DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: BHADRAK
Dated the 25th day of February, 2021
C.D Case No. 01 of 2020
1. Shri Basanta Kumar Mallick, Presiding Member
2. Afsara Begum, Member
Sk. Ahshan Aijim, aged 38 years,
s/o: - Mohammad Safi
Vill- Haladiha , By- Pass,
P.S: Puruna Bazar, Dist: Bhadrak
……………………. Complainant
(Versus)
Branch Manager, New India Assurance Company Ltd.
Mohatab Square, Upstair of Dena Bank,
Bhadrak ……………………..Opp.Party
Counsel For Complainant : Binaya Kumar Nayak, Adv & Others
Counsel For the OP : Mr. Arun Kumar Chand, Adv
Date of hearing : 24.02.2021
Date of order : 25.02.2021
BASANTA KUMAR MALLICK, PRESIDING MEMBER
This dispute arises out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.P.
The facts of the case as narrated in the complaint are to the effect that the complainant Sk. Ahesan Ajim is the owner of a Tata Ace Magic vehicle of bearing Regd. No: OR-22D-8633. He has a valid LMV Driving License to run the vehicle with grosses weight not to be Rs. 7500 Kilograms. The weight of the present petitioner’s vehicle is less than 7500 kilograms.
That, on 19.01 2019 the said vehicle met an accident at charitaraf village chaka at about 3.20 A.M , dashed with a bridge as a result the said vehicle was fully damaged. At that time the complaint has a valid insurance policy within the period 01-11-2018 to 31-10-2019 which is insured with the New India Asssurance Co. Ltd. Bhadrak Branch. Due to severe injury condition of the complainant, he was shifted to Bhadrak Dist. Headquarter Medical by the help of local genetics and then shifted to East Point Medical , Cuttact and was under treatment there in the medical in Cuttack for a long period . on dated 22.01.2019 the brother f the complainant Sk. Irsad Azjim lodged a FIR before the IIC, Tihidi P.S. Tihidi to investigate into the matter and on the said FIR by Sk. Irsad Azim,( the brother of the complaint) the IIC , Tihidi P.S registered a case and directed one SI named as BB Swain to take up investigation. The IO sri swan visited the spot for investigation, examined the complainant and other witness to ascertain & proved the occurrence & after inquiry the said IO issued injury requisition in respect of the complainant Sk. Alam Azim to TiHidi CHC for opinion and also to the Director East point Hospital Cuttack . The Medical Officer Tihidi opined that the injury is grievous in nature. The I O also seized the accident vehicle bearing Regd. No OR 22D 8633 from the spot and re-examined the complainant and other witnesses. The Seizure list & documents of the vehicle left in Zima to Sk. Ahasan Alim. The accused Sk. Ahesan Azim was arrested on 25.06.2019 and released on bail vide CS No. 129 dt.17.07.2019. As the accident vehicle was insured by the Insurance company the New India assurance Co. Ltd, Bhadrak ,the IIC Tihidi advised the complainant to meet the Branch Manager of the said New India assurance Company, Bhadrak for settlement of the claim . Accordingly after due investigation by the Tihidi Police the charge sheet for the same case with all necessary documents were submitted before the Manager, New India Assurance Co. Ltd, Bhadrak Branch for claim assistance to the petitioner for himself along with the accident vehicle. That the accident spot was also enquired by the MVI and one JE . A joint spot inquiry report is also submitted in detailed before the DIG CID, CB Odisha Cuttack . On 02.04.2019 the complainant met the Branch Manager , the New India assurance Co. Ltd & appraised the matter and requested to settle the damage claim for the said vehicle and also for himself. The Manager assured the complainant to settle the claim. There after the petitioner on several occasions knocked the door of the O.P for settlement of the insurance claim for his accident vehicle and for himself but O.P did not pay any heed to his grievances. On 15.10.2019 O.P issued a repudiation letter vide Ref NO.55080/claims/2019/0558 dtd. 15.10.2019 with plea that the accident vehicle is a transport vehicle & as per M.V Act-1988 , the driver has to possess Transport licence to drive such vehicle. Hence complainant has filed this complaint seeking direction of the commission to O.P to disburse the accidental benefit of the vehicle and medical expense of the petitioner amounting to Rs.5,48,337/- .
O.P. resisted the Claim and contested the case that the Complainant is not a consumer within the meaning of C.P Act. The holder of a LMV Non-Transport Driving Lincence can not drive on transport vehicle and in this backdrop the repudiation of the claim cant not be termed as deficiency of service. The F.I.R discloses that the petitioner was not driving the vehicle and as such allegation of the complaint petition completely untrue and devoid of merit. The police paper reveals that there are suppression of material facts. As owner of the vehicle ought to be held responsible for negligence driving of the driver who is not competent to drive the vehicle . Hence he prays to dismiss of the case with cost
. Having heard the Ld.Counsels for the parties and upon perusal of materials available on record the admitted fact as we noticed is that the complainant Sk. Ahesan Ajim is the owner of a Tata Ace Magic vehicle of bearing Regd. No: OR-22D-8633. He has a valid LMV Driving License to run the vehicle with gross weight not to be exceeding Rs. 7500 Kilograms. The weight of the present petitioner’s vehicle is less than 7500 kilograms. On 19.01 2019 the said vehicle met an accident at charitaraf village chaka at about 3.20 A.M , dashed with a bridge as a result the said vehicle was fully damaged. At that time the complaint has a valid insurance policy within the period 01-11-2018 to 31-10-2019 which is insured with the New India Asssurance Co. Ltd. Bhadrak Branch. In this contest the complainant is a consumer . More vital issue of repudiation of the claim on the ground that the accident vehicle is a transport vehicle & as per M.V Act-1988 the driver has to possess Transport licence to drive such vehicle is permissible or not .
