State Consumer Disputes Redressal Commission
Vasdev Singh vs Tata Aig Gen L.I.C. on 21 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No. 559 of 2014
Date of institution : 14.05.2014
Date of decision : 21.04.2017
Vasdev Singh aged about 46 years son of Sarnam Singh, resident of
Shaheed Bhagat Singh Nagar, H.No.1363, Barnala, Tehsil and
District Barnala, Punjab.
.......Appellant-Complainant
Versus
1. Tata AIG General Insurance Company Limited, Dashmesh
Complex, 1st Floor, SCO-668, Near Park Plaza, Pakhowal
Road, Ludhiana-141 001, through its Manager/Authorized
Signatory.
2. Krishna Auto Sales, Sangrur, Authorized Dealer for Tata Diesel
Vehicles, Near Drain, Patran Road, Sangrur through its
Manager/Authorised Signatory.
3. Krishna Auto Sales, Authorized Dealer for Tata Diesel
Vehicles, B-41, Focal Point, Moga-142 001 through its
Manager/Authorized Signatory.
........Respondents-Opposite Parties
First Appeal against the order dated
26.3.2014 of the District Consumer
Disputes Redressal Forum, Barnala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : None.
For respondent No.1 : Shri Rajneesh Malhotra, Advocate.
For respondent No.2&3 : Ex parte.
First Appeal No.559 of 2014 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The instant First Appeal has been preferred by Vasdev Singh, appellant-complainant, against the order dated 26.3.2014 passed by District Consumer Disputes Redressal Forum, Barnala (in short, "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986, for issuance of following directions to the opposite parties:-
i) to pay Rs.4,14,292/- along with interest for the repair of the damaged vehicle;
ii) to pay Rs.50,000/- as compensation for humiliation and harassment of the complainant; and
iii) to pay Rs.15,000/- on account of litigation expenses, was dismissed.
2. It would be apposite to mention at the outset that hereinafter the parties will be referred as have been arrayed before the District Forum.
3. Brief facts of the case are that on 17.12.2012 the complainant purchased a Tata Super Ace, Model 2012, having Engine No.4751DT18MXYSR9513 bearing registration No.PB-19-H/4373 having gross weight of 2180 kilograms from opposite party No.2 after making payment of Rs.4,39,261/-. The vehicle was under the hypothecation from Magma Fincorp Limited and was got insured by the complainant from opposite party No.1 for the period from 17.12.2012 to 16.12.2013. It is alleged that on 3.6.2013 at about 8.00 A.M., the vehicle of the complainant met with an accident at First Appeal No.559 of 2014 3 Dhanaula-Sangrur Road, Near Hanuman Mandir, Dhanaula, which was being driven by Nirmal Singh, Driver, who was coming from Sangrur. The son of the complainant was also sitting on the conductor seat of the vehicle. The accident took place as one of the tyre got suddenly punctured and the vehicle became out of control and struck with a tree. The son of the complainant got seriously injured and suffered multiple injuries on his leg and thigh. The vehicle was also totally damaged in the accident. A DDR was also lodged by the son of the complainant at Police Station-Dhanaula on 4.6.2013 and intimation regarding the accident was given to the opposite parties. The complainant submitted his claim along with all the documents but opposite party No.1 refused the claim, vide letter dated 30.7.2013 on the ground that alleged Nirmal Singh who was driving the commercial vehicle was not holding the effective driving licence.
4. In reply opposite party No.1 raised a number of legal objections that the complainant has not approached the District Forum with clean hands. On intimation of the claim on 6.6.2013 about the accident, an IRDA Licensed independent Surveyor; namely, Vinod Kumar & Associates was appointed to assess the loss. During the processing of the claim the said Surveyor found that Nirmal Singh, the driver, at the time of accident was not having a valid and effective driving licence to drive a commercial vehicle. The driving licence of Nirmal Singh issued by DTO, Barnala was valid for MCWG(NT), LMV (NT) and Tractor (NT) only and not valid for the First Appeal No.559 of 2014 4 insured commercial vehicle (Goods Carrying Vehicle), which was in violation of Driver's Clause of the Policy Schedule and the same reads as under:-
"Drivers Clause: Any person including the insured:
Provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence."
As the driving licence of the driver was not valid for driving the insured vehicle on the day of accident i.e. 3.6.2013, the claim of the complainant was rightly repudiated, vide letter dated 30th July, 2013. Denying other allegations made in the complaint a prayer for dismissal of the complaint has been made.
5. The District Forum afforded opportunities to the parties to lead their respective evidence and after appreciating the evidence on record and hearing learned counsel for both the sides, dismissed the complaint, vide impugned order. Hence this appeal by the complainant.
