State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Dilip Jhadi on 22 June, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/15/43
Instituted on : 21.01.2015
The Oriental Insurance Company Limited,
Through : Branch Manager,
Branch Office, Laxman Avenue Hotel,
Jagdalpur (C.G.) ... Appellant.
Vs.
Dilip Jhadi, S/o Shri Narayan Jhadi,
Aged 35 years Near Bus Stand, Bijapur
Tehsil & District Bijapur (C.G.) ... Respondent
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRAGUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Shishir Bhandarkar, for the appellant.
Shri R.K. Bhawnani, for the respondent.
ORDER
Dated : 22/06/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 24.12.2014, passed by District Consumer Disputes Redressal Forum, Bastar at Jagdalpur (C.G.) (henceforth "District Forum"), in CC/12/2014. By the impugned order, the complaint of the appellant (complainant) has been allowed and appellant (O.P.) has been directed to pay within a period of one month from the date of order a sum of Rs.4,17,792/- on non standard basis, along with interest @ 6% p.a. from the date of filing of the //2 // complaint till realisation. The District Forum has further directed the appellant (O.P.) to pay a sum Rs.3,000/- as compensation for mental agony and Rs.3,000/- as cost of litigation. If the aforesaid amount is not paid within the stipulated period, then the said amount would be payable along with interest @ 9% p.a.
2. Briefly stated, the facts of the case are that the respondent (complainant) is owner of vehicle Bolero bearing registration No.C.G.20-D/0124 to which he has given on hire for livelihood of his family to N.M.D.C. Bacheli. The said vehicle was insured with the appellant (O.P.) for the period from 28.09.2013 to 27.09.2014. Insurance Policy No.192001/31/2014/2673 was issued by the appellant (O.P.) (Insurance Company). On 15.10.2012, the operator of Dumper bearing registration No.H.P.-40, which was coming from the opposite site dashed the vehicle in question. The respondent (complainant) employed a driver for driving the said Bolero vehicle but on the date of accident, he could not present in the duty due to which on that date, the employee of the NMDC Shri C.L. Banjare was driving the vehicle in question and at the time of accident he was going for attending his duty. After the incident, the respondent (complainant0 intimated the appellant (O.P.) regarding the incident and the Surveyor completed the survey proceedings. The Surveyor opined that the vehicle suffered total loss and assessed the loss to the tune of Rs.5,73,221/- but the appellant (O.P.), on 18.07.2014 repudiated the claim of the respondent (complainant) on the ground that at the time of incident, the vehicle in question was //3 // registered as commercial taxi and at that time the driver of the vehicle Shri C.L. Banjare, was not having valid driving licence to drive the vehicle in question and he was only having licence for driving MCWG & LMV. Thus, the appellant (O.P.) repudiated the claim of the respondent (complainant) on a technical ground, whereas at the time of incident there was no passenger in the vehicle, and the appellant (O.P.) committed deficiency in service. Therefore, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The appellant (O.P.) filed his written statement before the District Forum and averred that the claim of the respondent (complainant) was repudiated by it as per rules. In the insurance policy, it is clearly mentioned that the vehicle the insured / owner of the vehicle should permit the person to drive the vehicle, who is having valid driving licence, but in the present case it was not followed by the respondent (complainant), otherwise the respondent (complainant) would receive a remaining amount Rs.5,57,057/- i.e. after deducting a sum of Rs.50,000/- towards salvage from Rs.6,07,057/- as assessed by the Surveyor. But at the time of incident the vehicle in question was being driven by a person, who was not having licence to drive the vehicle, which is used for commercial purpose, therefore, the respondent (complainant) is not entitled to receive any compensation even on non-standard basis and the complaint is liable to be dismissed.
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4. After having considered the material placed before it by both the parties, learned District Forum has allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant) as mentioned in para 1 of this judgment.
