State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs Shiv Agro Industries on 17 February, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.135 of 2019
Date of Institution : 13.03.2019
Date of Reserve : 23.01.2020
Date of Decision : 17.02.2020
The New India Assurance Co. Ltd., Mall Godown Road, Near Old
IOC Depot, Kotkapura, through its Deputy Manager, New India
Assurance Co. Ltd., SCO No.36-37, Sector 17-A, Chandigarh.
.....Appellant/Complainant
Versus
M/s Shiv Agro Industries, Kotkapura Road, Faridkot, through its
Proprietor Arun Bansal S/o Sh.Raj Kumar Bansal.
....Respondent/opposite party
First Appeals against the order dated
02.01.2019 of the District Consumer
Disputes Redressal Forum, Faridkot.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr.Rajinder Kumar Goyal, Member
Mrs.Kiran Sibal, Member Present:-
For the appellant : Sh.Vinod Gupta, Advocate
For the respondent : Sh.P.K.Bansal, Advocate
RAJINDER KUMAR GOYAL, MEMBER
This appeal has been preferred against the order dated 02.01.2019 passed by District Consumer Disputes Redressal Forum, Faridkot (in short, "the District Forum"), whereby the complaint filed by the complainant, under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act'), was allowed and opposite parties were directed to pay Rs.87,698/- the loss on account of damage of vehicle as assessed and admitted by the opposite party themselves vide their Survey Report Ex.OP-9 along First Appeal No 135 of 2019 2 with interest at the rate of 9% per annum from the date of filing the complaint till final realization. Opposite party was further directed to pay Rs.5,000/- as litigation expenses.
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the Complaint
2. Brief facts, as averred in the complaint are that the complainant is the owner of the vehicle canter bearing Regn. No.PB-04-M-9796 and the said vehicle was insured with opposite party vide Policy No.36070131150100019101 for the period 02.03.2016 to 01.03.2017. On 30.06.2016, the vehicle was damaged in the accident on 30.06.2016 caused by Sukhwinder Singh Ghora Trolla driver while driving the Ghora Tralla bearing registration number RJ-09-GB-4923 in rash and negligent manner in the area of Faridkot and hit the Ghora Tralla into the vehicle, in question. The driver received multiple injuries and his leg was amputated. An FIR was registered against the Ghora Trolla driver Sukhwinder Singh in PS City, Faridkot. Sh.Kailash Kumar, driver has already been granted the compensation by the District Judge / MACT, Faridkot and held liable to Sukhwinder Singh Ghora Trolla driver. Intimation to the accident was given to the opposite party regarding damage of canter who deputed Sh.Devinder Singh Sandhu, Surveyor & Loss Assessor to conduct the spot survey. All the relevant documents including driving license bearing No.66768/NW/TV/09 was supplied to the surveyor. The opposite First Appeal No 135 of 2019 3 party deputed the final surveyor Sh.Ashok Kumar Bansal to assess the final loss of the canter, in question. The quotation bills for the repair were supplied to the surveyor along with all the other relevant documents. On instructions, the repair of the vehicle was got done by the complainant and paid Rs.2,15,000/-. The complainant further supplied the original repair bills to the surveyor. It was further averred that a petition filed by Kailash Kumar, driver, against the complainant and opposite party was withdrawn but the award was passed against the driver owner and insurance company of the Ghora Trolla Regn. No. RJ-09-GB-4923. The opposite vide its letter dated 14.07.2017 repudiated the claim of the complainant stating therein that the driver was not holding the valid license. The complainant requested the opposite party to reconsider his case as the driver was having a valid driving license. The complainant is deprived of using the canter for a long. Despite number of requests and reminders, the claim of the complainant was not settled. Alleging deficiency in service on the part of the opposite party, the complainant filed the complaint before the District Forum and sought the following directions to opposite party:-
i) to pay the claim of Rs.2,15,000/- on account of damage to the vehicle canter number PB-04M-9796 in pursuance of the contract of the Insurance;First Appeal No 135 of 2019 4
ii) to pay Rs.1,00,000/- as compensation on account of unfair trade practices and causing undue harassment etc.; and
iii) to pay Rs.22,000/- as litigation expenses.
Defence of the Opposite Parties
3. Upon notice, opposite party appeared and filed its reply taking preliminary objections stating therein that complainant has violated the terms and conditions of the policy as the driver of the insured vehicle was not having a valid and effective driving license at the time of accident and the claim of the complainant was rightly repudiated. The driver was holding driving license issued by Transport Authority, Faridkot valid upto 03.02.2016 and the accident occurred on 30.06.2016, whereas the complainant alleged that he is having a driving license issued from Nagaland. The complainant never disclosed this fact that the license which the driver is holding was issued from Nagaland. The maximum liability, if any is not more than Rs.80,000/- which was also denied as the complainant has violated the terms and conditions of the policy. The complainant be stopped for its own act and conduct and is not entitled for any type of relief from the District Forum. On merits, it was admitted that the complainant purchased an Insurance Policy from the opposite party. The complainant gave his consent that he is ready to accept the amount of Rs.80,000/- on account of damage of the canter in question. The other averments were reiterated by the opposite party as detailed in preliminary objections. Rest all the First Appeal No 135 of 2019 5 other averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint. Evidence of the Parties
4. In support of his complaint, the complainant has tendered in evidence his affidavit as Ex.C-1 along with documents Ex.C-2 to Ex.C-8.
5. On the other hand, the opposite party filed the affidavit of Sh.Deen Dayal Aggarwal as Ex.OP-1, affidavit of Devinder Singh Sandhu as Ex.OP-2 along with documents as Ex.OP-3 to Ex.OP-14.
Finding of the District Forum
6. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel appearing on their behalf, allowed the complaint, vide impugned order. Hence, this appeal filed by the appellant/opposite party with a prayer to set aside the impugned order.
7. We have heard learned counsel for the parties and have carefully gone through the records of the case. Contentions of the Parties
8. Learned counsel for the appellant / opposite party argued that the District Forum has failed to appreciate the evidence on record to the fact that the driver produced a license issued by the RTO, Faridkot which after verification was found fake. However, the complainant again submitted another driving license issued First Appeal No 135 of 2019 6 from Nagaland Authority, which is a violation of Section 6 of M.V. Act and is not liable for any compensation. It also failed to appreciate that Punjab and Haryana High Court has held in a recent judgment that no license can be issued by Nagaland Authority to a person who is resident of Punjab, as per the notification issued by the Govt. of Nagaland. The impugned order passed by the District Forum is totally, illegal, arbitrary and discriminatory and cannot pass such an order that opposite party will make the entire payment of repair to the satisfaction of the complainant. The claim of the complainant was rightly repudiated after complete investigation. There is no deficiency in service or unfair trade practice on the part of the appellants. The counsel finally prayed to accept the appeal and dismiss the complaint.
9. Per contra, learned counsel for the respondent / complainant argued that the District Forum has allowed the complaint after completely verifying the evidence available on the record. The claim was repudiated by the opposite party on frivolous grounds stating therein that the driver was not having any valid license at the time of accident, whereas the complainant provide all the relevant documents to the surveyor, who after verifying those documents asked the complainant to get start the repair of the vehicle. There is no illegality and infirmity in the order passed by the District Forum and there is no need of any kind of interference in the order passed by the District Forum. It has been prayed to dismiss the appeal.
First Appeal No 135 of 2019 7Consideration of Contentions
10. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
11. Admittedly, the vehicle canter bearing Registration No. PB- 04-M-9796 was insured with the opposite party vide policy bearing No. 36070131150100019101 for the period 02.03.2016 to 01.03.2017 for an IDV of Rs.3,50,000/-. It met with an accident on 30.06.2016 in which one Sukhwinder Singh Ghora Tralla driver hit the Ghora Tralla into the vehicle in a rash and negligent manner. The driver of the canter received multiple injuries and his leg was amputated. An FIR was registered against the Ghora Tralla driver Sukhwinder Singh in Police Station, Faridkot. Intimation of the accident was given to the opposite party who deputed spot survey Surveyor Sh.Davinder Singh Sandhu, who visited the spot and assessed net loss for Rs.87,698/-. Again vide Ex.OP-9, a final survey report was submitted by Ashok Kumar Bansal with the observations that as per DL particulars in the survey report the validity for transport vehicle has expired on 03.02.2016 before accident, so as per policy terms and conditions, the claim is not payable. The appellant / opposite party vide their letter dated 14.07.2017, Ex.C-3 and 20.09.2017 as Ex.C-2, closed the file as No Claim as per terms and conditions of the policy stating that the driver was not holding valid and effective driving license to drive the transport vehicle on the day of accident. The earlier license was already expired on 03.02.2016. Again, the respondent / First Appeal No 135 of 2019 8 complainant submitted a copy of driving licence issued by Transport Authority, Nagaland in the name of driver Kailash Kumar vide Ex.C-4, which was valid upto 14.03.2018. Learned counsel for the appellant raised his contentions stating that a driver cannot hold two driving licenses at a time which is a violation of Section 6 of Motor Vehicle Act. However, the license issued by DTO, Faridkot and verified from the office records as per Ex.OP-4 is a genuine and not fake as alleged by the appellant/opposite party in the appeal. The license is valid for driving LMV upto 30.04.2018, whereas the accident occurred on 30.06.2016.
12. Now the issue is to decide whether the repudiation of the claim of the complainant was justified on the above referred contentions. The vehicle involved in this case is a canter Make / Model : TATA Motor/LPT 909 EX (3400/FSD). The un-laden weight of the vehicle is 3813 kgs. Admittedly, the driver of the canter was having effective and valid driving license to drive LMV as evident from the verification report of DTO as Ex.OP-4 & Ex.OP-5 Faridkot. First of all, it would relevant to reproduce definition of "light motor vehicle" as given in Section 2 (21) of the Motor Vehicles Act, 1988, which is as under:
"light motor vehicle" means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kilograms."
13. The above reproduced definition of 'light motor vehicle' includes transport vehicle, a motor car or tractor or road roller, the First Appeal No 135 of 2019 9 unladen weight of which does not exceed 7500 kilograms. Admittedly, the unladen weight of the cantar, in question, did not exceed 7500 kgs. and, as such, come under the category of 'light motor vehicle'. In such circumstances, it is clear that the driver, who was holding the driving licence to drive LMV, was entitled to drive the canter, in question. Thus, the defence of the opposite party in this regard is belied from appreciation of the aforesaid provisions of the Motor Vehicles Act, 1988. The Hon'ble Supreme Court in case Mukund Dewangan v. Oriental Insurance Co. Ltd. 2017 (IV) CPJ 13 (SC); minutely discussed the various provisions of the Motor Vehicles Act, 1988 and categorically held in Para No.46 (relevant portion) as under:
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre- amended position as well the postamended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the First Appeal No 135 of 2019 10 transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48).
Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
14. From the ratio of the aforesaid authority of the Hon'ble Supreme Court, it is clear that holder of a driving licence to drive class of 'light motor vehicle' as provided in Section 10 (2) (d) read with Section 2 (26) of the Motor Vehicles Act, 1988 is competent to First Appeal No 135 of 2019 11 drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a canter, the unladen weight of which does not exceed 7500 kg.
15. Similar proposition of law was laid down by the Hon'ble Supreme Court in Sant Lal v. Rajesh & Others Civil Appeal Nos. 8395-8396 of 2017 (Arising out of S.L.P. (C) Nos.35534-35535 of 2013), decided on 03.07.2017.
16. Therefore, in view of the ratio of the law laid down in the above noted authorities as well as bare reading of the aforesaid provisions of the Motor Vehicles Act, 1988, once the canter and car are at par being light motor vehicles, hence the person, having licence to drive car/LMV, is also authorized to drive a canter, being light motor vehicle. Therefore, the claim of the complainant was wrongly and illegally repudiated by the opposite party.
17. The other contention of the appellant/ opposite party is that holding another driving license from Nagaland Authority is a violation of Section 6 of the Motor Vehicles Act that the driver could not have two driving licenses.
18. In the instant case, the driving license issued by Nagaland Authority is originally issued on 10.03.2009 having a booklet and manually prepared and not a Smart Card. As per Public Information Notice issued by Nagaland Authorities dated 01.08.2014 all license other than Smart Card after 01.12.2014 treated as cancelled. Therefore, the license issued by Nagaland Authorities is a cancelled one. Even if the driver has two licenses there cannot be First Appeal No 135 of 2019 12 any violation of the terms and conditions of policy. In this regard, we are fortified with the judgment passed by Hon'ble High Court in a case bearing FAO No.17 of 2000 titled as The New India Assurance Co. Ltd. Vs. Krishna, decided on 19.07.2010, wherein it has been held that 'At the trial, in my view, shall not be a ground for an insurer to plead that there is any violation of the terms of policy. A person obtaining licenses from two places may invite certain other action, If Rules so provide but it will not enable the insurer to contend that there is any violation of the terms of the policy.'
19. In view of the above discussions and the law laid down in the above noted authorities as well as bare reading of the aforesaid provisions of the Motor Vehicles Act, 1988, the canter driven by the driver is at par being Light Motor Vehicle, hence the person having license to drive LMV is also authorized to drive a canter being Light Motor Vehicle. Therefore, the claim of the complainant was wrongly and illegally repudiated by the opposite parties and we do not find any merit in the appeal.
20. Sequel to the above discussions, the appeal filed by the appellant is hereby dismissed.
21. The appellants had deposited a sum of Rs.25,000/- at the time of filing of the appeal. This sum, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The concerned party may approach the District Forum for the release of the above amount as per First Appeal No 135 of 2019 13 entitlement and the District Forum may pass an appropriate order in this regard after the expiry of limitation period in accordance with law.
22. This appeal could not be decided within the statutory period due to heavy pendency of the court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER February 17,2020 parmod