DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 154 of 10-07-2009<br /> Decided on : 10-11-2009 <br /> <br /> Labh Singh S/o Pirthi Singh R/o H. No. 126 Street No. 3, Bank Colony, Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.Cholmandalam MS General Insurance Co. 132/3,1st Floor, K L Plaza, Rani Jhansi Road, Civil Lines, Opp. DIG Residence, Ludhiana through its General Manager.<br /> 2.Cholmandlalm, DBS Finance Ltd., near Clock Tower Building, Bibiwala Road, Bathinda.<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. George, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the Complainant : Sh. Sandeep Singh Jeeda, counsel for the complainant.<br /> For the Opposite parties : Sh. Vinod Garg, counsel for opposite party No. 1<br /> Opposite party No. 2 exparte. <br /> <br /> O R D E R<br /> <br /> GEORGE, PRESIDENT<br /> <br /> 1. The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against the opposite parties with the allegations that he is owner of one General Motor Tavera bearing registration No. PB-03R-9139. The said vehicle is financed by opposite party No. 2 and opposite party No. 2 got it insured from opposite party No. 1 vide Cover Note 7396898 for the period from 26-12-2008 to 25-12-2009 and premium amount of Rs. 20,979/- was charged from the complainant. The said vehicle met with an accident on 28-01-2009 and was damaged. The complainant gave intimation of the accident to the opposite parties and also submitted the claim alongwith bills for repair and other expenses amounting to Rs. 1,10,000/-. The opposite parties declined his claim on the ground that driver of the said vehicle was not holding valid driving licence at the time of accident whereas Chamkaur Singh, who was driving the vehicle at the time of accident is having valid driving licence. The complainant submitted that he approached the opposite parties many a times and requested them to pay his claim but they refused to make the payment on false ground. It is settled provision of law that the expiry of licence is not violation of terms and conditions of policy if it got renewed. He seeks directions from this Forum to the opposite parties to release his claim amount alongwith interest @ 24% P.A. from the due date till realisation and to pay him compensation for mental tension and harassment.<br /> 2. The opposite party filed No. 1 filed reply taking legal objections that complaint has been filed only to injure the goodwill and reputation of replying opposite party; the complainant has concealed material facts and documents; intricate questions of law and facts are involved which require voluminous documents and evidence for determination which is not possible in the summary procedure under the 'Act'; complainant is not consumer; he has no locus standi or cause of action; complaint is not maintainable and there is no deficiency in service on the part of replying opposite party.<br /> On merits, It is admitted that the vehicle of the complainant was insured with the replying opposite party vide Insurance Policy No. 3362/00340552/000/00 for the period from 26-12-2008 to 25-12-2009. The vehicle met an accident on 28-01-2008 and opposite party No. 1 deputed surveyor Mr. Dinesh Kumar Goyal to assess the loss who conducted the survey of the vehicle on 31-01-2009 at M/s. Asian Motors, Bathinda and assessed the loss to the tune of Rs. 40,609/- vide his survey report dated 18-02-2009. It has been specifically denied that complainant is entitled to claim Rs. 1,10,000/-. It is submitted that in the claim form the complainant had submitted and mentioned about the driving licence No. 2624 with the date of issue 20-06-2005 to 09-06-2009 from Bathinda in the name of Chamkaur Singh alleged driver at the material time of accident i.e. 28-01-2009. The opposite party No. 1 got the said driving licence verified from the office of the Licensing authority through Sh. Dinesh Kumar Goyal, Surveyor, which revealed that the same was valid only from 10-06-2005 to 09-06-2008. Since the driver of the vehicle in question was not holding valid driving licence on the date of accident i.e. 28-01-2009 and there was violation of terms and conditions of the policy and also the provisions of Motor Vehicle Act, 1988, the claim of the complainant was rightly repudiated vide letter dated 31-03-2009.<br /> 3. Notice of the complaint was sent to opposite party No. 2 through registered post but despite service, none appeared on its behalf and as such, exparte proceedings were taken against it.<br /> 4. In support of his averments contained in the complaint, the complainant has produced in evidence his two affidavits Ex. C-1 & Ex. C-3, affidavit of Chamkaur Singh Ex. C-2, photocopy of R.C. of vehicle Ex. C-4, photocopy of Insurance Cover note Ex. C-5, photocopy of Driving Licence of Chamkaur Singh Ex. C-6, photocopy of letter dated dated 31-03-09 Ex. C-7 and photocopy of compromise letter Ex. C-8.<br /> 5. To controvert the evidence of the complainant, the opposite party No. 1 produced in evidence affidavit of Rakhi Anand, Authorised Signatory/Manager (Legal) Ex. R-10, affidavit of Dinesh Kumar Goyal, Surveyor Ex. R-9, photocopy of Schedule Motor Policy Ex. R-1, photocopy of premium computation table Ex. R-2, photocopy of Motor Insurance Claim Form Ex. R-3, photocopy of DDR Ex. R-4, photocopy of Motor Survey Report Ex. R-5, photocopy of motor survey report assessment sheet Ex. R-6, photocopies of letters dated 27-03-09 and 26-03-09 Ex. R-7 and Ex. R-8 respectively.<br /> 6. After hearing the learned counsel for the parties and going through the entire record of the case, it appears that the parties have no dispute with regard to the Insurance of the vehicle which was valid from 26-12-2008 to 25-12-2009. There is also no dispute that the said vehicle met with an accident on 28-01-2009 and was damaged. The complainant gave intimation of the accident and also submitted bills for repairs and other expenses. The opposite parties have repudiated the claim of the complainant vide their letter dated 31-03-2009 Ex. C-7 on the ground that the driver of the vehicle at the time when it met with an accident on 28-01-2009 was not holding an effective and valid driving licence and for that reason, the complainant has committed a serious breach of the driver's clause contained in the Insurance policy apart from violation of the provisions of the Motor Vehicle's Act.<br /> 7. After going through the entire record of the case, it reveals that Sh. Chamkaur Singh was driving the vehicle at the time of accident. He filed his affidavit Ex. C-2 wherein he has deposed that unfortunately the vehicle bearing registration No. PB-03R-9139 met with an accident and it was damaged. He is a qualified driver and never disqualified for driving by any authority nor his licence has been ceased till date. He is having a valid driving licence for driving Light Motor vehicles issued by Licensing Authority, Bathinda. The complainant has also brought on record copy of licence Ex. C-6 of his driver Chamkaur Singh which reveals that it was renewed and shown to be valid from 31-03-2009 to 30-03-2012 whereas the accident admittedly has occurred on 28-01-2009. The complainant has not brought on record the driving licence of his driver Chamkaur Singh valid as on the date of accident i.e. 28-01-2009. As to why the previous licence has been withheld is not properly explained by Chamkaur Singh Driver in his affidavit Ex. C-2. <br /> 8. The record reveals that Sh. Dinesh Kumar Goyal, Surveyor conducted investigation after visiting office of Licensing Authority, Bathinda and he got report from the Licensing Authority Ex. R-8. According to this report, the licence of Chamkaur Singh bearing No. 2624/NDL was issued on 10-06-2005 and it was valid upto 09-06-2008. On the basis of this report, Sh. Dinesh Kumar Goyal, Surveyor has filed his affidavit Ex. R-9 wherein he has specifically stated that he got verified driving licence of Chamkaur Singh from Licensing Authority, Bathinda by submitting application dated 26-03-2009, whereby it was confirmed that the driving licence No. 2624/NDL was valid from 10-06-2005 to 09-06-2008 only for L.T.V. The copy of the licence of Chamkaur Singh which is placed on record by the complainant as Ex. C-6 reveals that driving licence of Chamkaur Singh was valid from 31-03-2009 to 30-03-2012 meaning thereby that Chamkaur Singh had no valid driving licence after 09-06-2008 nor he applied for the renewal or for issuance of a new driving licence from Licensing authority, Bathinda. Admittedly the accident took place on 28-01-2008 i.e. after about seven months of expiry date of validity of driving licence of Chamkaur Singh and as such, definitely Chamkaur Singh driver of the complainant was not holding an effective and valid driving licence on the date of accident.<br /> 9. The Hon'ble Supreme Court while dealing with a similar situation in the case titled Ram Babu Tiwari Vs. United India Insurance Ltd., and others (2008) 8 S.C.C. 165 referred the judgements in the context of Section 15 of Motor Vehicles Act which reads as under :-<br /> “Section 15 – Renewal of driving licences – (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry.<br /> Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal.<br /> Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of Section 8, and the provisions of sub-section (4) of Section 8, shall so far as may be apply in relation to every such case as they apply in relation to a learner's licence.<br /> (2) An application for the renewal of a driving licence shall be made in such form and accompanied by such documents as may be prescribed by the Central Government.<br /> (3) Where an application for the renewal of a driving licence is made previous to, or not more than thirty days after the date of its expiry, the fee payable for such renewal shall be such as may be prescribed by the Central Government in this behalf.<br /> (4) Where an application for the renewal of a driving licence is made more than thirty days after the date of its expiry, the fee payable for such amount as may be prescribed by the Central Government. <br /> Provided that the fee rendered to in sub-section (3) may be accepted by the licensing authority in respect of an application for the renewal of a driving licence made under this sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from applying within the time specified in sub-section (3).