State Consumer Disputes Redressal Commission
Bharti Axa General Insurance Co. Ltd., vs M/S Barnala Sales Corporation on 1 March, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 4 of 2013 Date of Institution : 04.01.2013 Date of Decision : 01.03.2013 Bharti Axa General Insurance Co. Ltd., through Ravi Kumar Raizada, Zonal Manager (Legal Claims), Bharti Axa General Insurance Co. Ltd., Bigjos Tower, 2nd Floor, A-8, Neta Ji Subhash Place, Pitampura, New Delhi. Old Address:- SCO No. 350-351-352, Sector 34-A, Chandigarh. Appellant/Opposite Party V e r s u s M/s Barnala Sales Corporation, SCO No. 830 A, First Floor, N.A.C. Manimajra, Chandigarh, through its Proprietor Sh. Ajay Kumar. ....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.S. Joshi, Advocate Proxy for Sh. Tajender K. Joshi, Advocate for the appellant.
Sh.
Karan Singla, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 26.10.2012, 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 Party (now appellant), as under:-
In the given situation, it is safe to deduce that the claim of the Complainant ought to be settled by the Opposite Party on non-standard basis on the basis of the settled law given above. Accordingly, we deem it appropriate to allow the present complaint and direct the Opposite Party to pay 75% of the amount allowed by the Surveyor as per non-standard basis. No costs.
The Opposite Party is directed to comply with the above order within 45 days of the receipt of this order, failing which it shall be liable to pay the awarded amount to the Complainant, along with interest @12% per annum, from the date of this order, till it is paid.
2. The facts, in brief, are that the Proprietor of the complainant Corporation (hereinafter to be referred as the complainant only), being the owner of Mahindra Maxximo, bearing Regn. No. CH-04-L-4082, got the same insured, from the Opposite Party, vide Smart Motor Commercial Policy, valid from 18.02.2011 to 17.02.2012, for the insured declared value of Rs.2,20,000/-. On 02.04.2011, while Dinesh Kaushik, driver of the vehicle, aforesaid, was driving the same, he suddenly took a sharp turn, as a result whereof, the same (vehicle) went out of control and hit a tree, resulting into an accident. On 04.04.2011, the vehicle, in question, was towed to M/s Goel Motors (P) Limited (authorized dealer of Mahindra and Mahindra Ltd.), for accidental repairs. Information was also given to the Opposite Party, for making payment/reimbursement, in accordance with the insurance claim. Retail invoice dated 30.06.2011, in the sum of Rs.1,14,924/- was raised, by the repairer. Thereafter, the bill, in the sum of Rs.10,124/- was also raised, by the repairer. The total cost of repairs, thus came to be Rs.1,25,048/-. However, the claim lodged by the complainant, was rejected by the Opposite Party, on the ground, that the driver of the vehicle did not possess an effective and valid driving licence, for the class of vehicle, being driven by him at the time of accident. It was stated that the rejection of genuine claim of the complainant, by the Opposite Party, was illegal and invalid. It was further stated that the aforesaid acts of the Opposite Party, 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 Party, to pay the claim amount, in the sum of Rs.1,25,048/-, alongwith interest @18% P.A., from the date of filing the complaint, till realization; compensation, in the sum of Rs.10,000/-, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.10,000/-
3. The Opposite Party, in its written version, admitted that the vehicle, in question, bearing Regn. No. CH-04-L-4082, was got insured, from it, vide Smart Motor Commercial Policy, valid for the period from 18.02.2011 to 17.02.2012, for the insured declared value of Rs.2,20,000/-. It was stated that the vehicle, in question, which was driven by the driver, at the time, it met with an accident, was a transport vehicle. It was further stated that, on receipt of information of the accident, the Opposite Party appointed Sh. Amit Munjal, Surveyor and Loss Assessor, to verify the licence of Sh. Dinesh Kaushik, driver. According to the certificate, obtained by the Surveyor and Loss Assessor, from the Registering and Licensing Authority, Chandigarh Administration, Chandigarh, the licence of the driver was issued, in his favour, for non-transport vehicle only. It was further stated that, no doubt, the Surveyor and Loss Assessor, had assessed the loss to the tune of Rs.82,027/-, subject to the terms and conditions of the Insurance Policy. It was further stated that the driver of the vehicle, at the relevant time, was only holding a driving licence for driving a MCW/LMV (non-transport vehicle). It was further stated that thus, the driver was not holding a valid driving licence for driving the vehicle, in question. It was further stated that he not only violated the relevant provisions of the Motor Vehicles Act, but also the fundamental terms and conditions of the Insurance Policy. It was further stated that the claim of the complainant was, thus, legally and validly, repudiated by the Opposite Party. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. 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.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
