State Consumer Disputes Redressal Commission
Asha Rani vs Uiic on 1 September, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.1113 of 2005
Date of institution: 29.08.2005
Date of decision : 01.09.2010
Asha Rani aged about 38 years wife of Sh.Bal Kishan r/o village Kot Fatuhi,
Tehsil Garhshankar, District Hoshiarpur.
.....Appellant
Versus
United India Insurance Company Ltd., Branch Office I, Opposite G.P.O., Jalandhr.
.....Respondents
First Appeal against the order dated 26.07.2005
passed by the District Consumer Disputes
Redressal Forum, Hoshiarpur.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Lt.Col.Darshan Singh (Retd.), Member
Present:-
For the appellant : Sh.Hitesh Sood, Advocate For the respondents : Sh.Vinod Gupta, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT The appellant was the owner of Mini Door 3 Wheeler bearing registration No.PB07-K-9297. It was insured with the respondents for the period from 7.2.2002 to 6.2.2003.
2. It was further pleaded that it met with an accident on 20.12.2002 in the Hadbast area of village Adda Fateh for which DDR No.21 dated 22.12.2002 was got registered in PS Phagwara. It was extensively damaged in this accident. The insurance claim was also lodged with the respondents.
3. It was further pleaded that the respondents had appointed Shri Rajeshwar Nath Surveyor who submitted his report and assessed the damage to the tune of Rs.76,803/-. The insurance claimed lodged by the appellant was repudiated First Appeal No.1113 of 2005 2 by the respondents. Hence, the complaint for insurance claim. Compensation, interest and costs were also prayed.
4. The respondents filed the written statement. It was not denied that the appellant was the owner of the Mini Door 3 Wheeler bearing registration No.PB07-K-9297 and that it was insured with the respondents. It was also not denied that it had met with an accident on 20.12.2002 for which DDR No.21 dated 22.12.2002 was registered in Police Station, Phagwara. It was also admitted that after the receipt of the information from the appellant, the respondents had appointed the Surveyor who had assessed the loss to the tune of Rs.73,775.30 on repair basis and Rs.80,000/- on total loss basis. It was also admitted that the insurance claim lodged by the appellant was repudiated by the respondents.
5. It was further pleaded that Shaminder Singh was driving the vehicle at the time of the accident. He was not holding a valid driving licence. Therefore, the repudiation was legal and valid. Dismissal of the complaint was prayed.
6. The appellant filed her affidavit Ex.C1. She also proved documents Ex.C2, Ex.C2A, C2B, Ex.C3 to Ex.C12. On the other hand, the respondents filed the affidavit of Jagtar Singh, Divisional Manager as Ex.R1. The respondents also proved documents Ex.R2 to Ex.R8.
7. The learned District Forum dismissed the complaint vide impugned order dated 26.7.2005.
8. Hence, the appeal.
9. The submission of the learned counsel for the appellant was that the appeal be accepted and the impugned judgment dated 26.7.2005 be set aside and the respondents be directed to pay the insurance claim with compensation, interest and costs.
10. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present appeal and the same be dismissed.
11. Record has been perused. Submissions have been considered. First Appeal No.1113 of 2005 3
12. The admitted facts are that the appellant was the owner of Mini Door 3 Wheeler bearing registration No.PB07-K-9297 (Ex.C8). It was insured with the respondents for the period from 7.2.2002 to 6.2.2003 (Ex.C9). It had met with an accident on 20.12.2002 for which DDR No.21 dated 22.12.2002 (Ex.C7) was registered in Police Station, Phagwara. It is also admitted that the respondents had appointed the Surveyor who had assessed the loss to the tune of Rs.73,775.30 on repair basis and Rs.80,000/- on total loss basis (Ex.R4). However, the claim lodged by the respondents was repudiated vide letter dated 6.4.2004 (Ex.C12).
13. It is also admitted between the parties that the vehicle was being driven by Shaminder Singh. His driving licence has been proved by the appellant as Ex.C6 (It is also proved by the respondents as Ex.R6). As per this driving licence, Shaminder Singh driver was authorised to drive scooter/LMV (light motor vehicle).
14. The learned counsel for the appellant made reference to the provisions of Section 2(21) of the Motor Vehicles Act defining the light motor vehicle as under : -
"2(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 [7,500] kilograms;"
15. The transport vehicle has been defined in Section 2(47) of the Motor Vehicles Act as under : -
"2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;"
16. On the other hand, the learned counsel for the respondents submitted that the person holding LMV is not entitled to drive the transport vehicle if there is no endorsement on his driving licence to that effect under Section 3(1) of the First Appeal No.1113 of 2005 4 Motor Vehicles Act from the District Transport Officer. Section 3(1) reads as under : -
"3. Necessity for driving licence.-(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 or motor cycle] 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."
17. This controversy had also come up for consideration before this Commission in First Appeal No.1549 of 2004 (United India Insurance Company Limited v. Dalvinder Singh) decided on 30.01.2009. In this case, reference was made to the judgment of the Hon'ble Supreme Court reported as "New India Assurance Company v. Prabhu Lal, I (2008) CPJ 1 (SC)" in which it was held as under : -
"28. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive Light Motor Vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive Light Motor Vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is 'Light Motor Vehicle', but falls under the category of First Appeal No.1113 of 2005 5 Transport Vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply Light Motor Vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive Light Motor Vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and Insurance Company could not be held liable.
29. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question."
18. It was also held by this Commission in Dalvinder Singh's case (supra) (para 19) as under : -
"19. Since in the present case, Kulwant Singh was holding a driving licence for L.M.V. without an First Appeal No.1113 of 2005 6 endorsement for the transport vehicle as required under Section 3 of the Motor Vehicles Act, 1988 and since he was driving tempo treveller which was a transport vehicle, therefore, the repudiation of the claim by the appellants was legal and valid. Since the appellants have pleaded and proved that the driver did not have endorsement under Section 3 of the Motor Vehicles Act, 1988 on his driving licence, and therefore was not eligible to drive Tempo Treveller which was a transport vehicle. Therefore Ashok Gangadhar Maratha's case was not applicable to the facts of this case"
19. In the present case, the Mini Door 3 Wheeler of the appellant was certainly a transport vehicle as defined in Section 2(47) of the Motor Vehicles Act and, therefore, the endorsement on the driving licence of its driver Shaminder Singh under Section 3(1) of the Motor Vehicles Act was essential. Without this endorsement, therefore, it can be safely concluded that the driver was not holding a valid driving licence and that the respondents are not liable to pay insurance claim to the appellant.
20. It has also been settled by the Hon'ble Supreme Court in a number of judgments that where the driver was not holding a valid driving licence, the owner is not entitled to any insurance claim. Reference in this context can be made to the judgment of the Hon'ble Supreme Court reported as "Sardari & Ors. v. Sushil Kumar & Ors. II (2008) CPJ 21".
21. Keeping in view the facts and circumstances of this case and the law discussed above, there is no merit in the present appeal and the same is dismissed.
22. The arguments in this appeal were heard on 26.8.2010 and the order was reserved. Now the order be communicated to the parties. First Appeal No.1113 of 2005 7
23. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL)
PRESIDENT
(LT.COL.DARSHAN SINGH(RETD.)
MEMBER
September 01, 2010.
Paritosh
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.1113 of 2005
Date of institution: 29.08.2005 Date of decision : 01.09.2010 Asha Rani aged about 38 years wife of Sh.Bal Kishan r/o village Kot Fatuhi, Tehsil Garhshankar, District Hoshiarpur.
.....Appellant Versus United India Insurance Company Ltd., Branch Office I, Opposite G.P.O., Jalandhr.
.....Respondents First Appeal against the order dated 26.07.2005 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President Lt.Col.Darshan Singh (Retd.), Member Present:-
For the appellant : Sh.Hitesh Sood, Advocate For the respondents : Sh.Vinod Gupta, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT The appellant was the owner of Mini Door 3 Wheeler bearing registration No.PB07-K-9297. It was insured with the respondents for the period from 7.2.2002 to 6.2.2003.
2. It was further pleaded that it met with an accident on 20.12.2002 in the Hadbast area of village Adda Fateh for which DDR No.21 dated 22.12.2002 was got registered in PS Phagwara. It was extensively damaged in this accident.
The insurance claim was also lodged with the respondents.
3. It was further pleaded that the respondents had appointed Shri Rajeshwar Nath Surveyor who submitted his report and assessed the damage to the tune of Rs.76,803/-. The insurance claimed lodged by the appellant was repudiated First Appeal No.1113 of 2005 2 by the respondents. Hence, the complaint for insurance claim. Compensation, interest and costs were also prayed.
4. The respondents filed the written statement. It was not denied that the appellant was the owner of the Mini Door 3 Wheeler bearing registration No.PB07-K-9297 and that it was insured with the respondents. It was also not denied that it had met with an accident on 20.12.2002 for which DDR No.21 dated 22.12.2002 was registered in Police Station, Phagwara. It was also admitted that after the receipt of the information from the appellant, the respondents had appointed the Surveyor who had assessed the loss to the tune of Rs.73,775.30 on repair basis and Rs.80,000/- on total loss basis. It was also admitted that the insurance claim lodged by the appellant was repudiated by the respondents.
5. It was further pleaded that Shaminder Singh was driving the vehicle at the time of the accident. He was not holding a valid driving licence. Therefore, the repudiation was legal and valid. Dismissal of the complaint was prayed.
6. The appellant filed her affidavit Ex.C1. She also proved documents Ex.C2, Ex.C2A, C2B, Ex.C3 to Ex.C12. On the other hand, the respondents filed the affidavit of Jagtar Singh, Divisional Manager as Ex.R1. The respondents also proved documents Ex.R2 to Ex.R8.
7. The learned District Forum dismissed the complaint vide impugned order dated 26.7.2005.
8. Hence, the appeal.
9. The submission of the learned counsel for the appellant was that the appeal be accepted and the impugned judgment dated 26.7.2005 be set aside and the respondents be directed to pay the insurance claim with compensation, interest and costs.
10. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present appeal and the same be dismissed.
11. Record has been perused. Submissions have been considered. First Appeal No.1113 of 2005 3
12. The admitted facts are that the appellant was the owner of Mini Door 3 Wheeler bearing registration No.PB07-K-9297 (Ex.C8). It was insured with the respondents for the period from 7.2.2002 to 6.2.2003 (Ex.C9). It had met with an accident on 20.12.2002 for which DDR No.21 dated 22.12.2002 (Ex.C7) was registered in Police Station, Phagwara. It is also admitted that the respondents had appointed the Surveyor who had assessed the loss to the tune of Rs.73,775.30 on repair basis and Rs.80,000/- on total loss basis (Ex.R4). However, the claim lodged by the respondents was repudiated vide letter dated 6.4.2004 (Ex.C12).
13. It is also admitted between the parties that the vehicle was being driven by Shaminder Singh. His driving licence has been proved by the appellant as Ex.C6 (It is also proved by the respondents as Ex.R6). As per this driving licence, Shaminder Singh driver was authorised to drive scooter/LMV (light motor vehicle).
14. The learned counsel for the appellant made reference to the provisions of Section 2(21) of the Motor Vehicles Act defining the light motor vehicle as under : -
"2(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 [7,500] kilograms;"
15. The transport vehicle has been defined in Section 2(47) of the Motor Vehicles Act as under : -
"2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;"
16. On the other hand, the learned counsel for the respondents submitted that the person holding LMV is not entitled to drive the transport vehicle if there is no endorsement on his driving licence to that effect under Section 3(1) of the First Appeal No.1113 of 2005 4 Motor Vehicles Act from the District Transport Officer. Section 3(1) reads as under : -
"3. Necessity for driving licence.-(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 or motor cycle] 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."
17. This controversy had also come up for consideration before this Commission in First Appeal No.1549 of 2004 (United India Insurance Company Limited v. Dalvinder Singh) decided on 30.01.2009. In this case, reference was made to the judgment of the Hon'ble Supreme Court reported as "New India Assurance Company v. Prabhu Lal, I (2008) CPJ 1 (SC)" in which it was held as under : -
"28. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive Light Motor Vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive Light Motor Vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is 'Light Motor Vehicle', but falls under the category of First Appeal No.1113 of 2005 5 Transport Vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply Light Motor Vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive Light Motor Vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and Insurance Company could not be held liable.
29. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question."
18. It was also held by this Commission in Dalvinder Singh's case (supra) (para 19) as under : -
"19. Since in the present case, Kulwant Singh was holding a driving licence for L.M.V. without an First Appeal No.1113 of 2005 6 endorsement for the transport vehicle as required under Section 3 of the Motor Vehicles Act, 1988 and since he was driving tempo treveller which was a transport vehicle, therefore, the repudiation of the claim by the appellants was legal and valid. Since the appellants have pleaded and proved that the driver did not have endorsement under Section 3 of the Motor Vehicles Act, 1988 on his driving licence, and therefore was not eligible to drive Tempo Treveller which was a transport vehicle. Therefore Ashok Gangadhar Maratha's case was not applicable to the facts of this case"
19. In the present case, the Mini Door 3 Wheeler of the appellant was certainly a transport vehicle as defined in Section 2(47) of the Motor Vehicles Act and, therefore, the endorsement on the driving licence of its driver Shaminder Singh under Section 3(1) of the Motor Vehicles Act was essential. Without this endorsement, therefore, it can be safely concluded that the driver was not holding a valid driving licence and that the respondents are not liable to pay insurance claim to the appellant.
20. It has also been settled by the Hon'ble Supreme Court in a number of judgments that where the driver was not holding a valid driving licence, the owner is not entitled to any insurance claim. Reference in this context can be made to the judgment of the Hon'ble Supreme Court reported as "Sardari & Ors. v. Sushil Kumar & Ors. II (2008) CPJ 21".
21. Keeping in view the facts and circumstances of this case and the law discussed above, there is no merit in the present appeal and the same is dismissed.
22. The arguments in this appeal were heard on 26.8.2010 and the order was reserved. Now the order be communicated to the parties. First Appeal No.1113 of 2005 7
23. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL)
PRESIDENT
(LT.COL.DARSHAN SINGH(RETD.)
MEMBER
September 01, 2010.
Paritosh