State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Chhinder Pal on 29 January, 2013
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.182 of 2008.
Date of Institution: 26.02.2008.
Date of Decision: 29.01.2013.
1. New India Assurance Company Limited, Regional Office SCO NO.36-
37, Sector 17-A, Chandigarh through its Manager (Legal).
2. Divisional Office, New India Assurance Company Limited, The Mall,
Bathinda, District Bathinda through its Divisional Manager.
3. Branch Manager, New India Assurance Company Limited, Branch
Office, Grover Building, Opposite Post Office Chowk, Malout, District
Muktsar.
.....Appellants.
Versus
Chhinder Pal S/o Sh. Des Raj S/o Sh. Gian Chand, Resident of H.No.93,
Ward No.18, Mandi Har Ji Ram, Malout, Tehsil and District Muktsar.
...Respondent.
First Appeal against the order dated
08.01.2008 of the District Consumer
Disputes Redressal Forum, Muktsar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
...................................
Present:- Sh. B.S. Taunque, Advocate, counsel for the appellants.
Sh. I.S. Mann, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
New India Assurance Company Limited and others, appellants (In short "the appellants") have filed this appeal against the order dated 08.01.2008 passed by the learned District Consumer Disputes Redressal Forum, Muktsar (in short "the District Forum").First Appeal No.182 of 2008 2
2. Facts in brief are that Sh. Chhinder Pal, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants, on the grounds that he was unemployed young man and in order to earn his livelihood, he purchased one Mini Truck (Eicher Canter) bearing registration No.RJ-13/IG/0140 for the purpose of public carrier. The respondent had no other source of income and the vehicle was purchased to earn his livelihood for himself and for family. The said vehicle was got insured with the appellants vide cover note no.485139 issued on 17.04.2006 and a premium of Rs.9706/- was paid. The vehicle was insured for the period 17.04.2006 to 16.04.2007.
3. On 01.09.2006, the said vehicle met with an accident due to sudden appearance of a wild cow in front of it and the vehicle turned turtle, just before Mandi Ladhu Ke, Ferozepur-Fazilka Road, while going to Fazilka to deliver some goods. The accident occurred due to unavoidable circumstances and the matter was reported to the police. The respondent intimated the appellants and the appellants appointed the spot surveyor. At the time of accident, the driver of the respondent, namely Gopi Singh S/o Tulsi Singh, R/o village Tarkhan Wala, Tehsil Malout, District Faridkot was driving the vehicle. Before appointing him, the respondent checked his licence and he was authorized to drive light motor vehicle (LTV) and it was renewed by the competent authority of the Transport Department.
4. The vehicle was duly inspected by the surveyor and under the instructions of the appellants, the vehicle was got assessed and estimate of repair was submitted to the appellants and after verbal approval of the appellants, the vehicle was got repaired and the respondent submitted the original bills for a sum of Rs.1,31,650/-. All the formalities were completed and the documents were supplied. The respondent requested the appellant to pay the amount spent on the repair, but the appellants delayed the matter and ultimately, the respondent received a letter dated 20.04.2007 vide which the First Appeal No.182 of 2008 3 appellants informed that the file has been closed as 'no claim', as the driving licence was not valid. The repudiation is illegal and wrong and the driver was competent to drive the vehicle and was having effective driving licence. The Registering Authority registered the vehicle as Light Transport Vehicle. A number of letters were written. The appellants refused to pay the claim which amounts to deficiency in service. The respondent suffered lot of mental tension and harassment.
5. It was prayed that the appellants may be directed to pay Rs.1,31,650/- as repair charges along with interest @ 18% p.a. from the date of accident till realization; pay Rs.20,000/- as loss suffered; Rs.10,000/- as compensation and Rs.10,000/- as litigation expenses.
6. In the written reply field on behalf of the appellants, preliminary objections were raised that the complaint is not maintainable and the same is false, frivolous and vexatious. The complaint is bad for non-joinder of necessary parties. The insured vehicle was being used for commercial purpose, so the District Forum has no jurisdiction. Complicated questions of law and facts are involved and the matter should be referred to the civil court. The driver of the vehicle in question was not having a valid and effective driving licence. The respondent handed over the vehicle i.e. Mini Truck to said Gopi Singh, driver, who was not competent to drive the vehicle. The respondent is estopped by his own act and conduct from filing the present complaint. The respondent has concealed the material facts. As per the registration certificate, the vehicle bearing no.RJ-13-G-0140 was having gross vehicle weight as 8770 kgs., which was more than 7500 kgs. and the claim was rightly closed.
7. On merits, it was reiterated that the vehicle was being used for commercial purpose and the driver was not holding a valid driving licence. It was admitted that the loss was assessed by the surveyor to the tune of Rs.62,303/-, but the same was payable subject to the terms and conditions of the policy. The vehicle was inspected and thereafter, the loss was assessed. First Appeal No.182 of 2008 4 In case, there is any violation of the terms and conditions of the policy, the claim is not payable. It was admitted that the claim was closed vide letter dated 20.04.2007. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the vehicle in question was Light Transport Vehicle as its unladen weight was less than 7500 kgs., being 2770 kgs. For this reason, the registration certificate Ex.C-8 classified it as Light Transport Vehicle, by mentioning LTV. The Registration Authority had classified the vehicle to be LTV. The driver Gopi Singh was holding a valid and effective driving licence to drive Light Transport Vehicle and the appellants committed error in facts as well as law, by closing rightful and legal claim of the respondent. The complaint was allowed and the appellants were directed to pay Rs.62,303/- to the respondent along with interest @ 9% p.a. from the date of complaint till realization, and to pay Rs.10,000/- as compensation and Rs.2,000/- as litigation costs.
10. Aggrieved by the impugned order dated 08.01.2008, the appellants have come up in appeal.
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
13. Learned counsel for the appellants contended that the driver of the vehicle in question was holding a driving licence which was not valid for driving a Transport Vehicle. As per the report of the surveyor Sh. Pawan Kumar Pahwa Ex.OP-7, the weight of the vehicle was 8770 kgs. and it was more than 7500 kgs. and it cannot be termed as Light Transport Vehicle as First Appeal No.182 of 2008 5 per the definition under the Motor Vehicle Act. At the time of accident, it was carrying 300 boxes of guava and the vehicle in question was being used for commercial purpose, but the District Forum has ignored all these facts. The report of the surveyor was subject to the terms and conditions of the policy. It was contended that the appeal may be accepted and the impugned order may be set aside. Learned counsel for the appellants placed reliance on "United India Insurance Co. Ltd. Vs Ved Prakash", II(2010) CPJ-52(NC).
14. On the other hand, learned counsel for the respondent has argued that the definition of the Light Motor Vehicle is provided U/s 2(21) of the Motor Vehicle Act and in the definition it is provided that the unladen weight of the vehicle should not exceed 7500 kgs. whereas in the present case, the unladen weight of the vehicle in question, as per the registration certificate, was 2770 Kgs. The report of the surveyor Ex.OP-7 also prescribes the same. The registered laden weight was 8770 Kgs. and the unladen weight was 2770 kgs. and, as such, the driver was competent to drive the vehicle. The Registering Authority has also defined the vehicle as Light Transport Vehicle and the driver was holding licence to drive Light Transport Vehicle and was competent to drive the vehicle and the order passed by the District Forum is detailed and speaking and the appeal may be dismissed.
15. We have considered the respective submissions advanced on behalf of the parties and have carefully examined the entire record.
16. The respondent, in order to earn his livelihood, purchased Mini Truck (Eicher Canter) bearing registration No.RJ-13/IG/0140 and was using it as a public carrier. It has been specifically pleaded that the respondent, being unemployed young man, purchased the said vehicle to earn his livelihood for himself and for the family. Admittedly, the said vehicle was insured with the appellants for the period 17.04.2006 to 16.04.2007. On 01.09.2006, the said vehicle met with an accident and turned turtle just before reaching Mandi Ladhu Ke, Ferozepur-Fazilka Road. The claim was lodged but the same was repudiated by the appellant insurance company on the grounds that the driver First Appeal No.182 of 2008 6 of the truck, namely Gopi Singh was not competent to drive the truck in question. The vehicle in question was having gross vehicle weight as 8770 Kgs. which was more than 7500 kgs. and the driver was holding the licence to drive light transport vehicle.
17. Section 2(21) of the Motor Vehicles Act, 1988 defines the term 'Light Motor Vehicle", 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".
18. The term 'transport vehicle', is defined u/s 2 (47) of the Motor Vehicles Act, 1988 which reads as follows:-
"transport vehicle" means a public service vehicle, a goods carriage, an educational institutional bus or a private service vehicle".
19. The District Forum observed that the unladen weight of the truck in question was 2770 kgs. and it was less than 7500 kgs. and as per the registration certification Ex.C-8, it was classified as 'light transport vehicle' and Gopi Singh, driver was having the licence to drive LTV and, as such, he was competent and was holding a valid and effective driving licence.
20. The above observation of the District Forum is not correct and is not in accordance with the law laid down by the Hon'ble Supreme Court. The Hon'ble Supreme Court in case "Oriental Insurance Co. Ltd. Vs Angad Kol & Ors.", 2009 (2) RCR (Civil)-419(SC) observed in Para-10 as follows:-
"10. The distinction between a 'light motor vehicle, and a 'transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. The distinction between a 'transport vehicle' and a 'passenger vehicle' can also be noticed from Section 14 of the Act. Sub-section (2) of Section 14 provides for duration of a period of First Appeal No.182 of 2008 7 three years in case of any effective licence to drive a 'transport vehicle' whereas in case of any other licence, it may remain effective for a period of 20 years".
21. Hon'ble Supreme Court in another case "New India Assurance Co. Ltd. Prabhu Lal", I (2008) CPJ-1(SC), held that a driver holding driving licence to ply 'light motor vehicle' is not entitled to ply 'heavy motor vehicle/transport vehicle' in the absence of necessary endorsement.
22. From the above proposition of law laid by the Hon'ble Supreme Court, it is clear that to drive the 'transport vehicle', the endorsement to drive the 'transport vehicle' on the driving licence is required.
23. In the present case, the vehicle involved was Mini Truck (Eicher Canter) and it was granted Goods Carrier Permit Ex.C-3 and was a public carrier. Thus, it was a 'transport vehicle' and to drive this vehicle, the endorsement U/s 3 of the Motor Vehicles Act was required, but there was no endorsement on the licence of Gopi Singh Ex.OP-9 to drive the transport vehicle.
24. In view of above discussion as well as the law laid down by the Hon'ble Supreme Court, the order passed by the District Forum is not sustainable in the eyes of law and is liable to be set aside.
25. Accordingly, the appeal filed by the appellants is accepted and the impugned order under appeal dated 08.01.2008 passed by the District Forum is set aside. Consequently, the complaint filed by the respondent/ complainant is dismissed. No order as to costs.
26. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to appellant no.1 by way of a crossed cheque/demand draft after the expiry of 45 days.
27. The arguments in this appeal were heard on 23.01.2013 and the order was reserved. Now the order be communicated to the parties. First Appeal No.182 of 2008 8
28. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member January 29, 2013.
(Gurmeet S)