National Consumer Disputes Redressal
Bharti Axa General Insurance Co. Ltd. vs Annasaheb Bapurao Ghandure on 21 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4863 OF 2013 (Against the Order dated 30/07/2013 in Appeal No. 153/2012 of the State Commission Maharastra) 1. BHARTI AXA GENERAL INSURANCE CO. LTD. OFFICE NO-1, NEAR RUBI HALL, DHOLE PATIL ROAD PUNE MAHARASHTRA ...........Petitioner(s) Versus 1. ANNASAHEB BAPURAO GHANDURE R/O AMRUTWADI TQ, TULJAPUR, DISTRICT : OSMANABAD MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Petitioner : Mr. Navneet Kumar & Mr. Vikas Bhadana, Advocates For the Respondent : Mr. Vikas Giri, Advocate Dated : 21 Apr 2016 ORDER PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 30.7.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short, 'the State Commission') in Appeal No. 153 of 2012 - Bharati Axa General Ins. Co. Ltd. Vs. Annasaheb Bapurao Ghandure by which, appeal was dismissed.
2. Brief facts of the case are that the complainant/respondent had obtained insurance policy for his tractor bearing No. MH 25-H-284 which was effective for the period from 1.1.2010 to 31.12.2010 from OP/petitioner. On 7.3.2010 while the said tractor was being driven to Tuljapur it met with an accident and was damaged. At the time of accident the said tractor was being driven by the driver namely Shri Ramesh Ghogare who was holding the driving license for the tractor. The complainant intimated the said fact to the opponent insurance company and filed the claim for damages. However, opponent insurance company avoided to sanction the claim for repairing of the said tractor hence the complainant got the tractor repaired for which he had to spend Rs.1,28,900/-. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that on receiving the intimation about the accident of the said tractor, opponent insurance company had appointed surveyor Shri D.S. Hiraskar to survey and assess the damages of the tractor. Accordingly the surveyor submitted the report on 20.5.2010 as per which the damages were assessed at Rs.1,02,645/-. However, it was mentioned that the driver was possessing the 'Licence' to drive only "Tractor" but at the time of accident the tractor was attached with two trolleys for the purpose of loading the sugarcane. Therefore, he was not qualified to drive the tractor with trolleys. Hence it was contended that as there was a breach of condition of the policy and also of the provisions of the Motor Vehicle Act the insurance claim of the complainant was rightly repudiated vide its letter dated 20.12.2010 and prayed for dismissal of complaint. Learned District Forum after hearing both the partiers allowed complaint and directed OP to pay Rs.1,02,645/- with 9% p.a. interest and further directed to pay Rs.2,000/- as cost. Appeal filed by the OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed along with application for condonation of delay.
3. Heard learned Counsel for the parties and perused record.
4. As per office report there is delay of 50 days in filing appeal. In application for condonation of delay it has been mentioned that delay occurred in obtaining opinion from the Advocate and collecting documents. As delay occurred in obtaining opinion and collecting documents and important question of law is involved in the revision petition, we deem it appropriate to condone delay subject to cost and delay of 50 days is condoned subject to payment of cost of Rs.5,000/- within four weeks to the respondent.
5. Learned Counsel for the petitioner submitted that inspite of proof that driver of insured vehicle was not having valid driving licence, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
6. Perusal of complaint reveals that insured tractor was attached with trolley at the time of accident because tractor was going to Tuljapur to fill sugarcane. As per investigator's report two trolleys were attached with the tractor and learned State Commission observed that even if it is accepted that tractor at the time of accident had two trolleys attached to it, Insurance Co. is liable to make payment in the light of judgment of Hon'ble Apex Court in AIR 2001 SC 3356 - Nagashetty Vs. United India Ins. Co. Ltd. & Ors.
7. Admittedly, driver of tractor was possessing licence to drive motor cycle and tractor.
8. The core question to be decided in this case is whether tractor attached with trolley is to be treated as tractor simpliciter or transport vehicle.
9. Admittedly, OP issued policy to the complainant for commercial vehicle. In Nagashetty case tractor was attached with trailer and additional premium had been taken for trailer. In motor accident claims case Hon'ble Apex Court observed that Insurance Co. is liable to make payment; even though, driver was having licence for tractor only. On the contrary, learned Counsel for the petitioner has placed reliance on judgment of Hon'ble Apex Court in AIR 2005 SC 3428 - Natwar Parikh and Co. Ltd. Vs. State of Karnataka & Ors. which is judgment of Three Judges Bench having one of the Judge Hon'ble Mr. Justice S.N. Variava who was also Member of the Bench in Nagashetty case in which it was held that tractor trailer would constitute a goods carriage under Section 2 of the Motor Vehicle Act and consequently, it is a transport vehicle. Thus, it becomes clear that at the time of accident when tractor was attached with trolley it was a transport vehicle and driver of the vehicle was not possessing licence for driving transport vehicle and thus, was not possessing valid driving licence. Hon'ble Apex Court in AIR 2008 SC 1418 - National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria & Ors. observed as under:
"17. The effect of the different terms of licences granted in terms of the provisions of Section 2(14) and 2(47) has also been noticed by this Court in New India Assurance Co. Ltd. v. Prabhu Lal MANU/SC/4527/2007 : air 2008 SC 614, stated :
30. Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a "transport vehicle". It was submitted that the insured vehicle was a "goods carriage" and was thus a "transport vehicle". The vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the Insurance Company could not be made liable to pay compensation.
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37. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is "light motor vehicle", but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and the Insurance Company could not be held liable.
38. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question".
10. It was further observed in paragraph 18 as under:
18. From the discussions made hereinbefore, it is, thus, evident that it is proved that respondent No.6 did not hold a valid and effective driving licence for driving a goods vehicle. Breach of conditions of the insurance is, therefore, apparent on the face of the records.
In the light of aforesaid judgments, it becomes clear that on the date of accident, driver of the vehicle was not possessing valid driving licence to drive transport vehicle, as no endorsement was made on his driving licence to the fact that he is permitted to drive transport vehicle also and in such circumstances, petitioner has not committed any error in repudiating claim. Learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed.
11. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 30.7.2013 passed by learned State Commission in Appeal No. 153 of 2012 - Bharati Axa General Ins. Co. Ltd. Vs. Annasaheb Bapurao Ghandure and order of District Forum dated 8.2.2012 passed in Consumer Complaint No. 362/2010 - Abasaheb Dhundra Vs. Bharti Exa Gen. Ins. Co. Ltd. is set aside and complaint is dismissed subject to payment of Rs.5,000/- to respondent as ordered above with no order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER ...................... PREM NARAIN MEMBER