08/03/2013

 O R A L O R D E R

Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.

1. This appeal is preferred against the order dated 17/04/2012 passed in CC. 321/2011 by Dist. Forum, Nanded by which the complaint has been partly allowed.

2. The case of the complainant as set out in the complaint in brief is that he had obtained policy from the opposite parties to cover the damage of his vehicle bearing registration No.MH-26-H-4854. The period of that policy was from 01/06/2011 to 31/05/2012. The said vehicle met with an accident on 22/06/2011 when the complainants son Sandeep was driving that vehicle. Therefore, the said vehicle was damaged. The complainant suffered loss of Rs 70,000/- to Rs 80,000/- for repairing of that vehicle. The surveyor appointed by the opposite parties inspected that vehicle and submitted a report to the opposite parties. The complainant submitted the claim along with necessary documents to the opposite parties. They repudiated the claim on 13/09/2011 on incorrect reason that the driver of that vehicle was not holding valid driving licence at the time of accident. The driver of that vehicle was holding LMV driving licence, which was valid at the time of accident. Therefore, the complainant claimed Rs 70,000/- with interest towards loss sustained by him, Rs 10,000/- towards mental harassment and Rs 5000/- towards cost of the complaint. He also claimed Rs 60,000/- towards loss of his income.

3. The opposite party Nos. 1 and 2 filed written version before the Dist. Forum below. As per their case the claim has been rightly repudiated by it as the driver of that vehicle was not holding valid and effective driving licence at the time of accident. They therefore submitted that complaint may be dismissed with cost.

4. The Dist. Forum below after considering evidence brought on record and hearing advocates of both the parties came to the conclusion that the driver of that vehicle was holding driving licence to drive LMV ( Light motor vehicle ) and that the vehicle which met with accident is also Light motor vehicle (LMV) and therefore the repudiation of claim by the opposite party Nos. 1 and 2 is not proper and it amounts to deficiency in service. The Dist. Forum below also found that the surveyors report was not produced by the opposite party Nos. 1 and 2 to show damaged caused to the vehicle and that the amount of Rs 70,000/- claimed by the complainant does not tally with the bills. It therefore gave direction to the opposite party Nos. 1 and 2 to appoint the surveyor to assess the losses on the basis of bills of repairing submitted by the complainant to them and to pay the amount of that loss to the complainant with interest @ 9 % p.a. Further direction is given that opposite party Nos. 1 and 2 shall pay to the complainant Rs 3000/- towards mental harassment and Rs 2000/- towards cost of the complaint.

5. Feeling dissatisfied by that order original opposite party Nos. 1 and 2 have preferred this appeal. The advocates of both the parties are heard. The advocate of respondent also filed written notes of argument. The sum and substance of the submission made by Shri.S.G.Chapalgaonkar, the learned advocate who appeared for the appellant is that the copy of driving licence of the driver of the vehicle produced before this Commission shows that it was issued to drive only light motor vehicle (LMV) and that but the said vehicle was insured as goods carriage vehicle and hence its driver must hold light motor vehicle (transport) licence and as the driver of that vehicle did not hold licence of that catagory, the claim has been rightly repudiated on the ground of breach of policy condition.

6. The learned advocate of the respondent/original complainant supported the impugned order and submitted that the driver of the vehicle was holding valid driving licence to drive the said vehicle and hence repudiation of claim cannot be justified.

7. The documents produced on proved that Sandeep, the son of the complainant/respondent was driving the said vehicle on 22/06/2011 and at that time accident took place and the said vehicle was damaged. It is also not disputed that the said accident took place when the policy of that vehicle was in force. The only question involved in the present case is whether there is a breach of policy condition due to non- holding of valid driving licence by Sandeep The perusal of the driving licence of the said driver shows that it was issued to drive light motor vehicle (non transport ). The appellants advocate has relied upon following decision in support of his submission that driving of transport vehicle by person holding LMV driving licence only amounts to breach of policy condition.

i) National Insurance Company Limited – V/s- Rai and others, AIR

Supreme Court 3440 (I). It is held that insurance company is not liable to pay compensation in case of breach of condition of policy of insurance due to not holding valid licence by driver of offending vehicle

ii) United India Insurance Company Ltd – V/s- Jintedra Surya, 2011 STPL (CL) 1061 (NC) in that case the driver was holding driving licence for driving private vehicle. There was no endorsement in licence for driving a transport vehicle/commercial vehicle. It is held that there is a breach of provisions of Motor Vehicles Act as well as insurance policy condition and hence claim is not admissible.

iii) National Insurance Company Ltd. and others- V/s- S.Amiratharaj, 2012 STPL (CL) 2376 (NC). It is observed that it is well settled that wherever an endorsement is required on driving licence for driving a particular class of vehicles, it can not be said that such endorsement will constitute non possession of an effective licence to drive that particular vehicle.

iv) United India Insurance Company Ltd- V/s- Hukumsingh, 2012 HTPL (CL) 1582 (NC). In that case driver had licence to drive light motor vehicle. It is held that insurance company is not liable to reimburse for loss caused, in case driver did not possess effective licence to drive transport vehicle.

v) Sandhya – V/s- M/s. United India Insurance Company Ltd 2012 HTPL (CL) 1837 (NC). In that case the documents produced by the complainant did not show that the driver of the vehicle was authorised to drive the transport vehicle. Therefore, the order about dismissal of complaint passed by State Commission was upheld.

vi) Ankit Goyal –V/s- New India Assurance Company Ltd, 2012 HTPL (CL) 155 (NC) It is observed that the transport vehicle may be a LMV but to drive it, distinct licence is required to be obtained.

8. On the other hand advocate of the respondent relied upon following decisions, in support of his submission that the light motor vehicle (LMV) includes a transport vehicle and a person holding LMV licence can drive light goods vehicle.

i) National Insurance Company Ltd – V/s- Annappairappa Nesaria and others, 2008 (I) Mah.LR. 549 (SC). It is observed by Hon’ble Supreme Court that a driver having valid licence to drive light motor vehicle is authorised to drive a light goods vehicle and that the definition and scope of light motor vehicle takes within its umbrage, both a transport and non transport vehicle and that it would cover light passenger carriage and light goods carriage vehicle.

ii) National Insurance Company Ltd- V/s- Shankarlal and another (2006) I MAC. 524 (MP) . The Hon’ble M.P. High Court held that a person holding licence to drive the light motor vehicle as defined in Sec. 2 ( 21) of Motor Vehicles Act, 1988 has authority to drive a transport vehicle of the description given in the said section. It is further held that lack of endorsement on the licence would not render the person holding the licence as a person who is not duly licensed.

9. In the instant case as observed above Sandeep the driver of the aforesaid vehicle was authorised to drive light motor vehicle. The Hon’ble Supreme Court in the aforesaid case of National Insurance Company Ltd –V/s- Annappairappa Nesaria and others reported in 2008 ( I) Mah. LR 549 (SC) ( noted in para No. 8 above ) has clearly laid down that a driver having valid licence to drive light motor vehicle is authorised to drive a light goods vehicle. In our view the said decision of Hon’ble Apex Court is applicable to the present case. The vehicle was damaged in accident is light goods vehicle, as seen from the copy of its registration certificate which is not disputed. Therefore Sandeep, the driver of that vehicle holding light motor vehicle was authorised to drive the said light goods vehicle. In our view the aforesaid decision of Hon’ble Supreme Court is binding on this Commission. Hence we hold that the decisions relied upon by the learned advocate of the appellant and reproduced above are not applicable to facts and circumstances of the present case.

10. Thus, we find that there is no breach of policy condition. Therefore, the complainant/respondent herein is entitled to claim the loss sustained by him due to damage caused to vehicle in accident. The Dist. Forum below did not assess the said loss by erroneously holding that the amount of the bills relied upon by complainant do not tally with the amounts claimed by him. The direction given under the impugned order to appoint the surveyor for assessment of loss, can not be justified. In our view the loss sustained by the complainant ought to have been assessed by the Dist. Forum on the basis of evidence brought on record. The complainant had submitted all the bills before District Forum below for assessment of loss. The appellant had also appointed surveyor who after inspection of the vehicle, assessed loss to the tune of Rs 48,000/- , as the liability of the insurer. The said report is not disputed by both the parties as produced before us in this appeal. The complainant had produced bills of Rs 50,419/- about repairing of that vehicle. We find that, the net loss assessed by the surveyor as Rs 48,000/-, is just and proper. Therefore the direction given under clause No. 2 of the impugned order in respect of assessment of loss and payment of said assessed loss, needs to be modified. The direction given under clause No. 3 of the impugned order about payment of Rs 3000/- towards mental harassment and Rs 2000/- towards cost of the complaint needs tobe confirmed. Thus we proceed to pass the following order.

O R D E R

1. The appeal is dismissed.

2. The direction given under clause No. 2 of the impugned order about appointment of surveyor for assessment of the compensation payable to the complainant and about payment of the said compensation with interest is modified and substituted to the effect that the opposite party Nos. 1 and 2/appellants herein jointly and severally shall pay to the original complainant/respondent herein compensation of Rs 48,000/- with interest @ 9 % p.a. from the date of repudiation of the claim i.e. from 13/09/2011 till its realisation.

3. The direction given under clause No. 3 of the impugned order about of payment of Rs 3000/- towards mental harassment and Rs 2000/- towards cost of the complaint by the original opposite party Nos. 1 and 2/appellants to the original complainant / respondent herein is confirmed.

4. Copies of this judgment and order be issued to both the parties.