In an Advisory by the Joint Secretary(T) , Govt. Of India, Ministry of Road and Transport and Highways dated 16th April 2018 addressed to the Principal Secretaries ( Transport)/ Secretaries( Transport)/Transport Commission of all States / Union Territory Administration has clearly mentioned that, the question whether a holder of a licenser drive a Light Motor Vehicle is required to get the license endorsed for driving a transport vehicle of the light motor vehicle class was recently considered by the Hon’ble Supreme Court in Civil Appeal No. 5826 of 2011. Mukund Dewangan V/s Oriental Insurance Company Limited .
In the judgment dated 03-07-2017, a three judge bench of the Hon’ble Supreme courtdecided-
- “ Light Motor Vehicle as defined in section 2 (21) of the Act would include a transport vehicle as per the weight prescribed in section 2 ( 21) read with section 2 ( 15) and 2 ( 48) , such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amended Act. No.54/1994.
- A transport vehicle and omnibus , the gross vehicle weight of either of which does not exceed 7500 kg, would be a light motor vehicle and also motor car or tractor or a road roller, unladen weight of which does not exceed 7500 kg. and holder of a driving license to drive class of light motor vehicle as provided in section 10 (2) ( d) is competent to drive transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or road roller the unladen weight of which does not exceed 7500 kg.. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10 (2) (d) continues to be valid after Amendment Act 54/1994 dated28-3-2001 in the form.
- The effect of the amendment made by the virtue of Act No. 54/1994 w.e.f 14-11-1994 while substituting clauses (e) to (h) of section 10 (2) which contained “ medium goods vehicle” in section10 ( 2) (e), medium Passenger motor vehicle in section10 (2) (f), heavy goods vehicle in section10 (2) (g) and heavy passenger motor vehicle in section 10 (2) (h) with expression “ transport vehicle” as substituted in section 10 (2)( e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle from the purview of section10 (2) (d) and section 2 ( 41) of the Act i.e light motor vehicle.
(d) The effect of amendment of Form 4 by insertion of “ Transport vehicle” is related only to the categories’ which were substituted in thee year 1994 and the procedure to obtain driving licence from transport vehicle of class of light motor vehicle continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle and if a driver is holding licence to drive light motor vehicle , he can drive transport vehicle of such class without any endorsement to that effect.
- In view of the legal position as settled by the Hon’ble Supreme Court in the above judgment, the requirement under the Motor Vehicle act.1988 to obtain the transport license would arise in case of medium / heavy goods and passenger vehicles only. No other vehicle will require any separate endorsement, even if they are used for commercial purposes. The exemption from the requirement to obtain the endorsements for commercial vehicles would apply to the following vehicles.
- Motorcycle without gear
- Motor cycle with gear
- Light Motor vehicles ( goods/ Passengers)
- E- rickshaw/ e- cart.
In our view, the said decisions are clearly applicable to the facts and circumstances of the case in hand. To succeed on an insurance claim in respect of loss / damage of an insured motor vehicle it is obligatory on the part of the insured to establish on record that it had not committed any breach of one or more terms and conditions of the policy or any other law enforced at the relevant time. Instead of repudiating the claim on the above ground O.P has not produced any document in respect of violation of terms and condition of the policy.
Despite the said findings, we think to relay the judgment of the Supreme Court in the case of Amalendu Sahu vs Oriental Insurance Co.Ltd held that the insurance company was not justified in rejecting the claim altogether and was required to settle the claim on non standard basis by paying a sum equivalent to 75% of the loss suffered by the complainant.
Under above facts and circumstances the O.P is found negligent in rendering service to his valued consumer . The repudiation of claim by the O.P on the ground that the driver has to possess Transport licence to drive such vehicle is not sustainable.
. Hence it is ordered;
ORDER
In the result, the complaint be and the same is allowed on contest against the O.P with cost and compensation. The said O.P is directed to pay 75% of the claim amount as raised in the claim of damage of the vehicle Rs 1,06,185/- & , personal injury sustained Rs.2,00,252/- on non standard basis within 30 days of receipt of this order , failing which 7% interest P.A shall be charged from the date of repudiation of claim . In addition to that O.P is directed to pay Rs. 10,000/- towards cost & compensation for causing mental agony & harassment.
This order is pronounced in the open Forum on this day of 25th February, 2021 under my hand and seal of the Forum.
