BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO-04/2011
Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy, Member (W).
Pabitra Kumar Swain,
S/O-Khatu Swain,
R/O-Baijamunda,Rathi Udyog Ltd. Road,
P.s-Burla, Dist- Sambalpur. …..Complainant
Vrs.
IFFCO-TOKIO, General Insurance Company Ltd,
1st & 2nd Floor, HIG-22,BDA Colony,
Jayadev Vuhar,Bhubaneswar-751013. …….O.P.
Counsels:-
- For the Complainant:- Sri S.N.Panda, Advocate & Associates.
- For the O.P :- Sri B.K. Purohit, Advocate & Associates.
DATE OF HEARING : 15.03.2021, DATE OF ORDER : 12.04.2021
SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant is the registered owner of Mahindra Tractor bearing Regd No- OR-15-M-4068 and a Trailer No- OR-15-M-4069. The Tractor & Trailer were Insured with the O.P vide policy no-70167906 dtd. 24.07.2009 covering a period from 15.07.2009 to 14.07.2010. The Tractor met with an accident on dtd. 20.11.2009 near Mahanadi Petrol Pump, Godbhanga as one pick up van bearing registration no-OR-14-N-2238 came and dashed against the said Tractor for which the Tractor got severely damaged. The driver of the Tractor reported the matter in Burla P.S and a case was registered vide P.S Case No-236/09 dtd. 20.11.2009. The matter was informed to the O.P accordingly. As per the instruction of the O.P, the said Tractor was shifted to the Authorised workshop of the Manufacturer, named Sharma Motors at Bargarh. The claim form and estimate were submitted to the O.P for settlement of claim. After repair of the Tractor the Complainant submitted the bills amounting to Rs.2,80,632/- even though the estimate cost was Rs. 2,80,395/- which prepared in presence of the Surveyor of the O.P. The Complainant has submitted all vehicular documents accompanied with bills and cash memo in support of the repair vide claim no-H2/311/6059. The O.P repudiated the claim and informed the Complainant vide letter dtd.15.10.2010 for the reason that the Tractor and Trailer has been registered under Commercial category and the driver was possessing a Driving License for Non- Transport Vehicle. The Complainant denied to have registered the Tractor with Commercial Category but it was claimed to be registered with Agricultural class. This was mentioned in the Insurance certificate issued by ICICI Lombard GCI Ltd. As the claim was not settled the payment in the garage was not made by the Complainant for which he became unable to ply the Tractor and Trailer on road. Again the Complainant was burdened with unwarranted interest towards financier.
As per the O.P he has issued a Commercial Package Policy of Insurance to the Complainant vide no-71167906 in favour of Pabitra Kumar Swain. During the currency of the policy the Tractor met with an accident on dtd. 20.11.2009. The vehicle was taken to Sharma Motors Bargarh for repair. The O.P engaged one Licensed Surveyor and loss assessor to conduct Survey who after conducting survey assessed the loss at Rs. 1,347,03 and submitted the report to the O.P on dtd.21.06.2010 deducting salvage and policy excess. Thereafter the O.P verified the D.L of the driver Rajendra Mirdha who was holding a licence bearing No- 1520080016705 valid from 23.06.2008 to 22.06.2209 and found that he was issued the DL to drive non transport light motor vehicle /light motor vehicle tractor non transport. As the insured vehicle is a commercial vehicle as per the registration certificate as well as the policy of insurance, the insured has violated the terms and condition of the policy. Hence the O.P repudiated the claim.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
- Whether the O.Ps has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a new HMT Tractor and Trailer and got it insured with the O.P on payment premium as consideration amount. According to the Section -21 of the M.V act- "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 to 7,500 kilograms. In the present case the Unladen weight of the Tractor is 2100 kgs. Again from the Insurance copy issued by ICICI Lombard on dtd. 15.07.2008 it is seen that the vehicle sub class was written as “AGRICULTURAL TRACTOR” but arbitrarily is it written as Commercial vehicle in the Policy certificate issued by the O.P in the event of renewal of policy. Further the insurer alleged that the appellant had committed breach of the terms of the insurance policy and had violated the provisions of the Act by entrusting a "Transport Vehicle" to a person who did not hold a valid license and the O.P/insurer was, thus, not liable to indemnify Complainant appellant. Under the policy firstly light motor vehicle meant the gross weight of which did not exceed 7,500 kilograms and secondly against the column "driver" the policy stated: "Drivers clause:- Persons or classes of persons entitled to drive:- any person including the insured. Provided that a person driving holding an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that “if a person holding an effective Learner's License may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989." Now the vehicle in the present case weighed 2100 kilograms and the driver had the driving license to drive a Light Motor Vehicle. It is itself the case of the O.P Insurer that in the case of a light motor vehicle which is a non-transport vehicle, there was no statutory requirement to have specific authorisation on the licence of the driver under Form 6 under the Rules. It has, therefore, to be held that Rajendra Mirdha was holding effective valid license on the date of accident to drive light motor vehicle. In the case of “Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., 1999 6 SCC 620, S. Iyyapan v. United India Insurance Co. Ltd. and Anr., 2013 7 SCC 62, Nagashetty v. United India Insurance Co. Ltd. & Ors., 2001 8 SCC 56”, the view taken by this Court was that when a driver is holding a license to drive 'light motor vehicle', he is competent to drive a 'transport vehicle' of that category without specific endorsement to drive the transport vehicle. The surveyor and loss assessor after final inspection has submitted a report assessing the loss to Rs.1,34,703 after deducting depreciation, salvage and amount towards policy excess. But it is seen that the Complainant has got the Tractor repaired from SHARMA MOTORS who is the the Authorised Service station of HMT Tractors and the bills issued are genuine. The judgment of Hon’ble Supreme Court reported in New India Assurance Company Limited vrs. Pardeep Kumar () is applicable to the facts of the present case, wherein it has been laid down that Surveyors report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. So from the above the O.P have committed deficiency in service as per the Consumer Protection Act-2019 and we order as under:-
ORDER
That the Complaint petition is allowed. The O.P is directed to pay Rs.2,80,632/- to the Complainant towards the repairing charges of the accident Tractor OR-15-M-4068 along with interest @ of 5% p.a from the date of filing of this case dtd. 13.01.2011. Further the O.P is directed to pay an amount of Rs.10,000/-(Rupees Ten Thousand) by way of compensation to the Complainant for causing him mental, physical and financial loss and agony and Rs. 5,000/-(Rupees Five Thousand) as litigation costs. This amount shall be paid by the OP to the Complainant within a period of one month from the date of receipt of a certified copy of this order, failing which the OP shall pay interest @ 9% per annum on this amount from the date of order till its realisation."
Order pronounced in the open Court today i.e, on 12th day of April 2021 under my hand and seal of this Commission.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
-Sd/- -Sd/-
MEMBER(W) PRESIDENT
Dictated and Corrected
by me.
-Sd/-
PRESIDENT