6. We have heard the learned counsel for opposite party No.1 as none is present on behalf of the appellant-complainant and opposite parties Nos.2 and 3 were proceeded against ex parte, vide order dated 10.2.2015. We have also carefully gone through the records of the case.
7. Learned counsel for opposite party No.1-Insurance Company has vehemently contended that the Registration Certificate and Policy issued by opposite party No.1 clearly state that the vehicle First Appeal No.559 of 2014 5 was a Goods Carrying Vehicle. The driving licence of Nirmal Singh issued by DTO, Barnala was valid for MCWG (NT), LMV (NT) and Tractor (NT) only and as such, was not valid for driving the insured vehicle. Since the driver of the complainant was not holding a valid and effective driving licence to drive the vehicle in question at the time of accident, which is a fundamental breach of the terms and conditions of the insurance policy, therefore, the claim of the complainant is not payable. The same has rightly been repudiated, vide letter dated 30.7.2013. He further contended that the District Forum passed a well reasoned order after relying upon judgments of Hon'ble Supreme Court and Hon'ble National Commission and the same is liable to be upheld.
8. We have given thoughtful consideration to the contentions raised by learned counsel for opposite party No.1 before us.
9. The undisputed facts are that the complainant purchased a Tata Super Ace vehicle and got the same insured from opposite party No.1 for the period from 17.12.2012 to 16.12.2013, vide insurance policy Ex.C-4. The said vehicle met with an accident on 3.6.2013 and was damaged in the said accident. At the time of accident the vehicle was being driven by Nirmal Singh, driver, who was having valid licence for MCWG(NT), LMV(NT) and Tractor (NT), Ex.C-7. The claim was submitted by the complainant with opposite party No.1 and the same was repudiated, vide letter dated 30.07.2013, Ex.C-11, on the ground that at the time of accident Nirmal Singh was not holding the effective driving licence. First Appeal No.559 of 2014 6
10. The crucial issue, which arises in the present case, is whether Nirmal Singh, Driver, was having a legally valid licence to drive the vehicle in question? Definition of "Light Motor Vehicle" is defined in Section 2(21) of the Motor Vehicles Act, 1988 and the same reads 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 7,500 kilograms.
A perusal of the above definition makes it very much clear that any 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 falls within the definition of 'Light Motor Vehicle'.
11. A perusal of driving licence of Nirmal Singh, Driver, Ex.C-7, reveals that he is authorized to drive MCWG(NT), LMV (NT) Tractor (NT) only. A further perusal of the same reveals that the licence was valid from 7.12.2011 to 6.12.2031. The Registration Certificate of the vehicle in question is placed on record as Ex.C-1. A perusal of the same reveals that the Gross Vehicle Weight of the vehicle in question is 2180 kilograms and as such, the same falls under the definition of 'Light Motor Vehicle'.
12. The following question came up for consideration before the Hon'ble Supreme Court in Kulwant Singh and others v. Oriental Insurance Company Ltd. 2015(2) SCC 186:-
First Appeal No.559 of 2014 7
"Whether the Insurance Company is entitled to recovery rights on the ground of breach of conditions of insurance policy when the driver possesses valid driving licence for driving light vehicle but fails to obtain endorsement for driving goods vehicle?"
In that case the claim petition was filed before the Motor Accident Claims Tribunal by the dependents of the deceased, who died in a road accident, while driving Tempo No.HR-G-5234 which was hit by a Tempo (Tata-407) bearing No.DL-1L-D-3186. The Tribunal held that the death was on account of negligence of the driving of the offending Tempo (Tata-407) and the claimants were entitled to compensation. The vehicle was insured with the Insurance Company and the driver was having valid driving licence. The offending vehicle was 'light goods vehicle'. The Insurance Company preferred an appeal before the High Court with the plea that it was entitled to recovery rights as the driving licence was for driving 'light motor vehicle'. It could not be equated with 'light goods vehicle'. The High Court observed:
"Driving licence of the driver was for driving a light motor vehicle. In no manner can it be said that a light motor vehicle can be equated with a light goods vehicle. In this scenario, it is clear that there was a breach of the policy condition and driver of the vehicle did not have a valid and effective driving licence at the time of the First Appeal No.559 of 2014 8 accident. Recovery rights should have been granted by the Tribunal against the owner. The award is modified. Recovery rights are granted in favour of the Insurance Company."
