State Consumer Disputes Redressal Commission
Oic Ltd. vs Smt. Geeta Devi & Ors. on 3 January, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. CAMP AT KULLU. --- FIRST APPEAL NO.483/2007. DATE OF DECISION: 3.1.2009. Oriental Insurance Company Ltd. through its Divisional Manager. Hospital Road, Mandi Town, H.P. Appellant. Versus 1. Smt. Geeta Devi Wd/o Sh. Bhag Chand, 2. Master Balbant Thakur S/O Sh. Bhag Chand, 3. Kumari Archna D/O Sh. Bhag Chand, 4. Master Vikram son of Sh. Bhag Chand through his mother Smt. Geeta Devi. All residents of Vill. Bondal, P.O. Puid, Tehsil and District Kullu, H.P. Respondents -------------------------------------------------------------------------------------------- Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member. Whether approved for reporting? For the Appellant: Mr. Narender Sharma, Advocate. For the Respondents: Mr. Sunil Mohan Goel, Advocate. -------------------------------------------------------------------------------------------- O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
1. Only question involved in this appeal on admitted facts that needs determination is, as to whether the compensation awarded can be sustained or not. In case of latter situation whether the appeal has to be allowed in its entirety or some other order is to be passed, if so what?
2. Deceased Bhag Chand owner-driver of the vehicle was holding a driving licence whereby he was authorised to drive a Light Motor Vehicle (L.M.V.), whereas vehicle involved in the accident is a Light Transport Vehicle (L.T.V.), the Mahindra Utility. It being a transport vehicle is not in dispute between the parties. Instead of settling the claim of own damage of the vehicle in question, claim was repudiated by the Insurance Company. This resulted in filing of Complaint No.92/2007. It was decided on the ground that the driver was not possessed of a valid and effective driving licence, as he was licensed to drive a non transport vehicle.
3. Amongst other facts in the complaint in its paragraph 3 (iii), it is specifically pleaded by the respondent that as a result of the accident, F.I.R No.314/2006 under Sections 279, 304A I.P.C. was registered at Police Station, Manali in whose jurisdiction accident had taken place. Respondents had informed the appellant. Documents like Insurance policy, F.I.R, driving licence and mechanical report were submitted and copies of driving licence mechanical report were annexed with the complaint.
4. While contesting these pleadings there is not a murmur as to what the appellant had to say regarding mechanical report. What is its effect and the same having been relied upon by Mr. Goel on behalf of the respondent will be dealt with hereafter. Mr. Narender Sharma, learned Counsel for the appellant submitted that since driver was not licensed to drive a transport vehicle which met with accident in the instant case, therefore, District Forum fell into error by ignoring the law governing the same when it allowed the complaint vide impugned order. Ordinarily this plea should have found favour with us, however, for the reasons to be recorded hereinafter, we are of the view that this plea merits rejection. Ordered accordingly. As per mechanical report on which great emphasis was laid by Mr. Goel and regarding which not a word has been said in the reply on behalf of the appellant whether it is incorrect or correct, should be accepted or not accepted, we are of the view that appellant should in fact have specifically said something with a view to contradict and/or dispute the correctness of the mechanical report. Its perusal shows that the accident was due to the mechanical failure as reported by the Head Mechanic of Himachal Road Transport Corporation from whom the vehicle was got checked after accident. It may be noted that his affidavit is not there on record.
However, unless direct relationship is shown between the accident in question and its cause, mere non possession of a valid and effective driving licence is of no consequence. For taking this view reliance is being placed on a decision of the Honble Supreme Court in the case of Jitendra Kumar Versus Oriental Insurance Co. Ltd. And others, AIR 2003 SUPREME COURT 4161. What was held and is relevant for our purpose is extracted below:-
9. We have heard learned Counsel for the respondents who has supported the orders of the State Commission as well as that of the National Commission. So far as the facts of this case are concerned,, there is hardly any dispute, therefore, we can proceed on the basis that the vehicle in question was damaged due to a mechanical failure and no fault of the driver.
For the purpose of argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence. Question then is can the Insurance Company repudiate the claim made by the owner of the vehicle which is duly insured with the Company, solely on the ground, the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? Answer to this question in our opinion, should be in the negative, Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(a)(ii)_ of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the driver.
10. We notice that in the impugned order National Commission has placed reliance on the judgment of this Court in the case of New India Assurance Company (supra) which, in our opinion, has no bearing on this aspect of the case in hand. This Court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this proposition of law. But then the judgment of this Court in the case of New India Assurance Company (supra) does not go to the extent of laying down a law which empowers the Insurance Company to repudiate any and every claim of the insured (appellant) merely because he had engaged a driver who did not have a valid licence. In the instance it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion Insurance Company could not have repudiated the claim of the appellant
5. Besides this, this Commission in the case of National Insurance Co. Ltd. Versus Sheela Devi, Latest HLJ 2008 (HP) 451 has taken identical view. Nothing to the contrary was brought to our notice.
However, Mr. Sharma submitted that if a person does not hold a valid and effective driving licence of a particular type, then that by itself is enough to uphold his submission regarding the driver being not entitled to drive the same. We do not accept this submission for the simple reason that in case the driver was not possessed of the licence in accordance with law, to drive a transport vehicle, does not mean that in the absence of their evidence, such a plea is to be upheld.
6. No other point was urged.
In view of the aforesaid discussion, while disallowing this appeal, order passed by the District Forum below is upheld, leaving the parties to bear their own costs. Appeal stands disposed of in these terms.
All interim orders passed from time to time in this appeal stands vacated forthwith.
Learned Counsel for the parties have undertaken to collect authenticated copy of this order free of cost from the Court Secretary at Shimla as per Rules.
Kullu, January 3, 2009.
( Justice Arun Kumar Goel ) (Retd.) President /BS/ ( Saroj Sharma ) Member.