State Consumer Disputes Redressal Commission
The New India Assurance Company Ltd., vs Mohit Goyal on 1 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 93 of 2013 Date of Institution : 04.03.2013 Date of Decision 01.05.2013 1. The New India Assurance Company Ltd., Regional Office, SCO No.36-37, Sector 17-A, Chandigarh through its Regional Manager. 2. The New India Assurance Company Ltd., Divisional Office, SCO No.58, Sector 26-C, Chandigarh through its Divisional Manager, now both through the authorized signatory of Chandigarh Regional Office. Appellants/Opposite Parties V e r s u s Mohit Goyal son of Sh. Naresh Goyal, resident of House No.77-A, Tagore Nagar, Civil Lines, Ludhiana. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. R.C. Gupta, Advocate for the appellants.
Sh. Harish Sharma, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 28.01.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants,) as under:-
In view of the above discussion we are of the opinion that the present complaint is allowed and the opposite parties are directed as under :-
i. to pay 75% of the amount as assessed by the surveyor.
ii. To pay Rs.20,000/- as compensation for mental agony and harassment.
iii. To pay Rs.10,000/- as litigation expenses.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii) shall carry interest @18% per annum from the date of filing of this complaint till actual payment, besides payment of litigation costs.
2. The facts, in brief, are that the complainant being the owner of vehicle - Tata Indica DLS model 2011, bearing registration No.PB-10-DF-4229, got the same insured, under the Commercial Vehicle Package Policy, from the Opposite Parties, for the Insured Declared Value of Rs.3,90,811/-, on payment of premium, in the sum of Rs.20,234/-, for the period from 20.06.2011 to 19.06.2012. The vehicle, in question, was being used as a taxi, and permit with regard to the same, was issued by the Regional Transport Authority, Ludhiana, on 14.08.2011 valid upto 08.08.2016.
3. On 26.09.2011, the said vehicle was being driven by one Manoj Kumar, who was employed, by the complainant, as a driver, on the same (vehicle). It was stated that, suddenly a stray dog, came in front of the vehicle, and, in order to save him, the driver turned the same (vehicle), as a result whereof, the same (vehicle) struck against a pole. Consequently, the vehicle was badly damaged. However, the passengers sitting in the vehicle, did not receive injuries.
4. The matter was immediately reported to Opposite Party No.1, which appointed Sh. Manish Chawla, Surveyor, Loss Assessor and Valuer, to assess the loss, to the said vehicle. Sh. Manish Chawla, Surveyor, Loss Assessor and Valuer, visited the spot of accident, and inspected the vehicle, in question. It was further stated that, on the advice of Sh. Manish Chawla, Surveyor, Loss Assessor and Valuer, the estimate of repairs, to the tune of Rs.88,760.92 Ps., was got prepared from the repairer- M/s Garyson Motors Pvt. Ltd. Thereafter, the complainant was permitted to get his vehicle repaired, from the repairer. Accordingly, the complainant took the car to the repairer - M/s Garyson Motors Pvt. Ltd, Ludhiana, and got the damaged vehicle repaired, on payment of Rs.88,760.92ps, as repair charges.
5. The complainant submitted his claim, for indemnification of the above said expenditure, incurred by him, on repairs, alongwith all the necessary documents, to the Opposite Parties. However, to the astonishment of the complainant, the claim was repudiated, by the Opposite Parties, vide letter dated 06.12.2011, on the grounds, that neither the driver of the vehicle, at the relevant time, when it met with an accident, was holding a valid and effective driving licence, nor the matter, with regard to the accident, was reported to the Police, as per the terms and conditions of the Policy. It was further stated that the repudiation of genuine claim of the complainant, by the Opposite Parties, was illegal and arbitrary. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the claim amount, in the sum of Rs.88,760.92Ps., spent by him, towards the repairs of vehicle, in question, alongwith interest @18% P.A., from the date of its entitlement, till realization; compensation, in the sum of Rs.5,00,000/- for mental agony and physical harassment; and cost of litigation, to the tune of Rs.11,000/-.
6. The Opposite Parties, in their joint written version, admitted that the complainant being the owner of vehicle - Tata Indica DLS model 2011, bearing registration No.PB-10-DF-4229, got the same insured, under the Commercial Vehicle Package Policy, from them (Opposite Parties), for the Insured Declared Value of Rs.3,90,811/-, on payment of premium, in the sum of Rs.20,234/-, for the period from 20.06.2011 to 19.06.2012. It was also admitted that the vehicle, in question, was registered as a commercial vehicle, and used as a taxi. It was stated that the accident of the said vehicle, took place, on 16.09.2011 (infact 26.09.2011) , whereas, intimation regarding the said accident was given to the Opposite Parties, on 28.09.2011, vide claim intimation letter Annexure R-2, i.e. after a delay of 02 days. It was further stated that, however, on receipt of this letter, Sh. Manish Chawla, Surveyor, Loss Assessor and Valuer, was appointed, by the Opposite Parties, to assess the loss, to the vehicle, upon which, he inspected the same (vehicle) and assessed the net loss, to the tune of Rs.55,000/- only. It was further stated that, it also came to the notice of the Surveyor, Loss Assessor and Valuer, that the person (Mr. Manoj Kumar), who was driving the vehicle, at the relevant time, when it met with an accident, was not having a valid and effective driving licence, as the same was issued to him, only to drive a Light Motor Vehicle (non-transport only). It was further stated that the said driving licence was not having the endorsement on it, authorizing the driver, to drive a vehicle registered as passenger carrier (commercial vehicle), used as a taxi, which fell within the definition of a transport vehicle. It was further stated that even intimation was also not given to the Police, regarding the said accident, and, as such, neither any DDR nor any FIR was recorded, in the matter. It was further stated that the complainant, thus, violated the terms and conditions of the Insurance Policy, as also Sections 3 & 11 of the Motor Vehicles Act, 1988. It was further stated that, as such, the claim of the complainant was legally and validly repudiated by the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. In the rejoinder, filed by the complainant, he reasserted all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
8. The Parties led evidence, in support of their case.
9. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
10. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
11. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
12. The Counsel for the appellants/Opposite Parties, submitted that admittedly, the vehicle, in question, was registered as a passenger carrier (commercial vehicle), and was being used as a taxi. He further submitted that the said vehicle, fell within the definition of a transport vehicle. He further submitted that, admittedly, the driver of the vehicle, at the relevant time, when it met with an accident, was in possession of only a driving licence, meant for driving a Light Motor Vehicle (non-transport). He further submitted that, on the strength of the driving licence issued for driving Light Motor Vehicle (non-transport), the driver was not competent to drive the vehicle, in question, which fell within the purview of a transport vehicle. He further submitted that there was no endorsement, on the driving licence of the driver, for driving a transport vehicle. He further submitted that since, the driver of the vehicle, at the relevant time, which met with an accident, was not holding a valid and effective driving licence, for driving a transport vehicle, and no intimation was given to the Police, with regard to the said accident, as also the Insurance Company, was given intimation with regard to the said accident, after about 02 days, there was a breach of the fundamental condition of the Insurance Policy, as also the mandatory provisions of Sections 3 and 11 of the Motor Vehicles Act, 1988. He further submitted that the claim of the complainant was, thus, legally and rightly repudiated by the Opposite Parties, but the District Forum fell into a grave error, in allowing the complaint, awarding 75% of the amount(on non-standard basis), assessed by the Surveyor, Loss Assessor and Valuer. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
13. On the other hand, the Counsel for the respondent/complainant, submitted that since the driver of the vehicle, driving the same, at the relevant time, when it met with an accident, was not holding a valid and effective driving licence, for driving a commercial vehicle, used as taxi, which fell within the definition of a transport vehicle, under these circumstances, the District Forum was right, in awarding 75% of the amount (on non-standard basis), assessed by the Surveyor, Loss Assessor and Valuer. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
14. The first question, that falls for consideration, is, as to whether, the vehicle, in question, which was registered, as a commercial vehicle and was being used as a taxi, fell within the definition of a transport vehicle or not. In exercise of the powers conferred by Sub-section (4) of Section 41 of the Motor Vehicles Act, 1988 (59 of 1988) and in supersession of the notification of the Government of India, in the erstwhile Ministry of Surface Transport No.S.O. 451(e), dated the 19th June, 1992, the Central Government specified the types of motor vehicles. According to the aforesaid notification, public service vehicles, such as maxi cab, motor cab, stage carriage, and contract carriage, including tourist vehicles, were specified as transport vehicles. According to the aforesaid provision, the vehicle, in question, having been registered as a commercial vehicle, and being used as a taxi, certainly fell within the definition of a transport vehicle. The question, posed, at the outset of this paragraph, is answered, in the manner, referred to above.
