State Consumer Disputes Redressal Commission
Universial Sompo General Insurance Co. ... vs Purshottam Dutt Pant on 24 February, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION,UTTARAKHAND 176 Ajabpur Kalan,Mothrowala Road, Dehradun-248121 Final Order First Appeal No. A/14/68 (Arisen out of Order Dated 15/03/2014 in Case No. 05/2012 of District Tehri Garhwal) 1. Universial Sompo General Insurance Co. Ltd. through Auth. Sign. KLS Tower Polot No.94 MIDC Mahape, Navt Mumbai Mumbai Maharastra ...........Appellant(s) Versus 1. Purshottam Dutt Pant s/o Dhani Ram r/oVill. Badriyal Po. Naicholi Patti-Dhar Akaria, Tehri Garhwal Uttarakhand ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B.S. Verma PRESIDENT HON'BLE MR. D. K. Tyagi, H.J.S. MEMBER HON'BLE MRS. Veena Sharma MEMBER For the Appellant: For the Respondent: ORDER ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by appellant-opposite party against the order dated 15.03.2014 passed by the District Forum, Tehri Garhwal in consumer complaint No. 05 of 2012, whereby the District Forum has allowed the consumer complaint and directed the appellant-opposite party to assess damages to vehicle No. UK09-TA-0223 to due accident dated 30.01.2011 in accordance with rules and regulation within one month from this order and after such assessment opposite party shall pay to applicant within a period of one month from such assessment the amount of damages assessed by opposite party against insurance policy of above mentioned vehicle.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Purushattom Dutt Pant is the registered owner of the vehicle No. UK09-TA-0223 Tata Spacio. This vehicle was insured by the opposite party-Universal Samop General Insurance Co. Ltd. for a period from 19.05.2010 to 18.05.2011 and its policy No. is 2314/50699884/00-000. The aforesaid vehicle of the complainant met an accident at Tehri Koteshwar Motor Road near zero bridge on 30.01.2011 in the night and fell into the Bhagirathi River. This vehicle got total damage in the accident and submerge in the river. At the time of accident, driver Sh. Ghambir Lal was plying this vehicle who had died in the accident. Driver Ghambir Lal was having a valid driving licence and experience of six years' to drive the vehicle. The complainant immediately informed the opposite party regarding the accident and the opposite party appointed Sh. Ganesh Rawat as Surveyor, who visited the place of accident. At that time, some part of vehicle was visible in the river due to less water. Most of the vehicle was submerged in the river. The complainant has pleaded that original documents of the vehicle were always remained in the vehicle and the photostat copies of the documents are with the complainant. The original documents were lost at the time of accident during submerging of the vehicle in the water. The complainant obtained the statement of loss from Shakti Auto Mobile, Chamba Road, Chawalkhet, New Tehri for Rs. 5,54,665.41ps. After survey done by Sh. Ganesh Rawat, Surveyor, the opposite party again appointed other surveyor, who visited the place of accident. The complainant provided all the documents regarding the vehicle to the Surveyor, who assured the complainant for payment by the opposite party in the month of February, 2011, even then the opposite party did not pay the claim amount to the complainant. The complainant had also informed the Police outpost, Bhagirathipuram on 01.02.2011 regarding accident. The vehicle was purchased by the complainant after obtaining loan from the Canara Bank, Branch New Tehri and due to total damage of vehicle in the accident, the claimant is facing difficulty to pay the loan amount. The complainant visited so many times in the office of the opposite party, but claim was not paid by the opposite party to him. Later on, on 22.06.2011 the complainant sent a notice to the opposite party through his advocate Sh. Chiranji Lal Nautiyal, even then the claim was not paid by the opposite party. The opposite party repudiated complainant's claim vide letter dated 02.09.2011 on the basis that the driving licence of the driver was not endorsed for plying the vehicle in hilly areas. Therefore, the complainant filed a consumer complaint before the District Forum, Tehri Garhwal for compensation of Rs. 5,54,665.41ps. and also for Rs. 50,000/- for physical and mental suffering and for Rs. 10,000/- towards litigation expenses.
3. The opposite party-Universal Sompo General Insurance Co. Ltd. has filed written statement and has admitted the contents of para No. 1 of the consumer complaint. In additional pleas, the answering opposite party has pleaded that the claim petition is based on wrong and concocted facts and is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed as such. The complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986, as the designated work was carried out for commercial purpose and, therefore the petition of the petitioner is liable to be dismissed on this score alone. As soon as the information of the mishap was received, a Surveyor Sh. Rajeev Gupta was appointed to conduct spot survey of the claim. The vehicle was partially visible at the time of spot survey and after that the vehicle got completely submerged in the lake water after which Sh. Himanshu Sharma was appointed to conduct survey of the said vehicle, who after survey informed that the driving licence of the driver Sh. Gambhir Lal, who died in the said accident, was not valid to drive transport vehicle. It was confirmed from concerned R.T.O. and he submitted his report that the driving licence of the driver was valid to drive transport vehicle, but was not endorsed to drive in hilly region and, therefore, on the basis of the report of the surveyor the claim was accordingly repudiated. The surveyor visited the spot and inspected the vehicle very minutely, met the concerning authorities and local peoples, collected the photographs and all relevant documents regarding the mishap and prepared a detailed survey report and submitted the same to the answering opposite party. There is no deficiency in service of the answering opposite party. The repudiation of the claim is just and correct and has been done according to the policy terms and conditions, as the person driving the vehicle was not possessed with a valid and effective driving licence at the date of accident and, therefore, the present complaint is liable to be dismissed against the answering opposite party. The facts narrated in the complaint, are wrong and have been arrayed with wrong intentions to extract illegal money from the answering opposite party.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 15.03.2014 in the above manner. Aggrieved by the said order, the opposite party-appellant has filed this present appeal.
5. We have heard Sh. Suresh Gautam, learned counsel for the appellant as well as Sh. Vikram Singh Rana, learned counsel for respondent. We have also gone through the entire record of the District Forum and have also perused the record.
6. Learned counsel for the appellant-opposite party has submitted before this Commission that the District Forum has failed to appreciate the evidence on record. The District Forum has wrongly allowed the claim of the complainant inspite of the clear evidence on record that the driver was not authorized to drive the vehicle on hill routes. There was no hill endorsement on the driving licence of the driver at the time of accident. The District Forum has failed to appreciate that the insured has handed over the vehicle to the unskilled driver who is always endanger to public life. The Forum below has failed to appreciate that the owner of the vehicle has violated the terms and conditions of the policy as well as the Motor Vehicle Act. The District Forum has wrongly directed the insurance company-appellant to assess the claim of the complainant and after such assessment to pay the assessed amount to the complainant within one month. The District Forum has wrongly allowed the claim of the complainant inspite of clear evidence on record that the complainant has violated the terms and conditions of the policy and the company has repudiated the claim of the complainant on genuine ground, as per law. As such, there is no deficiency on the part of the appellant. The District Forum has wrongly allowed the complaint against the appellant inspite of that there is no deficiency proved on the part of the insurance company-appellant. The District Forum has wrongly allowed the consumer complaint of the complainant on the basis of law laid down by the Hon'ble High Court of Uttarakhand in Balbir Singh vs. Shobha Kashyap & Others, whereas there is clear law laid down by the Hon'ble State Commission of Uttarakhand, as well as Hon'ble National Commission that the insurance company is not liable to pay the claim, if the driver having no valid driving licence to drive the vehicle in hill roads. The appellant has proved that there was no hill endorsement in the driving licence of the driver at the time of accident and he was not authorized to drive public service vehicle or goods vehicle on hill roads.
7. Learned counsel for respondent has submitted that the driver Gambhir Lal was driving the vehicle for last 06 years on hill routes. His driving licence was issued from Rishikesh in the year 2005, therefore, the driver had 10 years' of experience.
8. Learned counsel for the appellant has placed reliance upon a decision of the Hon'ble National Commission in the case of Rajinder Singh Negi vs. Oriental Insurance Co. Ltd.; V (2008) CPJ 250 (NC). In the said judgment, the Hon'ble National Commission has held that driving licence of driver driving vehicle at accident time not having endorsement to drive on hill roads - "Hill road endorsement" on licence not mere formality, which can be brushed aside in State, which is generally hill - Licence not in conformity with Motor Vehicles Act and relevant Motor Vehicles Rules would render driving licence ab initio invalid - repudiation of claim by insurer justified. Learned counsel has also cited a decision of this Commission in First Appeal No. 54 of 2009; Sh. Bhagwat Singh Negi vs. The New India Assurance Co. Ltd. decided on 24.08.2011, in which this Commission has held that the driving licence of the driver was not valid on the date of accident, as there was no hill endorsement on the driving licence of the driver. Thus, on the date of the accident, the driver was not having a valid and effective driving licence to drive the vehicle on hill roads and, therefore, the insured has committed breach of the terms and conditions of the policy, which resulted in vitiation of the contract of insurance and the insurance company was absolutely justified in repudiating the claim and the complainant is not entitled to any compensation.
9. On the other side, learned counsel for respondent has cited a decision of the Hon'ble Uttarakhand High Court in the case of The New India Assurance Co. Ltd. vs. Smt. Kala Devi alias Kalawati Devi and others; 2008 (2) UC 821. In the said case, the Hon'ble High Court has held in Motor Vehicles Act, 1988 Section 165, 166 and 2(21) held that licence could not be held to be invalid on the ground that the same was not endorsed with permission to drive in hill roads. In another judgment of the Hon'ble National Commission in the case of National Insurance Company Ltd. vs. Smt. Princy Roy; 2014 (3) UC 2302. In the said judgment, the Hon'ble National Commission has held that if insurance company has issued insurance policy without verifying the registration certificate of vehicle then cannot repudiate the insurance claim.
10. With due respect to the Hon'ble Uttarakhand High Court as well as Hon'ble National Commission, citations produced before us by the respondent are not applicable in the present case. Rather citations produced by the appellant before this Commission are fully applicable in the instant case. Admittedly, the driver of the vehicle Sh. Gambhir Lal was having driving licence to drive the Light Motor Vehicle (LMV). It is also admitted that Sh. Gambhir Lal had obtained the driving licence from the R.T.O., Rishikesh, Uttarakhand, in the year 2005 (paper No. 5kha/17 on the District Forum's record), but there is no hill endorsement on the driving licence of the driver, Sh. Gambhir Lal to drive public service vehicle on hilly routes. So far a notification dated 12.04.2004 of Transport Commissioner, Uttarakhand is concerned, it was issued in reference to Char Dham Yatra year 2004 only, therefore, this notification does not help the respondent in any way.
11. Rule 193 of The Uttar Pradesh Motor Vehicles Rules, 1998 are applicable in the State of Uttarakhand also, which reads as under:-
"193. Endorsement of certain licences for hill roads - No person shall drive a public service vehicle or a goods vehicle on a hill road unless his licence to drive such public service vehicle or goods vehicle has been endorsed by a Registering Authority with a permission to drive upon hill roads situated within the jurisdiction of such Registering Authority or in the case of a public service vehicle hired by tourists, by the Registering Authority of the State with which reciprocal arrangement on the point have been agreed upon".
12. The vehicle in question was a Tata Spacio, Maxi Cab falls within the definition of public service vehicle as envisaged in Section 2(35) of The Motor Vehicles Act, 1988. Driver Sh. Gambhir Lal was issued a driving licence to drive light motor vehicle (LMV)(T) from 23.06.2005 to 23.06.2008, which was later on renewed from 23.06.2008 to 22.06.2011. From the perusal of the said driving licence, it is clear that there is no hill endorsement made in the driving licence of driver Sh. Gambhir Lal. Section 193 of The Uttar Pradesh Motor Vehicles Rules, 1998 clearly prohibits plying of a public service vehicle or a goods vehicle on a hilly routes by a person, who has not been permitted by the registering authority and not endorsed driving licence. There was no hill endorsement so as to authorize him to drive the vehicle in hill roads. There is no dispute that the accident took place in the hills of the State of Uttarakhand. Thus, it is proved beyond any shadow of doubt that on the date of accident, the driver was not having a valid and effective driving licence to drive the vehicle of respondent which is a public service vehicle and was having permit at the time of accident on a hill route. As there was no hill endorsement on his driving licence and, therefore, the insurance company has rightly repudiated the complainant's claim.
13. The Hon'ble National Commission in the case of Rajinder Singh Negi (supra) has held that "hill road endorsement" on driving licence is not a mere formality, which can be brushed aside in a State, which is generally hilly. In the said case, there was no hill endorsement on the driving licence of the driver at the time of the accident. It was held that the driving licence was not in conformity with the Motor Vehicles Act and relevant Motor Vehicles Rules and the absence of hill endorsement in the driving licence, would render the driving licence invalid and the insurance company was justified in repudiating the claim.
14. For the reasons aforesaid, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order. The order impugned being not sustainable in the eyes of law, is liable to be set aside and appeal is fit to be allowed.
15. In view of the above, the appeal is allowed. Impugned judgment and order dated 15.03.2014 passed by the District Forum, Tehri Garhwal is set aside and the consumer complaint No. 05 of 2012 is dismissed. No order as to costs. The amount deposited by the appellant at the time of filing the appeal, as statutory amount be released in appellant's favour.
[HON'BLE MR. JUSTICE B.S. Verma] PRESIDENT [HON'BLE MR. D. K. Tyagi, H.J.S.] MEMBER [HON'BLE MRS. Veena Sharma] MEMBER