National Consumer Disputes Redressal
Kailash Chandra Kalkhundia vs Oriental Insurance Co. Ltd. & Anr. on 18 September, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1448 OF 2008 (Against the Order dated 01/03/2008 in Appeal No. 53/2007 of the State Commission Uttaranchal) 1. KAILASH CHANDRA KALKHUNDIA S/O SHRI JIA DUTT KALKHINDIA JAI MOTORS TRANSPORT COMPANY, CEMENT ROAD, TANAK UTTRAKHAND ...........Petitioner(s) Versus 1. ORIENTAL INSURANCE CO. LTD. & ANR. HALDWANI, DISTRICT-NANITAL UTTRAKHAND - 2. M/S. MEGA MOTORS, C.V.D., HALDWANI, DISTRICT-NANITAL UTTRAKHAND - 3. ORIENTAL INSURANCE - - - ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER
For the Petitioner : MR. K. K SHARMA For the Respondent : Mr Manish Pratap Singh, Advocate for R 1
Dated : 18 Sep 2017 ORDER
REKHA GUPTA, PRESIDING MEMBER
The present revision petition has been filed against the judgment dated 03.01.2008 of the Uttarakhand State Consumer Disputes Redressal Commission, Dehradun ('the State Commission') in First Appeal no. 53 of 2007.
2. The facts of the case as per the petitioner/ complainant are that the petitioner purchased a Mini truck Tata 1109 in the year 2002 bearing registration no.UA03/ 0921. The said vehicle was insured with respondent no. 1 vide policy cover note no. 31/ 2003/ 448 and was effective from 08.05.2002 to 07.05.2003. The said vehicle met with an accident on 03.11.2002 between Bagarihat and Khulbiyari near Joljibi, Thana Askot, District Pitthoragarh and the vehicle got badly damaged. The cause of the accident as stated by the petitioner was failure of the vehicle's brakes. The petitioner informed the insurer immediately and lodged a claim for the loss. A spot survey was conducted by the surveyor on 06.11.2002 and the photographs of the accidented vehicle were also taken on 22.11.2002. As stated by the petitioner, on the basis of the surveyor's report the insurer had offered the petitioner a sum of Rs.1,67,000/- against the claim which the petitioner refused to accept because the authorized service centre had estimated the cost of repairs at Rs.3,97,000/-. The petitioner sent letters to the insurer on 26.03.2003, 19.04.2003, 23.05.2003 and 26.08.2003 for settling his claim, but the insurer did not take any action. The petitioner also sent a letter dated 19.04.2003 to the customer service centre. Ultimately, on 03.02.2004, the insurer/ respondent no. 1 repudiated the claim on the ground that the driver of the vehicle did have a valid driving licence at the time of the accident and thus, the insured - petitioner had violated the terms of the policy. Hence, the petitioner filed the aforesaid consumer complaint before the District Forum with the following prayer:
(a) Order of the opposite party to pay Rs.2,17,468.68 towards repairs of vehicle and Rs.16,640/- expenses from place of accident to workshop to the complainant;
(b) Due to delay in payment the opposite party is liable to pay Rs.2,92,160/- to the complainant;
(c ) Rs.50,000/- towards mental pain and legal expenses may be ordered to be given to the complainant by the opposite party and interest @ 18% per annum on total amount may be ordered to be given to the complainant from the opposite party.
3. Respondent no. 1 in their reply before the District Consumer Disputes Redressal Forum, Udham Singh Nagar ('the District Forum') had opposed the complaint on the ground that the driver Basant Vallabh Patni who was driving the vehicle at the time of the accident had a driving licence which was valid only for light motor vehicle (transport). According to the registration certificate the gross weight of the vehicle in question was 10,500 kilograms and hence the vehicle came in the category of heavy vehicle. The claim of the petitioner was repudiated for violation of the terms of insurance contract by the petitioner and the petitioner was not entitled to any kind of compensation.
4. Respondent no. 2 - M/s Mega Motor in their written reply stated that the petitioner had purchased a TATA 1109 truck from them which was a light commercial vehicle and rest of the contents did not relate to them.
5. After hearing the case, two orders were passed, i.e., one by the President and the second order was passed by two Members. The President, District Forum vide its order dated 05.02.2007 while partly allowing the complaint held as under:
"The complaint is partly allowed and the opposite party no. 1 is directed to pay Rs.1,83,181/- towards damages along with interest @ 6% per annum on the above amount from 23.03.2004 and Rs.2000/- litigation charges within one month. Besides this to pay Rs.10,000/- as damages to the complainant within one month. Photocopy of this decision and order be sent to the Commissioner and Secretary, Transport Department, Government of Uttarakhand, Dehradun for necessary information and action".
The two Members while dismissing the complaint observed as under:
"It becomes clear from the study of above said decisions that there is mentioning of three types of vehicles in the Motor Vehicle Act and in accordance with it the driving licence is issued. According to these decisions any driving having heavy motor vehicle licence and drives light motor vehicle it does not mean that he himself is authorised to drive light motor vehicle. In the present dispute also the driver of the complainant was holding licence for driving light motor vehicle while he was driving medium category vehicle. Hence, the insurance claim has rightly been repudiated according to the decisions given by the National Commission, State Commission and Hon'ble Supreme Court. In our view the driver of the complainant was not having valid licence to driver medium category vehicle. Hence, OP no. 1 has rightly repudiated the claim of the complainant.
The complaint of the complainant is rejected. Both the parties shall bear the expenditure of their own and photocopy of this order be sent to the Commissioner and Secretary, Transport Department, Dehradun for information and necessary action in reference to charging less registration fee by the transport department".
6. Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission while dismissing the appeal observed as under:
"4. There is no dispute regarding the ownership of the vehicle, effective period of the insurance policy and the date of the accident. This appeal is to be decided on facts as well as in view of the legal point involved in this case. On facts, firstly, it is to be seen whether the vehicle in question, which is a transport vehicle is a light motor vehicle stated by the complainant - appellant or a medium motor vehicle as concluded by the District Forum in its order. In sale certificate issued by the seller in Form - 21 (paper no. 40) prescribed under Rule 47 (a) and (b) of the Motor Vehicle Rules, Class of vehicle has been mentioned as 'LCV'. A careful perusal of the certificate reveals that initially the vehicle was classified into some other category and then that category has been erased and LCV has been written. The signature of the person attesting this cutting is different from the signature of the person issuing the certificate. As per details given in this certificate, the unladen weight of the vehicle is 4020 kg and gross weight is 10500 kg. We also perused the certificate of registration of the vehicle in Form no. 23 (page no. 38) wherein also the class of vehicle has been shown as LCV and the unloaded weight and gross vehicle weight are mentioned as 4020 kg and 10500 kg respectively. Under Section 2 (15) of the Motor Vehicle Act, 1988 gross vehicle weight has been defined as the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle. As per definition, gross vehicle weight of the vehicle in question is 10500 kg. Under Section 2 (21) of the Motor Vehicles Act, 1988, light motor vehicle has been defined as 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 kg. Certainly, the vehicle in question cannot be classified as LCV We fail to understand as to why the seller had shown it a LCV and how the office of the Registering Authority failed to detect this error (or manipulation) in sale certificate. A seller of the motor vehicle is supposed to known the provisions of the Motor Vehicle Act, 1988. The purchaser- appellant had certainly purchased the vehicle in question for a commercial purpose. So he is also supposed to know the provisions of the relevant statutes before starting commercial activity. There seems a least probability that both seller and purchaser of the vehicle were ignorant of loss and they had a bonafide belief that vehicle in question was a light commercial vehicle (LCV). This matter was referred to the Regional Transport Office, Kumaon Region, Haldwani by the learned President of the District Forum vide his letter no. 74/ CF/ 2006 dated 19.05.2006 who, in reply to this letter had also confirmed vide his letter no. 1037/ T R/ Transport/ 06 dated 06.06.2006 that the vehicle in question with gross vehicle weight of 10500 kg under the category of medium motor vehicle.
5. Thus the vehicle in question is a medium motor vehicle, but it was being driven in hill roads by a driver who was entitled to drive a vehicle of LMV category only in the hill roads of Kumaon Region as is evident from driver's licence.
6. Now we come to legal aspect of the case. To decide this appeal, two questions needs to be answered. Firstly, whether the insurer - respondent no. 1, is liable to indemnify the insured against the loss or damage to the vehicle under the terms of the policy in the aforesaid circumstances. Secondly, if the answer to this question is 'YES', then to what extent the loss can be compensated.
7. Appellant's contention in reference to first question is that he had the bonafide belief that the vehicle in question was a light commercial vehicle and the basis of his belief was the classification made by the seller and the Registering the Authority. Therefore, he had appointed after his satisfaction, a driver who had a valid licence to drive a light motor vehicle in hill roads also. As such, the terms of the insurance policy have not been violated. By repudiating his just claim, the insurer - respondent no. 1 has committed deficiency in service. Therefore, the prayer made by him in the consumer complaint was just and should have been allowed. In support of his contention, appellant has placed reliance on Hon'ble Supreme Court's decision in Jitendra Kumar vs Oriental Insurance Co. Ltd., and others 2003 AIR SCW 3739.
9. We are of the opinion that facts of the appellant's case are different from Jitendra Kumar's case (supra). Appellant's vehicle, as per statement of the appellant, had lost control due to failure of the vehicle's brakes and had dashed against a rock. In support of his contention, appellant has not produced any evidence, such as a technical report, which may prove that the accident had occurred due to mechanical fault. In absence of such a report, it cannot be ruled out that the accident occurred due to driver's negligence or reckless driving. The onus to prove that the accident had occurred due to some mechanical reasons, lies on the complainant - appellant. While in Jitendra Kumar's case (supra), the vehicle had caught fire for which in our opinion, a technical report is not necessarily required. Therefore, in our opinion, principle laid down by Hon'ble Supreme Court in Jitendra Kumar vs Oriental Insurance Co. Ltd. (Supra) is not directly applicable in appellant's case.
10. In matters of accidental claims, principles laid down by Hon'ble Supreme Court in National Insurance Co. ltd., vs Swaran Singh - I (2004) SLT 345 = I (2004) ACC 1 (SC) = 2004 (3) SCC 297 were being followed even in those cases where the driver of the accidented vehicle did not hold a valid driving licence. Hon'ble Supreme Court held in the said case that mere absence, fake of invalid driving licence or disqualification of the driver at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. But in its judgment in National Insurance Co. Ltd., vs Laxmi Narain Dhut - III (2007) CPJ 13 (SC), Hon'ble Supreme Court made a distinction between insurer's liability in respect of third party damages and in respect of own damages in such cases of accidental claims, where driver did not hold a valid or hold fake driving licence at the time of accident and held that Swaran Singh's case (supra) has not application in own damage cases. In the light of the judgment, we are of the view that the claim lodged by the appellant - complainant was rightly repudiated by respondent no. 1 - the insurer.
11. In the result, the appeal is dismissed. No order as to cost."
7. Hence, the present revision petition.
This Commission on 19.08.2014 had passed the following order:
"This matter relates to repudiation of insurance claim by the respondent no. 1. Respondent no.2 appears to have been arrayed as a formal party because it sold the vehicle to the petitioner. Therefore, there is no need to issue notice to respondent no. 2. Learned counsel for respondent no.1 states that he has been recently engaged by the insurance company and he would be filing his vakalatnama in the Registry during the course of the day."
8. I have heard the learned counsel for the parties. Learned counsel for the petitioner Mr K K Sharma contended that the State Commission had erred in not appreciating that the petitioner had purchased an LCV from respondent no. 2 and the concerned transport authority had also issued a registration certificate and permit to the said vehicle of the petitioner categorising it as a LCV. He further contended that the petitioner all along was under the impression that the vehicle bought by him was a LCV and hence, he hired a driver who was having a proper valid licence to drive the LCV. Had he known that the vehicle was a medium goods vehicle he would have engaged a driver who had a proper and valid driving licence to ply the said vehicle. Further, the State Commission has noted that there was over writing in the Form no. 21 sent to the Transport Authority where some cuttings had been made while categorising the said vehicle as LCV. The learned counsel contended that the petitioner was not responsible for the same, it was the officials of respondent no. 2/ OP no. 2. Learned counsel for the petitioner has also stated that as per the survey report the accident was not on account of the fact that the driver did not have a valid driving licence but due to mechanical failure.
9. Learned counsel for the respondent no. 1 - Mr Manish Pratap Singh on the other hand drew my attention to section 2 (21), (23) and (16) of the Motor Vehicle Act, 1988 which read as under:
"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 a road roller the unladen weight of any of which, does not exceed (7500) kilograms;
23. "medium goods vehicle" means any goods carriage other than a light motor vehicle, or a heavy goods vehicle;
16. "heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road roller the unladen weight of either of which, exceeds 12,000 kilograms".
10. He further contended that as per the admitted fact and also form no. 21 issued by M/s Mega Motors CVD to the MLO/ RTO Regional Transport Authority which states that the vehicle which met with an accident was a truck which has a unladen weight of 4020 kgs and gross weight of 10500 kgs and hence, as per the above-mentioned section 21 of the M V Act, 1988 was a Medium Goods Vehicle and not a Light Motor Transport vehicle. It is also an admitted fact that the said vehicle was being driven by a driver who did not have a valid driving licence for driving a medium goods vehicle on the date of the accident. Hence, he contended that the terms and conditions of the policy have been violated and the insurance company was justified in repudiating the claim.
11. I have gone through the advertisement placed on record. From this it is not clear whether from the said advertisement whether only TATA LCV 407, 709 were LCVs or even 1109. No literature has been placed on record to support the stand of the petitioner that TATA TPT/ 1109 is a light commercial vehicle/ goods vehicle. The petitioner in his revision petition has admitted that he was under the impression that it was a light commercial vehicle and was not a medium goods vehicle otherwise, he would have hired a driver who is a having a valid driving licence to drive medium goods vehicle and for this no one should be blamed. In the form no. 21 issued by the M/s Mega Motors CVD there is cutting against the heading 'Class of vehicle' by which LCV had been added in hand in the said form. Though there is a stamp of Mega Motors CVD with signature but the signature does not match with the signature at the bottom of the form and the correction is undated. Hence, it is not known at what stage this correction has been made and by whom. It would also appear that the Transport Authority had issued the registration certificate mechanically quite ignoring the provisions of MV Act by categorising the said vehicle as LCV based on the form no. 21 issued by the dealer.
12. In view of the above, discussion, it is an admitted fact that the said vehicle was MGV and it was being driven by a driver who did not have a valid driving licence on the date of the accident, hence, the terms and conditions of the insurance policy had been violated. Thus, the respondent no. 1 was justified in repudiating the claim.
13. In view of the discussion above, I find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986. Revision petition is, therefore, dismissed with no order as to costs.
...................... REKHA GUPTA PRESIDING MEMBER