Aggrieved by the judgment of the High Court, the owners of the vehicle in question approached the Hon'ble Supreme Court. Counsel for the appellants-owners submitted before the Hon'ble Supreme Court that the High Court erred in holding that licence for driving light motor vehicle entitled the driver to drive 'light goods vehicle'. Reliance had been placed on the judgments of the Hon'ble Supreme Court in S. Iyyapan v. United India Insurance Company Limited and Another, 2013 (3) R.C.R. (Civil) 654: 2013(4) Recent Apex Judgments (R.A.J.) 303: (2013) 7 SCC 62 and National Insurance Company Ltd. v. Annappa Irappa Nesaria alias Nesearagi and others, 2008(1) R.C.R. (Civil) 848: 2008(1) Recent Apex Judgments (R.A.J.) 413: (2008) 3 SCC 464. Thus, there was no breach of policy entitling the Insurance Company to recovery rights against the owner. By relying upon the aforesaid two judgment, Hon'ble Supreme Court allowed the appeal by holding that there was no breach of any condition of insurance policy, entitling the Insurance Company to recovery rights.
13. In S. Iyyapan's case (supra) , the question was whether the driver who had a licence to drive 'light motor vehicle' could drive 'light motor vehicle' used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such First Appeal No.559 of 2014 9 a case, the Insurance Company could not disown its liability and it was observed as under:-
"18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad) is, therefore, liable to be set aside. "
In Sri Annappa Irappa Nesaria's case (supra) the vehicle involved in the accident was Matador Van, which had a "goods carriage" permit. It has been held by the Hon'ble Supreme Court that a light goods carriage has not been defined in the Act and the Light goods carriage could come within the definition of light motor vehicle. As such the Driver possessing light motor vehicle licence was authorized to drive a light goods carriage vehicle as well. First Appeal No.559 of 2014 10
14. The Hon'ble Himachal Pradesh High Court in FAO No.135 of 2009 decided on 28.8.2015 (New India Assurance Company v. Bihari Lal and others) has held that definition of "Light Motor Vehicle" includes "transport vehicle". A driver who had a valid driving licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well. The vehicle involved in that case was Mahindra Pick Up, gross vehicle weight of which was 2820 kilograms and as per the Registration Certificate it was a light motor vehicle. Hon'ble Punjab and Haryana High Court in Oriental Insurance Company v. Mukesh 2011(2) R.C.R. (Civil) 508 has held that 'light motor vehicle' cover both light passenger carriage vehicle and light goods carriage vehicle. Therefore, driver holding a valid licence to drive a light motor vehicle, was authorized to drive a light goods vehicle as well. The judgments relied upon by the District Forum are prior to the judgment passed by the Hon'ble Supreme Court in Kulwant Singh's case (supra), which was decided on 28.10.2014. Similar view has been taken by this Commission in FA No.466 of 2016 decided on 5.4.2017 (National Insurance Company Ltd. v. Kiranjeet Kaur @ Kiranjit Kaur).
15. In view of the above said proposition of law, it is held that the driver of the complainant, i.e., Nirmal Singh, was having valid and effective driving licence to drive Tata Super Ace, at the time of accident. The Insurance Company has wrongly repudiated the claim of the complainant and as such, the Insurance Company is held liable to pay the claim amount to the complainant along with First Appeal No.559 of 2014 11 interest. The complainant is also held entitled to compensation for harassment and humiliation suffered at the hands of opposite party No.1-Insurance Company.
15. Opposite party No.1 produced on record the report of Vinod Kumar & Associates, Surveyors and Loss Assessors as Ex.OP1/4. A perusal of the same reveals that the Surveyors took into consideration the costs of new parts and labour charges and finally assessed the loss to the tune of Rs.2,52,409/-. The Surveyor's Report is an important document and cannot be washed aside without any compelling evidence to the contrary. Reliance in this respect can be placed on the judgment of Hon'ble National Commission in Pradeep Kumar Sharma v. National Insurance Co. Ltd. 2009(1) CPC 166 (NC). Nothing has been produced on the record by the complainant to contradict the report of the Surveyor. The complainant has produced the estimates of repairs only. No actual bills/invoices for the repairs of the vehicle in question have been produced on the record. Therefore, it is held that the complainant is entitled to Rs.2,52,409/- as the loss caused to the vehicle in question.
16. In view of our above discussion, this appeal is allowed and the impugned order dated 26.3.2014 is set aside. Opposite party No.1- Insurance Company is directed to pay a sum of Rs.2,52,409/- to the complainant as insurance claim along with interest at the rate of 9% per annum with effect from 30.7.2013 (the date of repudiation of the insurance claim) till the date of payment. Opposite party No.1 is also First Appeal No.559 of 2014 12 directed to pay a sum of Rs.30,000/-, as compensation and Rs.10,000/- as costs of litigation.
17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER April 21, 2017 Bansal