15. The next question, that falls for consideration, is, as to whether, the driver of the vehicle, in question, at the relevant time, when it met with an accident, was holding a valid and effective driving licence, for driving the vehicle, in question, which was insured with the appellants/Opposite Parties. There is, no dispute, about the factum, that the driver of the vehicle, at the relevant time, when it met with an accident, was only holding a driving licence, for driving a Light Motor Vehicle (non-transport). Copy of the driving licence of the said driver is Annexure C-5, which clearly specifies that it was issued, in favour of the driver (Manoj Kumar), for driving motor cycle and motor car only. There is, no endorsement, on this driving licence, to the effect, that he (driver) was also authorized to drive a commercial vehicle, being used as a taxi, falling within the definition of a transport vehicle. There is a distinction between the LMV Non Transport Vehicle and the LMV Transport Vehicle. Transport Vehicle may be a `light transport vehicle` or may be a `light motor vehicle` but for the purpose of driving the same, distinct licence, is required, to be obtained, although the definition of LMV brings within its ambit the transport vehicle or omnibus. Undisputedly, thus, a distinction between an effective driving licence, granted for transport vehicle and passenger motor vehicle exists. Section 3 of the Motor Vehicles Act, 1988, provides the necessity of driving licence, stating that (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle[ other than a motor cab hired for his own use or rented under any scheme made under sub- section (2) of section 75] unless his driving licence specifically entitles him so to do.
Section 9 provides for grant of driving licence. Section 10 of the Motor Vehicles Act, 1988, prescribes the form and contents of licences to drive, which is to the following effect:
10. Form and contents of licences to drive-
(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-
(a) to (c)..
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description.
16. The distinction between a light motor vehicle and a transport vehicle is, therefore, evident. The distinction between the `transport vehicle`, `light commercial 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 period of three years, in case of an effective licence, to drive a `transport vehicle`, whereas, in case of any other licence, it may remain effective, for a period of about 20 years. In the instant case, it is evident, from a copy of the driving licence Annexure C-5, of Manoj Kumar, driver, at page 61 of the District Forum File, who was driving the vehicle, at the relevant time, that the same was valid for driving motorcycle and motorcar only, validity whereof was for the period from 05.04.2002 to 13.06.2020. It means that this driving licence was issued, in favour of the driver of the vehicle, for about more than 18 years. In the Policy Schedule-cum-Certificate of Insurance, Annexure C-2, placed, on record, it was written in bold letters on the top, Commercial Vehicle Package Policy, which means that the same (vehicle, in question), was a commercial vehicle. Against the type of vehicle, it was mentioned as C-Passenger Carrying.
In the registration certificate, copy whereof is Annexure C-1, the class of the vehicle was also described as Maxi Cab.
Since, in the instant case, the driver of the vehicle, at the time of accident, was only holding a driving licence for driving LMV Non-Transport Vehicle, and the same (licence) was not endorsed, as required under Sections 3 and 11 of the Motor Vehicles Act, 1988, for driving a light commercial vehicle/passenger carrier vehicle, being used as a taxi, falling within the definition of a transport vehicle, it could certainly be said that he (driver) was not holding a valid and effective driving licence, for driving the vehicle, in question, at the relevant time. In National Insurance Co. Limited Vs. Kusum Rai and Ors., Appeal (civil) 1731 of 2006, decided on 24.03.2006, by the Hon`ble Supreme Court, the vehicle, in question, was being used as a taxi, and, thus, was a commercial vehicle. The driver of the vehicle was holding a driving licence, for driving Light Motor Vehicle. The taxi met with an accident. The Hon`ble Supreme Court held that since the vehicle, in question, fell within the definition of a transport vehicle, and the driver was not holding a valid and effective driving licence, for driving the same, the Insurance Company was right, in repudiating the claim. Similar principle of law, was laid down, in New India Assurance Co. Ltd. Vs. Prabhu Lal, I (2008) CPJ 1 (SC). The District Forum was right, in holding that the driver of the vehicle, at the relevant time, when it met with an accident, was not holding a valid and effective driving licence, for driving a commercial vehicle, registered as taxi, which fell within the definition of a transport vehicle. The findings of the District Forum, in this regard, being correct are affirmed.
