Jammu & Kashmir High Court - Srinagar Bench
Divisional Manager, National ... vs Rameez Ahmad Nanda on 9 June, 2015
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR AT
SRINAGAR
CIMA no. 68/2014
CMP no. 203/2014
Date of Judgment: 09 .06.2015
Divisional Manager,
National Insurance Company Ltd.
Exchange Road, Srinagar.
....Appellant.....
v.
Rameez Ahmad Nanda S/O Javed Ahmad Nanda
R/O Nandpora Khannabal, Anantnag, Kashmir.
.....Respondent......
Coram:
Hon'ble Mr. Justice N. Paul Vasanthakumar,Chief Justice. Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge.
Appearing Counsel:
For the Appellant(s) : Mr. J. A. Kawoosa, Advocate. For the Respondent(s) : Mr. Tufail Ahmad Qadri, Advocate. N. Paul Vasanthakumar, CJ
1. This appeal is filed by the National Insurance Company challenging the award made by the J&K State Consumer Disputes Redressal Commission, Srinagar, dated 07.02.2014 in Complaint No. 74/2012.
2. The claim petition was filed before the State Commission by the respondent herein contending that, in order to earn his livelihood he purchased vehicle (Tavera) bearing registration No. JK03B-8751 which was duly insured with 2 the appellant vide policy No. 421002/31/11/6300001668 and the policy was in currency from 02.06.2011 to 01.06.2012. During the subsistence of the insurance the said vehicle met with an accident on 20.02.2012 while moving from Srinagar to Anantnag at Zalmullah National Highway as the driver lost the control of the vehicle and the vehicle collided with a tree and the vehicle got completely damaged. FIR was registered bearing no. 45 of 2012 on the same day on the file of Bijbehara Police Station. The factum of the accident was immediately brought to the notice of the appellant-Company. On receiving the claim made by the respondent, the appellant- company deputed surveyor to verify the loss. The surveyor visited the spot and inspected the vehicle. No compensation having been paid the respondent was compelled to approach the State Commission for claiming compensation of Rs. 5 lacs for the loss suffered to the vehicle along with 18% interest from the date of loss and Rs. 4 lacs as compensation on account of mental agony and loss suffered by the complainant due to deficiency of service on the part of the appellant- company. Rs. 1 lac towards litigation charges was also claimed. The Jammu and Kashmir State Road Transport Corporation official, Srinagar, after checking the vehicle on 22.02.2012 certified 3 that the vehicle was mechanically fit i.e. the breaks, steering and horn are in working order but the body, front screen glass and back glass are broken due to the accident.
3. The said claim petition was opposed by the appellant- company by contending that the claim of the respondent was settled on 23.02.2012 when the payment of Rs. 4000/- was received by the complainant in full and final settlement through cheque No. 37994515 after executing the discharge voucher and the said fact was suppressed in the complaint by the respondent. The complainant also produced the estimate for repairs amounting to Rs.32,600/- issued by M/S Sumji Automobiles, Anantnag and submitted a claim for the said amount. The said amount was considered by the surveyor deputed by the appellant-company and while making the assessment the surveyor assessed the loss of Rs. 4000/-. It was contended that the vehicle in question had incurred minor damages. The claim raised by the complainant was approved for payment on 14.02.2012 and thereafter the amount of Rs. 4000/- was paid on 23.02.2012.
4. The State Commission, after noticing the license, permit, inspection certificate, copy of the FIR as well as the Insurance policy and the surveyors report which quantified the damages at Rs. 1,76,451.65, awarded a sum of Rs. 4 1.76 lacs along with Rs. 14,000/- as compensation for inconvenience and cost of litigation, bringing the total liability of Rs. 1.90 lac, which was directed to be paid to the respondent or deposited in the Commission within four weeks. The objection of the appellant-company is that on the relevant date the driver of the vehicle has the license to drive commercial vehicle whereas the vehicle in question was light vehicle (taxi), was over ruled by the State Commission by holding that the vehicle in question, in any case, was lighter than the one the driver was authorised to drive and as such rigor of this procedural stipulation could not apply to the matter to the point as the genuine claim cannot be denied on hyper technical ground.
5. The said award is challenged in this appeal by contending that though the surveyor had assessed the loss at Rs. 1,76,451.65 subject to the terms and conditions of the insurance policy and the same loss could not be settled as the claimant failed to submit the requisite documents to the appellant-company. It was found that the driver of the vehicle namely Gulzar Ahmad Dar was holding the driving license to drive LMV, MGV, HGV ( C to E) HTV goods only and it was renewed with effect from 16.02.2010 to 15.02.2013. As the vehicle in question was meant for carrying the passengers, the driver was not authorised to 5 drive the passenger service vehicle (Taxi) on the date of accident as there was no PSV endorsement on his driving license.
6. Mr. J. A. Kawoosa, the learned counsel appearing for the appellant stressed the said point, namely the driver was not having a valid driving license to drive the passenger vehicle and he having been in possession of only LMV goods license, the Insurance Company is not liable to pay the compensation for the damaged vehicle. Learned counsel also cited certain decisions in support of his contention.
