State Consumer Disputes Redressal Commission
United India Insurance Co. vs Balwant Singh on 11 August, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 1273 of 2016 Date of Institution: 27.12.2016 Date of Decision : 11.08.2017 United India Insurance Company Limited, 323/21, Delhi Road, Jawahar Market, Rohtak, Tehsil and District Rohtak, through its duly constituted attorney Shri Parveen Kumar Gupta, Deputy Manager. Appellant-Opposite Party Versus Balwan Singh s/o Sh. Ram Kishan, Resident of House No.1355, Village Hassangarh, Tehsil Sampla, District Rohtak. Respondent-Complainant CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Argued by: Shri P.S. Saini, Advocate for appellant. Shri Balwan Singh-respondent in person. O R D E R BALBIR SINGH, JUDICIAL MEMBER
United India Insurance Company Limited-Opposite Party, is in appeal against the order dated October 26th, 2016 passed by District Consumer Disputes Redressal Forum, Rohtak (for short 'the District Forum') whereby complaint filed by complainant-Balwan Singh (respondent herein) seeking compensation with respect to his Ape Auto Rickshaw D35, which was damaged in an accident during the subsistence of the Insurance Policy, was accepted directing the Insurance Company as under:-
"....it is observed that opposite party shall pay the claim amount of Rs.50500/- (Rupees fifty thousand five hundred only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 08.12.2015 till its actual realization and shall also pay a sum of Rs.5000/- (Rupees five thousand only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of decision."
2. Balwan Singh-complainant, got his newly purchased Ape Auto Rickshaw D35, bearing registration No.HR-46D-4472, insured with United India Insurance Company Limited (for short 'the Insurance Company')-Opposite Party (appellant herein) vide insurance policy No.1112003114P103895059 (Exhibit C-2) regarding the period from August 26th, 2014 to August 25th, 2015 mentioning the Insured Declared Value as Rs.1,60,000/-. During subsistence of the insurance policy, the vehicle met with an accident near Village Naya Bans, Tehsil Sampla, District Rohtak, Haryana on April 30th, 2015 and was badly damaged. The complainant was driving the vehicle at the time of accident. Regarding this accident, F.I.R. No.0194 (Exhibit C-3) under Sections 279,337,427 of the Indian Penal Code was lodged on May 02nd, 2015 in Police Station Sampla. Intimation was also given to the Insurance Company. The damaged vehicle was taken to Shiv Motors, Rohtak where estimate of total cost of repair was prepared mentioning it as Rs.75,759/-. The Insurance Company also appointed surveyor namely Karamvir Singh Malik, who assessed the total loss caused to the vehicle as Rs.50,500/- vide report dated June 01st, 2015 (Exhibit R-8). The complainant submitted insurance claim along with documents to the Insurance Company but the Insurance Company did not pay the benefits of insurance to the complainant. Hence, the complainant filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction to the Insurance Company to pay an amount of Rs.75,759/- spent by the complainant for repair of the vehicle, with interest at the rate of 18% per annum; an amount of Rs.1.00 lac on account of un-necessary harassment and mental agony and an amount of Rs.11,000/- as litigation expenses.
3. The opposite party-Insurance Company in its written version has taken plea that the complaint of the complainant is not maintainable in the present form and that the claim of the complainant is pre-mature. It is stated that the complainant himself was driving the vehicle for carrying passengers, whereas the complainant is having driving license to drive motorcycle with gear, Light Motor Vehicle (NT), car, LMV tractor only, on the date of accident. In this way, the complainant was not having a valid and effective driving licence on the date of accident to drive auto rickshaw, being a transport vehicle. The opposite party has also taken plea that the auto rickshaw was being plied from Hassangarh to Sampla, whereas route permit regarding this vehicle was provided only for Municipal Committee area of Rohtak plus 05 K.M. The route permit does not cover the place where the accident had taken place. In this way, the complainant was not having a valid driving licence and route permit on the date of accident. The Insurance Company appointed Shri Karamvir Singh Malik, as surveyor. The surveyor in his report assessed the total loss caused to the vehicle as Rs.50,500/-. The opposite party has prayed that the complaint filed by the complainant be dismissed with cost.
4. Both the parties led evidence in support of their respective claims before the District Forum.
5. After hearing arguments, vide impugned order dated October 26th, 2016 passed by the District Forum, complaint filed by the complainant was allowed directing the opposite party as mentioned in paragraph No.1 of this order.
6. Aggrieved with the impugned order dated October 26th, 2016 passed by the District Forum, the opposite party has filed the present appeal with a prayer to set aside the impugned order and to dismiss the complaint.
7. We have heard learned counsel for the appellant and respondent in person and perused the case file.
8. It is admitted fact that the auto rickshaw bearing registration No.HR-46D-4472, owned by the complainant-respondent was insured with the appellant-opposite parties regarding the period from August 26th, 2014 to August 25th, 2015 mentioning the Insured Declared Value as Rs.1,60,000/-. It is also not in dispute that during the subsistence of the insurance policy the above mentioned vehicle met with an accident. Regarding this accident, a criminal case under F.I.R.No.0194 (Exhibit C-3) under Sections 279,337,427 of the Indian Penal Code was registered.
9. During the course of arguments, it was a common case of the parties that Balwan Singh-complainant, himself was driving the vehicle at the time of accident. In this way, it stands proved that the insured vehicle was involved in the accident and was badly damaged. It is evident from the documents Exhibit C-6 and C-8 that the complainant also sustained injuries on his body at the time of accident and he remained admitted in hospital for treatment. The complainant got repaired the damaged auto rickshaw from Shiv Motors, Rohtak. It is evident from the bill Exhibit (Exhibit C-15) that the complainant spent an amount of Rs.75,759/- for repair of the vehicle. Admittedly, Karamvir Singh Malik, was appointed as surveyor by the Insurance Company who submitted his report Exhibit R-8 and assessed the total loss caused to the vehicle as Rs.50,500/-. Learned District Forum believed the report of surveyor and directed the opposite party-Insurance Company to pay only an amount of Rs.50,500/- with interest at the rate of 9% per annum from the date of filing of the complaint. The complainant appears to be satisfied with the order passed by the learned District Forum as he did not file any appeal.
10. Version of the opposite party is that the complainant is not entitled to receive any amount as compensation as neither the complainant was having a valid driving licence to drive auto rickshaw being a transport vehicle nor a route permit of the area where the accident took place. This plea of the opposite party was not accepted by the District Forum holding that it makes no difference if that area is not covered in the route permit where the accident took place. These findings were given by the District Forum following a decision of Hon'ble Punjab and Haryana High Court in case law Gurmeet Singh and another vs. National Insurance Company and Others, 2014(3) RCR (Civil). Cited case law above was discussed in detail by the learned District Forum in its order, so much discussion of the case law referred is not needed in this order. Cited case law above fully support the version of the complainant that the insurance claim of the complainant cannot be declined on this ground.
11. The opposite party-Insurance Company has challenged the impugned order passed by the District Forum mainly on this ground that the complainant who himself was driving the auto rickshaw at the time of accident, was not having a valid driving licence to drive the auto rickshaw being a transport vehicle. In the written version filed by the opposite party itself, it is mentioned that the driving licence was provided to the complainant to drive motorcycle with gear, LMV (NT), car LMV tractor only. On this point of controversy, findings were given by the Hon'ble Jharkhand High Court in case law Ajit Kumar Jha vs. Raju & another, 1(2011) ACC 430 (DB). In case referred above, findings were given that driving licence to drive light motor vehicle includes transport vehicle also. So, Ajit Kumar Jha's case (Supra) supports the version of the complainant.
12. As discussed above, although the auto rickshaw is a transport vehicle but the same is also under the category of LMV. During the course of arguments, on this point of controversy, learned counsel for the appellant-opposite party has placed reliance upon a decision of a Division Bench of Hon'ble Supreme Court of India in case National Insurance Company vs. Kusum Rai and others, 2006 AIR (SC) 3440.
13. We have closely perused the above cited case laws. As per facts of cited case law above, the driver who was driving jeep as a taxi was having a driving licence for LMV whereas the driver should have driving licence to drive commercial vehicle. In that case directions were given to the Insurance Company to make payment of the compensation amount to the claimant but with liberty to the Insurance Company to claim and recover that amount from the registered owner of the vehicle without filing a separate suit or claim petition but in the execution proceedings of the same order. Facts and circumstances of the cited case law referred above are different from the facts and circumstances of the case in hand. Moreover, in that case also directions were given to the Insurance Company to pay compensation amount to the complainant. In this case, cited case law above is not of much help to the opposite party-Insurance Company.
14. In a recent judgment rendered by Hon'ble Supreme Court of India in Civil Appeal No.5826 of 2011, Mukund Dewangan versus Oriental Insurance Company Limited, decided on July 03rd, 2017 it has been held as under:-
"(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 60 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.
(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."
15. In the case in hand the Gross Weight of the auto rickshaw is 725 Kgs, as is evident from the copy of Certificate of Registration Exhibit C-1. So, the vehicle in question falls under the category of Light Motor Vehicle and the complainant who was holding LMV driving licence was fully authorised to drive the auto rickshaw.
16. No other point was raised during the course of arguments.
17. As a result, as per discussion above, we find no illegality and invalidity in the impugned order October 26th, 2016 passed by the learned District Forum. Findings of the learned District Forum stand affirmed and the appeal stands dismissed.
18. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.
Announced:
11.08.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL