State Consumer Disputes Redressal Commission
Meenakshi.M, vs The Divisional Manager, on 24 April, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/775 (Arisen out of Order Dated 30/06/2011 in Case No. CC/06/251 of District Thiruvananthapuram) 1. Meenakshi M Mani Bhavan,Balavan Nagar,Vallakkadavu,Trivandrum Trivandrum Kerala ...........Appellant(s) Versus 1. The Divisional Manager,New India Assurance Co Ltd Palayam,Trivandrum Trivandrum Kerala ...........Respondent(s) BEFORE: HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.775/2011JUDGMENT DATED : 24.04.2012 PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT Meenakshi.M, T.C.No.43/341, Mani Bhavan, Balavan Nagar, Vallakkadavu, : APPELLANT Thiruvananthapuram. (By Adv: Sri. Anayara G. Rajendran, D.Anilkumar & Others) Vs. The Divisional Manager, New India Assurance Company Ltd., : RESPONDENT Palayam, Thiruvananthapuram. (By Adv:Sri.B.Ashokkumar & N.G.Mahesh) JUDGMENT JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
The appellant is the complainant in CC.251/06 in the file of CDRF, Thiruvananthapuram. The complaint stands dismissed.
2. It is the case of the complainant that the goods carriage vehicle owned by her and having a package policy with the opposite parties met with an accident on 12.05.2005. The cost of repairs estimated amounted to Rs.1,88,174.61. The opposite parties have repudiated the claim. The driver is authorized to drive any type of vehicle with the unladen weight not exceeding 7500 Kgs. The unladen weight of the complainant's vehicle is only 3440 Kgs. The complainant has sought for an order directing to pay the claim amount.
3. The opposite parties have filed version contending that the driver was not having an effective driving license to drive a medium goods vehicle at the time of the accident. The driver was holding only the driving license to drive light motor vehicles. It will not enable him to drive the medium goods vehicle. The same was intimated to the complainant. It is not correct that he is authorized to drive any vehicle with unladen weight not exceeding 7500 Kg.
4. The evidence adduced consisted of the testimony of PWs1 to 3, DW1, Exts.P1 to P6, D1 to D9.
5. The Forum has held that the driver was not having the authorization to drive the medium goods vehicle and hence there is violation of policy conditions and therefore the complainant is not entitled for the claim amount.
6. As per Ext.D3 GD extract the vehicle is described as a parcel lorry. It is mentioned that according to the driver when he turned the vehicle towards the right to avoid collision with an autorikshaw the vehicle overturned to a depth at the northern side road margin. The vehicle is an Eicher mini lorry. It is the contention that the unladen weight of the vehicle is only 3440 Kg and that it is a light motor vehicle and as the unladen weight did not exceed 7550 Kg vide section 2 (21) of the MV Act the driver was having license as well as badge to drive such a vehicle. The counsel has relied on the decision of the Supreme Court in Ashok Gangadhar Maratha Vs. Oriental Insurance Company Limited (2000) ACJ 319 wherein the Apex Court over ruled the decisions of the State Commission as well as of the National Commission and directed the insurer to pay the claim amount. It was the case where a Swaraj Mazda Truck, a light motor vehicle was involved in an accident. The Supreme Court in the above judgment has found that it was not established that the vehicle was having permit for goods carriage as required under section 66 of the MV Act. It was also found that the vehicle was not carrying any goods at the time of the accident and it weighed less than 6000 Kg. Hence it was found that in the absence of permit for good carriage and as at the time the vehicle was not carrying any goods and the unladen weight of the vehicle did not exceed 7500 Kgs. the license to drive a light motor vehicle is sufficient.
7. We find that in the instant case the petitioner has no case that the vehicle was not carrying any goods at the time of accident although PW2 the driver has stated the vehicle was unladen, the above statement is clearly incorrect as Ext.D2 claim submitted by the complainant before the opposite party mentions that the vehicle was loaded with snacks items. It is also mentioned in Ext.D2 that the vehicle was used at the time for commercial purposes. It is also mentioned in Ext.D2 that the vehicle is a goods carriage having permit as goods carriage. The permit number is also mentioned therein. The registered laden weight mentioned in Ext.D2 is 9500 Kg and permitted capacity is 5895 Kg. and the unladen weight is 3440 Kg. Hence it stands established that the vehicle at the time was used for commercial purpose and that it was laden with goods and that it was having the goods carriage permit. Hence we find that the ratio of the decision relied on in Ashok Gangadhar's case (supra) is not at all applicable to the facts of the present case.
8. Similar is the decision of the High Court of Kerala in Prabhakaran Vs. James and Others (2009) ACJ 882 wherein the vehicle involved was a tractor which was having an unladen weight of below 7500 Kg. A tractor is covered by the definition of light motor vehicle vide section 2 (21) of the MV Act. The issue involved therein was only with respect to the eligibility to drive the tractor by the driver concerned. The driver therein had the driving license to drive light motor vehicles. We find that in the instant case the issue is entirely different. Ext.P3 copy of the driving license of PW2 the driver would show that he was having the license and badge to drive a transport vehicle. A transport vehicle includes a goods carriage as per S.2 (47) of the MV Act. It is only on 7.6.2005 that he obtained the badge to drive commercial vehicles either medium or heavy. The accident has taken place on 12.5.2005. It is subsequent to the accident that he obtained the badge for driving commercial vehicles of medium and heavy type as explained in Ext.D6 letter issued by the Motor Vehicles Inspector/Licensing Authority. As per Section 2 clause 23 medium goods vehicle means any goods carriage other than a light motor vehicle or a heavy goods vehicle. As per S.2 (16) heavy goods vehicle means any goods carriage the gross vehicle weight of which or of a tractor or a road roller the unladen weight of either of which exceeds 12000 Kgs. Light motor vehicle is explained in section 2(21) as a transport vehicle or omnibus etc the unladen weight of which does not exceed 7500 Kgs. There is no definition of light goods vehicle in the MV Act as noted by the Supreme Court in the decision cited. Ext.P6 copy of the registration certificate also mentions that the vehicle is MGV-Goods Carriage. Of course the unladen weight is mentioned as 3440 Kgs. Ext.D8 is the copy of the permit wherein also the vehicle is mentioned as MGV-Goods Carrier Truck with the laden weight of 9500 Kg, and the maximum load permitted as 5895 Kgs. As per section 3 of the MV Act no person shall drive the motor vehicle in any public place unless he has an effective driving license authorizing him to drive the vehicle and no person shall drive a transport vehicle unless his driving license specifically empowers him to do so. Evidently in the instant case the driver of the complainant was not authorized to drive the medium goods vehicle as held by the Forum.
9. All the same we find that the driver is licensed to drive a goods carriage with an unladen weight not exceeding 7500 Kgs in view of S.2(21) and S.2(47) of the MV Act. He had the required badge (endorsement) in this regard also. The unladen weight was only 3440 Kgs. It is only as the vehicle is mentioned as MGV in Ext.P6 registration certificate the required authorization is insisted. The driver had obtained the driving license in 2003 itself as can be seen from Ext.P3 driving license. On 3.3.2004 he obtained the badge to drive transport vehicle. The date of accident is 12.5.05. He was eligible, it appears to obtain the badge to drive MGV and heavy goods vehicle by 3.3.2005. He obtained the same on 7.6.2005. It was only a lapse on the part of the driver to obtain the badge belatedly. There can be no dispute as to his expertise. In the circumstance we find that it would be reasonable to direct the opposite parties to pay 50% of the amount found due on assessment of damages. There is lapse on the part of the insurer, as no survey has been conducted. The insurer is directed to assess the damages and allow 50% of the amount as assessed. The complainant will submit the records and vehicle if available for assessment by the opposite parties. The assessment shall be done within three months after the complaint so produce the records of repair and the vehicle.
The appeal is allowed in part as above.
Office will forward the LCR along with a copy of this order to the Forum.
JUSTICE K.R. UDAYABHANU: PRESIDENT VL.
[HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT