State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs Shri. Tukaram Pandurang Koli on 23 September, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/04/513
(Arisen out of Order Dated 31/01/2004 in Case
No. 303/2001 of District Satara)
1. The New India
Assurance Co. Ltd.
Through Branch
Manager, Shaniwar Peth Branch, Karad, Dist. Satara Now through Manager,
Regional Office, Sharada Centre, Off. Karve Road, Pune
Maharashtra
...........Appellant(s)
Versus
1. Shri. Tukaram
Pandurang Koli
R/a. Padali (Kese),
Tal. Karad, Dist. Satara
Satara
Maharashtra
...........Respondent(s)
BEFORE:
HON'ABLE MR. JUSTICE
R.C.Chavan PRESIDENT
HON'ABLE MR. Dhanraj
Khamatkar Member
PRESENT:
Mr.R.P. Bafna, Advocate for the appellant.
Mr.A.V. Patwardhan, Advocate for the respondent.
ORAL ORDER Per Justice Mr.R.C. Chavan, Honble President This appeal is directed against the order dated 31/01/2004 passed in complaint No.303/2001 by the District Forum, Satara directing the appellant/Insurance Company to pay a sum of `1,45,177/- with interest @ 9% p.a. and a sum of `4,500/- towards mental harassment as also `1,500/-
towards cost of complaint before the District Forum in respect of deficiency in service in failure to compensate the complainant in terms of policy of insurance taken by the complainant/respondent bearing No.3115170200316.
2. The vehicle owned by the complainant/respondent was insured with the appellant/Insurance Company. It met with an accident on 01/05/2000 because of rear tyre burst. The vehicle was admittedly being driven by Mr.N.S. Lokare, who was holding a driving licence valid for driving Light Motor Vehicle issued on 10/04/2000. The vehicle itself was classified as Medium Goods Vehicle with gross vehicle weight of 8800 Kg. The appellant/Insurer resisted the claim by submitting that the vehicle was being driven by a person who was not authorized to drive the vehicle in question. Gross weight of vehicle found by the District Forum was 8136 Kg. and the goods loaded in the vehicle weighed 5836 Kg. The District Forum found that considering the weight of goods loaded in the vehicle, the driver had valid driving licence to drive the insured vehicle and therefore, awarded compensation. Aggrieved thereby, appellant/Insurance Company is before this Commission.
3. We have heard Mr.R.P. Bafna, Advocate for the appellant as well as Mr.A.V. Patwardhan, Advocate for the respondent/complainant.
4. Learned Counsel for the appellant drew our attention to the definition of Heavy Goods Vehicle, Ligh Motor Vehicle and Medium Goods Vehicle contained in Clauses 16, 21 and 23 of the Motor Vehicles Act, 1988. Light Motor Vehicle has been defined in Clause 21 to mean a transport vehicle or omnibus, the gross vehicle weight either of which does not exceed 6000 Kg. which is now stated to have been changed to 7500 Kg.
Learned Counsel submitted that as per Certificate of Registration of the vehicle in question, gross vehicle weight was shown as 8800 Kg. Even according to District Forum at the relevant time, gross weight of the vehicle was 8136 Kg. i.e. in excess of 7500 Kg. and therefore, vehicle could not have been stated to be Light Motor Vehicle.
5. Learned Counsel drew our attention to the judgement of the National Commission in the matter of United India Insurance Company Ltd. V/s. Ved Prakash, III (2010) CPJ 52 (NC), where the National Commission has considered a similar question and observed in Para 10 as under :-
After having heard the learned counsel for the parties and on a plain reading of provisions of Section 2(21) of the Motor Vehicles Act, 1988, we are of the view that a driver who holds any LMV driving license would be entitled to drive a light commercial/transport vehicle only if the gross laden weight and NOT unladen weight of the vehicle is below 7500 Kgs. The surveyor has failed to correctly interpret the provision of Section 2(21) of the Motor Vehicles Act, 1988. It has two distinct parts; the first part refers to transport vehicle or omnibus for which reference is to be made to their gross weight below 7500 Kgs. while the second part relates to a motor car or tractor or road roller and it is only in these cases that unladen weight of less 7500 Kgs. is applicable. In this case, the laden gross weight of the vehicle is 10050 Kgs.; much higher than the prescribed upper limit of 7500 Kgs. under Section 2(21) of the Motor Vehicles Act, 1988 and even the Registration Certificate states it to be a medium goods vehicle for which the respondent-complainant did not have a valid driving license. It would be relevant here to point out that in a case involving an auto-rickshaw delivery van which was in the category of a goods transport vehicle, the Honble Supreme Court in the case of New India Assurance Company Limited Vs. Roshanben Rahemansha Fakir and another [(2008) 8 SCC 253] has held that the driver not holding appropriate license i.e. for the correct kind/class of vehicle which caused the accident, the insurer cannot be held liable.
6. Considering this, there can be no doubt that the vehicle in question was not Light Motor Vehicle.
Since Medium Goods Vehicle is defined as one which does not fall within the definition of Light Motor Vehicle or Heavy Goods Vehicle, the vehicle was Medium Goods Vehicle for which a separate endorsement is required on the licence and since it was not there, in view of observations of the National Commission in the judgement in the case of United India Insurance Company V/s. Ved Prakash, supra, the District Forum should not have found fault with the repudiation of the claim by the Insurance Company.
7. Learned Counsel for the appellant also pointed out from another judgement of the National Commission in the case of National Insurance Company Ltd. & Anr. V/s. Sansar Chand, III (2010) CPJ 256 (NC), that the claim could not have also been settled on non-standard basis because of fundamental breach of terms of the policy.
8. In view of these judgements and fact that the vehicle was Medium Goods Vehicle driven by the person who was not authorized to drive such Medium Goods Vehicle, we find substance in the appeal. Hence, we pass the following order :-
-:
ORDER :-
1.
Appeal is allowed. The impugned order dated 31/01/2004 passed by District Forum, Satara is set aside. In the result, consumer complaint No.303/2001 stands dismissed.
2. Parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 23rd September 2013.
[HON'ABLE MR. JUSTICE R.C.Chavan] PRESIDENT [HON'ABLE MR. Dhanraj Khamatkar] Member dd