JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

IA/18492/2018 (For c/delay)

          This is an application seeking condonation of delay in institution of this appeal.  Heard.  For the reasons stated in the application, the delay is condoned subject to payment of Rs.10,000/- as cost to the complainant.  The application stands disposed of.

FA/1788/2018

          The complainant/respondent obtained an insurance policy from the appellant company for the period from 08.11.2014 to 07.11.2015 in respect of a JCB machine which was registered as a vehicle, for a sum insured of Rs.24 lacs.  The said JCB vehicle caught fire, during the subsistence of the insurance policy on 04.12.2014.  A surveyor was appointed by the appellant to inspect the vehicle and assess the loss to the complainant on account of damage to the JCB vehicle.  Vide his final report dated 12.03.2015, the surveyor assessed the loss to the complainant on account of damage to the JCB vehicle at Rs.9,98,064/-.  Since the claim was not paid, the complainant approached the concerned State Commission by way of a Consumer Complaint. 

2.      The complaint was resisted by the appellant company pleading therein that the complainant did not possess a proper driving license since he possessed only a Light Motor Vehicle license.  It was also stated in the reply that the complainant had not filed any bill evidencing repair of the insured vehicle and the bill filed by him indicated only the estimate for its repair.

3.      The State Commission, vide its order dated 13.07.2018, allowed the Consumer Complaint and directed the appellant company to pay a sum of Rs.9,98,664.86/- to the complainant alongwith 9% interest by 01.10.2018 failing which the interest was to increase to 10% per annum.  Rs.5,000/- were awarded as compensation to the complainant.  Being aggrieved from the order of the State Commission, the appellant is before this Commission.

4.      It is an admitted position that the complainant who was driving the insured vehicle at the time it caught fire and got damaged, was holding a Driving License authorizing him to drive a light motor vehicle.  The term “light motor vehicle” is defined in Section 2(21) of the Motor Vehicles Act and 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.

          In New India Assurance Company Ltd. Vs. Latha C.M.A. (MD) No.216 of 2015 and M.P.(MD) No.1 of 2015 decided on 23.12.2017, the vehicle in question was a JCB and the driver of the said vehicle possessed a Driving License which authorized him to drive a light motor vehicle.  The unladen weight of the JCB in that case was 6870 kgs.  Considering the provisions of the Motor Vehicles Act and Central Motor Vehicles Rules, 1989, High Court interalia held as under:        

6. The vehicle in question is a JCB. A look at the dictionary clause of the Motor Vehicles Act would show that the JCB is not included in it. However, it is referred to in Central Motor Vehicles Rules, 1989, Rule 2 (cab) would define ‘construction equipment vehicle’ as including an Excavator also. Actually, the term ‘JCB’ is a rather reference to the brand of the vehicle. It should be properly referred to as only Excavator. An Excavator is a construction equipment vehicle in terms of Rule 2(cab) of the Central Motor Vehicles Rules, 1989.

7. It is submitted by the learned standing counsel appearing for the insurer that in the R.C book, the vehicle has been referred to as falling under the category of N1. Rule 2(p) of the Central Motor Vehicles Rules, 1989 states that the ‘Category N1’ vehicle is a motor vehicle used for carriage of goods and having a Gross Vehicle Weight not exceeding 3.5 tonnes.

8.In the present case, the unladen weight of an Excavator is 6870 kgs. Therefore, it cannot obviously be a category N1 vehicle. Since the category N vehicles whether it be N1, N2 or N3 refer to goods vehicles, I am of the view that the said definition cannot apply to the present case. An Excavator cannot be called as a goods vehicle.

9.Coming to the Tamil Nadu Motor Vehicles Rules, it is seen that as per Rule 7, the holder of driving license may apply to the licensing authority for the grant of an authorisation to driven a transport vehicle. The Hon'ble Supreme Court in the decision reported in (2017) 2 TNMAC 145 SC (Mukund Dewangan vs. Oriental Insurance Company Limited) has held that there is no requirement to obtain separate endorsement to drive the transport vehicle, and that if a driver is holding license to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.

5.      Thus, relying upon the above referred decision of Madras High Court, it can be safely said that a JCB vehicle comes within the definition of light motor vehicle given in Section 2(21) of the Motor Vehicles Act. 