5. The respondent (complainant) has filed documents. Document Ex.P-1 is Registration Certificate Details, Ex.P-2 is Certificate of Registration, Ex.P-3 is Certificate of Fitness, Ex.P-4 is Temporary Permit, Ex.P.-5 is Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy - Zone B, Receipt issued by The Oriental Insurance Co. Ltd., Ex.P-6 is letter dated 18.07.2014 sent by The Oriental Insurance Co. Ltd. to the respondent (complainant).
6. The appellant (O.P.) has also filed documents. Ex.D-1 is letter dated 16.10.2013 sent by the respondent (complainant) to the Branch Manager, The Oriental Insurance Co. Ltd., Branch Office, Jagdalpur (C.G.), Ex.D-2 is Motor Claim Form, Ex.D-3 is Motor Survey Spot Report of Er. Arun Kumar Sharma, Surveyor & Loss Assessor, Ex.D-4 is Motor Survey Report (Final) of Shri Pukhraj Jain, Surveyor & Loss Assessor, Ex.D-5 is Proforma for Claim Reference to RO/HO, Ex.D-6 is Motor Claim Scrutiny Form, Ex.D-7 is Vehicle Particulars, Ex.D-8 is postal receipt, Ex.D-9 is Extract of Driving Licence, Ex.D-10 is letter dated 18.07.2014 by the appellant (O.P.) to the respondent (complainant), Ex.D.11 is acknowledgement.. Motor Insurance Certificate Cum Policy //5 // Schedule Private Car Package Policy Zone B, First Information Report, letter dated 16.10.2013 sent by the respondent (complainant) to the appellant (O.P.), Motor Claim Form, Motor Survey Spot Report of Er. Arun Kumar Sharma, Surveyor & Loss Assessor, Motor Survey Report (Final) of Shri Pukhraj Jain, Surveyor & Loss Assessor, Motor Claim Scrutiny Form, Vehicle particulars, Extract of Driving Licence, letter dated 28.05.2014 sent by the respondent (complainant) to the appellant (O.P.), temporary licence, certificate of fitness, letter dated 18.07.2014 sent by the appellant (O.P.) to the respondent (complainant) and acknowledgement.
7. Shri Shishir Bhandarkar, learned counsel for the appellant (O.P.) has argued that insurance was obtained for Private Car Package Policy Zone B. The vehicle in question involved in the accident is Motor Cab Taxi. It appears that the insurance policy was not obtained for Taxi and the vehicle in question was being used as Taxi. The driver of the vehicle in question was only having licence for driving Light Motor Vehicle (LMV). It appears that at the time of accident, the vehicle in question was being driven in violation of terms and conditions of the insurance policy. He further argued that learned District Forum has wrongly applied ratio of judgment in case of Amalendu Sahoo v. Oriental Insurance Co. Ltd. II (2010) CPJ 9 (SC), therefore, the impugned order passed by the learned District Forum is erroneous and is liable to be set aside.
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8. Shri R.K. Bhawnani, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the District Forum and submitted that it does not call for any interference by this Commission. He further argued that the driver of the vehicle in question was having valid and effective driving licence at the time of accident. The impugned order passed by the District Forum, is a well reasoned order and does not call for any interference by this Commission, and the appeal of the appellant (O.P.) is liable to be dismissed. He placed reliance on judgment of Hon'ble Supreme Court in the Case of S. Iyyapan vs. M/s United India Insurance Company Ltd. and another (Civil Appeal No.4834 of 2013) decided on 01.07.2013.
9. We have heard learned counsel for both the parties and have perused the record of the District Forum.
10. In the instant case, the respondent (complainant) filed a document Registration Certificate Detail (Ex. P-1) in which class (type) of vehicle is mentioned as MTRCAB. In the Certificate of Fitness (Ex.P-
2) and Temporary Permit (Ex.P-4) also the class (type) of the vehicle is mentioned as MTRCAB Motor Cab/Taxi. The insurance Certificate Cum Policy Schedule was issued for Private Car Package Policy - Zone B. In Extract of Driving Licence issued by Licensing Authority, South Bastar Dantewada, it is mentioned that driver Shri C.L. Banjare was having driving licence No.C.G.18/1990/0000594. In the vehicle particulars (placed at page No.45 of the record of the District Forum, //7 // against the column Vehicle Class, it is mentioned that "MTRCAB Motor Cab / Taxi. In Temporary Permit (Ex.P-4) it is mentioned that the type of the vehicle is LMV Taxi Cab. In Extract of Driving Licence issued by Licensing Authority, South Bastar Dantewada (placed at page No.46 of the record of the District Forum), it is mentioned that Shri C.L. Banjare, is having driving licence for driving MCWG & LMV since 29.03.1990. Er. Arun Kumar Sharma was appointed by the appellant (O.P.) as Spot Surveyor and he gave his report dated 20.11.2013 (Ex.D-3) in which he also mentioned that driver of the vehicle in question was having driving licence for driving MCYWG & Light Motor Vehicle (LMV). Shri Pukhraj Jain, was appointed by the appellant (O.P.) as Final Surveyor and he also mentioned in his Motor Survey Report (Final) dated 05.01.2014 that driver was having driving licence for driving MCWG & LMV.
11. In the case of S. Iyyapan vs. M/s United India Insurance Company Ltd. and another (Civil Appeal No.4834 of 2013) decided on 01.07.2013 (Supra), Hon'ble Supreme Court, has observed thus :-
"16. In the case of National Insurance Company Ltd. vs. Annappa Irappa Nesaria alias Nesaragi and Others, 2008 (3) SCC 464, the vehicle involved in the accident was a matador having a goods carriage permit and was insured with the insurance company. An issue was raised that the driver of the vehicle did not possess an effective driving licence to drive a transport vehicle. The Tribunal held that the driver was having a valid driving licence and allowed the claim. In appeal filed by the insurance company, the High Court dismissed the appeal holding that the claimants are third parties and even on the ground that there is violation of terms //8 // and conditions of the policy the insurance company cannot be permitted to contend that it has no liability. This Court after considering the relevant provisions of the Act and definition and meaning of light goods carriage, light more vehicles, heavy goods vehicles, finally came to conclusion that the driver, who was holding the licence duly granted to drive light motor vehicle, was entitled to drive the light passenger carriage vehicle, namely, the matador. This Court observed as under :
"20. From what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle". The light motor vehicle continued, at the relevant point of time to cover both "light passenger carriage vehicle" and "light passenger carriage vehicle"
and "light goods carriage vehicle". A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well."
18. Reading the provisions of Section 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person, who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation as awarded //9 // from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside."
12. In Bajaj Alliance General Insurance Co. Ltd. Vs. Ashok Kumar Dhruv & Others, 2013 (3) C.G.L.J. 332, Chhattisgarh High Court has observed thus :-
"6. Admittedly, the offending vehicle was a light motor vehicle; was used at the time of accident, as passenger carrying vehicle. To drive the said vehicle, a licence to drive transport vehicle is required under the provision of Motor Vehicles Act. As per evidence adduced in this case, the driver was possessing licence to drive Light Motor Vehicle as well as Heavy Goods Vehicle. Therefore, it cannot be said that he was disentitled to drive a transport vehicle. The Supreme Court, in the case of Oriental Insurance Co. Vs. Zaharulnisha & Ors. AIR 2008 SC 2218, in a case where the offending vehicle was a Scooter and the Scooter driver was not holding any licence to drive the Scooter and was holding licence to drive Heavy Motor Vehicle, has held that the driver was not possessing valid and effective driving licence. However, the facts of the present case are different. In the instant case, the driver of the offending vehicle was possessing to drive light motor vehicle as well as licence to drive heavy goods vehicle, and therefore, in the opinion of this Court, when a driver, //10 // who apart from holding driving licence to drive light motor vehicle, also holds a licence to drive Heavy Goods Vehicle, is entitled to drive light motor vehicle (transport vehicle)."
13. In National Insurance Co. Ltd. vs. Kudesia Hashmi and others, 2015 ACJ 667, Division Bench of High Court of Allahabad (Lucknow Bench), has observed thus :-
"6 After hearing both the parties and on perusal of the record, it appears that the accident is not disputed. On the date of the accident, the truck was insured by the appellant insurance company and the policy was alive. Both the drivers of the vehicles were holding a valid driving licence. About the driving licence, it is true that Dhan Singh alias Dhana Singh, the driver of the truck was holding a driving licence of LMV. It may be mentioned that in the case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., 2000 ACJ 319 (SC) and National Insurance Co. Ltd. v. Annappa Irappa Nesaria, 2008 ACJ 721 (SC), it was contended that a person who is having a licence to drive light motor vehicle can drive the commercial vehicle also.
7. Further, in the case of S. Iyyapan v. United India Insurance Co.
Ltd., 2013 ACJ 1944 (SC), it was observed by the Hon'ble Supreme Court that :-
(17) The heading 'Insurance of Motor Vehicles against Third Party Risks' given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road.
To overcome this ugly situation, the legislature has made it //11 // obligatory that no motor vehicle shall be used unless a third party insurance is in force.
(18) Reading the provisions of section 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
(19) In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra maxicab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra maxicab, which is light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the //12 // licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside".
(20) We, therefore, allow this appeal, set aside the impugned judgment of the High Court and hold that the insurer is liable to pay the compensation so awarded to the dependents of the victim of the fatal accident. However, there shall be no order as to costs."
14. From bare perusal of the In Extract of Driving Licence issued by Licensing Authority, South Bastar Dantewada in respect of driver of the vehicle in question Shri C.L. Banjare, it appears that he was competent to driver Light Motor Vehicle (LMV), therefore, he is also competent to drive MTRCAB Motor Cab/Taxi. The MTRCAB Motor Cab / Taxi comes within category of Light Motor Vehicle (LMV). It appears that at the time of accident, the driver of the vehicle in question Shri C.L. Banjare, was possessing valid and effective driving licence to drive the vehicle in question.
15. Shri Shishir Bhandarkar, learned counsel for the appellant (O.P.) has argued that on the basis of judgment of Hon'ble Supreme Court in case of Amalendu Sahoo v. Oriental Insurance Co. Ltd., the respondent (complainant) is only entitled to get compensation to the extent of 50% only, of the total value, and the learned District Forum has wrongly awarded claim i.e. 75% on non-standard basis. The said judgment was not applied by the District Forum in its right perspective. The above contention of learned counsel for the appellant (O.P.) is not acceptable.
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16. In of Amalendu Sahoo v. Oriental Insurance Co. Ltd. (Supra), Hon'ble Supreme Court has observed thus :-
"14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in II (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims.
The said guidelines are set out below :-
Sr. Description Percentage of settlement
No.
(i) Under declaration of Deduct 3 years' difference in
licencsed. premium from the amount of claim
or deduct 25% of claim amount,
whichever is higher.
(ii) Overloading of vehicles Pay claims not exceeding 75% of
beyond licensed carrying admissible claim.
capacity
(iii) Any other breach of Pay upto 75% of admissible claim.
warranty/condition of
policy including limitation
as to use.
17. On the basis of the judgment of Hon'ble Supreme Court in case of Amalendu Sahoo v. Oriental Insurance Co. Ltd. (Supra), learned District Forum has rightly awarded compensation upto 75% of admissible claim, therefore, the finding recorded by the learned District Forum and just and proper and the impugned order is a well reasoned order, hence it does not suffer from any infirmity, illegality or irregularity, and does not call for any interference by this Commission.
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18. Therefore, the appeal filed by the appellant (O.P.) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (NarendraGupta) President Member Member Member /06/2015 /06/2015 /06/2015 /06/2015