National Consumer Disputes Redressal
Oriental Insurance Company Ltd., vs Abdul Saleem, on 17 November, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2495 OF 2008 (From order dated 08.01.2008 in First Appeal No. 517 of 2007 of Karnataka State Consumer Disputes Redressal Commission, Bangalore) Oriental Insurance Company Ltd., Through its duly Constituted attorney, Manager, Head Office, Oriental House, A-25/27, Asaf Ali Road, 4th Floor, New Delhi-110002. .. Petitioner Versus Abdul Saleem, M/s T.G.N. Traders, No.92-95, Richmond Road, Bangalore-560025, Karnataka ....... Respondent BEFORE: HON'BLE MR.JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Mr. Abhishek Kumar, Advocate For the Respondent : Respondent is already exparte Pronounced on: 17th November, 2014 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Petitioner/Opposite Party has filed present revision petition under Section 21(b) of the Consumer Protection Act,1986(for short, Act) by challenging order dated 08.01.2008, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, State Commission) in (First Appeal No.A-517 of 2007).
2. Respondent/Complainants case is that he had insured his goods transport vehicle bearing no. KA-01AC-7860 with the Petitioner for the period from 30.11.2005 to 29.11.2006. The vehicle met with an accident on 08.02.2006 and information was conveyed to the Petitioner immediately. The surveyor appointed by the petitioner immediately inspected the vehicle and recommended the claim for Rs.3,00,000/-towards repairs and replacement of parts. The respondent submitted the entire required document in July, 2006. By the letter dated 29.06.2006, petitioner repudiated the claim stating that at the time of the accident, the driver did not possess a valid licence, namely he had licence to drive only Light Transport Vehicle, whereas the vehicle in question is Medium Goods Vehicle. The driving license at the time of accident had endorsement and authorization from 22.2.2005 to drive transport vehicle which fact was not considered by the petitioner while repudiating the claim. The driver of the vehicle has experience to drive all types of goods vehicles since 6 years and he was not barred from driving the type of vehicle covered by insurance policy. Non-settlement of the claim amounts to deficiency in service on the part of the petitioner. The respondent had to undergo lot of mental stress due to the repudiation of the claim.
3. Petitioner in its written statement has admitted that respondent is the registered owner of a Medium Goods Vehicle bearing No.KA-01 AC which was insured for the period from 30.11.2005 to 29.11.2006. The policy issued is subject to various items, conditions and the legal liability of the insurer is governed by the provisions of the Motor Vehicles Act. There is no deficiency in service, delay or disservice on the part of the petitioner. The intimation about the vehicle having met with an accident was reported to the insurer on 08.02.2006 and immediately the company arranged for survey and inspection of the vehicle. The final survey report is dated 7.6.2004. The respondent submitted all the required documents in July, 2006. On verification of documents, petitioner had no option than to repudiate the claim on the ground that on the date of the accident, the driver who was driving the vehicle at the time of accident was not having an effective driving license. The vehicle in question is a MGV-Goods Carriage vehicle as per the description given in the registration certificate. The gross weight of the vehicle is 10,500 kgs. The vehicle was driven by one Mr.Zabiulla who did not possess valid and effective driving license to drive the vehicle in question. He possessed license for light motor vehicle only valid for the period from 26.5.2000 to 26.5.2020 and had obtained an endorsement dated 22.2.2005 to 21.2.2008 to drive goods vehicle and Maxi Cab. The endorsement in the driving licence states Authorized to Drive Transport Vehicle (Goods Carriage) not exceeding 7500 Kgs. GVW. As per complaint dated 08.2.2006 given by Dr.Sharath Chandra of Aurveda Pratistana Hospital, the driver of the vehicle in question dashed the vehicle against Maruti Van bearing No. KA-03/P-3435, lost control and dashed against compound wall of the hospital. The driver did not possess license to drive MGV Goods carriage vehicle of which the gross vehicle weight is 10,500 Kgs. Since, the driver possessed the licence to drive transport vehicle (goods carriage) not exceeding 7,500 kgs. Whereas the gross weight of the vehicle in question is 10,500 Kgs and the class of vehicle is different. The claim of the complainant was rightly repudiated with due application of mind. If the Forum comes to the conclusion that the insurer has to consider the claim of the complainant, the same cannot be beyond Rs.2,11,468.99/- less salvage value of Rs. 25,000/-, which comes to Rs.1,86,468/- as assessed by the surveyor in his report dated 7.6.2006. The complaint is not valid as there is no deficiency of service on the part of the petitioner and therefore, liable to be dismissed.
4. District Consumer Disputes Redressal Forum, Sehsadripuram, Bangalore-20(for short District Forum) vide order dated 08.2.2007 dismissed the complaint.
5. Being aggrieved, respondent filed an appeal before the State Commission which allowed the same vide its impugned order and directed the petitioner to pay Rs.1,86,500/- to the respondent as compensation with interest at 6% per annum from the date of the complaint.
6. Now petitioner has come before this Commission by way of filing the present revision petition.
7. Notice of revision petition was issued to respondent. Since, respondent was not served by ordinary process, therefore he was served by publication in the local newspaper. Despite service by publication, respondent did not appear and as such was proceeded exparte.
8. We have heard the learned counsel for the petitioner and gone through the record.
9. It is the submission of learned counsel for the petitioner that the insured vehicle was registered as the Transport Vehicle having Gross Vehicle Weight of 10,500 Kgs, which comes under the category of Medium Goods Vehicle.
