State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. vs Ashwani Kumar on 2 November, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 295 of 2014
Date of institution: 24.03.2014
Date of decision : 02.11.2015
Branch Manager, Oriental Insurance Co. Ltd., Opposite Punjab
National Bank Main Branch Abohar District Fazilka through Manager
(Legal), Regional Office SCO No. 109-111, Sector 17-D, Chandigarh
.....Appellant/opposite party
Versus
Ashwani Kumar S/o Sh. Gokal Chand, C/o M/s Gokal Chand
Ashwani Kumar, 47 New Grain Market, Fazilka, Tehsil & Distt.
Fazilka.
..Respondent/complainant
First Appeal against the order dated
13.02.2014 passed by the District
Consumer Disputes Redressal Forum,
Ferozepur.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. B.S. Taunque, Advocate For the respondent : Sh. Rajesh Narang, Advocate First Appeal No. 295 of 2014 2 GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) Order This appeal has been preferred by appellant/OP (hereinafter referred as 'OP') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 13.02.2014 in C.C. No. 418 of 30.08.2013 passed by the learned District Consumer Disputes Redressal Forum, Ferozepur, (in short the 'District Forum') vide which the complaint filed by the complainant/respondent (hereinafter referred as 'complainant') was accepted with the directions to OP to pay a sum of Rs. 1,70,796/- to the complainant as assessed by the surveyor. OP was further directed to pay compensation and litigation costs to the tune of Rs. 5000/- to the complainant.
2. Complaint was filed by the complainant against OP on the averments that as an owner of Toyota Qualis (jeep) bearing registration No. PB-22C-0021, got it insured from OP for the period from 15.02.2011 to 14.02.2012 on payment of premium of Rs. 11771/- and policy cover note number 175286 was issued. On 07.11.2011 at about 10.45 pm when Kapil Chugh Advocate son of Shri Abnash Chander resident of M.C. Colony Fazilka was driving the said vehicle and was going from Mansar to Simla alongwith advocates namely Rajesh Sachdeva, Vijay Wadhwa, Rajesh Kalra, Pardeep Sihag and Narinder Kumar Maini, a truck bearing registration No. HR+56-A-0836 driven by Mahavir came from opposite side in a very rash and negligent manner hit against their vehicle. Consequently, Rajesh Sachdeva and Pardeep Sihag First Appeal No. 295 of 2014 3 Advocates suffered injuries and the vehicle was badly damaged. FIR was got registered at P.S. Solan Sadar. On intimation to OP, OP appointed surveyor Subodh Chandra Dhir. As per the instructions of OP, the complainant got repaired the jeep from M/s Anand Auto Care Pvt. Ltd. Solan (H.P.) and paid a sum of Rs. 2,76,436/- to the said agency and Rs. 3000/- to Kandaghat Taxi Union and Rs. 1029/- to Subodh Chandra Dhir, surveyor. When the claim was lodged with OP, OP vide their letter dated 25.09.2012 repudiated the claim on the ground that driving licence of Kapil Chugh bearing No. 909/Fazilka/1998 was not valid to drive Qualis. The claim was wrongly, illegally and arbitrarily repudiated by OP which amounted to deficiency in services on their part. Hence the complaint with direction to OP to pay a sum of Rs. 2,82,465/- alongwith interest @ 2%, Rs. 50,000/- as compensation and Rs. 15,000/- as litigation expenses.
3. The complaint was contested by OP who filed written reply taking preliminary objections that the complaint was false, frivolous and vexatious to the knowledge of the complainant, therefore, the same was liable to be dismissed. The complainant had not come to the Forum with clean hands and had concealed the true and material facts. Complicated questions of law and facts were involved which required lengthy procedure of law of evidence, therefore, matter was required to be relegated to Civil Court and the claim of the complainant was filed as 'No Claim' as driver of the vehicle was not holding the valid and effective driving licence. The driver Kapil Chugh was having licence to drive scooter, car and jeep First Appeal No. 295 of 2014 4 whereas he was not entitled to drive Qualis which falls under the category of LMV. Even clarification was sought from Motor Vehicle Inspector, Bathinda and he opined that Qualis/Toyota is LMV and LMV licence is required to drive that vehicle, therefore, there was no deficiency in service on the part of OP. On merits, policy and accident was admitted. It was reiterated that the claim was repudiated on the ground that the driver of the vehicle was not having the licence to drive LMV, therefore, the claim was rightly repudiated. It was submitted that there was no merit in the complaint and it be dismissed.
4. Parties adduced evidence in support of their contentions. Complainant tendered into evidence his affidavit Ex. C-1, Ex. C-2 letter dated 25.09.2012, Ex. C-3 copy of registration certificate, Ex. C-4 policy cover note, Ex. C-5 copy of driving licence, Ex. C-6 copy of F.I.R, Ex. C-7 copy of survey fee bills, Ex. C-8 copy of receipt, Ex. C-9 copies of bills (seven pages) Ex. C-10 copy of receipt, Ex. C-11 copy of gatepass and Ex. C-12 rejoinder cum affidavit. On the other hand, OP has tendered into evidence Ex. OP/1 affidavit, Ex. OP/2 copy of repudiation letter, Ex. OP/3 copy of letter dated 25.09.2012, Ex. OP/4 copy of driving licence, Ex. OP/5 copy of report of Motor Vehicle Inspector, Ex. OP/6 copy of Investigation report, Ex. OP/7 copy of surveyor report, Ex. OP/8 copy of insurance policy and closed the evidence.
