State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. vs Sh. Govind Singh on 11 May, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 79 / 2011
The Oriental Insurance Co. Ltd.
Through its Sr. Divisional Manager
Divisional Office, 47, Rajpur Road, Dehradun
......Appellant / Opposite Party
Versus
Sh. Govind Singh S/o Sh. Hukum Singh
R/o Village & P.O. Tipri, Via Dunda
Patti Bist, Sub-Tehsil Chinyalisaur, Uttarkashi
......Respondent / Complainant
Sh. Suresh Gautam, Learned Counsel for the Appellant
Sh. Shardul Negi, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 11/05/2016
ORDER
(Per: Mrs. Veena Sharma, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by appellant-opposite party against the order dated 10.03.2011 passed by the District Forum, Tehri Garhwal in consumer complaint No. 02 of 2010, whereby the District Forum has allowed the consumer complaint and directed the opposite party to pay a sum of Rs. 2,13,984/- against the vehicle's repairing charges together with interest from the date of accident till the date of payment and Rs. 1,000/- for litigation charges to the complainant within a period of two months.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Govind Singh is the registered owner of the vehicle No. UA07-N-6153 Mahindra Maxi Cab. This vehicle 2 was insured by the opposite party-The Oriental Insurance Co. Ltd. for a period from 25.03.2008 to 24.03.2009 and its policy No. is 253204/2008/10841. The aforesaid vehicle of the complainant was met an accident on 26.12.2008 at Mendkhal-Kaushal Motor Marg at District Tehri. This vehicle got total damage in the accident. The complainant informed the Patwari, Thana Mendkhal and also gave telephonic information to Sh. Bajpai, Manager of the opposite party-Insurance Company on the same day. The written information dated 27.12.2008 was given to the opposite party. On the same day, i.e. on 27.12.2008, the opposite party appointed a Surveyor Mr. Gupta for survey, who visited the place of accident and received papers of accidented vehicle and driving licence of the driver Sh. Bhajan Singh Bhandari and said to repair the aforesaid vehicle with an assurance that the opposite party-Insurance Company will pay all the repairing charges. The complainant arranged the recovery van and the recovery van pulled out the accidented vehicle from the spot to Dehradun for repairing. The complainant paid the entire expenses on his own. The complainant obtained the statement of repairing of the vehicle from Doon Motors and National Motors for Rs. 1,93,984/- and Rs. 20,000/- for recovery and repairing of the vehicle, a total sum of Rs. 2,13,984/-. At the time of accident the vehicle was plying by the driver Sh. Bhajan Singh Bhandari, who was having a valid driving licence with hill endorsement from 06.11.2007. The complainant requested the opposite party several times to settle the claim, but the opposite party repudiated his claim with the endorsement that the driver was not authorized to drive the vehicle in hilly routes. Therefore, the complainant filed a consumer complaint before the District Forum, Tehri Garhwal.
3. The opposite party-The Oriental Insurance Co. Ltd. has filed the written statement before the District Forum and admitted that the complainant's vehicle was insured by the answering opposite party. In additional pleas, the answering opposite party has pleaded that the claim of the complainant is based on concocted facts and is wholly misconceived 3 and groundless, unsustainable in the eyes of law and the same is liable to be dismissed. According to the answering opposite party, the vehicle was plying without permit and valid driving licence at the time of accident. There is no deficiency in service on the part of the answering opposite party. The repudiation of the claim of the complainant is just and correct and has been done according to the terms and conditions of the insurance policy. The facts narrated in the consumer complaint are wrong and had been arrayed with wrong intention, only to extract the money from the answering opposite party.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 10.03.2011 in the above terms. Aggrieved by the said order, the opposite party-appellant has filed the present appeal.
5. Sh. Suresh Gautam, learned counsel for the appellant as well as Sh. Shardul Negi, learned counsel for respondent appeared. We have gone through the entire record of the District Forum and have also perused the material placed on record.
6. Learned counsel for the appellant-opposite party has submitted before this Commission that the District Forum has failed to appreciate the evidence on record. The District Forum has wrongly allowed the claim of the complainant inspite of the clear evidence on record that the driver Sh. Bhajan Singh Bhandari was not authorized to drive the vehicle on hill routes. There was no hill endorsement on the driving licence of the driver at the time of accident. The District Forum has failed to appreciate that the insured has handed over the vehicle to the unskilled driver who is always endanger to public life. The Forum below has failed to appreciate that the owner of the vehicle has violated the terms and conditions of the policy as well as the Motor Vehicle Act. The District Forum has wrongly directed the insurance company-appellant to pay the amount to the complainant within two month. The District Forum has wrongly allowed the claim of 4 the complainant inspite of clear evidence on record that the complainant has committed forgery in the driving licence of the driver, as per the R.T.O. records, the hill endorsement made in the driving licence of the driver was dated 06.01.2009 and whereas, in the photocopy of the driving licence of the driver the endorsement was made as on 06.11.2007. The vehicle met an accident on 26.12.2008 and whereas, the hill endorsement, as per the records of the R.T.O. was on 06.01.2009, much after the accident, which is clearly violation of Motor Vehicle Act as well as violation of policy conditions. The District Forum has wrongly allowed the consumer complaint of the complainant on the basis of law laid down by the Hon'ble High Court of Uttarakhand in Balbir Singh vs. Shobha Kashyap & Others. Whereas there is clear law laid down by the Hon'ble State Commission of Uttarakhand, as well as Hon'ble National Commission that the insurance company is not liable to pay the claim, if the driver having no valid driving licence to drive the vehicle in hill roads. The appellant has proved that there was no hill endorsement in the driving licence of the driver at the time of accident and he was not authorized to drive public service vehicle or goods vehicle on hill roads.
7. Learned counsel for respondent has submitted that the driver Sh. Bhajan Singh Bhandari was driving the vehicle for last 05 years on hill routes. His driving licence was issued from Rishikesh in the year 2003, therefore, the driver had 5 years' of experience.
8. Learned counsel for the appellant has cited a decision of this Commission in First Appeal No. 68 of 2014; Universal Sompo General Insurance Co. Ltd. vs. Sh. Purushottam Dutt Pant, decided on 24.02.2016, in which this Commission has held that there is no hill endorsement made in the driving licence of driver. Section 193 of The Uttar Pradesh Motor Vehicles Rules, 1998 clearly prohibits plying of a public service vehicle or a goods vehicle on a hilly routes by a person, who has not been permitted by the registering authority and not endorsed 5 driving licence. There was no hill endorsement so as to authorize him to drive the vehicle in hill roads.
9. With due respect the Hon'ble Uttarakhand High Court citation Balbir Singh (supra) produced by the respondent is not applicable in the present case. Rather citation produced by the appellant before this Commission is fully applicable in the instant case. Admittedly, the driver of the vehicle Sh. Bhajan Singh Bhandari was not having a valid driving licence to drive the Light Motor Vehicle (LMV) in hilly route.
10. Rule 193 of The Uttar Pradesh Motor Vehicles Rules, 1998 are applicable in the State of Uttarakhand also, which reads as under:-
"193. Endorsement of certain licences for hill roads - No person shall drive a public service vehicle or a goods vehicle on a hill road unless his licence to drive such public service vehicle or goods vehicle has been endorsed by a Registering Authority with a permission to drive upon hill roads situated within the jurisdiction of such Registering Authority or in the case of a public service vehicle hired by tourists, by the Registering Authority of the State with which reciprocal arrangement on the point have been agreed upon".
11. The vehicle in question was a Mahindra Taxi Cab fall within the definition of Public Service Vehicle as envisaged in Section 2(35) of the Motor Vehicle Act. Driver Sh. Bhajan Singh Bhandari was issued a driving licence to drive Light Motor Vehicle (LMV)(T) from 04.04.2006 to 03.04.2009. From the perusal of the said driving licence it is observed that there was a hill endorsement from 06.11.2007. On the contrary, as per the records of the R.T.O. filed by the Surveyor on Accident Information Report (Form No. 54), the hill endorsement was made on 06.01.2009 (paper No. 95 on the District Forum's record). It is an original document duly signed by Licencee Officer, Transport Department. No rebuttal or objection of the said accident information report was filed by the complainant-respondent.
6Therefore, it is clear that the driver of the complainant-respondent, Sh. Bhajan Singh Bhandari, was not having a valid driving licence at the time of accident. Section 193 of The Uttar Pradesh Motor Vehicle Rules, 1998 clearly prohibits plying of a public service vehicle or a goods vehicle on a hilly routes by a person, who has not permitted by the registering authority and not endorsed driving licence. There was no hill endorsement so as to authorize him to drive the vehicle in hill roads. There is no dispute that the accident took place in the hills of the State of Uttarakhand. Thus, it is proved beyond any shadow of doubt that on the date of accident, the driver was not having a valid and effective driving licence to drive the vehicle of respondent which is a public service vehicle and was having permit at the time of accident on a hill route. As there was no hill endorsement on his driving licence and, therefore, the insurance company has rightly repudiated the complainant's claim.
12. For the reasons aforesaid, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order. The order impugned being not sustainable in the eyes of law, is liable to be set aside and appeal is fit to be allowed.
13. In view of the above, the appeal is allowed. Impugned judgment and order dated 10.03.2011 passed by the District Forum, Tehri Garhwal is set aside and the consumer complaint No. 02 of 2010 is dismissed. No order as to costs. The amount deposited by the appellant at the time of filing the appeal, as statutory amount be released in appellant's favour.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA)