State Consumer Disputes Redressal Commission
Harbhajan Kaur vs New India Assurance Co. Ltd. on 15 March, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 1177 of 2015
Date of institution : 03.11.2015
Date of decision : 15.03.2016
Harbhajan Kaur wd/o Late Shri Surinder Pal Singh, r/o House
No.1346/8, Village Boota, Post Office Model Town, District
Jalandhar.
.......Appellant-Complainant
Versus
New India Assurance Company Ltd., Divisional Office, 356, Guru
Teg Bahadur Nagar, Jalandhar.
........Respondent-Opposite Party
First Appeal against the order dated
17.9.2015 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Vinod Kumar Gupta, Member
Present:-
For the appellant : Shri Ankur Bansal, Advocate. For the respondent : Shri J.P. Nahar, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellant/complainant against the order dated 17.9.2015 passed by District Consumer Disputes Redressal Forum, Jalandhar (in short, "District Forum"), vide which the complaint filed by her under Section 12 of the Consumer Protection Act, 1986, for directing the respondent/opposite party to pay Rs.1,00,000/- with interest at the rate of 24% per annum from 12.11.2014 till realization; Rs.25,000/-, as damages; Rs.30,000/-, as compensation for the mental torture, First Appeal No.1177 of 2015 2 pain, agony and harassment caused to her; and Rs.22,000/-, as cost of the complaint, was dismissed.
2. As per the allegations, made in the complaint, Surinder Pal Singh, husband of the complainant, got insured his scooter bearing Registration No.PB-08-AM-5189 with the opposite party for the period 20.11.2013 to 19.11.2014 and under the Policy he was covered for personal accident as owner-driver to the tune of Rs.1,00,000/-. He nominated the complainant under that Policy to receive that benefit in case of his death. However, at the time of issuance of the Policy the terms and conditions thereof were not explained to the insured. On 12.11.2014 he was coming to his house on the scooter along with one Bobby Singh and when he was at some distance from Hotel Tara Mount, one car bearing No.DL-2C- AD-6719 being driven by Lt. Col. Inderjit Singh was hit in the scooter, while the same was being driven in a rash and negligent manner. He himself and the pillion rider fell down and sustained grievous injuries on different parts of their bodies. He was first taken to Civil Hospital, Jalandhar and then was shifted to Ghai Hospital, Jalandhar, where he expired at 7.30 P.M. on account of the injuries so sustained by him. She (complainant) lodged a complaint/claim with the opposite party for receiving the insurance amount on account of the accidental death of the insured, as his nominee. Her claim was repudiated, vide letter dated 12.3.2015, without any logical and valid reason, on false and frivolous ground, by invoking the terms and conditions of the Policy. It was wrongly alleged by it that the driving licence of the insured/deceased was not valid for driving First Appeal No.1177 of 2015 3 the scooter. That was the same driving licence, which was submitted with it at the time of obtaining the Policy and no finger was raised at that time and it was never disclosed to the insured that the driving licence was not valid nor he was advised to obtain another licence. The opposite party in repudiating her claim was totally negligent, inefficient and deficient in service; as a result of which she suffered great mental tension, agony and harassment.
3. The complaint was contested by the opposite party by filing written reply before the District Forum, in which it admitted that Surinder Pal Singh, insured/deceased, was the owner of the scooter and got the same insured with it and by virtue of the Policy he was covered for personal accident as owner-driver to the tune of Rs.1,00,000/-. It also admitted that after the death of the insured the claim was lodged with it by the complainant, which was repudiated, vide letter dated 12.3.2015, on the grounds mentioned therein. It denied the other allegations made in the complaint and averred that on the face of the Policy under the head "Persons or classes of persons entitled to drive": it was specifically mentioned that any person, including the insured, provided such a person holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a driving licence. No such driving licence was produced by the insured at the time of obtaining the Policy and there was no question of disclosing or showing such a licence at that time. The claim of the complainant was rightly repudiated, as the insured was not having a licence to drive the scooter at the time of the accident. There was no such deficiency in First Appeal No.1177 of 2015 4 service on its part. It prayed for the dismissal of the complaint with costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It has been submitted by the learned counsel for the complainant that as per the condition incorporated in the insurance policy, the owner/driver was required to possess an effective and valid driving licence. Such a licence was being held by the insured/deceased at the time of the accident and the same was duly produced before the opposite party and was proved on the record as Ex.C-5. That licence might have been issued for driving LMV but the scooter being of a category lower than LMV, it is to be held that the insured was having an effective and valid driving licence to drive the scooter. In these circumstances, the opposite party was not justified in repudiating the claim of the complainant on the ground that the insured was not holding a valid and effective driving licence at the time of accident. In support of his arguments he relied upon the decision of the Hon'ble Karnataka High Court reported in 2005 ACJ 1509 (United India Insurance Co. Ltd. v. Bharamappa Doddabirappa Pujari and another). He prayed that the appeal be accepted; the order of the District Forum be set aside; and the First Appeal No.1177 of 2015 5 directions as prayed for by the complainant in the complaint be issued to the opposite party.
7. On the other hand, it has been submitted by the learned counsel for the opposite party that correct findings were recorded by the District Forum by invoking the ratio of the judgments mentioned therein. It was made clear in those judgments that a person holding a driving licence for LMV cannot be said to be possessing a valid driving licence for a two wheeler. He cited another judgment of the Hon'ble Supreme Court on the same point passed in Appeal (Civil) No.3055 of 2008 decided on 29.4.2008 (Oriental Insurance Co. Ltd. v. Zaharulnisha & Ors.). He argued that the non-possessing of the valid and effective driving licence amounted to violation of terms and conditions of the insurance policy and the opposite party was justified in repudiating the claim of the complainant on that ground. There is no ground for upsetting the well reasoned order passed by the District Forum.
8. It is an admitted fact that at time of accident the insured was holding a driving licence, Ex.C-5, which was in respect of only L.M.V. (N.T.). The insurance policy was proved as Ex.C-4, in which the persons or classes of persons entitled to drive are mentioned. As per that condition in the insurance policy, only a person holding effective and valid driving licence at the time of accident and was not disqualified for holding or obtaining such a licence was entitled to drive the scooter. Admittedly, the opposite party had repudiated the claim of the complainant on the ground that the insured was not holding a valid and effective driving licence to drive the scooter. The First Appeal No.1177 of 2015 6 controversy trickles down as to whether it can be said that the complainant, who was holding driving licence only for LMV (N.T.), was having a valid and effective driving licence to drive two- wheeler/scooter?
9. Before the District Forum the complainant relied upon the judgment of the Rajasthan State Commission rendered in Appeal No.1363 of 2008 decided on 9.4.2009 (Smt. Sumitra Devi vs. The Oriental Insurance Company Limited) wherein it was held that a person holding a driving licence for LMV is also authorized to drive the scooter. That judgment was ignored by the District Forum in view of the judgment of the Hon'ble Supreme Court in Zaharulnisha's case (supra). It also relied upon the judgment of this very State Commission rendered in Appeal No.980 of 2007 decided on 8.6.2012 (Subash Chander vs. United India Insurance Company Limited), wherein it was held that a driving licence for LMV is not valid for driving a two-wheeler.
10. Similar question cropped up before Karnataka High Court in Bharamappa Doddabirappa Pujari's case (supra). By making reference to Section 10 of the Motor Vehicles Act, which shows the types of vehicles in respect of which driving licences are to be obtained, it was observed that a person holding a licence to drive Light Motor Vehicle cannot be permitted to drive a medium goods vehicle, but he can drive a invalid carriage or motor-cycle with or without gear. For recording that view reliance was placed on the judgment of the Hon'ble Madras High Court reported in 2002 ACJ First Appeal No.1177 of 2015 7 252 (Madras) (New India Assurance Co. Ltd. v. R. Jayalakshmi and Anr.).
11. In view of the judgment of the Hon'ble Supreme Court in Zaharulnisha's case (supra) this judgment of the Hon'ble Karnataka High Court cannot be relied upon. The following was the legal question, which was framed by the Hon'ble Supreme Court in that case:-
"Whether the appellant/Insurance Company could be held liable to pay the amount of compensation for the default of the scooterist who was not holding licence for driving two wheeler scooter but had driving licence of different class of vehicle in terms of Section 10 of the Motor Vehicles Act?"
After taking into consideration the relevant provisions of the Motor Vehicles Act regarding the description of the driving licence for different types of vehicles and the persons authorized to drive different vehicles on the basis of those driving licences, it was concluded by the Hon'ble Supreme Court that a person possessing driving licence for driving HMV cannot be said to be having a valid and effective driving licence to drive the scooter, which was totally of different class and the driving of the scooter by such a person was in violation of Section 10(2) of the Motor Vehicles Act.
12. By invoking the ratio of the above said judgment of the Hon'ble Supreme Court, it was correctly concluded by the District Forum that the insured/deceased was not having a valid driving licence at the time of accident and, as such, the opposite party was justified in First Appeal No.1177 of 2015 8 repudiating the claim of the complainant. There is no ground for upsetting that well reasoned and well supported finding.
13. There is no merit in this appeal and the same is hereby dismissed.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER March 15, 2016 Bansal