Rs.26,380/- with interest @ 9% p.a. from the date of repudiation of the claim i.e. from 21.07.2011 till realisation of the same by appellant. The appellant is also entitled to compensation of Rs.10,000/- for physical & mental harassment and litigation cost of Rs.5,000/-.
ORDER i. The appeal is partly allowed. ii. The respondent shall pay to appellant Rs.26,380/- with interest @ 9% p.a. from 21.07.2011 till its realisation by him and also to pay him compensation of Rs.10,000/- for physical & mental harassment and litigation cost of Rs.5,000/-. iii Copy of the order be furnished to both parties free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER