State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Shiv Kumar on 13 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 316 of 2012 Date of Institution : 17.09.2012 Date of Decision : 13/12/2012 United India Insurance Company Limited, Regional Office- SCO 123-124, Sector 17B, through its duly constituted Attorney Sunita Sharma, Deputy Manager. Appellant/Opposite Party. V e r s u s Shiv Kumar son of Sh. Ravi Chand, resident of H.No. 1090, Sector 4, Panchkula. ....Respondent Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Paul S. Saini, Advocate for the appellant.
Sh. Vishal Madan, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 06.08.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Party (now respondent), as under:-
The complaint is allowed accordingly. The Opposite Party is directed to make payment as per the IDV of the vehicle, after allowing depreciation for 11 months, as per norms to the Complainant. The amount of Rs.1,90,000/- already received by the Complainant from sale of salvage be deducted from the amount payable. The Opposite Party shall also pay Rs.7,000/- to the Complainant towards cost of litigation.
This amount be paid by the Opposite Party within 45 days of the receipt of this order, failing which Opposite Party shall also be additionally liable for an interest @12% per annum on the awarded amount, from the date of this order, till it is paid, besides the cost of litigation.
2. The facts, in brief, are that the complainant, being the owner of Tata Safari, got insured the same, with the Opposite Party, for the period from 1.1.2008 to 31.12.2008, on paying the premium. On 27.11.2008, the vehicle, while being driven by one Sh. Pardeep Bansal, son of Sh. Ghan Shyam Bansal, met with an accident. F.I.R. No. 183, dated 27.11.2008, (Annexure C-3) was lodged in Police Station Bhawanigarh, District Sangrur, by the wife of Sh. Pardeep Bansal, who died in the accident. Thereafter, a claim regarding damage to the vehicle, was lodged, with the Opposite Party, alongwith all the necessary documents. A surveyor was deputed by the Opposite Party, who gave an opinion, that the vehicle was a total loss and told the complainant to sell the vehicle, which would fetch about Rs.1,90,000/-. He was further told that the balance insured amount shall be payable by the Insurance Company, after submission of the report of the Surveyor. Accordingly, the complainant sold the vehicle for Rs.1,90,000/-. Thereafter, he visited the office of the Opposite Party, for payment of the balance insured amount. The claim, however, remained unsettled. The claim of the complainant, was eventually repudiated by the Opposite Party, vide letter dated 21.10.2010 (Annexure C-4), on the ground, that the vehicle was registered as LTV, whereas, Sh. Pardeep Bansal, who was driving the vehicle, at the relevant time, was holding a licence, to drive LMV vehicle, only, carrying no endorsement, authorizing him to drive LTV, and, as such, there was contravention of the terms and conditions of the Insurance Policy, as also of the Motor Vehicles Act, 1988. It was further stated, in this letter that the complainant had no insurable interest, in the vehicle, at the time of accident, as he had already sold the same to Sh. Pardeep Bansal. It was further that the complainant had not sold the vehicle to anybody before the accident. It was further stated that Sh. Pardeep Bansal, was holding a valid and effective licence for driving LMV vehicle, at the time, when the same met with an accident. It was further stated that the repudiation of claim, of the complainant, by the Opposite Party, was illegal and arbitrary. It was further stated that the aforesaid act of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party to pay Rs.5,06,350/-, as claim of the accident, alongwith interest @18% P.A.; pay compensation, in the sum of Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.11,000/-.
3. The Opposite Party, in its written version, stated that the complaint was not maintainable, as the complainant had suppressed the material facts. It was further stated that the vehicle, in question, was being driven by Sh. Pardeep Bansal, at the relevant time, in violation of the terms and conditions of the Insurance Policy (Annexure R-1), as he was not holding a valid and effective driving licence, to drive LTV vehicle. It was further stated that Sh. Pardeep Bansal, at the relevant time, was having only an effective driving licence to drive LMV-MCW. It was further stated that the complainant had already sold the vehicle to Pardeep Bansal (now deceased), who was driving the vehicle, at the time of accident, and, as such, he(complainant) had no insurable interest. It was admitted that the vehicle, in question, was insured for the period from 1.1.2008 to 31.12.2008, on paying the premium. It was further stated that Ghan Shyam Bansal, father of Pardeep Bansal, gave in writing, to the Investigator, that the wreck was sold by Shiv Kumar (complainant), for a sum of Rs.2,00,000/- and a sum of Rs.1,90,000/-, was paid to him. It was further stated that, under these circumstances, the claim of the complainant was repudiated, by the Opposite Party. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
7. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
8. The first question, that falls for consideration, is, as to whether, Pardeep Bansal, driver of the vehicle, at the relevant time, when it met with an accident, was holding a valid and effective driving licence to drive LTV. Admittedly, the Tata Safari, which was being driven by Pardeep Bansal (now deceased) and met with an accident, was registered as LTV, as is evident from Annexure C-1, copy of the Registration Certificate. It is further evident, from a copy of the driving licence of Pardeep Bansal, at page 81 of the District Forum file, legible copy whereof, was got produced, during the pendency of appeal, and marked as Annexure-A, that he was holding a licence, for driving LMV-MCW vehicle. The Counsel for the respondent, no doubt, submitted that the vehicle, in question, fell within the category of LMV, the gross unladen weight whereof was 2650 kg, as is evident from Annexure C-1, copy of the Registration Certificate and according to Section 2(21)of the Motor Vehicles Act, 1988, 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 [7,500] kilograms. He further submitted that since the gross unladen weight of the vehicle, in question, was 2650 kgs., i.e. less than 7500 kgs., the driver of the vehicle, who was holding the licence for driving the LMV, was competent to drive the same. The submission of Counsel for the respondent, does not appear to be correct. There is a distinction between the LMV Non Transport Vehicle and the LMV Transport Vehicle. Transport Vehicle may be a `light transport vehicle` or may be a `light motor vehicle` but for the purpose of driving the same, distinct licence, is required, to be obtained, although the definition of LMV brings within its ambit the transport vehicle or omnibus. Undisputedly, thus, a distinction between an effective licence, granted for transport vehicle and passenger motor vehicle exists. Section 3 of the Motor Vehicles Act, 1988, which provides for the necessity of driving licence, reads as under:-
(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 motor cab 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.
Section 9 provides for grant of driving licence.
Section 10 of the Motor Vehicles Act, 1988, prescribes the form and contents of licences to drive, which is to the following effect:
10. Form and contents of licences to drive-
(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's 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) to
(c)..
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description.
The distinction between a light motor vehicle and a transport vehicle is, therefore, evident. A transport vehicle may be a light motor vehicle, but for the purpose of driving the same, a distinct licence, is required to be obtained. The distinction between the `transport vehicle`, `light commercial vehicle` and a `passenger vehicle`, can also be noticed from Section 14 of the Act. Sub-section (2) of Section 14 provides for duration of a period of three years, in case of an effective licence to drive a `transport vehicle`, whereas, in case of any other licence, it may remain effective for a period of 20 years. In the instant case, it is evident from a copy of the driving licence, Annexure A, of Pardeep Bansal, who was driving the vehicle, at the relevant time, that the same was valid for driving LMV-MCW, and the validity thereof was from 24.05.2006 to 05.02.2021. It means that this licence was issued, in favour of the driver of the vehicle, for 15 years. It is evident from Annexure R-1, copy of the Insurance Policy, issued in favour of the complainant that it was for a private car. It is further evident, from copy of the Insurance Policy, as to which persons or class of persons were entitled to drive the vehicle. It is further evident from this document that any person, who held an effective driving licence, at the time of accident, was competent to drive the vehicle. Important notice was also appended on copy of the Insurance Policy, at page 109 of the District Forum file, that the insured shall not be indemnified, if the vehicle was used for or driven otherwise, in accordance with the schedule. As stated above, as is evident, from copy of the Registration Certificate Annexure C-1, the nature of the vehicle is shown as LTV. Clauses (14), (21),(28) and (47) of Section 2 of the Motor Vehicles Act, 1988, make it clear, that if the vehicle is a Light Motor Vehicle but falls in the category of a transport vehicle, the driving licence is separately required under Section 3 of the Act. If it is not done, a person holding a LMV (Non-Transport) driving licence, cannot ply a transport vehicle. In the instant case, as stated above, the driver of the vehicle, at the time of accident, was only holding a driving licence for driving LMV-MCW. The licence was not endorsed, as required under Sections 3 and 11 of the Motor Vehicles Act, 1988, for driving a light transport vehicle. The same principle of law, was laid down, in Oriental Insurance Co.Ltd. Vs. Angad Kol and Ors., AIR 2009, Supreme Court 2151. Since Pardeep Bansal, driver of the vehicle, when it met with an accident, was not holding an effective driving licence for driving the light transport vehicle, the Opposite Party was justified, in repudiating the claim of the complainant. The District Forum, was, thus, wrong, in holding that the driver of the vehicle, at the time of accident, was holding a valid and effective driving licence, for driving the LTV, and, as such, the claim submitted by the complainant, was arbitrarily and illegally repudiated by the Insurance Company. The findings of the District Forum, in this regard, being perverse are reversed.