5. After going through the allegations as alleged in the complaint, written reply filed by OP, evidence and documents on the First Appeal No. 295 of 2014 5 record, the learned District Forum accepted the complaint as referred above.
6. Aggrieved with the order, OP/appellant has filed this appeal.
7. We have heard the learned counsel for the parties and have perused the record.
8. In the appeal, it has been argued by the counsel for the appellant that learned District Forum has not properly thrashed the category of driving licence. Since the driver of the vehicle was not having the licence to drive the LMV as he had the licence to drive scooter, car and jeep which was not sufficient to drive the LMV, therefore, the claim was wrongly allowed by the District Forum. He has further drawn the attention of this Commission that licence of the driver of the insured vehicle is Ex. C-5 which is valid only for scooter, car and jeep. Whereas certificate of the registration of the vehicle has been placed on the appeal file and in the class of the vehicle, it s mentioned as LMV car. Then opinion was taken from Motor Vehicle Inspector, Bathinda dated 14.08.2012 that what type of driving licence is required for driving Qualis vehicle and the said Inspector made an endorsement that LMV vehicle is required for private vehicle and in case of taxi LMV (Transport) licence is required (Ex. OP-5). On the basis of that, the surveyor in his report Ex. OP-6 recommended for repudiation of the claim as the driver of the vehicle was not having the driving licence to drive Toyota Qualis. However, District Forum has relied upon the judgment titled as "National Insurance Company Limited Vs. Swaran Singh and others" 2004 First Appeal No. 295 of 2014 6 (2) RCR (Civil) 114 (SC). However, this judgment was passed in third party case and not in on damages case. Whereas counsel for the appellant has relied upon the judgment passed by the Hon'ble National Commission titled as "National Insurance Company Limited Vs. Laxmi Narain Dhut" 2007 (3) SCC 700, that the ratio laid down in the case of Swaran Singh (supra) would apply only in relation to the cases of third party and not in relation to the own damage cases. Therefore, that judgment was wrongly relied upon by the District Forum. Whereas counsel for the respondent/complainant has referred to the definition of LMV as defined under The Motor Vehicles Act, 1988 as under:-
(21) "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;
The perusal of this definition reveals that apart from other vehicles it includes motors cars having unladen weight less than 7500 km. But the definition of the motor car has been separately defined as under in The Motor Vehicles Act, 1988:-
(26) "motor car" means any motor vehicle other than a transport vehicle, obmnibus, road-roller, tractor, motor cycle or invalid carriage.
Therefore, the motor car and LMV cannot be equated with each other when they are two different kind of vehicles. In that way driver of the insured vehicle was having the licence to drive the motor car would not become eligible to drive LMV.
First Appeal No. 295 of 2014 7
9. However, another point raised by the counsel for the respondent that in view of the judgment passed by the Hon'ble Supreme Court titled as "Jitendra Kumar Vs. Oriental Insurance Co. Ltd. and others" 2003 (3) PLR 112 that in case fire caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver, claim cannot be repudiated on the ground that driver did not have valid licence as the fire had caused damage to the vehicle due to mechanical failure and not due to any fault on the part of the driver. Here also FIR (Ex. C-6) was got registered at the instance of the driver of the insured vehicle and according to this FIR, the accident took place due to the rash and negligent driving of the driver of the truck bearing registration No. PB-22C-0021, as a result of which the accident took place and the insured vehicle received the damages. The surveyor in his report Ex. OP/6 has not contradicted that version and no other evidence has come on the record that the driver of the insured vehicle was at fault in causing the accident. In case the damage to the vehicle was not caused due to any fault of the driver of the insured vehicle then the claim of the complainant cannot be rejected only on the ground that he was not having LMV licence to drive the vehicle in view of the judgment of the Hon'ble Supreme Court titled as "Jitendra Kumar Vs. Oriental Insurance Co. Ltd" (Supra). There is another judgment passed by the Hon'ble National Commission titled as "United India Insurance Company Vs. Gajpal Singh Rawat" III (2009) CPJ 254 (NC). In that case the driver did not hold the valid and effective driving licence at the time First Appeal No. 295 of 2014 8 of accident. The complaint was allowed by the Forum, however the State Commission in the appeal held that in the absence of nexus between licence of the driver and accident, insured would be liable to allow claim on non standard basis. In revision, Hon'ble National Commission held that there was no fault of the driver in the accident and order passed by State Commission was upheld. Accordingly, the complainant will be entitled to his claim on non standard basis.
10. In view of the above, the order passed by the District Forum requires modification to the extent that instead of full amount as per the surveyor report, the complainant will be entitled to 75% of the amount as recommended by the surveyor.
11. Accordingly, we partly allow the appeal. The order of the District Forum is modified to the extent that the complainant will be entitled to claim on non standard basis i.e. 75% of the amount as recommended by the surveyor i.e. Rs. 1,28,097/-.
12. The appellant had deposited a sum of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 1,00,000/- on 05.05.2014 in compliance of the order dated 04.04.2014 passed by the Commission. Both these amounts of Rs. 25,000/- and Rs. 1,00,000/- along with interest accrued thereon, if any, be remitted by the registry to respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
13. Remaining amount shall be paid by the appellant to respondent within 30 days from the receipt of the copy of the order First Appeal No. 295 of 2014 9
14. The arguments in this appeal were heard on 12.10.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (MRS. SURINDER PAL KAUR) MEMBER November 02, 2015.
Rupinder