State Consumer Disputes Redressal Commission
Rasul Mohd. vs National Insurance Co. on 20 March, 2009
BEFORE
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CIRCUIT BENCH,
RAJASTHAN, JAIPUR
APPEAL No. 438/1999
Rasul
Mohd. Kureshi S/oShri Kwaj Mohd., R/o Aklera, Distt. Jhalawar.
..Appellant-Complainant
VS
National
Insurance Co. through its Branch Manager, D-Guru Nanak Colony, Bundi.
..Respondent-OP
Before:
Mr.
G.S. Hora, Presiding Member
Mr.
Sikandar Punjabi, Member
Present:
Mr.
V.S. Gurjar, counsel for the Appellant
Mr.
Vizzy Agarwal, counsel for the Respondent
ORDER
Dated:20.03.2009 PER Mr. G.S. HORA, PRESIDING MEMBER This appeal arises out of the order dated 23.1.1999 passed by the learned District Forum, Bundi whereby the complaint was dismissed.
The Complainant's case in brief is that he purchased a Tractor and trolly which was insured with the Respondent Insurance Co. One Salim S/o Abdul Azim was the Driver of the tractor having a valid and effective driving licence to drive the tractor. On 29.12.1996, the tractor fell into a pit and in that accident one person namely Yuvraj died on the spot. The claim was filed before the Insurance Co. for a sum of Rs. 64,000/- on account of loss suffered in the accident. However, the claim was rejected by the Insurance Co. vide its letter dated 9.12.1997 on the ground that at the time of accident, Yuvraj was driving the tractor who had no valid and effective driving licence. The question for consideration before the learned District Forum has been whether Salim was the Driver of the tractor who had a valid and effective driving licence. The learned District Forum was of the view that at the relevant time, the tractor was being driven by the deceased Yuvraj and not by Salim. Yuvraj had a learner's licence to drive the light motor vehicle whereas he was 2 driving a transport vehicle that too inviolation of Rule 3 of the Motor Vehicles Rules, 1989 and on this ground, the complaint was dismissed.
We have given thoughtful consideration to the rival contentions.
First of all, it has to be seen whether at the relevant time, the tractor was being driven by Salim or Yuvraj. We fully agree with the findings recorded by the learned District Forum that the tractor was being driven by Yuvraj at the time of accident. FIR was lodged by the Father of deceased Yuvraj wherein Yuvraj was described as the Driver at the time of accident. When the spot plan was prepared by the Police and in that spot plan too Yuvraj was shown as a Driver of the vehicle. Yuvraj was found stuck in the steering, therefore, it can safely be held that at the time of accident Yuvraj was driving the tractor. Yuvraj was having a learner's licence which is borne out from the record. He had the licence to drive light motor vehicle. As per the definition given under Section 2(21) of the Motor Vehicle Act, 1988, the tractor has been categorised as the light motor vehicle so there is no doubt about this fact that Yuvraj had a licence to drive tractor also. We agree with the findings of the learned District Forum that if the trolly is attached with the tractor then it becomes a transport vehicle. Our view finds support from the judgement of Hon'ble Supreme Court given in the case of Natwar Parikh & Co. Ltd. Vs State of Karnataka 2006 ACJ page 1. Para 24 of the judgement reads as under:
"Section 2(28) is a comprehensive definition of the words 'motor vehicle'. Although a 'trailer' is separately defined under section 2(46) to mean any vehicle drawn or intended to be drawn by motor vehicle, it is still included into the definition of the words 'motor vehicle' under section 2(28). Similarly, the word 'tractor' is defind in section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore, the words 'motor vehicle' have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words 'motor vehicle' in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles, etc. Thus, a combined reading of afore stated definitions under section 2, reproduced hereinabove, shows that the definition of 'motor vehicle' includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself being a motor vehicle, the tractor-trailer would constitute a 'goods carriage' under section 2(14) and, 3 consequently, a 'transport vehicle' under section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under section 2(14) as a 'goods carriage' and consequently, it falls under the definition of 'transport vehicle' under section 2(47) of the Motor Vehicles Act, 1988."
We may not lose sight of the terms and conditions of the policy whereby the persons were authorised to drive 'non-transport vehicle' and 'transport vehicle'. Persons or class of persons entitled to drive are as under:
(Applicable to Non-Transport Vehicle) "Any person including insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective learner's licence may also drive the vehicle insured and that such a person satisfies the requirement of rule 3 of the Central Vehicles Rules, 1989.
(Applicable to Transport Vehicle) "Any person including Insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective learner's licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirement of rule 3 of the Central Motor Vehicles Rules, 1989."
This is amply clear from the policy itself that the person holding an effective learner's licence may also drive the transport vehicle when it is not used for the transport of goods at the time of accident. Now the question for consideration is whether at the time of accident, the vehicle was being used for the transport of goods. From record, it is borne out that at the time of accident, the trolly was empty. It was being carried for the purposes of bringing soil but before it could reach the destination, it fell in the pit. It is possible that after reaching the destination, the tractor would have been taken over by a person who had an effective driving licence to drive the tractor and trolly. There is no evidence on record to show that at the time of accident, the vehicle was carrying any goods. So far as the requirement of 4 Rule 3 of the Central Motor Vehicles Rules, 1989 is concerned, there is nothing in the report of the Investigator to show that compliance of Rule 1989 was not madc. When any breach is alleged by the Insurance Co. then the burden lies on the Insurance Co. to prove that such a breach of the rules had occasioned. It also appears that Salim was one of the Drivers who had a licence to drive the vehicle. If Salim was there in the tractor-trolly, it cannot be said that requirements of Rule 3 were not satisfied.
For the aforesaid reasons, we find that the Driver Yuvraj was having a valid and effective licence to drive the vehicle at the time of accident and therefore on account of accident, if any, loss was sustained by the Complainant, he is entitled to get it from the Insurance Co. The Surveyor was also appointed who had assessed the loss to the tune of Rs. 47,538/-. The Complainant is entitled to get this amount + interest @ 9% per annum from the date when the claim was rejected.
Consequently, the appeal is allowed. The impugned judgement of the learned District Forum is set aside and the Insurance Co. is directed to pay to the Complainant a sum of Rs. 47,538/- and interest @ 9% per annum from 9.12.1997 when the claim was rejected by the Insurance Co.
The Complainant shall also be entitled to get Rs. 3,000/- as cost of litigation.
Member Presiding Member Hira Lal