9. The Counsel for the respondent/complainant, placed reliance on Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd, 2000 (1) ACJ 319, SC in support of his contention that Pardeep Bansal was having a valid and effective driving licence for the vehicle Tata Safari, registered as LTV. The perusal of the facts of Ashok Gangadhar Maratha`s case (supra) goes to show that the case of the insured was that, in case of LMV, which was a non-transport vehicle, there was no statutory requirement, to have specific authorization on licence of the driver, under Form 6 under the Rules. It was, in these circumstances held by the Supreme Court, that the driver was holding a valid licence, on the date of accident, to drive light motor vehicle. In the instant case, as is evident from copy of the Registration Certificate Annexure C-1, the vehicle was registered as LTV i.e. Light Transport Vehicle. The insurer never admitted that it was LMV Light Motor Vehicle. Under these circumstances, for driving LTV, by Pardeep Bansal, who was holding a licence for driving LMV, an endorsement on the same was required, under the provisions of law. Without endorsement, authorizing him to drive LTV Light Transport Vehicle, he could not be said to be competent to drive the vehicle, in question, on the basis of the licence for driving LMV, which he was possessing at the relevant time. The facts of Ashok Gangadhar Maratha`s case (supra) being completely distinguishable, from the facts of the instant case, no help can be drawn, by the Counsel for the respondent/complainant, therefrom. The submission of the Counsel for the respondent/complainant, therefore being devoid of merit, must fail, and the same stands rejected.
10. The next question, that falls for consideration, is, as to whether, the complainant had sold the vehicle, in question, before the accident, to Pardeep Bansal or not. No cogent and convincing evidence was produced, by the Opposite Party, to the effect, that the complainant had already sold the vehicle, in favour of Pardeep Bansal, before the accident, after receiving consideration from him. Reliance was placed by the Counsel for the appellant, on Annexure R-3 (report of the Surveyor), containing the statement of Ghan Shyam Bansal, father of Pardeep Bansal, that he had received Rs.1,90,000/-, for the damaged car. From his statement, a presumption was drawn by the Surveyor, that the car had already been sold by Shiv Kumar, complainant, before the accident. Reliance was also placed on the statements dated 11.03.2010 of Shiv Kumar and Ghan Shyam Bansal, copies whereof are at pages 119 and 121 of the District Forum file, which were allegedly recorded by the Surveyor. From the document Annexure R-3 and statements, referred to above, it was not proved, as to on which date, the vehicle, in question, was allegedly sold by the complainant, to Pardeep Bansal; what was the sale consideration, which was allegedly paid by Pardeep Bansal to the complainant; and on which date the delivery of the vehicle was allegedly made to Pardeep Bansal. Even, no affidavit of Shiv Kumar, complainant, or of Pardeep Bansal, which might have been submitted at the time of alleged sale, was produced on record, to show that actually the vehicle, in question, had been sold by the former, to the latter, for valuable consideration. The Opposite Party, thus, failed to prove, on record, that the complainant had already sold the vehicle, to Pardeep Bansal, before the accident, and, as such, the former had no insurable interest. It is, therefore, held that the complainant had not sold the vehicle, in question, to Pardeep Bansal, before the accident. He was therefore, having insurable interest, at the time of accident, in the vehicle. The District Forum was also right in holding so.
11. No other point, was urged, by the Counsel for the parties.
12. In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission, and is liable to be set aside.
13. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
14. Certified copies of this order, be sent to the parties, free of charge.
15. The file be consigned to Record Room, after completion Pronounced.
13.12.2012 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg