National Consumer Disputes Redressal
The Oriental Insurance Co. Ltd. vs Seema on 6 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 579 OF 2013 (From the order dated 31.08.2012 in First Appeal No. 1423/2007 of Punjab State Consumer Disputes Redressal Commission) 1. The Oriental Insurance Company 88, Janpath, New Delhi 2. The Oriental Insurance Co. Ltd. Divisional Office 32, G.T. Road, Jalandhar 3. The Oriental Insurance Co. Ltd. Divisional Office Roshan Road, Hoshiarpur through Shri S.S. Bahri Manager The Oriental Insurance Co. Ltd. Regional Office, SCO 109-110-111, Sector 17, Chandigarh ... Petitioners/OPs versus Seema w/o Shri Rajiv Kumar r/o H. No. 234, Sector 3, Central Town, Arewali Gali, Sutehri Road, Hoshiarpur Respondent/Complainant BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Manish Pratap Singh, Advocate For the Respondent Mr. Vipin Gogia, Advocate PRONOUNCED ON : 6th MAY 2014 O R D E R PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 31.08.2012, passed by the Punjab State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. 1423/2007, Oriental Insurance Company versus Seema, vide which while deciding the appeal, the order dated 19.09.2007 in consumer complaint no. 172 dated 28.05.2007, passed by the District Consumer Disputes Redressal Forum, Hoshiarpur, allowing the said complaint, was modified. 2. Briefly stated the facts of the case are that the respondent/complainant was the owner of a Mahindra Pick-up Jeep bearing registration no. PB07-Q-372, which was comprehensively insured with the petitioner/OP Insurance Company for the period from 17.08.2006 to 16.08.2007. It has been stated in the complaint that the complainant had purchased the jeep for her own use, but the said vehicle had been registered as a commercial vehicle with the registering authority. The complainant employed Ramesh Chand s/o Santosh as driver on her jeep. The said Ramesh Chand was the holder of a driving licence for Light Motor Vehicle (LMV). The jeep suffered damage in an accident on 21.09.2006, when Ramesh Chand was driving the vehicle. The complainant informed the insurance company, which deputed a surveyor to assess the loss. The jeep was got repaired at Hoshiarpur vide job card no. 1020 dated 28.10.2006, and a sum of ` 1,29,000/- was paid by the complainant herself. Thereafter, a claim was lodged with the petitioner/OP, but the same was repudiated by the OP, vide their letter dated 15.05.2007, on the ground that the vehicle was registered as LMV (goods-carrying vehicle), whereas the driver had licence for LMV only and hence, he was not holding a valid and effective driving licence for driving the said commercial vehicle. The complainant filed the consumer complaint in question before the District Forum which was allowed vide order dated 19.09.2007, and the OP was ordered to pay a sum of ` 1,21,000/- (`_1,29,000/- minus salvage value of ` 8,000/-), as assessed by the surveyor, vide his report alongwith interest @9% p.a. from the date of complaint till payment, and a further sum of ` 1000/- as cost of litigation. The District Forum held that there was no requirement of law that the licence for driving LMV should bear endorsement to the effect that driver is competent to drive a transport vehicle as per section 2(21) of the Motor Vehicles Act, 1988. An appeal was filed against this order by the OP before the State Commission, which was decided vide impugned order dated 31.08.2012. The State Commission held that as per the amendment in the Motor Vehicle Rules made effective from 28.03.2001 by substituting GSR 221 (E), the licence held by the driver, cannot be held invalid in law, as Light Transport Vehicle was also covered under the definition of LMV. The State Commission, however, modified the award of the District Forum and stated that a sum of ` 96,015/- as assessed by the surveyor should be paid to the complainant, alongwith an interest of 7.5% p.a., instead of the amount of ` 1,29,000/- awarded by the District Forum. It is against this order that the present petition has been made. 3. At the time of arguments before us, the learned counsel for the petitioner stated that the delay of 43 days in filing the petition had taken place because the matter had to be referred for legal opinion and some time was lost in correspondence between the Regional Office and the Head Office. There was no deliberate delay on the part of the petitioner in filing this petition. The delay should be condoned in view of the position explained in the application for condonation of delay. 4. Learned counsel argued that the vehicle in question is a transport vehicle, but as admitted by the complainant, the driver had licence for driving the LMV only. A copy of the licence is also on record which shows that there was no endorsement on the licence for driving a commercial vehicle. The State Commission, while passing their order, had wrongly placed reliance on the judgement of the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. versus ANNAPPA IRAPPA NESARIA & ORS. [reported in IV 2008 ACC (169) SC.]. After the amendment that had taken place in the Central Motor Vehicles Rules in the year 2001, it was mandatory to have an endorsement on the licence to the effect that the driver was permitted to drive a transport vehicle. 5. In reply, the learned counsel for the complainant/respondent vehemently argued that the vehicle in question was a Jeep, which was covered under the definition of LMV and hence, the driver had a valid and effective licence to drive the vehicle. The learned counsel produced various citations in support of his arguments, referring to the orders passed by the Honble Supreme Court and this Commission in a number of cases. Referring to the order passed by the Honble Apex Court in NATIONAL INSURANCE CO. LTD. versus SWARAN SINGH & OTHERS [as reported in (2004) 3 SCC 297], the learned counsel argued that the onus to prove that there had been some breach of conditions of the Policy was on the Insurance Company itself, but they had failed to discharge the same. On the other hand, the complainant had taken the necessary precautions to check the driving licence of the driver Ramesh Chand before providing him employment. Further, the accident in question had nothing to do with the driving licence of the driver. The State Commission and the District Forum had rightly observed that a person who holds a valid driving licence to drive LMV, also has the authority to drive a light transport vehicle. The State Commission and District Forum have placed reliance on a number of judgements in support of this assertion. The learned counsel argued that if the Insurance Company had any reservation about the nature of licence possessed by the driver, they could very well have cancelled the said policy. The learned counsel also referred to a judgement passed by the Honble High Court of Delhi in NEW INDIA ASSURANCE CO. LTD. versus SANJAY KUMAR, MAC Application No. 28/2005 and other similar cases decided on 17.04.2007 in support of his argument, saying again that the onus was on the insurance company to prove that the driver had no valid driving licence. The National Commission in their order passed on 10.12.2012 in RP No. 1225/2002 held that the claim should be paid, when there was no nexus between the incident and the driving licence. In Revision Petition No. 1503/2004, G. Kothainachair versus The Branch Manager, United India Insurance Co. Ltd. & Ors., decided on 29.10.2007, it was held that an Insurance Company can repudiate the claim only when there is a fundamental/material breach of terms and conditions of the policy. The impugned order was, therefore, in accordance with law and the same should be upheld. 6. After the conclusion of the arguments, the learned counsel for the petitioner have submitted copies of the orders passed in the following cases in support of his arguments:- 1 United India Insurance Co. Limited versus Davinder Singh [as reported in (2007) 8 SCC 698] 2 Premkumari and others versus Prahlad Dev and Others [as reported in (2008) 3 SCC 193] 3. National Insurance Co. Ltd. versus Meena Aggarwal [as reported in (2009) 2 SCC 523] 4. New India Assurance Co. Ltd. versus Prabhu Lal [as reported in AIR 2008 SC 614] 5. National Insurance Co. Ltd. versus Saheb Singh [(2010) 14 SCC 776] 6. National Insurance Co. Ltd. versus Om Prakash Jain [Civil Appeal No. 6248/2009 decided on 14.09.2009] 7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. There is a delay of 43 days in filing the revision petition. An application for condonation of delay has been filed by the petitioner saying that the said delay was not intentional and it occurred because of official formalities. For the reasons mentioned in the application for condonation of delay as well as in the arguments before us, the delay in filing the revision petition is ordered to be condoned. 8. The basic fundamental issue involved in the present revision petition relates to the proposition, whether the driving licence issued by the Licensing Authority for Light Motor Vehicle (for short LMV), was a valid and effective licence for driving a light commercial vehicle (goods carrying vehicle) as well, or some kind of an endorsement from the Licensing Authority was required to be made on the said licence. The admitted facts of the case are that the Mahindra Pick-up Jeep in question was registered as light commercial vehicle (goods-carrying vehicle), whereas the driving licence of the driver was issued for a light motor vehicle (LMV). The State Commission and the District Forum concluded that the driving licence for LMV was sufficient for the purpose of driving a light commercial vehicle. The State Commission also stated that the definition of LMV covered both light passenger-carrying vehicle and light goods-carrying vehicle. 9. In this regard, it shall be worthwhile to have a look at the provisions contained in the Motor Vehicles Act, 1988 as amended from time to time and the Central Motor Vehicles Rules, 1989 concerning the definition of the Motor vehicles, both transport and non-transport, and then to examine at the provisions, governing the grant of licence to drivers of motor vehicles. 10. Section 2(21) of the Motor Vehicles Act, 1988 states as follows:- (21) light motor vehicle means 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 7500 kilograms 11. Further, section 2(47) of the Act describes the transport vehicle as follows:- (47) transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle 12. Section 2(35) of the Act defines a public service vehicle as follows:- (35) public service vehicle means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage 13. Section 2(14) gives the definition of goods carriage as follows:- (14) goods carriage means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods 14. Further, section 2(25) of the Act defines a motorcab as follows:- motorcab means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward 15. From the above definitions, it is clear that a transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private vehicle and it includes a maxicab, motorcab, etc. The vehicle in the present case is a Mahindra Pick-up jeep and is admittedly registered as a Light Motor Vehicle/goods-carrying vehicle. 16. Now, coming to the licence of drivers of Motor Vehicle, section 3(1) of the Act says as follows:- 3. Necessity for driving licence. - (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle ; and no person shall so drive a transport vehicle [other than a motorcab or motor cycle] hired for his own use or rented under any scheme made under sub - section (2) of section 75] unless his driving licence specifically entitles him so to do. 17. It has been clearly mentioned in the above section that a person shall not drive a transport vehicle hired for his own use or rented, unless his driving licence specifically entitles him to do so. 18. Further, section 4 of the Motor Vehicles Act says as follows:- 4. Age limit in connection with driving of motor vehicles. (1) No person under the age of eighteen years shall drive a motor vehicle in any public place: Provided that a motor cycle with engine capacity not exceeding 50 cc may by driven in a public place by a person after attaining the age of sixteen years. (2) Subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place. 19. It is evident from the above provision that the minimum age for driving a transport vehicle has been prescribed as 20 years, meaning thereby that the holder of a driving licence for non-transport vehicle cannot be permitted to drive the transport vehicle till he attains the age of 20 years. 20. Section 7(1) of the Act, says as follows:- 7. Restrictions on the granting of learners licences for certain vehicles. - (1) No person shall be granted a learners licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year. 21. It is clear from above that even a learners licence to drive a transport vehicle cannot be given unless a person is holding a regular licence to drive an LMV for at least one year. 22. Section 8 of the Act says as follows:- 8. Grant of learners licence. -. (3) Every application under sub-section (1) shall be accompanied by a medical certificate in such form as may be prescribed by the Central Government and signed by such registered medical practitioner, as the State Government or any person authorised in this behalf by the State Government may, by notification in the Official Gazette, appoint for this purpose. [Provided that no such medical certificate is required for licence to drive a vehicle other than a transport vehicle.] .
23. It is clearly provided that if a learners licence is applied for a transport vehicle, a medical certificate has to be furnished whereas there is no such requirement for licence to drive the vehicle other than transport vehicle.
24. Section 10(2) of the Act says as follows:-
(2) A learners licence or as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely :-
(a) motor cycle without gear;
(b) motor cycle with gear ;
(c) invalid carriage ;
(d) light motor vehicle ;
1(e) transport vehicle ;]
(i) road-roller ;
(ii) motor vehicle of a specified description.
25. It is provided that at the time of applying for a licence on the prescribed form, the LMV and the Transport vehicle are listed in separate categories.
26. Section 14(2) of the Act says as follows:-
(2) A driving licence issued or renewed under this Act shall
(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years :
Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus ; and
(b) in the case of any other licence
-
(i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of fifty years on the date of issue or, as the case may be, renewal thereof (A) be effective for a period of twenty years from the date of such issue or renewal ; or (B) until the date on which such person attains the age of fifty years, whichever is earlier.
27. The above provisions makes it abundantly clear that the licence to drive a transport vehicle shall be effective for three years only, whereas licence for the other vehicles shall be valid for 20 years or till the age of 50 years, whichever is earlier.
28. Section 15 of the Act deals with the renewal of the driving licence and lays down that a medical certificate shall always be required for the renewal of licence for a transport vehicle, but for driving other vehicles, such certificate will be required only if the applicant had attained the age of 40 years.
29. Now, coming to the provisions of the Central Motor Vehicles Rules, 1989, it has been stated in Rule 5 that an application for the issue of learners licence or a driving licence to drive a transport vehicle shall be accompanied by a medical certificate, whereas in other cases, a self-declaration to physical fitness is sufficient.
30. Rule 8 of the said Rules prescribes the minimum educational qualification for driving transport vehicle and says as follows:-
8. Minimum educational qualification for driving transport vehicles.-
The minimum educational qualification in respect of an applicant for obtaining a licence to drive a transport vehicle shall be a pass in the eighth standard:
31. Rule 10 (d) says that in the application for getting learners licence for transport vehicle, the regular driving licence held by the applicant has to be attached. It is provided in Rule 18 regarding the renewal of driving licence that when the driving licence authorised the holder to drive a transport vehicle as well as any other vehicle, the licensing authority shall renew such licence for the appropriate period as defined in section 14(2) of the Act.
32. Further, in the form prescribed under the Central Motor Vehicles Rule, for example, in Form 2, Form 4 etc., the LMV and transport vehicle have been listed in separate categories.
33. From the above statutory provisions contained in the Motor Vehicles Act, 1988 and the Central Motor Vehicle Rules, 1989, it becomes distinctly clear that the requirements of age, qualification, medical examination, period of licence etc. for getting a licence for driving a transport vehicle are different from those for getting a licence for non-transport vehicle. In nutshell, the distinct differences/requirements for the grant of licence for transport vehicle and other vehicles can be summed up as follows:-
Transport Vehicle Non-Transport Vehicle
1.
Age The minimum age for the grant of a licence to drive a transport vehicle is 20 years The minimum age for grant of licence for non-transport vehicle is 18 years (Section 4 of Motor Vehicles Act)
2. Medical Certificate Always required for grant or renewal of licence Medical Certificate may not be required.
(Section 8 of Motor Vehicles Act)
3. Educational Qualification The minimum qualification required for obtaining licence is 8th standard No qualification is prescribed.
(Rule 8 of Central Motor Vehicles Rules)
4. Validity of licence The driving licence for driving a transport vehicle is valid for three years only.
The licence is valid for 20 years or till the person attains the age of 50 years, whichever is earlier.
(Section 14(2) of Motor Vehicles Act)
5. No person can be granted a learners licence unless he has held a driving licence to drive light motor vehicle for at least one year (Section 7(1) of Motor Vehicles Act) A person cannot appear in the driving test unless he has held a learners licence for at least thirty days.
(Rule 15 of Central Motor Vehicle Rules)
34. It is evidently clear from the above provisions laid down in the Motor Vehicles Act, 1988 / Central Motor Vehicle Rules, 1989 that the basic requirements of age, qualification, medical certificate, period of licence etc. are entirely different for the grant of a licence for a transport vehicle. It is true that the definition of LMV in section 2(21) of the Act says that LMV means a transport vehicle, but this definition does not say that the holder of a licence for any vehicle is authorised to drive a transport vehicle as well. Had it been the intention of the Legislature that a person holding a licence for Light Motor Vehicle is authorised to drive a light commercial vehicle (Light transport vehicle), they would not have prescribed entirely different set of conditions/requirements for the grant or renewal of a licence for a transport vehicle.
35. The natural corollary of this discussion leads to the irresistible conclusion that a person having a licence for LMV only is debarred from driving a transport vehicle unless he has the proper authority or endorsement to this effect from the competent transport authority. The said transport authority is legally bound to verify the facts regarding age, qualification, medical condition, etc. in accordance with the statutory provisions before giving authorisation for driving such a vehicle. It is clear, therefore, that without such authorisation, a person cannot be stated to be in possession of a valid and effective driving licence for driving a transport vehicle.
36. In some recent orders issued by this Commission, similar views have been stated, saying that if the holder of a licence for LMV vehicle wants to drive a transport vehicle, a specific endorsement from the licencing authority to this effect is required. In Revision Petition No. 1067/2014, Sandeep Kumar versus IFFCO Tokio General Insurance Co. Ltd. & Ors., the National Commission in their order dated 04.03.2014, have referred to the order passed by the Honble Supreme Court in ORIENTAL INSURANCE CO. LTD. versus ANGAD KOL & ORS. [as reported in 2009 (2) RCR (Civil) 419] and it has been concluded that the necessary endorsement to drive a transport vehicle will be required on a licence for LMV. In order passed In Revision Petition No. 2450/2010, Reliance General Insurance Co. Ltd. versus Shivakumara S., this Commission again took a similar view and placed reliance on the following judgements:-
Oriental Insurance Co. Ltd. Vs. Angad Kol and Ors. III (2009) SLT 586, New India Assurance Co. Ltd. Vs. Prabhu Lal (2008) CPJ 1 (SC), National Insurance Co. Ltd. Vs. Kusum Rai II (2006) CPJ 8 (SC), General Assurance Society Ltd. Vs. Chandanmall Jain and Another (1996) 3 SCR 500 and Ashok Gangadhar Maratha Vs.Oriental Insurance Co.
Ltd. (1999) 6 SCC620.
37. From the above discussion, it becomes abundantly clear that a person who is holding a licence to drive a Light Motor Vehicle, does require the requisite endorsement from the licensing authority to enable him to drive a transport vehicle, including a light commercial vehicle. In the absence of such endorsement, he cannot be stated to be in possession of a valid and effective driving licence for driving a transport vehicle. In the present case, therefore, we do not agree with the conclusion arrived at by the State Commission and the District Forum that the holder of licence for LMV did not require any authorisation from the licensing authority for driving a commercial vehicle in question. Obviously, there has been a violation of terms and conditions of the policy on the part of the complainant by employing a driver, who did not have proper authorisation to drive that vehicle. We, therefore, agree with the contention raised by the petitioner that the orders passed by the Fora below are perverse in the eyes of law and suffer from a patent legal error. The revision petition is, therefore, allowed; the orders passed by the State Commission and District Forum are set aside and the consumer complaint in question is ordered to be dismissed. There shall be no order as to costs.
Sd/-
(K.S. CHAUDHARI J.) PRESIDING MEMBER Sd/-
(DR. B.C. GUPTA) MEMBER RS/