7. We have heard the Counsel for the Parties, and, have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellant, submitted that the vehicle, in question, which was got insured by the complainant, from the Opposite Party, was a transport vehicle. He further submitted that Dinesh Kaushik, driver of the said vehicle, was not legally authorized, to drive the same, as he was only having a driving licence, for driving a MCW/LMV vehicle (non transport vehicle). He further submitted, that since the driver of the vehicle, was not holding an effective and valid driving licence, for driving the same, there was a breach of the provisions of Motor Vehicles Act, as also the fundamental terms and conditions of the Insurance Policy. He further submitted that, as such, the Opposite Party, legally and validly, repudiated the claim of the complainant, but the District Forum, was wrong, in holding to the contrary. He further submitted that the order of the District Forum, in accepting the complaint, being illegal, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/complainant, submitted that the vehicle, fell within the category of a Light Motor Vehicle and not a transport vehicle. He further submitted that Dinesh Kaushik, Driver thereof, was holding an effective and valid licence, for driving LMV vehicle. He further submitted, that the vehicle, in question, was empty at the time, when it met with an accident, and, as such, the claim of the complainant could not be legally and validly repudiated by the Opposite Party. He further submitted that the District Forum, was right, in accepting the complaint.
10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the Parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, the vehicle in question, fell within the category of a transport vehicle or not. It is evident, from Annexure R-1, copy of the registration certificate of the vehicle, in question that the nature thereof, was mentioned as Medium Goods and the make thereof was Mahindra Maxximo. It was, thus, proved from Annexure R-1, copy of the registration certificate that the vehicle, in question, was a transport vehicle. According to Section 2(21)of the Motor Vehicles Act, 1988, 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. The definition clearly reveals that even a transport vehicle, falls within the definition of LMV vehicle. The transport vehicle may be light transport vehicle or may be a light motor vehicle, but the fact remains that it falls within the category of a transport vehicle. In paragraph number 11 of the impugned order the District Forum, was also right in accepting the submission of the Counsel for the Opposite Party, that the transport vehicle, continues to be a transport vehicle, even if used for personal use.
11. The next question, that arises, for consideration, is, as to whether, Dinesh Kaushik, driver, who was admittedly driving the vehicle, at the time of accident, was holding a valid and effective driving licence, for driving the transport vehicle, or not. Undisputedly, a distinction between an effective licence, granted for transport vehicle, and passenger motor vehicle exists. Section 3 of the Motor Vehicles Act, 1988, which lays down the necessity of driving licence, reads as under:-
(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, which prescribes the form and contents of licences to drive, reads as under:-
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) x x x x x
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description.
12. 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 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 20 years. In the instant case, it is evident from Annexure R-4 i.e. the Certificate of Verification Report of Driving Licence of Dinesh Kaushik, issued by the Registering and Licensing Authority, Chandigarh Administration, Chandigarh, that he (Dinesh Kaushik) was issued licence, for driving MCW/LMV only (non transport vehicle), on 23.02.2007, which was valid upto 20.02.2027. It means that Dinesh Kaushik was issued licence for driving LMV vehicle, for a period of 20 years. From the verification report aforesaid, of the Registering and Licensing Authority, Chandigarh Administration, Chandigarh, it is also evident, that Dinesh Kaushik was not authorized to drive a transport vehicle. On the other hand, it only entitled him to drive a Light Motor Vehicle (LMV). Clauses (14), (21),(28) and (47) of Section 2 of the Motor Vehicles Act, 1988, make it clear, that if the vehicle is a Light Motor Vehicle but falls within the category of a transport vehicle, the driving licence is separately required under Section 3 of the Act. If it is not done, a person holding a licence for driving LMV Non-Transport vehicle, cannot ply a transport vehicle. The licence of the driver was not endorsed, as required, under Section 3 of the Motor Vehicles Act, 1988, for driving a transport/goods carrier vehicle. The District Forum, thus, fell into a grave error, in holding that Dinesh Kaushik, Driver, was legally authorized to drive the vehicle, in question, the nature whereof, was a transport vehicle. The findings of the District Forum, in this regard, being erroneous, are reversed.