10. It is further submitted that at the time of accident, the driver was holding the license valid for Light Motor Vehicle (LMV) only and there was no endorsement with regard to the Medium Transport vehicle. It is submitted that the said licence was valid for transport vehicle not exceeding 7,500 Kgs. GVW (Gross Vehicle Weight) only.
11. Thus, there has been no deficiency on the part of the petitioner. In support, learned counsel has relied upon the decision of this Commission, (Revision Petition No.3046 of 2005, Oriental Insurance Company Ltd. Vs. Ashok Verghese), decided on 8th May, 2009.
12. As per photocopy of the licence of petitioners driver- Mr. Zabiulla placed on record, initially the licence was issued for Light Motor Vehicle (N/T) only. There is an endorsement dated 22.2.2005, on this driving licence which states Authorized to drive Transport Vehicle (Goods Carriage) not exceeding 7500 Kgs.GVW.
13. Thus as per driving licence, the driver was authorized only to drive Transport Vehicle (Goods Carriage) not exceeding 7,500 Kgs. GVW. In the present case, gross weight of the vehicle was 10,500 Kgs. Thus, driver did not possess any licence to drive MGVGoods Carriage vehicle, the gross weight of which is 10,500 Kgs.
14. In Ashok Verghese (supra) this Commission observed;
The short question to be decided in this revision is whether the driver of the vehicle, in question, who was holding Light motor vehicle, was entitled to drive medium goods vehicle. The vehicle, in question, was registered as medium goods vehicle and unladen weight of which is stated to be 3160 kg and the gross vehicle weight certified by the manufacturer and as registered is stated to be 8770 kg.
Section 3(1) of the Motor Vehicle Act, 1988 provides for necessity of driving licence and it reads as under:-
Necessity for driving licence:-
(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor car hired for his own use or rented under any scheme made under Sub-section 92) of Section 75 unless his driving licence specifically entitles him so to do.
Section 2(21) defines Light motor vehicle 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; (Emphasis supplied) Thus in case of a transport vehicle, gross weight has to be less than 7500 kg to qualify as light motor vehicle whereas in case of motor car it is the unladen weight which is relevant.
Section 2(23) deals with Medium goods vehicle which is as under:-
Medium goods vehicle means any goods carriage other than a light motor vehicle or a heavy goods vehicle:
Section 2(16) provides for Heavy Goods Vehicle which is as under;-
Heavy goods vehicle means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;
Section 2(14) defines goods carriage as goods carriage means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.
Section 2(15) defines gross vehicle weight as:
Gross vehicle weight means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle.
Section 2(47) defines transport vehicle as:
transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;
Therefore, in order to qualify as Light Motor Transport Vehicle, the gross weight should not exceed 7500 kg. In case of motor car it is unladen weight which is relevant. Thus, a transport vehicle exceeding 7500 kg gross weight and less than 12000 kg gross weight is medium goods vehicle.
The case of the Complainant is that the Motor Vehicle Eicher is a water tanker registered as Medium Goods vehicle. The unladen weight of the vehicle is 3160 kg and with full load it weights 8700 kg. According to Complainant, the water tanker was empty at the time of accident and as such unladen weight has to be considered which makes the vehicle as LMV for which the driver had valid licnece. The contention of the Complainant is without any merit whatsoever. What is relevant is the gross vehicle weight and not unladen weight.
The vehicle in question is admittedly water tanker, Medium Goods Vehicle with gross vehicle weight as 8770 kg. Light Motor Vehicles in the context means a transport vehicle the gross vehicle weight does not exceed 7500 kgs. Thus, it is gross vehicle weight which is relevant for the decision of the case before us and unladen weight has nothing to do. When the gross weight of a transport vehicle exceeds 7500 kgs., it becomes medium goods vehicle. In terms of Section 2(15), gross vehicle weight means the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle. The vehicle in question being a goods carriage is transport vehicle within the meaning of Section 2(47) of the Act. The State Commission erred in taking the unladen weight of the medium transport vehicle in order to determine that the vehicle in question is Light Motor Vehicle. The said findings are erroneous in law.
Besides this, Section 3 clearly provides that no person shall drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under Sub-section (2) of Section 75 unless his driving licence specifically entitles him to do so. Section 2(10) defines driving licence as :
driving licence means the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description.;
The driving licence of the driver in the case before us does not entitle him to drive Medium goods vehicle and there is no endorsement to that effect on his licence which is only for Light Motor Vehicle. The ruling of the Apex Court in New India Assurance Company Ltd. V/s. Prabhu Lal reported in AIR 2008 SC 614 is applicable on all fours in the matter under consideration. The Apex Court had dealt with the relevant provisions of Motor Vehicle Act, 1988 and has laid down that a person holding driving licence to ply Light motor vehicle cannot ply transport vehicle unless there is specific endorsement to that effect as required under Section 3 of the Motor Vehicle Act read with Rules 16 of the Rules and Form No.6.
15. In view of the above decision of this Commission, we are in full agreement with the counsel for petitioner, that not only there has been breach of policy condition vis--vis light motor vehicle licence held by the driver inasmuch as the vehicle driven was medium goods vehicle and there is also breach of Section 3 of the Motor Vehicle Act on account of which, petitioner is not liable to pay any compensation to the respondent.
16. Accordingly, we hold that the impugned order passed by the State Commission is not sustainable. The same is hereby set aside and the order passed by the District Forum, dismissing the complaint of the respondent, stand restored. Consequently, complaint filed by the respondent stand dismissed.
17. The present revision petition therefore stand allowed.
18. No order as to cost.
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(V.B. GUPTA, J.) PRESIDING MEMBER .
(SURESH CHANDRA) MEMBER SG.