State Consumer Disputes Redressal Commission
Smt. Sulakshna Devi. vs National Insurance Co. Ltd. on 30 March, 2016
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.164/2015
Date of Presentation: 14.09.2015
Decided On: 30.03.2016
..............................................................................
Sulakshna Devi,
Daughter of Smt. Misso Devi,
Resident of Village Lagor,
Post Office Ghai Lagor,
Tehsil Nurpur,
District Kangra, H.P.
.......... Appellant .
Versus
National Insurance Company Limited,
B.O.: 2nd Floor,
Civil Lines, Dharamshala,
District Kangra, H.P.,
Through its Branch Manager.
.......... Respondent.
..............................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1
For the Appellant : Mr. Shashi Bhushan, Advocate.
For the Respondent : Mr. Jagdish Thakur, Advocate.
.......................................................................................
O R D E R:
Justice Surjit Singh, President (Oral):
Appellant has preferred this appeal against the order dated 04.08.2015, of learned District Consumer Disputes Redressal Forum, Chamba, whereby her complaint, under Section 12 1 Whether Reporters of the local papers may be allowed to see the order? Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ of the Consumer Protection Act, 1986, which she filed against the respondent, has been dismissed with the findings that insured tractor was being driven by a person not possessing a valid and effective driving license and also there was no valid route permit, in respect of the tractor, which was registered and insured, as commercial vehicle.
2. Facts relevant for disposal of the appeal may be noticed. Appellant owned a tractor No. HP-38C-5881, which she insured with the respondent for the period from 01.11.2012 to 31.10.2013 in the sum of `5,22,500/-. Complainant reported to the respondent in the month of September 2013 that on 3rd September 2013, vehicle met with an accident and rolled down into seven hundred metres deep Nallah. Respondent appointed a surveyor, who allegedly contacted the appellant, for taking him to the site of accident. Appellant allegedly informed the respondent that due to snow fall, which had taken place, after the accident, it was not possible to inspect the vehicle.
3. Respondent closed the claim of the appellant, with the observation that he had not Page 2 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ submitted documents and information called for and also for the reason that the licence of the driver submitted with the claim form, on verification had been found to be fake.
4. Appellant filed a complaint under Section 12 of the Consumer Protection Act, 1986, seeking a direction to the respondent, to pay the money equivalent to the sum insured, besides claiming compensation and litigation costs. Respondent contested the complaint on the grounds that license submitted with the claim form has been found to be fake on verification and also there was no route permit.
5. Learned District Forum has dismissed the complaint with the findings that the license which was submitted to the respondent with the claim form has been found to be fake and also there was no route permit for using the tractor for commercial purpose. Appellant has assailed the order of the Learned District Forum, by means of the present appeal.
6. We have heard learned counsel for the parties and gone through the record. It may be Page 3 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ stated at the very outset that the licence, which the appellant had submitted to the respondent along with the claim form, purported to have been issued by District Transport Officer, Bishnupur in Manipur, State. Copy of that licence is OP-16. On verification, the licence was found to be fake, per report Annexure OP-18. With the complaint, the appellant submitted another driving licence, which purported to have been issued by Licensing Authority, Pathankot. Copy of that licence is Annexure-C4. The later mentioned licence had not been got verified, either by the appellant or by the respondent. Learned District Forum also did not take any steps to get the licence verified.
7. When the matter was being heard by this Commission on 15.12.2015, it was noticed that as a matter of fact the appellant had relied upon a licence issued by licensing authority Pathankot, in the complaint, under Section 12 of the Consumer Protection Act, 1986 and the respondent in reply to the complaint disputed its genuineness. We, therefore, directed that verification of the licence be got done from DTO, Pathankot by whom the licence Page 4 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ purported to have been issued. We have received the report of DTO, Pathankot, per which licence is genuine and it authorizes Mahasha Ram son of Shri Bodh Raj, resident of Village Haryal Tehsil and District Pathankot, to drive Scooter, Car and Tractor and it is valid from 30.05.2012 to 10.03.2022.
8. Learned counsel representing the respondent submits that, as per Section 6 of the Motor Vehicles Act, a person cannot hold two licences and since Mahasha Ram, who was admittedly driving the tractor at the relevant time, possessed two licences, one purportedly issued by DTO, Bishnupur, (Manipur) and the other by DTO, Pathankot, he violated the provision of Section 6 of the Motor Vehicles Act, which is punishable as an offence. This according to him, amounts to fundamental breach of terms and conditions of the policy. In support of this plea, learned counsel has placed reliance upon precedent of Hon'ble National Commission in Ajit Prasad Jain Versus National Insurance Company Ltd. & Anr., II 2015 CPJ 537 (NC). In this case, insured had initially submitted a licence with the claim papers, which was found Page 5 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ fake. He then submitted another driving licence, which was found genuine. Complaint was filed before learned District Forum, which was dismissed. Appeal was also dismissed by the State Commission. Revision petition filed against the State Commission's order was dismissed by Hon'ble National Consumer Disputes Redressal Commission.
9. Counsel representing the appellant has also relied upon a precedent of the Hon'ble National Commission, particulars of which are Sultan Singh Versus New India Insurance Ltd., Revision Petition No.4852/2016 decided on 16th October 2014. In this case also, there were two driving licences, one was found to be genuine and the other one fake. The Hon'ble National Commission took the view that since the licence, which was found to be genuine, had been issued prior to the occurrence of the accident, the insurer was not justified in rejecting the claim, on the ground that there was no valid and effective driving licence.
10. We have considered the issue raised in the present appeal, in the light of both the judicial precedents. As a matter of fact when Section 6 Page 6 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ prohibits and some other provision of the Motor Vehicles Act, make such prohibition punishable as an offence presupposes that a person already holding a license issued, in accordance with the provisions of the act obtains another license in accordance with the provisions of the Act and / or rules framed thereunder. That means both the licenses should be obtained from licensing authorities to attract the prohibition of Section 6 of the Motor Vehicles Act. If one of the two licences is fake, then it would not be said to be a license obtained, in accordance with the provisions of the Act or the rules framed there under, though the persons holding a fake or forged license may be liable to be punished for some other offence, say the offence of forgery under the Indian Penal Code or some other provisions of the Motor Vehicles Act or the rules framed there under. Therefore, in our considered view, the prohibition of section 6 of the Motor Vehicles Act is not attracted to the fact situation of the present case.
11. Moreover, the licence issued by DTO, Pathankot was prior in point of time. This license Page 7 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ authorized the holder i.e. Mahasha Ram to drive a tractor. The fake license was issued subsequently. The date of issue of the licence by DTO Pathankot is 30.05.2012, while the date of issue of license by Bishnupur, DTO is 31.12.2012.
12. Apart from the above stated position, the particulars of the two licences differ. In case of the licence issued by DTO Pathankot, copy Annexure C-4, name of the holder of the licence is Mahasha Ram son of Sh. Bodh Raj, date of birth 11.03.1972, while in licence purported to be issued by Bishnupur, DTO, the name of the holder is Mahachha Ram, father's name is Ashok Kumar and date of birth is 11.03.1974. Moreover, on account of driver possessing two licenses, one fake and another genuine, no term or condition of the policy can be said to have been breached. The policy says that the vehicle shall not be driven by a person not holding a valid licence. In this case, the driver possessed a licence which on verification has been found Page 8 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ to be genuine. Therefore, the condition of the policy cannot be said to have been violated.
13. Learned counsel representing the respondent further submits that licence issued by DTO Pathankot authorizes the holder to drive a tractor (non-transport), while the vehicle in question was registered as a commercial vehicle. The submission has been noticed only to be rejected. The Hon'ble Supreme Court in Kulwant Singh & Anr. Versus Oriental Insurance Company Ltd. (2015) 2 SCC 186, has held that a person who holds a license to drive light motor vehicle, as defined in section 2(21) of the Motor Vehicles Act, is also authorized to drive a light motor vehicle. On the analogy of this judgment, it can be said that a tractor, which is included in the category of light motor vehicle, per section 2(21) of the Motor Vehicles Act, can lawfully be driven by a person holding a driving license to drive a tractor irrespective of the fact whether it is used for agricultural and allied purposes or for commercial purpose.
Page 9 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________
14. As regards the objection that there was no route permit in respect of the tractor at the relevant time, appellant moved an application for additional evidence and with that application, he submitted a report issued by Secretary, Regional Transport Authority, Himachal Pradesh, per which route permit was there in respect of the tractor, in question, for the period from 21.03.2013 to 20.03.2018. Counsel representing the respondent stated on 15.12.2015, which fact has been noticed by us in the order of the aforesaid date, that route permit on verification had been found to be genuine.
15. Now coming to the quantum of indemnification, respondent did not depute any surveyor to the spot despite intimation of the accident having been given by the appellant, on time. Though, respondent did appoint a surveyor, he instead of rushing to the spot immediately, addressed some communication to the appellant asking him to Page 10 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ take him to the site and in the meanwhile there had been heavy snow fall and the tractor got buried under the snow. It may be stated that the site of accident is in Bharmour area in Chamba District, where heavy snow fall takes place and snowing, at time starts as early as in the months of September and October. The vehicle as per the police report, Annexure OP-19 had fallen 700 metres deep into a nallah and was washed away by the current of the water after snow melted. That means it is a case of total loss.
16. As a result of the above stated position, we allow the appeal and set aside the impugned order. Consequently, complaint is allowed and the respondent is directed to pay a sum of ` 5,22,500/- less ` 2500/- on account of excess clause, with interest at the rate of 9 % per annum from the date of appeal, to the date of payment of aforesaid amount. We have awarded interest from the date of appeal for the reason that that the appellant produced Page 11 of 12 Sulakshna Devi versus National Insurance Company Ltd.
(F.A. No.164/2015) __________________________________________________________ copy of route permit, for the first time with the grounds of appeal, whereafter the respondent got it verified.
17. A copy of the order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member March 30, 2016.
DKM} Page 12 of 12