13. Reliance was also placed by the Counsel for the appellant, on New India Assurance Co. Ltd. Vs. Prabhu Lal, 2008(1) CPC 239 (SC), Oriental Insurance Co. Ltd. Vs. Angad Kol and Others 2009 ACJ 1411 (SC), in support of his contention, that the driver holding a licence, for driving LMV Non-Transport Vehicle was not legally authorized to drive a transport vehicle. In New India Assurance Co.
Ltd. Vs. Prabhu Lal`s case (supra), the driver was having a licence to ply light Motor Vehicle, whereas, the vehicle was heavy transport vehicle. In these circumstances, it was held by the Apex Court, that the said driver was not legally authorized to drive the vehicle, in question, and the Insurance Company, could not be made liable, on account of damage caused to the same (vehicle). Similar principle of law, was laid down, in Oriental Insurance Co. Ltd`s case (supra). The principle of law, laid down, in the aforesaid cases, is squarely applicable, to the facts of the instant case. It is, therefore, held that Dinesh Kaushik, driver of the vehicle, nature whereof, was a transport vehicle, was not legally authorized to drive the same, as, he was holding, only a licence for driving LMV/MCW. The findings of the District Forum, to the contrary, being erroneous, are reversed.
14. No doubt, the respondent/complainant, placed reliance on National Insurance Company Ltd. Vs. Annappa Irappa Nesaria Alias Nesaragi and Others, (2008) 3 Supreme Court Cases 464 and Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd., (1999)6 SCC 620 in support of his contention that Dinesh Kaushik, driver, was legally authorized to drive the vehicle, in question, especially, when it was empty, at the time of accident. National Insurance Company Ltd. Vs. Annappa Irappa Nesaria Alias Nesaragi related to the validity of a driving licence, to drive LMV before the amendment was carried out, in Rule 2
(e) of the Central Motor Vehicle Rules, 1989. The amendment in the said Rules was operative w.e.f. 28.03.2001. Under these circumstances, the ratio of law, laid down, in that case, was not applicable to the instant case, as the licence, in the present case was issued to the driver on 23.02.2007, after the amendment of 1989 Rules. In Ashok Gangadhar Maratha`s case (supra), no specific principle of law, was laid down, that a holder of licence, for driving LMV, could drive a transport vehicle. In that case, no documents were placed, on record, by the Insurance Company, that infact the vehicle, in question, which was being driven by the driver, who was holding LMV licence, was a transport vehicle. It was, under these circumstances, that the Hon`ble Supreme Court, held that the repudiation of the claim of the complainant, by the Insurance Company was illegal. No help, therefore, could be drawn by the Counsel for the respondent/complainant, from the ratio of law, laid down, in the aforesaid cases. In this view of the matter, it is held that since, in the instant case,the driver of the vehicle was not holding an effective and valid driving licence, for driving the vehicle, in question, there was a breach of provisions of Section 3 of the Motor Vehicle Act and the fundamental terms and conditions of the Insurance Policy. Under these circumstances, the Opposite Party, legally and validly, repudiated the claim of the complainant. There was therefore, no deficiency, in rendering service, on the part of the Opposite Party, by legally and validly, repudiating the claim of the complainant.
On the other hand, the District Forum, was wrong, in holding to the contrary.
15. No other point, was urged, by the Counsel for the Parties.
16. In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
17. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
18. Certified copies of this order, be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion Pronounced.
01.03.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg