State Consumer Disputes Redressal Commission
Nanasaheb Marotirao Patil vs Divisional Manager , New Assurance Co ... on 29 August, 2022
1 A 240/2019
Date of filing :25.01.2019
Date of order : 29.08.2022
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, BENCH AT AURANGABAD.
FIRST APPEAL NO. : 240 OF 2019
IN COMPLAINT CASE NO.: 90 OF 2017
DISTRICT CONSUMER FORUM : LATUR.
Nanasaheb Marotirao Patil,
R/o Korangala, Tq.Ausa, Dist.Latur. APPELLANT
VERSUS
Divisional Manager,
New Assurance Company Ltd,.
Divisional Office, Gaytri Kripa, Chandra nagar,
Latur. RESPONDENT
CORAM : Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.A.K.Jawalkar for appellant,
Adv.S.R.Bodade for respondent.
JUDGMENT
(Delivered on 29/08/2022) Per Mr.K.M.Lawande, Hon'ble Member.
1. Being aggrieved by the judgment and order of District Forum, Latur in C.C.No.90/2017 decided on 03.12.2018 the appellant has filed this appeal.
2. The appellant is the complainant, the respondent is the opponent insurance company in said complaint. They are hereinafter referred to as 'complainant' and 'opponent' as per their status in their complaint. The 2 A 240/2019 District Consumer Dispute Redressal Forum is hereinafter referred to as 'District Forum' for the sake of convenience.
3. It is the case of complainant that he is an agriculturist. He purchased tractor and trolley for agricultural purpose. ARTO registered the tractor and trolley and given bearing no. MH24-L-4722 and MH24-E-0670. He insured the tractor and trolley towards respondent. The respondent issued policy bearing no. 16120031150100001760. The policy period was 28.05.2015 to 27.05.2016. The premium amount was of Rs.8.524/-. On 23.06.2015 at about 4.45 pm appellant's driver Premchand Mahadik was driving the tractor and he was proceeding from his field when suddenly some students came on the road. The driver of tractor suddenly applied the break, duo to that the tractor turtled and collapsed into a ditch. Due to the said incident appellant's tractor got damaged. The said fact was intimated to the respondent as well as police. At the time of accident the tractor was attached with trolley. The surveyor inspected the vehicle and conducted the survey as well as police was prepared spot survey. As per the direction of the appellant repaired the vehicle. The authorised service centre repaired the tractor. The repair amount comes to Rs. 1,19,133/- including labour charges. Appellant has given all the documents and bills along with claim form to the respondent and claimed damages. The respondent illegally repudiated the claim on the ground that at the time of accident the driver of the appellant has not possessed valid driving license. So appellant filed consumer complaint before District Consumer Commission. 3 A 240/2019
The opponent insurance company has repudiated the complainant's claim to avoid the liability of payment under insurance policy, observing deficiency in service the complainant has filed the consumer complaint before the District Forum seeking directions of District Forum to opponent insurance company to pay amount of Rs.1,29,133/- along with 18% interest. The amount of Rs.10,000/- towards cost also sought.
6. The opponent insurance company appeared before the District Forum and filed written version and submitted that, at the time of the alleged incident the vehicle tractor and trolley were being driven by the driver Premchand. As per the driving license of Premchand, he has been allowed only to drive the tractor. The tractor and trolley are not being allowed to be driven by him. So, he is not eligible to drive the vehicle tractor and trolley. The vehicle was insured with this respondent under the category of commercial package policy. As being the license was not valid for driving the vehicle tractor and trolley, this respondent has rightly repudiated the claim of the complainant with justifiable reasons and with due application of mind. Therefore, there is no question of the deficiency in service as alleged by the complainant.
7. The District Forum dismissed the complainant observing that the driver was not having LMV-TT-LMV-Tractor-TRI license. The driver was not having license to drive trolley.
8. Being aggrieved by the judgment and order of District Forum the complainant has filed this appeal on the ground that the District Forum 4 A 240/2019 arrived at the wrong conclusion that the driver was not having a valid and effective license to drive trolley. The District Consumer Commission failed to appreciate that at the time of accident, the tractor was below 7500 kg. Tractor comes under LMV category of vehicle. The driver was having the license to drive tractor (LMV). The Hon'ble Apex court in catena of judgments has already held that driver having LMV driving license can drive transport vehicle.
9. Heard Adv.A.K.Jawalkar for the appellant/ complainant and Adv.S.R.Bodde for opponent insurance company.
10. From the submission of the parties following points arose for our determination we have noted and answered for the reasons to follow.
Sr. Point Answer
i) Whether opponent insurance company
imparted with deficiency in service towards
the complainant ? ...Yes.
ii) Whether there requires interference in the
impugned order ? ...Yes.
iii) What order? ...As per final order.
REASONING
Points (i), (ii) & (iii).
(11) Ld. Adv.Mr.Jawalkar for appellant argued that, the driver was having
the license to drive the tractor. The copy of the license is at page No.44 of appeal compilation. Though apparently the license is not stating that, it is 5 A 240/2019 issued for LMV-Tractor-Trl i.e. for driving tractor along with trolley. However, the Hon'ble Apex Court in MUKUND DEWANGAN Vs. ORIENTAL INSUANCE COMPANY LIMITED - IV(2017) CPJ 13 (SC) has held that, there is no legal necessity of having license to drive tractor along with trolley. There is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding license to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. The opponent has illegally repudiated the claim of complainant. Also the District Consumer Commission has wrongly dismissed the complaint. The appellant/ complainant has spent Rs.1,19,133/- towards repairs of the tractor. The complainant is entitled to receive the amount with 15 % interest.