7. Mr. Tufail Ahmad Qadri, the learned counsel appearing for the respondent, on the other hand, submitted that the vehicle in question was insured and the driver who drove the vehicle at the time of the accident was having a valid driving license, the vehicle was not having any mechanical defect as certified, the current insurance premium was also paid and all these facts have not been disputed by the insurance company and in fact in the reply filed before the State Commission, a meagre amount paid by the Insurance Company is admitted which is in fact admission of the liability of the Insurance Company and even in the grounds of appeal it is admitted that the surveyor had assessed the loss of the vehicle to Rs. 1,76,451.65, therefore, the State Commission was justified in awarding a total sum of Rs. 6 1,90,000/-, as stated supra. The learned counsel also submitted that even if the driver was having only LMV goods license to drive the vehicle, the vehicle driven by him being lighter (Taxi) than the goods vehicle, the Insurance Company cannot avoid the liability and the said issue is considered by the judgment of Hon'ble the Supreme Court in the judgment reported in (2013) 7 SCC 62 (S. Iyyapan v. M/S United India Insurance Company Ltd. and anr).
8. We have considered the rival submissions.
9. The facts that vehicle in question, namely, Tavera bearing registration No. JK03B-8751 met with an accident on 20.03.2012 which was insured with the appellant-company and the surveyor sent by the appellant- Company assessed the loss at Rs. 1,76,451.65, are not in dispute. It is admitted by the appellant- Company in its objections before the State Commission that a sum of Rs. 4000/- was paid to the respondent through cheque No. 37994515. The payment of said amount reveals the admission of liability on the part of the appellant to pay compensation. The driving license possessed by the driver of the vehicle at the time of the accident was not put as an issue in objections filed before the State Commission.
10. It is the case of the appellant that the license of the driver, namely, Gulzar Ahmad Dar was directed to be 7 produced before the State Commission and on perusal of the said driving license it was established that the driver was having a driving license to drive LMV, MGV, HGV ( C to E) HTV goods and it was also renewed with effect from 16.02.2010 to 15.02.2013. The insured vehicle was Tavera which is a passenger like motor vehicle (Taxi). It is not the case of the appellant that the driver was not diligent in driving the vehicle, thus it is manifest that the vehicle was a light motor vehicle and the person who drove the vehicle at the time of the accident was having a light motor vehicle license.
11. A similar issued came up for consideration before Hon'ble the Supreme Court in (2013) 7 SCC 62 (S. Iyyapan v. M/S United India Insurance Company Ltd. and anr). In the said judgment it is held that in order to attract the breach of the Insurance Policy, occurring in Section 96 (2) (b) of the Motor Vehicles Act, 1988, the Insurance Company has to establish that insured was guilty of an infringement of violation of a promise. The infringement on the part of the insured must be shown to be wilful and if the insured had taken all the precautions by appointing a duly licensed driver to drive the vehicle in question, the Insurance Company cannot repudiate its statutory liability under Section (1) of Section 96 of the Act. Hon'ble the Supreme 8 Court relied on the earlier judgment reported in 1999 (6) SCC 620 ( Ashok Gangadhar Maratha v. Oriental Insurance Company Ltd) wherein the appellant was the owner of the Truck weighing less than the maximum limit prescribed in Section 2(21) of the Act. The said respondent-insurer for a certain amount and for a certain period within the period of insurance the Truck met with an accident and got completely damaged. The claim was rejected by the National Consumer Disputes Redressal Commission stating that the Truck was a goods carriage or a transport carriage and that the driver of the truck who was holding a driving license to drive light motor vehicles only, was not authorized to drive a transport vehicle. Hon'ble the Supreme Court set aside the said judgment by taking note of the fact that the vehicle was weighing 5920 kilograms and the driver had the license to drive a light motor vehicle. In case of Light Motor Vehicle, which is a non-transport vehicle, there was no statutory requirement to have a specific authorisation on the license of the driver under Form 6 under the rules. Thus the driver was holding an effective driving license on the date of the accident to drive a light motor vehicle.
12. In the decision reported in (2004) 3 SCC 297 ( National Insurance Co. Ltd. V. Swarn Singh and ors ), Hon'ble the Supreme Court held that if a person has been given a 9 license for a particular type of vehicle as specified therein, he cannot be said to have no license for driving another type of vehicle which is of the same category but of different type. In the decision reported in (2008) 3 SCC 464 (National Insurance Company Ltd. V. Annppa Irappa Nesaria alias Nesaragi and ors), it was held that light motor vehicle covers both the light passenger vehicle and light goods vehicle. The driver who had the valid driving license to drive Light Motor Vehicle, therefore, was authorized to drive a light goods vehicle as well. The Supreme Court ultimately held that the driver was holding a valid driving license to drive a light motor vehicle and the motor vehicle in question by which the accident took place was a light motor vehicle and merely because the driver did not get the endorsement on his driving license, the Insurance Company cannot deny its liability to pay compensation.
13. Applying the said judgments to the facts of this case, the State Commission was fully justified in awarding compensation of Rs. 1,90,000/- and the same was based on the report of the surveyor as the quantum of compensation awarded has also not been questioned by the Insurance Company in this appeal.
14. In fine, there is no merit in this appeal which is dismissed. No costs.
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(Dhiraj Singh Thakur) (N. Paul Vasanthakumar) Judge Chief Justice Srinagar:
09 .06.2015 Anil Raina, Secy