F.A.No.426/2009 AGAINST C.C.No.1/2008, DISTRICT FORUM, KURNOOL.

Between:

The Divisional Manager,

The New India Assurance Company

Limited, Kurnool.                                                                            Appellant/opp.party

          And

M.Laxmi Devi, W/o.M.Sunkanna,

Aged about    years,

R/o.D.No.1/218, Postal Quarters,

Modhinabad, Guntakal,

Anantapur District                                                                          Respondent/complainant .

Counsel for the Appellant: Smt.I.Maamu Vani

Counsel for the Respondent: Mr.S.Laxminarayana Reddy.

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

AND

SMT.M.SHREESHA,  MEMBER

.

THURSDAY, THE FOURTH DAY OF NOVEMBER,

TWO THOUSAND TEN

(Typed to the dictation of  Smt.M.Shreesha, Hon’ble Member)
***

Aggrieved by the order in CC 1/2008 on the file of District Forum, Kurnool the opposite party preferred this appeal.

        The brief facts as stated in the complaint are that the complainant insured her vehicle, a mini lorry, with the opposite party covering the risk from 2-7-2005 to 01-7-2006.  Thereafter on 31-1-2006, the said vehicle met with an accident and the entire lorry was damaged.  As estimate of Rs.1,68,775/- was claimed from the opposite party enclosing all the relevant bills spent for repairs.  But the opposite party repudiated the claim on the ground that the driver at the time of the accident was possessing a non transport driving license and the vehicle was insured goods carriage package policy.  Hence the complaint seeking direction to the opposite party to pay Rs.1,43,061 spent towards repair with interest at 12% p.a. compensation and costs.

        The opposite party filed its written version, admitting the policy and the period of coverage and submitted that the first surveyor and the final surveyor filed their reports on 10-2-2006 and 4-3-2006 respectively.  The final surveyor assessed the loss at Rs.68,500/-.  They justified their repudiation on the ground that at the time of the accident one, B.Anil, was driving the vehicle, who had LMV Non transport license instead of LMV Transport license.  Therefore, there is no deficiency of service on its behalf.

        The District Forum based on the evidence adduced i.e. Exs.A1 to A11 and B1 to B8 allowed the complaint in part directing the opposite party to pay Rs.68,500/- as assessed by the final surveyor together with compensation of Rs.10,000/- and costs of Rs.2,000/-.

        Aggrieved by the said order, the opposite party preferred this appeal.

        The facts not in dispute are that the complainant had insured his TATA Mini Lorry vehicle with the opposite party, the period of coverage being from 2-7-2005 to 01-7-2006.  It is also an admitted fact that the said lorry met with an accident on 31-1-2006 and Ex.A1 is the receipt issued by the traffic Police imposing a fine of Rs.500/- to one Boya Anil, the driver of the said vehicle.  It is the complainant’s case that he spent an amount of Rs.1,68,775/- towards repairs evidenced under Exs.A3 to A7 which are the credit bills, estimation of spares, estimation of labour charges, towing charges, spare parts credit bills respectively. 

The learned counsel for the appellant/opposite party contended that they have repudiated the claim on the ground that the driver did not have LMV transport license which is against the provisions of Section 180 of Motor Vehicles Act. He further contended that the said vehicle is a transport vehicle, being a mini lorry and therefore the driving license of the said driver should be for a transport LMV.  The District Forum observed that as per Ex.A11, the weight of the complainant’s insured vehicle is 5,700 Kgs. and comes under the definition of light motor vehicle as per the M.V.Act.  Section 2(21) of Motor Vehicles Act, defines LMV as a transport vehicle or omni bus.  The gross weight of either of which does not exceed 7,500 kgs. and Section 2(16) of the M.V. Act hold the vehicle as a heavy goods vehicle, the gross weight of which exceeds 12,000 kgs. Ex.B7 is the driving license in which the said driver, B.Anil, was issued a non transport license valid upto 5-8-2024, the vehicle class being “LMV”.  Ex.A10 is the certificate of registration and Ex.A11 is the goods carriage permit in which the gross vehicle weight in kgs. is stated as 5,700 Kgs.  The surveyor in his report stated the class of vehicle as “goods carriage-LMV”.

We rely on the decision of the Apex court reported in  (2008) I SCC 696 between New India Assurance Co Ltd., v. Prabulal in which the apex court held that as per Motor vehicles Act, 1988, Sections 2 (14) and 2(47) vehicle registered as ‘goods carrier’ will be a ‘transport vehicle’ U/s.2(47).  In the instant case as per the registration certificate, Ex.A10, the vehicle class is ‘goods carriage LMV.,’ and as per the finding of the Apex court, the ‘goods carrier’ vehicle will be a ‘transport vehicle’ U/s.2 (47).  Since it falls under clause (47) of Section 2 of the M.V.Act, the said TATA vehicle can be categorized only as a transport vehicle.  The Apex court while considering the definition of Light Motor Vehicle’ as given in clause 21 of Section 2 of the Act held that LMV cannot always mean a Light goods carriage.  The facts in this citation are applicable to the facts in the instant case as the said driver, B.Anil had only a LMV non transport driving license which does not have any endorsement as required by Section 3 of the Act read with Rule 16 of the Rules, and form 6. 

If a license is issued or renewed in respect of a transport vehicle, it can be done only for a period of three years but in the case of any other vehicle, such issuance or renewal can be for 20 years provided the person in whose favour the license was issued or renewed had not attained the age of 50 years.  In the instant case the license was renewed upto the year 2024 which evidences that the license is in respect of a Motor vehicle other than the ‘transport vehicle’.  In the absence of any endorsement that the driver can also drive a transport vehicle, we are of the considered view that the repudiation by the insurance company is justified.  Hence we allow this appeal and set aside the order of the District Forum  and consequently the complaint is dismissed.  No costs.

In the result the appeal is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed.  No costs.

Sd/-PRESIDENT.

                                                                                                        Sd/-MEMBER.

JM                                                                                                             Dt.04-11-2010