FA.No.1575/2006 against C.D.No.222/2005, District Forum, GUNTUR.

Between:

The Oriental Insurance Company Ltd.,

Regional Office, Hyderabad.                                                           .Appellant/

 Opposite party

And

1. Meka Koteswaramma,

    W/o.late Meka Srinivasa Rao,

    C/o.S.Kalesha, Advoate,

    Door No.26-10-83,

    Nagarampalem, Guntur.

2. Meka Kavitha

    Minor, rep. by her mother (R1)

    C/o.S.Kalesha, Advoate,

    Door No.26-10-83,

    Nagarampalem, Guntur.                                                               Respondents/

                                                                                                            Complainants

Counsel for the Appellant::                           Mr.K.Rama Reddy

Counsel for the Respondents:                     M/s.M.Ramachandra Reddy

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

SMT.M.SHREESHA, MEMBER.

            AND

                        SRI K.SATYANAND, MEMBER.

FRIDAY, THE NINETEENTH DAY OF JUNE,

TWO THOUSAND NINE

ORAL ORDER: (Per Hon’ble Sri K.Satyanand, Hon'ble Member.)

                                                                                                                                                                                                                        ***

        This is an appeal filed by the insurance company against which the District Forum passed an order imposing the liability to pay the insurance amount along with ancillary benefits to the widow and the minor child of the insured by name, Meka Srinivasa Rao.

        The facts of the case that led to filing this appeal are briefly as follows:

        Meka Srinivasa Rao, purchased an auto rickshaw and secured insurance coverage for the same from the opposite party to remain valid from 16-8-2004 to 15-8-2005.  On 18-12-2004 at about 7.00 a.m. the said Srinivasa Rao was driving the said auto with a lady passenger to Kothapalem village and on the way at about 8.00 p.m., he met with an accident in which initially he sustained grievous injuries and ultimately on 19-12-2004 died of the said injuries.  The accident was registered as a crime by the police, who issued FIR and followed up with all the steps consequential to the registration of the crime.  Subsequently after some time the complainants filed their insurance claim on the strength of the insurance policy.  The insurance company repudiated the claim on the ground that at the material time, the insured was not having a valid driving licence by which they meant that he was having only licence to drive an auto rickshaw (non transport) while the vehicle that was being driven and involved in the accident was a transport vehicle.  As a matter of fact this was the main theme of the case of the opposite party in response to the claim before the District Forum which rejected the same.  As the claim was rejected by the insurance company, the complainants filed the consumer complaint.

        In support of their case, the complainants relied upon Exs.A1 to A17 and also filed the affidavit of the first complainant.  As against the said evidence, opposite party also filed the affidavit on its behalf, sworn to by Mr.K.Koteswara Rao, Divisional Manager and relied upon Exs.B1 and B2.

        On a consideration of the evidence adduced on either side, the District Forum came to the conclusion that the repudiation was unjustified and accordingly allowed the claim and passed an order directing the insurance company to satisfy the claim within the time stipulated.

        Aggrieved by the said order, the insurance company filed the present appeal chiefly contending that the District Forum was wrong in allowing the claim in as much as the auto rickshaw in question was a transport vehicle and in as much as the deceased driver was clearly having a Light Motor Vehicle licence endorsed specifically to be used only to drive a non transport vehicle.

        Heard appellant’s counsel.

        The point that arises for consideration is whether the order of the District Forum suffers from any infirmity?

          As a matter of fact, the bone of contention between the parties lies within a very narrow compass in that the moot question that has to be decided here is whether the driving licence held by the deceased, who is admittedly driving the accident vehicle was having a valid licence to drive the said vehicle.  In order to succeed in this appeal, it is essential for the appellant/opposite party to prove that the vehicle in question was a transport vehicle and the deceased driver had no valid licence to drive such a transport vehicle.

        The first question in order to say that the auto rickshaw is a transport vehicle, the insurance company relied upon not only the complaint averments but also its own policy which it preferred to call as a Commercial Vehicles Package Policy. It also relied upon Ex.B2, proceedings issued by the transport department confirming that the deceased was having licence only to drive a non transport vehicle. Ex.B2 is rather irrelevant in the matter of proving the nature of the auto rickshaw as being a transport vehicle or non transport vehicle, as the case may be.  So there are only two circumstances upon which it relied upon to show that the vehicle in question was a transport vehicle.

        The first and foremost ground on which it heavily relied upon was that the complainant herself both in the complaint as also in the affidavit filed as evidence categorically stated that her husband met with an accident while driving the vehicle plying passengers therein at the material time.  In other words, the insurance company harped upon the so called admission on the part of the complainant the probabative value of which the so called admission has to be tested on the anvil of the legal position which would be presently adverted to.

        The next ground relied upon by the appellant in this regard is the characterization of the vehicle in its own policy as also in the cover note issued to the deceased and marked as Ex.A4 wherein the vehicle in question was described as “public carrier”.  But this is also a self serving document and its value also has to withstand the process of  judicial scrutiny bound to be made by adverting to the decisive provisions of law which  contemplated a document that is competent to accord such a status to a given vehicle.  With that aim we are going  straight away to Section 66 of the Motor Vehicles Act, 1988 which in so far as it is relevant here reads as follows:

        “66(i)   No owner of a motor vehicle shall use or permit the use of

                     the vehicle as a transport vehicle in any public place whether

                   or not such vehicle is actually carrying any passengers or goods

                   save in accordance with the conditions of a permit granted

                   or countersigned by a Regional or State Transport Authority

                   or any prescribed authority authorizing him the use of the

                   vehicle in that place in the manner in which the vehicle is being

                   used:

                             Provided that a stage carriage permit shall, subject to

                   any conditions that may be specified in the permit, authorize

                   the use of the vehicle as a contract carriage:

                             Provided further that a stage carriage permit may,

                   subject to any conditions that may be specified in the

                   permit, authorize the use of the vehicle as a goods carriage

                   either when carrying passengers or not:

                             Provided also that a goods carriage permit shall,

                   subject to any conditions that may be specified in the permit,

                   in the permit, authorize the holder to use the vehicle for the

                   carriage of goods for or in connection with a trade or business

                   carried on by him”.

As could be seen from the provisions of law excerpted above, it is abundantly clear that nothing short of what is called a permit from the transport authority could impress the vehicle with the nature of a transport vehicle.  This position has been recognized and given judicial recognition by the Hon’ble Supreme Court in III (1999) CPJ  5 (SC) wherein this lacunae in the evidence of the insurance company led their Lordships to obviate the necessity of the driving licence being endorsed for transport vehicles too in the peculiar circumstances of that case.  Their Lordships extensively adverted to the requirement of such a permit to characterize a given vehicle as a transport vehicle.  When once it is identified that a statutory instrument alone can prove a given fact, any evidence inferred or otherwise than such statutory instrument can be received or accepted as a substitute for such statutory evidence in proving a given fact.  This is exactly the situation not only in the facts of the case dealt with by the Hon’ble Supreme Court but also here in this case too.  In the present case there is no such evidence tendered by the insurance company.  Thus the insurance failed in proving that the auto rickshaw that met with the accident in question was a transport vehicle by producing the best evidence, as one emanating from Section 66 of the Motor Vehicles Act, 1988.  As against the judgement of the Hon’ble Supreme Court in the case cited supra which in our opinion is pat on point, the learned counsel for the appellant relied upon yet another judgement of the Hon’ble Supreme Court rendered in 2008 CTJ 1 (Supreme Court) (CP) in which their Lordships no doubt held as follows:

        “ 28.  The argument of the Insurance Company is that at the

          time of accident, Ram Narain had no valid and effective license

          to drive Tata 709.  Indisputably, Ram Narain was having a

          licence to drive Light Motor Vehicle. The learned counsel

          for the Insurance Company, referring to various provisions

          of the Act submitted that if a person is having license to

          drive Light Motor Vehicle, he cannot drive  a transport

          Vehicle unless his driving licence specifically entitles him

          so to do (section 3) Clauses (14), (21), (28) and (47) of Section

          2 make it clear that if a vehicle is ‘Light Motor Vehicle’ but

          falls under the category of Transport Vehicle, the driving

          licence has to be duly endorsed under Section 3 of the Act.  If

          it is not done, a person holding driving licence to ply Light Motor

          Vehicle cannot ply transport vehicle.  It is not in dispute that in

          the instant case, Ram Narain was having licence to drive Light Motor

          Vehicle.  The licence was not endorsed as required and hence, he could

          not have driven Tata 709 in absence of requisite endorsement and

          Insurance Copmpany could not be held liable.

29.            We find considerable force in the submissions of the learned

counsel for the Insurance Company.  We also find that the

District Forum considered the question in its proper

perspective and held that the vehicle driven by Ram Narain was

covered by the category of transport vehicle under Clause (47)

of Section 2 of the Act.  Section 3, therefore, required the driver

to have an endorsement which would entitle him to ply such vehicle.

It is not even the case of the complainant that allowed to ply

transport vehicle.  On the contrary, the case of the complainant

was that it was Mohd. Julfikar who was driving the vehicle.  To us,

therefore, the District Forum was right in holding that Ram Narain

could not have driven the vehicle in question”.

But at the same time, it cannot be over looked that the Hon’ble Supreme Court did not over rule the judgement in ASHOK GANGADHAR MARATHA v. ORIENTAL INSRUANCE CO. LTD.,  and in fact distinguished the same on facts and approved the ratio therein in paragraphs 31 and 32 which are as follows:

        “31.              It is no doubt true that in Ashok Gangadhar, in spite

          of the fact that the driver was holding valid driving licence to

          ply Light Motor Vehicle (LMV), this court upheld the claim and

          ordered the Insurance Company to pay compensation.  But,

          in our considered opinion, the learned counsel for the Insurance

          Company is right in submitting that it was because of the

          fact that there was neither pleading nor proof as regards

          the permit issued by the Transport Authority.  In absence of

          pleading and proof, this court held that, it could not be said that

          the driver had no valid licence to ply the vehicle which met with

          an accident and he could not be deprived of the compensation.

          This is clear if one reads paragraph 11 of the judgement which

          reads thus:

                    “11. To reiterate, since a vehicle cannot be

                   used as transport vehicle on a public road

                   unless there is a permit issued by the

                   Regional Transport Authority for that

                   purpose, and since in the instant case there

                   is neither a pleading to that effect by any

                   party nor is there any permit on record, the

                   vehicle in question would remain a light motor

                   vehicle.  The respondent also does not say

                   that any permit was granted to the appellant

                   for plying the vehicle as a transport vehicle under

                   Section 66 of the Act, Moreover, on the date of

                   accident, the vehicle was not carrying any goods,

                   and though it could be said to have been designed

                   to be used as a transport vehicle or goods-carrier,

                   it cannot be so held on account of the statutory

                   prohibition contained in Section 66 of the Act”.

32.            In our judgement, Ashok Gangadhar did not lay down that the

driver holding licence to drive a Light Motor Vehicle need not have an

endorsement to drive transport vehicle and yet he can drive such vehicle.

It was on the peculiar facts of the case,  as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable”.

In these circumstances, we firmly believe that the ratio in Gangadhar’s case is rather on all fours in the facts of the present case compared to the ratio in the later case.  This findings take us to the question whether there is any flaw in the order of the District Forum.  As the thrust of the appeal is against the District Forum having undermined the requirement of the endorsement on the driving licence of the deceased and no other point having been addressed by the appellant, we do not have any occasion to see any flaw in the resultant order of the District Forum as after all the real set back in the defence of the appellant is want of proof of the vehicle being a transport vehicle more than anything else.

        Accordingly the appeal is dismissed with costs in a sum of Rs.3,000/-.  The appellant is granted six weeks time from the date of receipt of the order in this appeal to comply with the order passed by the District Forum.

 PRESIDENT

                                                                             MEMBER.                                                                     

                                                                             MEMBER

Jm                                                                            Dated 19-6.2009