6.      After the decision of the Hon’ble Supreme Court in Mukund Dewangan Vs. Oriental Insurance Co. Ltd. IV (2017) CPJ 13 (SC), the Hon’ble Supreme Court was again called upon in M.S. Bhati Vs. National Insurance Company Ltd. II (2019) CPJ 79 (SC) to decide whether the driver of a transport vehicle was required to obtain an endorsement authorizing him to drive such a vehicle though he possesses the license authorizing him to drive a light motor vehicle.  Relying upon its earlier decision in Mukund Dewangan (supra), the Hon’ble Supreme Court interalia held as under:     

9. It has been submitted on behalf of the appellant that the definition of the expression “light motor vehicle” in Section 2(21) of the Motor Vehicles Act, 1988 covers a transport vehicle of which the gross weight does not exceed 7500 kilograms. It was submitted that the license of the deceased driver to drive a light motor vehicle was valid between 16 August 1994 and 18 May 2013 and would cover a transport vehicle whose gross weight was less than 7,500 kgs. Reliance has been placed on a decision of three Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd.

11. Learned counsel further submitted on the alternative plea that 55 (2017) 14 SCC 663 the decision in Mukund Dewangan (supra) has been reserved for reconsideration by a larger Bench in M/s. Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi & Ors.6 by a two Judge Bench of this Court on 3 May 2018.

12. The law which has been laid down by a three Judge Bench of this Court in Mukund Dewangan (supra) binds this Court. As a matter of judicial discipline, we are duty bound to follow that decision which continues to hold the field.

13. In Mukund Dewangan (supra), a three Judge Bench had been constituted on a reference for resolving the issue as to whether a driver who has a license to drive a light motor vehicle and is driving a transport vehicle of that class is required additionally to obtain an endorsement to drive a transport vehicle.

15. The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16 August 1994 to 18 May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accident. Section 2(21) of the Motor Vehicles Act, 1988 defines the expression “light motor vehicle” as follows:-

“(21) “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;”

7.      Since the unladen weight of the JCB vehicle was 7500 kgs, no separate endorsement for driving such a vehicle was required if the driver was holding a license authorizing him to drive a light motor vehicle.  Therefore, it cannot be said that the complainant did not possess a valid Driving License authorizing him to drive a vehicle insured with the appellant company. 

8.      It is next contended by the learned counsel for the appellant that the insured vehicle was not got repaired by the complainant and he is not entitled to any payment unless he gets the vehicle repaired.  The learned counsel for the respondent/complainant submits on instructions from the complainant who is present in the Court that since the insured vehicle was badly damaged and the complainant/respondent did not possess sufficient means to get the same repaired and the insurer did not make any payment which would have enabled him to get the vehicle repaired, he was not in a position to get the same repaired. 

9.      It is submitted by the learned counsel for the complainant/respondent that as per the estimate obtained by the respondent/complainant from G.B. Wheelers Pvt. Ltd., the cost of repair of the vehicle was more than Rs.30 lacs and thus, the cost of repair far exceeded the sum for which the vehicle was ensured, the said sum being only Rs.24 lacs.   It is also pointed out by the learned counsel for the respondent/complainant that as per the terms of the policy, the vehicle is to be treated as complete total loss ‘CTL’ if the aggregate cost of repair and/or damage of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle.  Though the cost of repair was assessed by the surveyor at Rs.9,98,664.86/-, he had not obtained any quotation for repair of the damaged vehicle, before assessing the loss to the complainant at the aforesaid amount.  Thus, on the one hand, the complainant obtained an estimate wherein the cost of repair was quoted at more than Rs.30 lacs, the surveyor assessed the cost of repair at about Rs.10 lacs without obtaining any quotation from any workshop.  The State Commission has not given any finding as to what was the reasonable cost of repair of the vehicle at the time it met with an accident.  In case the reasonable cost of repair exceeded 75% of the sum for which the vehicle was ensured, it would be a case of complete total loss and no repair of the vehicle would be necessary.  In that case, the IDV of the vehicle would be payable to the ensured and the salvage would belong to the insurer. 

10.    Neither the surveyor was produced as a witness nor was any one from G.B. Wheelers Pvt. Ltd. from which quotation was obtained, was produced by the complainant to prove the said report.  Though the affidavit of the surveyor is stated to have been filed, the complainant got no opportunity to cross examine him.  In any case, the quotation obtained by him was not proved before the State Commission and was not considered by it.  Therefore, it would only be fair and reasonable to remit the matter back to the State Commission for deciding the reasonable cost of repair of the vehicle at the time it met with an accident after giving an opportunity to the insurer to produce the surveyor with an opportunity to the complainant to cross-examine him.  Similarly, the complainant needs to be given an opportunity to prove the quotation obtained by him and the insurer needs to be given an opportunity to cross-examine the person who is produced to prove the said quotation. 

11.    For the reasons stated hereinabove, the impugned order is set aside and the matter is remitted back to the State Commission to decide the complaint afresh after giving an opportunity to the parties to lead evidence in terms of this order.

          The parties shall appear before the State Commission on 19.02.2020.  The State Commission shall decide the complaint afresh within six months of the parties appearing before it. 

Copy of this order be given dasti.