<br /> Provided further that if the application is made more than five years after the driving licence has ceased to be effective, the licensing authority may refuse to renew the driving licence, unless the applicant undergoes and posses to its satisfaction the test of competence to drive referred to in sub-section (3) of Section 9.<br /> (5) Where the application for renewal has been rejected the fee paid shall be refunded to such extent and in such manner as may be prescribed by the Central Government.<br /> (6) Where the authority renewing the driving licence is not the authority which issued the driving licence it shall intimate the fact of renewal to the authority which issued the driving licence.”<br /> The Hon'ble Supreme Court further observed in Ram Babu Tiwari's case (supra) that :-<br /> “It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period of 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured. <br /> 10. The Hon'ble Supreme Court further considered the various provisions of Motor Vehicles Act in case titled National Insurance Co. Ltd., Vs. Swaran Singh 2004(3) SCC. 297 and has held that :-<br /> “45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor.<br /> Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the date of its expiry.<br /> 46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry.<br /> In Kusum Rai's case (supra) it was held as follows :<br /> 14. This court in Swaran Singh 2004(3) S.C.C. 297 clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-a-vis the driver being not possessed for a valid licence was considered in Swaran Singh stating :( SCC pp. 336-37 para 89)<br /> 89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one more more of them are (a0 motorcycle without gear (b) motorcycle with gear (c) invalid carriage (d) light motor vehicle (e) transport vehicle (f) road roller and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are 'goods carriage', heavy goods vehicle, heavy passenger motor vehicle, invalid carriage, light motor vehicle, maxi cab, medium goods vehicle, medium passenger motor vehicle, motor cab, motor cycle, omnibus, private service vehicle, semi-trailer, tourist vehicle, tractor, trailer and transport vehicle. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for 'motorcycle without gear' (sic may be driving a vehicle) for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxi-cab', 'motor-cab' or 'omnibus' for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.”<br /> In the case titled Ishwar Chandra Vs. Oriental Insurance Co. 2007(10)S.C.C. 650, decisions referred to above were considered by the Hon'ble Supreme Court and the order of the Hon'ble High Court in the above referred cases was repelled and it was held that :-<br /> “The three decisions referred to by the High Court were considered and it was held that the Insurance Company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. The impugned order of the High Court is set aside.” <br /> 11. The learned counsel for the complainant vehementally argued that the Insurance Company is not justified in repudiating the claim of the complainant solely on the ground that the driver did not possess a valid licence at the time of accident in question and in support of his arguments he relied upon case titled Jitendra Kumar Vs. Oriental Insurance Co. Ltd., and another (2002) 6 SCC 420 and case titled The Oriental Insurance Co. Ltd., Vs. Nirarudeen & Others MFA No. 288 of 2003(A) decided on 6th February, 2008. <br /> 12. We have carefully gone through both the judgements referred to by the learned counsel for the complainant. The facts of both the cases are totally different from the facts of the present case. In both the cases, the accident occurred due to the reasons not involving the skill of the driver because the accident took place due to fire in the vehicle in question which caused damage to the vehicle due to mechanical failure or not due to any fault, act or omission of the driver. Under peculiar facts and circumstances, where skill of the driver is not responsible for accident/damage, definitely not holding effective and valid licence does not matter but in the facts and circumstances of the case in hand, situation was totally different. The ratio of two cases referred to by the learned counsel for the complainant is not applicable in the facts and circumstances in the present case.<br /> 13. Thus, keeping in view the facts, circumstances and the evidence brought on record by the parties, we are of the considered view that the complainant has failed to prove deficiency in service on the part of the opposite parties by leading cogent and convincing evidence. Hence, the complaint fails and is hereby dismissed leaving the parties to bear their own costs.<br /> <br /> <br /> <br /> The copy of this order be sent to the parties concerned free of cost and the file be indexed and consigned.<br /> Pronounced :<br /> 10-11-2009 <br /> (George)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> (Amarjeet Paul) Member <br />