State Consumer Disputes Redressal Commission
The Oriental Insurance Company Ltd. vs Manpreet Singh on 9 February, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.550 of 2022
Date of institution : 28.06.2022
Reserved on : 01.02.2024
Date of decision : 09.02.2024
Oriental Insurance Company Ltd., Bank Bazar, Bathinda, through its
Branch Manager.
.....Appellant/Opposite Party
Versus
Manpreet Singh aged about 26 years S/o Sh. Kala Singh, R/o # 137,
Near Dharamshala, village Sardargarh, Tehsil and District Bathinda.
....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 24.03.2022 passed by the District
Consumer Disputes Redressal Commission,
Bathinda in CC/274/2018
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued by:-
For the appellant : Sh. Krishan Kant, Advocate
For respondent : Sh. Arman Gagneja, Advocate
KIRAN SIBAL, MEMBER
The instant appeal has been filed by the appellant/opposite party against the impugned order dated 24.03.2022 passed by District Consumer Disputes Redressal Commission, Bathinda (in short, "the District Commission"), whereby the complaint filed by complainant against opposite party (in short 'OP'), under of the Consumer Protection Act, was allowed and the following relief has been granted: FA No.550 of 2022 2
"28. In view of what has been discussed above, this complaint is partly accepted with Rs.10,000/- as cost and compensation against the opposite party. The opposite party is directed to pay to complainant Rs.1,58,400/- with interest @9% p.a. w.e.f. 10.10.2018 (after three months of date of loss) till payment."
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts for the disposal of the appeal are that the complainant purchased one Bolero bearing Registration No.PB03AW- 5046 for earning his livelihood and got insured the same from OP vide cover Note No.528874 for the period from 27.12.2017 to 26.12.2018 against the premium of Rs.19,150/-. Unfortunately, on 09.07.2018 the vehicle in question met with an accident at village Bagrian, District Sangrur. The vehicle was damaged badly due to said accident and intimation of loss was informed to the OP immediately. The OP appointed a surveyor; namely, Er. Rakesh Kumar Mehta, for spot survey and all the required documents were supplied to him by the complainant. The complainant approached the OP several times and requested it to pay the claim but all in vain. The act and conduct of the OP amounts to deficiency in service on its part due to which the complainant suffered grave mental tension, agony and harassment. Hence, the complainant filed the consumer complaint before District Commission and sought directions against the OP to pay Rs.3,50,000/- on account of loss to the said vehicle and further to pay Rs.50,000/- as compensation for mental tension and harassment.
4. The complaint was contested by the OP by filing written reply, wherein the OP raised certain legal objections, which are not FA No.550 of 2022 3 required to be reproduced here for the sake of brevity. On merits, OP stated that on receipt of intimation qua the loss caused to the insured vehicle, it deputed Er. Rakesh Kumar Mehta as spot surveyor, who submitted his spot survey report dated 14.07.2018. Thereafter, Er. Rakesh Kumar Gupta, Surveyor, submitted his Final Survey Report dated 19.09.2018, wherein he assessed the net loss at Rs.1,58,400/- after applying depreciation as per IMT & Terms and conditions of the policy. The OP stated that the claim of the complainant was under
process but the complainant filed the complaint before any decision thereof. The OP further stated that the complainant had concealed the fact that the vehicle in question was got insured as Private Vehicle, whereas the same was got registered and was used as a commercial/Public Transport vehicle, which resulted in violation of the mandatory terms and conditions of the policy. Further, at the time of alleged accident, the driver of the vehicle was not holding any valid license for plying the transport vehicles including the vehicle in question, therefore, the claim of the complainant was not payable. After denying the other averments made in the complaint, the OP prayed for dismissal of the complaint.
5. The parties led their evidence before the District Commission in respect of their respective contentions. The District Commission after going through the record and hearing learned counsel for the parties, partly allowed the complaint of the complainant, vide impugned order as above. Aggrieved with the same this appeal has been filed by the appellant /OP.
FA No.550 of 2022 4
6. We have heard learned counsel for the parties and have also gone through the written arguments submitted by them and record of the case.
7. Learned counsel for the appellant/OP vehemently contended that while passing the impugned order, the District Commission has failed to appreciate the fact that the OP issued a GCCV (Goods Carrying Commercial Vehicle) Private carriers policy but insured vehicle was being used for commercial purpose, therefore the same was plying in contravention to the 'Limitation as to use' clause of the terms and conditions of the insurance policy. Therefore, he is not entitled to any claim amount. The learned counsel further contended that the District Commission has ignored the surveyor's report and has also failed to appreciate that the driver of the insured vehicle was not holding a valid and effective driving license on the alleged date of accident, as the DL of the driver was not having any endorsement to drive a 'Transport Vehicle'. The learned counsel further argued that the District Commission has wrongly relied on the judgment of Hon'ble Supreme Court in the case of 'Mukand Dewangan Vs. Oriental Insurance co.', which is under challenge in the case titled as 'M/s Bajaj Allianz General Insurance Co. Ltd. Vs. Rambha Devi, Civil Appeal No.841 of 2018. Alleging no deficiency in service on the part of the appellant/OP, the learned counsel for the appellant prayed for acceptance of the appeal by setting aside the impugned order.
8. On the other hand the learned counsel for respondent/complainant has contended that there is no perversity and FA No.550 of 2022 5 illegality in the impugned order passed by the District Commission. The District Commission has rightly held in the impugned order that the driver; namely, Nanak Singh, was not debarred from driving the insured vehicle. The insured vehicle falls under the definition of Light Motor Vehicle and the driver was having valid driving license to drive the said category of vehicle. The learned counsel further argued on the similar lines as stated in the complaint and prayed for dismissal of the present appeal.
9. We have given thoughtful consideration to the contentions raised by the parties.
10. Admitted facts of the case are that the vehicle in question was insured, vide Cover Note/Policy No.528874, valid for the period from 27.12.2017 to 26.12.2018, Ex. C-2. It is also not in dispute that the vehicle in question met with an accident during subsistence of the policy period. The respondent/complainant alleged that the vehicle was badly damaged in the accident but the appellant/OP failed to settle the claim lodged by him. Alleging deficiency in service, the respondent/complainant filed a consumer complaint before the District Commission, which was allowed vide impugned order as above. Aggrieved by the same the appellant/OP filed the present appeal.
11. First of all, we would like to deal with the contention raised by learned counsel for the appellant/OP that the District Commission has failed to appreciate the fact that appellant had issued a GCCV (Goods Carrying Commercial Vehicle) Private Carriers policy but insured vehicle was being used for commercial/public transport FA No.550 of 2022 6 purpose, which is in contravention to the 'Limitation as to use' clause of the insurance policy. A perusal of Motor Insurance Certificate Cum Policy Schedule, Ex. OP1/6, shows that the respondent/complainant had got insured his Commercial Vehicle in question vide insurance policy issued by the appellant/OP under the name 'GCCV Private Carriers Other than Three Wheelers Package policy-Zone C', which itself means that the policy was for Goods Carrying Commercial Vehicle. Further under the heading 'Limitations as to use' it has been specifically mentioned that "use only for carriage of goods within the meaning of the Motor Vehicles Act". It is not in dispute that the vehicle in question was being used for carriage of goods. It has been argued by the learned counsel for the appellant/OP that since the insured vehicle was a 'Private Carrier Commercial Vehicle' the IMT (India Motor Tariff) 42 was incorporated in the insurance policy, which is reproduced as under:-
"IMT 42 Private Carriers (Goods Carrying Commercial Vehicles only): Notwithstanding anything to the contrary contained herein it is hereby understood and agreed that the insurer shall not be liable for any loss or damaged to the vehicle insured and/or for any third party liability in respect thereof if the time of accident the vehicle insured under this policy is carrying goods not belonging to the insured".
As per above said clause, the Insurer shall not be liable for any loss to the vehicle, if at the time of accident the insured vehicle is carrying goods not belonging to the insured. But, from the bare perusal of the Motor (Final) Survey Report, Ex. OP1/4, it reveals that the surveyor at column No.10 under heading 'Details of Load Challan/Log Book' has specifically mentioned that "As stated by the insured and spot surveyor that the vehicle was not carrying any load at the time of accident". FA No.550 of 2022 7 Hence, the above said clause IMT- 42 is not applicable in the case in hand as at the time of accident the vehicle was not carrying any load. Even otherwise the appellant/OP has failed to prove on record that the said clause along with terms and conditions were duly supplied to the respondent/complainant at the time of issuance of the insurance policy in question. Hence, we do not find any force in the contention raised by the learned counsel for the appellant/OP and the same is hereby rejected.
12. Now, we would like to deal with the main grievance of the appellant/OP that the District Commission has failed to appreciate the fact that the driver of the insured vehicle was not holding a valid and effective driving license on the date of accident and for that reason the claim lodged by the respondent/complainant is not admissible. To address this grievance, we have perused the entire file, pleadings as well as evidence placed on record by the parties. A perusal of driving license of the driver of the insured vehicle, Ex. C-5, shows that the driver was authorized to drive LMV, MCWG and Tractor only. Further the DL was issued on 03.11.2016 and is valid till 02.11.2036. It is not the case of the appellant/OP that the driver of the insured vehicle was unskilled and holding a fake, forged or fabricated driving license and it has not challenged the genuineness of the same. The case of the appellant/OP is that the insured vehicle was a transport vehicle but the DL of the driver was not having any specific endorsement for driving the 'Transport Vehicle'. No doubt the insured vehicle was got registered as a Transport Vehicle, as has been duly reflected in Registration Certificate, Ex. C-1. However, we would like to discuss here the FA No.550 of 2022 8 definition of "Light Motor Vehicle" as given in Section 2 (21) of the Motor Vehicles Act, 1988, which is reproduced as under:
"light motor vehicle" means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kilograms."
As per registration certificate, Ex. C-1, as well as Motor (Final Survey Report), Ex. OP1/4, the 'Unladen Weight' of the vehicle in question is 1470 kg. which does not exceed 7500 kg, therefore, the vehicle duly comes under the definition of 'Light Motor Vehicle'. The Hon'ble Supreme Court has held in case titled as "Kulwant Singh & others Vs. Oriental Insurance Company Ltd." 2015(2)SCC-186 that "driver possessed driving licence for driving "light motor vehicle", but was driving "light goods vehicle" when accident occurred- There is no breach of Insurance Policy- Held :-
(i) A driver had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well.
(ii) Insurance Company is not entitled to recovery rights on the ground of breach of conditions of insurance policy.
13. We are further fortified by the judgment of the Hon'ble Supreme Court in case 'Mukund Dewangan Vs. Oriental Insurance Co. Ltd. 2017 (IV) CPJ 13 (SC)'; wherein it has minutely discussed the various provisions of the Motor Vehicles Act, 1988 and categorically held in Para No.46 (relevant portion) as under:
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be FA No.550 of 2022 9 different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre- amended position as well the postamended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg.
and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive FA No.550 of 2022 10 a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
14. It has been contended by the learned counsel for the appellant/OP that reliance cannot be placed on the Judgment of Hon'ble Supreme Court of India in the case of 'Mukund Dewangan'(Supra) as the observation made by the Apex Court in the said Judgment is under challenge before it in the case of "M/s Bajaj Allianz General Insurance Co. Ltd. Vs. Rambha Devi" in Civil Appeal No.841 of 2018 and the same has been recommended for reconsideration by a Larger Bench of the Apex Court. The said submission of the learned counsel for the appellant/OP is not tenable as from the perusal of order dated 22.11.2023 passed by the Hon'ble Apex court in the above said Civil Appeal No.841 of 2018, the matter is still under consideration and has not attained finality. It has also been observed in the said order that the Judgment of 'Mukand Dewangan (Supra)' shall continue to hold the field and all courts, tribunals and authorities shall, therefore, act on that basis. The relevant para No.5 of the order dated 22.11.2023 is reproduced as under:-
"5 During the pendency of this reference, the judgment of the three-Judge Bench in Mukund Dewangan (supra) shall continue to hold the field and all courts, tribunals and authorities shall, therefore, act on that basis.FA No.550 of 2022 11
15. In view of our above discussion and from the ratio of the aforesaid authorities of the Hon'ble Supreme Court, we are of the opinion that the driver was holding a valid and effective driving license at the time of accident. Hence, we do not find any force in the contention raised by the appellant/OP and the same is hereby rejected.
16. Accordingly, we are of the considered view, that the appellant/OP has failed to settle the genuine claim of the respondent/complainant, which amounts to deficiency in service on its part. The District Commission has also rightly held the appellant/OP deficient in service in its impugned order and the same warrants no interference. The judgments relied upon by the appellant/OP in the case of 'Vikram Greentech Vs. New India Assurance Co. Ltd.' II (2009) CPJ 34 (SC) and in the case of 'Life Insurance Corporation of India Vs. Sunit' (SLP Civil No.13686 of 2019) decided on 29.10.2021 by the Hon'ble Supreme Court, are not applicable as the facts of the same are different from the case in hand.
17. Sequel to the above, we do not find any material infirmity and irregularity in the impugned order passed by the District Commission and the same is hereby upheld. Finding no merit in the appeal the same is hereby dismissed.
18. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal and it further deposited an amount of Rs.85,915/- in compliance of order dated 01.07.2022 passed by this commission. These amounts alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the District FA No.550 of 2022 12 Commission forthwith. The respondent/complainant may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
19. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER February 09,2024 (Dv)