Before the District Consumer Disputes Redressal Forum, Mandi, H.P.
Complaint Case No.169/2009
Date of Institution 30-6-2009
Date of Decision 28-12-2009
Bimla Devi wife of Sh. Paras Ram resident of village Ranabag, Post Office Showad, Tehsil Anni, District Kullu, H.P.
…Complainant
Vs
The Oriental Insurance Company Ltd through its Divisional Manager , Vidya Bhawan Hospital Road Mandi District Mandi, H.P.
…..Opposite party
For the complainant Sh. M.C.Sharma , ,Advocate
For the opposite party Sh. Sunder Goal , Advocate
Complaint under Section 12 of the
Consumer Protection Act, 1986.
ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is registered owner of vehicle No.HP-01-K-7527 ( Bajaj Tempo Trax) which was insured with the opposite party with effect from 30-5-2008 to 29-5-2009 During the currency of the insurance policy, said vehicle met with an accident on 31-10-2008 at Balh Khaner in Tehsil Anni, District Kullu, H.P due to some mechanical defect . The vehicle was being driven by Sh. Bhagat Ram who was holding valid and effective driving license and complainant had checked the same while employing him as driver. That on 31-10-2008 the vehicle was hired for transportation of marriage party and 10 persons were sitting in it .The vehicle was completely damaged and could not be repaired. The matter was immediately reported to the opposite party and all the relevant documents were supplied but vide letter dated 10-2-2009 the opposite party has repudiated the claim wrongly and illegally which act on the part of the opposite party amounts to deficiency in service . With these averments , the complainant had sought a direction to the opposite party to pay Rs.4,75,000/- i.e. the assured sum of the vehicle.
2. The opposite party had filed reply wherein it has been pleaded in preliminary objections that the complaint is no complaint and the dispute referred is no dispute, that the claim of the complainant is not payable as the vehicle at the time of the accident was being plied as taxi and was being driven by the person whose driving license was not endorsed to drive taxi as per the mandate of section 3 of the Motor Vehicles Act , therefore, this being a breach of the driving clause of terms and conditions of the insurance policy, claim was rightly repudiated , that the complainant has not approached the Forum with clean hands as he manipulated the First Information report with regard to the passengers being carried at the time of the accident which were more than the number permitted in the registration certificate as such over loading has also attributed to the accident , that the dispute had been put at rest by repudiating the claim . On merits , the opposite party averred that the driver was not authorized to drive the “ transport vehicle” It has further been submitted that the loss assessed was at Rs. 2,44,000/ on total loss basis but the indemnity was subject to terms and conditions of the insurance policy. It has further been contended that there is no deficiency in service on the part of the opposite party. The opposite party prayed for dismissal of the complaint.
3. We have heard the ld. counsel for the parties and have carefully gone through the record. Be it stated that the insurance of the vehicle and its accident is not in dispute. As per the registration certificate Annexure O-IV produced in evidence by the opposite party , the vehicle in question has been registered as LTV ( Light Transport Vehicle) . According to the complainant, the vehicle was being driven by his driver Sh Bhagat Ram and photocopy of his driving license has been annexed by the opposite party as Annexure O-II. The opposite party had repudiated the claim of the complainant on the ground that the aforesaid driving license possessed by the driver was not a valid driving license since the vehicle in question is a transport vehicle and a specific endorsement is necessary on the driving license for driving a transport vehicle.
4 Now the question which arises for consideration by this Forum is as to whether Sh. Bhagat Ram was holding a valid and effective driving license at the time of the accident. The opposite party has placed on record verification report Annexure O-III with respect to the driving license of Sh. Bhagat Ram driver issued by Registering and Licensing Authority Anni ,District Kullu, H.P. wherein it has been mentioned that “ driving license No.785/Anni issued on 21-4-2003 to drive LMV only by this office in respect of Sh. Bhagat Ram son of Sh.Dhani Ram village Kandhagai Tehsil Anni, District Kullu. The above driving license was renewed vide R.N. 68/Anni dated 25-7-2006 up to 19-4-2009 as per record of this office ”. The photocopy of driving license of Sh. Bhagat Ram Annexure O-II shows that it has been mentioned therein that driving license is valid for LMV only and LTV has also been added . The words LTV appears to have been added in a different hand writing with different ink . Therefore , in these circumstances it was incumbent upon the complainant to have produced the original driving license before this forum to show that the license of Sh. Bhagat Ram was also valid for LTV, but for the reasons best known to him , he had withheld the original driving license. Therefore , an adverse inference has to be drawn against the complainant for withholding the original driving license . The photocopy of driving license Annexure O-II placed on record cannot be read in evidence in the absence of original. From the verification report of Registering sand Licensing Authority Anni, Annexure O-III it is apparent that the Sh. Bhagat Ram driver of the complainant was possessing driving license to drive Light motor vehicle ( non transport ) only.
5 As per the registration certificate, the vehicle in question is a “ light transport vehicle ” . Section 3 of the Motor Vehicles Act,1988 , provides that a specific endorsement is necessary on the driving license for driving a transport vehicle. However, in view of verification report Annexure O-III there is no such endorsement on the driving license of Sh. Bhagat Ram that he was authorized to drive transport vehicle at the time of the accident . In a case titled as New India Assurance Co. vs Prabhu LaL AIR 2008 Supreme Court -614 = 2008(1)CPC-239 S.C , the driver was driving Tata -709 vehicle which was a transport vehicle while he was holding driving license for light motor vehicle ( LMV) without having an endorsement of transport vehicle under section 3 of the Motor vehicle Act. In these circumstances ,the Hon’ble Apex court held that the driver was not competent to drive “transport vehicle ” in the absence of valid driving license in view of sections 2,10,15 and 27 of the Motor Vehicles Act 1988 . Para No.29 and 33 of the aforesaid judgment reads as under:-
“ 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.
………………………………………………………..
33 In the present case all the facts were before the District Forum. It considered the assertion of the complainant and defence of the insurance company in the light of the relevant documentary evidence and held that it was established that the vehicle which met with an accident was a transport vehicle. Ram Narain was having a licence to drive Light Motor Vehicle only and there was no endorsement as required by Section 3 of the Act read with Rule 16 of the Rules and Form No.6. In view of necessary documents on record , the insurance company was right in submitting that Ashoke Gangadhar does not apply to the case on hand and the insurance company was not liable.”
6 In a recent judgment the Hon’ble Apex court in the case titled Oriental Insurance Co. Ltd vs Angad Kol and others 2009(2)418 Recent Apex Judgments , a goods carriage vehicle met with an accident causing death of a lady and its driver was possessing driving license to ply light motor vehicle only. The Hon’ble Apex court had held that the driver did not held a valid and effective driving license for driving a goods vehicle Relevant portion of para No.10 of the order is reproduced herein below:-
“The distinction between a “light motor vehicle” and
“transport vehicle” is therefore evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same a distinct licenses is required to be obtained . The distinction between a “transport vehicle “ and passenger vehicle can also be noticed from section 14 of the Act. Sub section (2) of Section 14 provides for duration of a period of three years in case of an effective license to drive a transport vehicle where as in case of any other license , it may remain effective for a period of 20 years .
In the present case also the vehicle is admittedly a light transport vehicle and Sh. Bhagat Ram who was on the wheel of the vehicle at the time of accident was only authorized to drive light motor vehicle( non transport) as per the verification report of Registering and Licensing Authority, Anni, District Kullu adduced in evidence by the opposite parties as Annexure O-III and in the absence of specific endorsement on the driving license to drive “ transport vehicle”, it cannot be said that he was having a valid and effective driving license at the time of accident and we hold that the repudiation of the claim of the complainant by the opposite party is genuine and it does not amount to deficiency in service .
7 In view of the legal position and in view of what has been discussed hereinabove, the complaint fails and the same is hereby dismissed with no order as to costs
8 Copy of this order be supplied to the parties free of cost as per Rules.
9 File, after due completion be consigned to the Record Room.
Announced
28-12-2009 (Sushil Kukreja ) President
DKM
( Lal Singh ) ( Alkananda) Members
Tags: Oriental Insurance