(12) Adv. S.R.Bodade argued for the opponent insurance company that the driver Premchand Mahadik was not holding the valid and effective license at the time of accident. The insurance company has rightly repudiated the claim on legal ground. The complainant has suppressed the certain facts. The intention of complainant is malafide and he intends to grab huge amount under the grab of insurance policy. The District Consumer Commission has rightly dismissed the complaint. There is no deficiency in service on the part of opponent insurance company. The surveyor has submitted the bill report stating payable amount to complainant is Rs. 63,800/- only. The complainant is at the most entitled to this amount if at all the matter is being decided in favour of complainant. 6 A 240/2019 13(i) Heard the ld. Advocates of the parties. From the submission of the parties the crux of the matter is whether the opponent insurance company is justified in repudiating the complainant's claim on the ground of not having effective driving license for driving the trolley.
14. As contended by the advocate of complainant, there is license of Premchand Mahadik on record at page 44, it revealed that the license is issued for driving of tractor on 09.08.2010 and it is valid up to 08.08.2030. The legends on rear side of the license states that the license is not issued for trolly driving purpose. From license, it reveals that there is separate category or requirement of license for trolly driving as LMV-TT(LMV-Tractor+ trolly). Though, it is argued by the Advocate of the opponent insurance company, that the driver was not having license to drive trolley and insurance company rightly repudiated complainant's claim on that ground.
However, as we would like to rely upon the judgement of the Hon. Apex court in Mukund Devgan -Vs- Oriental Insurance Company IV (2017) CPJ 13(SC) p.13-14. Wherein the Hon Apex court elaborately discussed various issues pertaining to Motor Vehicle Act, including legal necessity of separate endorsement on licence to drive light motor vehicle for transport vehicle. The Hon court held this,
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 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 7 A 240/2019 vehicles. It was pre-amended position as well the post-amended 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 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.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the 8 A 240/2019 procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
15. In view of judgment of Mukund Dewgan, cited Supra, it can be safely inferred that the driver was holding effective driving license though it is only for driving the tractor and no separate driving license for driving the trolly was required. The contention of opponent insurance company, therefore, is not justified that, there is requirement of separate license for driving trolley in addition of having (driving) license to drive tractor. The insurance company has repudiated complainant's claim on this ground. However, considering the judgment of Hon'ble Apex Court in Mukund Dewgan case there reveals deficiency in service on the part of insurance company. Therefore we answer point No.(i) in affirmative.
16. The District Forum has dismissed the complaint observing that, the driver was not holding license to drive tractor along with trolley and was having license to drive tractor only. However, in view of aforesaid discussion, there requires interference in the judgment of District Consumer Commission.
17. Complainant is contending that he has spent Rs.1,79,133/- towards repairs of the tractor and he is entitled to receive this amount under insurance policy. However it cannot be ignored that the model of tractor make his year 2011. Complainant is simply relying upon repairing bills 9 A 240/2019 spent by him and he is totally ignored that there requires depreciation to be considered while assessing the compensation. Moreover, the policy is own damage policy and not zero depreciation policy to ignore the depreciation. Opponent has appointed surveyor and produced survey report and gave emphasis on the assessment made by surveyor. That, the opponent has totally denied the claim for want of license. However while assessing the compensation we have to consider the said report. Said report is at page No.57 of appeal compilation. It is stated as below.
i) Assessed part of Rs.9648/- at 50% to Rs.4824/-.
ii) Assessed part of Rs.63,404/- at 25% depreciation of Rs.47,553/-.
iii) Labour charges allowed Rs.15,100/-, Total assessment of
Rs.67,477/-.
It reveals that the vehicle is 2011 make. Therefore certain deduction towards depreciation requires to be considered. Surveyor has assessed spare parts value wherein some parts are considered for 50% depreciation, some part at 25% depreciation and accordingly labour charges. Surveyor has assessed total loss for compensation for Rs.67,477/- and Rs.1677/- towards salvage. However, surveyor has deducted amount of Rs.2000/- towards excess. There is insurance policy which is stating that IDV of the vehicle/tractor is Rs.2,45,350/- and IDV of trailer is Rs.50,000/- , total IDV is Rs.2,95,350/- than excess as per policy. However , when assessment is below total IDV value , deduction of Rs.2000/- towards excess by insurance company not therefore acceptable. Likewise salvage of Rs.1677/- is deducted by surveyor. It is not clear whether salvage is surrendered by complainant. Therefore, 10 A 240/2019 deduction towards salvage is also not acceptable. Therefore in our opinion the complainant is entitled for compensation of Rs.67,477/-.
18. In catena of judgment of Hon'ble Apex Court and Hon'ble National Commission it is held that surveyor report cannot be brushed away.
19. Opponent insurance company has repudiated the complainant's claim on 26.11.2015 on the ground that the driver is not having valid driving license to drive the trolley along with tractor. However in view of aforesaid discussion it reveals that opponent insurance company has wrongly repudiated the complainant's claim . Therefore in our opinion complainant is entitled to receive 9% interest on the amount of Rs.67,477/-. Hence the following order.
O R D E R
1. Appeal is partly allowed.
2. The order of District Consumer Commission, Latur in C.C.No. 90/2017 dated 01.12.2018 is quashed and set aside and the complaint is partly allowed.
3. The opponent is directed to pay Rs. 67,477/- with 9 % interest to the appellant from 26.11.2015 till realisation within one month of receipt of this order.
4. The opponent to pay Rs. 10,000/- towards cost to the appellant.
Sd/- Sd/-
Mr.K.M.Lawande Smt.S.T.Barne,
Member Presiding Judicial Member
11 A 240/2019
MBM