State Consumer Disputes Redressal Commission
M/S Luxmi Service Station vs New India Assurance Co. Ltd. on 11 January, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 980 of 2015
Date of institution: 28.8.2015
Date of order reserved: 03.01.2017
Date of Decision: 11.01.2017
M/s Luxmi Service Station (Regd.), Opposite Verka Milk Plant, Ferozepur
Road, Ludhiana, through its Partner Sh. Ashok Sachdeva.
Appellant/Complainant
Versus
1. The New Assurance Company Limited, Registered Office, The New
Assurance Company Limited, 87, MG Road, Fort, Mumbai - 400 001
through its Manager.
2. The New Assurance Company Limited, Branch Office Kamaldeep
Mansion, G.T. Road, Phagwara, District Kapurthala through its
Manager.
3. The New Assurance Company Limited, The Mall, Ludhiana through
its Manager.
Respondents/Ops
First Appeal against the order dated 29.6.2015
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. R.K. Bhatti, Advocate
For the respondents : Sh. Pardeep Kumar, Advocate for
Sh. R.K. Sharma, Advocate
First Appeal No. 980 of 2015 2
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant (hereinafter referred as complainant) has filed the present appeal against the order dated 29.6.2015 passed by the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter referred as the District Forum) in consumer complaint No. 512 dated 17.7.2013 vide which the complaint filed by complainant was dismissed.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against respondents/opposite parties (hereinafter referred as Ops) on the averments that complainant firm being owner of Tanker No. PB-08-AT-8624 got it insured from Ops vide Policy No. 36100331110100001833 for the period 15.7.2011 to 14.7.2012 from Op No. 2. The Competent Authority had allowed the plying of this vehicle and driver was having a valid driving licence to ply that vehicle. Unfortunately, the vehicle met with an accident on 14.2.2012 and the driver had died at the spot. FIR No. 28 dated 14.2.2012 under Sections 304-A, 279, 427, 337, 338 IPC was registered at P.S. Payal, District Ludhiana. The vehicle was lifted from there and was taken to M/s Dada Motors for repair, who raised a bill of Rs. 10,41,167/-. Complainant approached Ops and filed the claim and relevant documents were supplied to him but claim was not settled. Then a legal notice was issued through Sh. Sunil Tiwari, Advocate, District Court Complex, Ludhiana. Vide letter dated 26.11.2012, they intimated that Surveyor has released the report and the matter will be settled within the shortest possible time. First Appeal No. 980 of 2015 3 Then Ops wrote to the complainant that the driver of the vehicle was not accorded permission from the competent authority to drive this vehicle. Vide letter dated 16.4.2013, the claim of the complainant was repudiated stating that the licence of Mohammad Jikarulla driver of the vehicle is not a valid driving licence but this report is bundle of lies and against the terms and conditions of the policy. Repudiation of the claim amounted to deficiency in service on the part of Ops. Accordingly, the complaint was filed before the District Forum seeking directions against Op Nos. 1 to 3 to pay the claim amount of Rs. 10,41,167/- alonwith compensation of Rs. 1 lac and Rs. 25,000/- as litigation expenses.
3. Complaint was contested by Ops, who filed their written reply taking preliminary objections that the complainant was not a consumer as defined under Section 2(1)(d) of the Act as the complainant firm is running the business for commercial purposes; there was no deficiency in service on the part of Ops; on receiving the intimation from Mr. Manish Chawla and M/s R.P. Bhasin & Company, who were appointed as Surveyor and Loss Assessor and after receiving all the documents, it was admitted as a case of total loss. Number of meetings were held with the insured till 24.10.2012 but the insured did not agree for a settlement on Nett of Salvage Basis. Settlement on repair basis was ruled out as it was not economically viable to repair the vehicle. The complainant was directed to produce Registration Certificate and Driving Licence of the driver. As per the copy of the driving licence supplied to the Ops, the driver was having a licence to drive LMV from 20.7.2009 and transport vehicle from First Appeal No. 980 of 2015 4 21.1.2010 with the endorsement therein, tested and passed for dangerous hazardous goods by Licensing Authority, Ludhiana but as per the verification report of Krish Associates, Ludhiana. The driver on the relevant date was having licence for Motorcycle/LMV only upto 2.1.2010 to 21.1.2013 whereas the vehicle in question was insured with the Ops as HTV and the driver at the relevant time was having licence of LMV only. Since the driver was not having a valid and effective driving licence at the date of accident, therefore, the claim was not payable. Accordingly, it was repudiated vide letter dated 16.4.2012. On merits, issuance of the policy is admitted. It was reiterated that after receiving the intimation regarding claim, it was processed and on the ground that the driver was not having a valid and effective driving licence at the time of accident, the claim was repudiated, which is entirely in consonance with the terms and conditions of the policy. Therefore, there is no merit in the complaint and it be dismissed.
4. Before the District Forum, the parties led their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Ashok Sachdeva Ex. C-A, Form A Ex. C-1, Form C Ex. C-2, Ins. Policy Ex. C-3, collection receipt Ex. C- 4, RC copy Ex. C-5, FIR copy Ex. C-6, permit copy Ex. C-7, intimation letters Exs. C-8 & 9, form 38 Ex. C-10, proforma invoice Ex. C-11, Ops letter dt. 16.4.2013 Exs. C-12 to 14, letter of complainant Ex. C-15, form IV Ex. C-16, Yadav Associates report Ex. C-17, RP Bhasin Surveyor report Ex. C-18 & 19, letter of complainant First Appeal No. 980 of 2015 5 Ex. C-20, Sonal fabricators letter dt. 25.7.12 Ex. C-21, verification of DL Ex. C-22, DL copy Ex. C-23, statement Ex. C-24, receipt Ex. C- 25, post mortem report Ex. C-26, Indian Oil cert. Ex. C-27 superdari order Ex. C-28, towing report/bill Ex. C-29 & 30, legal notice Ex. C- 31, postal receipt Ex. C-32, legal notice Ex. C-33, postal receipt Ex. C-34. On the other hand, Ops party had tendered into evidence affidavit of Ashok Aggarwal, Manager Ex. R-A, Manish Chawla report Ex. R-1, Krish Associates report Ex. R-2, letter of Ops Ex. R-3 to 5, RP Bhasin Surveyor report Ex. R-6, letter of Op Ex. R-7 & 8, Superdari order Ex. R-9, RP Bhasin letters Exs. R-10, 11 & 12, Laxmi Service Station letter Ex. R-13, insurance policy terms and conditions Ex. R-14, Ops letter Ex. R-15.
6. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, the complaint was dismissed by the District Forum.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the appellant Sh. R.K. Bhatti, Advocate and learned counsel for the respondents Sh. Pardeep Kumar, Advocate with Sh. R.K. Sharma, Advocate.
9. It was argued by the counsel for the complainant that at the time of employing the driver, he had checked his driving licence and it was valid for LMV and Transport vehicle and has relied upon the judgment 2014(1) CLT 1 "Pepsu Road Transport Corporation versus National Insurance Company" wherein it was observed by the Hon'ble Supreme Court that in order to avoid liability, it is not First Appeal No. 980 of 2015 6 sufficient to show that the person driving at the time of accident was not duly licensed but the Insurance Company must establish that the breach was on the part of the insured. The driver was employed by PRTC and in the process of employment, he was put to a driving test and was imparting training and that the owner cannot be expected to go to the Licencing Authority to check the genuineness of the licence. However, this judgment is in a third party case i.e. Motor Vehicle claim case whereas the present is O.D. (Own Damage) claim with regard to damage to the vehicle, which is given entirely according to the terms and conditions of the policy. It was argued by the counsel for the complainant that the driver employed by the complainant was having a valid and effective driving licence as he had checked the same and it was valid for LMV and Transport Vehicle and nothing more was required on his part. However, the complainant in his complaint has not stated on which date, the driver was employed and whether any such test was taken by him at the time of his employment. He had just seen an endorsement of LMV/Transport vehicle whereas during the pendency of the complaint before the District Forum, Ops examined Mr. Charanjit Taneja, Clerk, DTO Office, Ludhiana and he in his statement has stated that according to their record, the driver Jikrullah Ansari was issued licence No. 0119882 for motorcycle and LMV on 22.1.2010 and valid upto 21.1.2013. He was not authorised to drive any heavy vehicle or transport vehicle. He has further stated that the endorsement on the driving licence (Ex. C-23) was not issued by that office. Therefore, he was not competent to drive the transport vehicle and in the present First Appeal No. 980 of 2015 7 case, he was driving the vehicle with the hazardous goods without any endorsement, therefore, he was not competent to drive that vehicle. As per the policy taken by the complainant from Op No. 2, according to the policy schedule and certificate of insurance Ex. C-3, there is endorsement, which is as under:-
"Any person including the Insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective Learners Licence may also drive the vehicle and that such a person satisfies the requirement of Rule 3 of the Central Motor Vehicles Rules, 1989."
However, the driver employed by the complainant was not having endorsement for transport vehicle/dangerous or hazardous goods. The violation of Driving Licence is a material violation. In the judgment "New India Assurance Co. Ltd. Vs. Prabhu Lal", I (2008) CPJ 1 (SC) it was held by the Hon'ble Supreme Court observed that the driver holding licence to ply 'light motor vehicle' not entitled to ply 'heavy motor vehicle/transport vehicle' in the absence of necessary endorsement. It was further observed that the vehicle driven by the person was not authorised to drive the transport vehicle on the basis of documents on the record. It was further observed that the vehicle covered under the category of transport vehicle, the endorsement of transport vehicle is required as per Section 3 of the Motor Vehicle Act, 1988 and Rule 16 of the Central Motor Vehicles Rules, 1986. There is another judgment of the Hon'ble National Commission titled First Appeal No. 980 of 2015 8 as "National Insurance Company Ltd. Vs. Luxmi Food", II (2013) CPJ 495 (NC). In that case 'the driver was not possessing valid driving licence to drive transport vehicle on the date of accident and that the driving licence did not contain endorsement regarding permission to drive transport vehicle. The claim was rightly repudiated.' A reference can be made to the judgment of the "Oriental Insurance Co. Ltd. Vs. Angad Kol & Ors.", 2009 (2) RCR (Civil) 419 (SC) wherein in para No. 10, it has been observed as under:-
"10. 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 a 'transport 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 any effective licence to drive a 'transport vehicle' whereas in case of any other licence, it may remained effective for a period of 20 years'.
Therefore the judgment in "Pepsu Road Transport Corporation versus National Insurance Company" (supra) will not apply to the facts of the present case. Moreover, in that case the insured was PRTC and they had taken the test in the process of employment whereas it is not so in the present case.
10. In Insurance cases, Consumer Fora is bound by the contract between the parties and we cannot travel beyond the First Appeal No. 980 of 2015 9 contract of insurance between the parties. A reference can be taken from the judgment given by Constitutional Bench of our Hon'ble Apex Court reported in 1966 (7) CPSC 44 "General Assurance Society Limited versus Chandmull Jain" wherein it was observed in para No. 11(relevant extract) as under:-
".....The policy not only defines the risk and its duration but also lays down the special terms and conditions under which the policy may be enforced on either side. Even if the letter of acceptance went beyond the cover notes in the matter of duration, the terms and conditions of the proposed policy would govern the case because when a contract of insuring property is complete, it is immaterial whether the policy is actually delivered after the loss and for the same reason the rights of the parties are governed by the policy to be, between acceptance and delivery of the policy. Even if no terms are specified the terms contained in a policy customarily issued in such cases, would apply."
11. The District Forum had considered this fact and observed that without any proper driving licence, the driver of the vehicle was not entitled to drive the vehicle and relied upon the judgments "United India Insurance Company Limited versus Jitender Kumar" IV (2009) CPJ-168, "New India Assurance Co. Ltd. Vs. Prabhu Lal" I(2008) CPJ-1(SC), "United India Insurance Co. Ltd. Vs. Arvind Kumar Rajak"
III(2008) CPJ-191 (NC) and "National Insurance Company Ltd. Vs. Harbhajan Lal" II(2010) CPJ 22(SC). In case the complainant had First Appeal No. 980 of 2015 10 handed over his vehicle to a person, who was not competent driver to drive the vehicle then he has violated the terms and conditions of the policy and violation is fundamental in nature, therefore, the claim cannot be given to the complainant, therefore, Ops was justified to repudiate the claim and seeing the relief, we agree with the findings recorded by the District Forum that the complainant violated the policy terms and conditions, therefore, his claim was rightly repudiated by the Ops.
12. Sequel to the above, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
13. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
14. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
January 11, 2017. (Surinder Pal Kaur)
as Member