17. The next question, that falls for consideration, is, as to whether, the complainant could be awarded the amount, assessed by the Surveyor, Loss Assessor and Valuer, on non-standard basis, or not. In our considered opinion, when the Surveyor held that the driver of the vehicle was not holding a valid and effective driving licence, for driving a commercial vehicle, registered as taxi, which fell within the definition of a transport vehicle, the Opposite Parties were well within their right, to legally and validly, repudiate the claim of the complainant, in toto, in view of the principle of law, laid down, in National Insurance Co. Limited Vs. Kusum Rai`s and New India Assurance Co. Ltd. Vs. Prabhu Lal`s cases (supra). The District Forum, no doubt, placed reliance on New India Assurance Co. Ltd. Vs. Narayan Prasad Appaprasad Pathak-II (2006) CPJ 144 (NC)., holding that, as per Clause 10 of the Guidelines issued by the GIC for the Insurance Companies, the claim could be settled on non-standard basis, in the event of any breach of condition, including limitation, as to use. In the instant case, the driver of the vehicle was not holding a valid and effective driving licence, for driving a commercial vehicle, registered as taxi, which fell within the definition of a transport vehicle. There was a breach of the fundamental condition of the Insurance Policy, as also the mandatory provisions of Sections 3 and 11 of the Motor Vehicles Act, 1988. Under these circumstances, no help could be drawn from New India Assurance Co. Ltd. Vs. Narayan Prasad Appaprasad Pathak`s case (supra), by the District Forum. The District Forum, was, thus, wrong, in holding that the complainant was entitled to the amount of claim, on non-standard basis. The findings of the District Forum, in this regard, being against the principle of law, laid down, in National Insurance Co.Limited Vs. Kusum Rais, and New India Assurance Co. Ltd. Vs. Prabhu Lal`s cases (supra), are set aside.
18. Admittedly, no report, at all, with regard to the said accident, to the Police, was made by the complainant. Condition No.1 of the Policy contained in Annexure R-1 (colly.), at page 117 of the District Forum file, under the heading DEDUCTIBLE and Conditions, reads as under ;
DUDCTIBLE The Company shall not be liable for each and every claim under Section-1 (loss of or damage to the vehicle insured) of this Policy in respect of the deductible stated in the schedule.
CONDITIONS This Policy and the Schedule shall be read together and any word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear the same meaning wherever it may appear.
1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution, inquest or Fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender.
19. The plain reading of Condition No.1, extracted above, clearly goes to show, that in case of theft or criminal act, which may be the subject matter of a claim under the Policy, the insured shall give immediate notice to the Police. Under the heading deductible it was, in clear-cut terms provided, that the Company shall not be liable for each and every claim under Section-1(loss of or damage to the vehicle insured) of the Policy in respect of the deductible, stated in the schedule. In the instant case, the accident constituted a criminal act, which was the subject matter of claim. The complainant, as stated above, did not report the accident, to the Police, at all.
The Opposite Parties were, thus, right in repudiating the claim, on this ground too. There was, thus, certainly a breach of the aforesaid fundamental condition No.1 of the Insurance Policy.
It is settled principle of law, that the Consumer Foras, are required to construe the terms and conditions of the Policy, as it is, and nothing can be added or subtracted therefrom. Similar principle of law, was laid down in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8.
20. In view of the above, the Opposite Parties, legally and validly, repudiated the claim of the complainant, and, as such, it could not be said that they were deficient, in rendering service, or indulged into unfair trade practice.
21. No other point, was urged, by the Counsel for the parties.
22. In view of the above discussion, it is held that the order of the District Forum, being not based on the correct appreciation of evidence and law, on the point, is illegal and warrants interference. It is liable to be set aside.
23. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
24. Certified copies of this order, be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion Pronounced.
May 1,2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg