Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that he is the owner of a vehicle under Regd. No.WB-29/1753 and OP is the insurer of the said vehicle covering the risk under its renewal of insurance policy cum certificate no.15010031106300050038 expired on 145-01-2012 and Policy No.15010031106300044117 risk covered from 16-01-2012 midnight on 15-01-2013 and so the complainant is the consumer under the OP who hired the service of OP 6on payment of requisite premium and the same policy is valid covering all risks. 

          During this period of the said policy the vehicle of the complainant was damaged on 26-05-2012 due to some accident police case was started vide Burdwan P.S. M/S Case No.14/12 dated 26-05-2012 and documents were seized as per seizure list.

          Complainant received that information of accident from the counsel appointed their surveyor, Shri Shantanu Das Ghose who assessed and submitted his report and allowed labour charges for Rs.22,400/- in addition to replacement of the damaged parts and complainant submitted cash memo etc .

          Complainant sustained loss as per Surveyor’s report and Surveyor assessed loss or damage of Rs.1,92,530/- what the OP is liable to pay within three months from the date of loss.  But the OP on receipt of the entire document including the surveyor’s report repudiated the claim of the complainant alleging that there was no valid driving licence but truth is that it was made illegally and in fact, caused mental pain and agony to the complainant. 

          Fact remains complainant submitted extract of the driving licence dated 15-06-2012 issued by the transport department.  Driving Licence No.WB 0120040913494 along with all papers.  But OP turned down it and also did not consider the driving licence as valid and the driver was authorized to drive Heavy Vehicle till 26-03-2015.  Therefore, act of the OP including its service is very much deficient in nature and also adopted unfair trade practice complainant is compelled to a decree of Rs.2 lakhs and mental pain and compensation etc.

          Whereas OP Insurance Company by filing written version has submitted that OP on receiving such report of surveyor to justify his claim Shantanu Das Ghosh was deputed to assess the loss and as per his report on the basis of DL Particulars driver is not authorized to drive heavy vehicles and as per copy of the driving licence of the driver Jeaul Mullick, driver is authorized to driver ‘LMC-NT’ LMV-GV, 3 wheeler Cab, Transport with effect from 14-06-2006 and that was collected from Beltola Motor Vehicle, Kolkata and after considering that it is found that the driver was authorized to drive for not heavy vehicle as per DL Book.  The driver has no valid licence in respect of heavy vehicle and for which question of compensation does not arise.  Further it is submitted that OP vide letter dated 04-02-2013 informed the complainant that at the relevant time of accident, the said surveyor in his report confirmed that the driver is not authorized to drive HGV (Transport) rather the driver is authorized to drive LMV (3 wheeler) at the time of accident and in the driving licence there is no endorsement of authorization in the DL particulars to drive HGV(Transport) but the driver is authorized to drive LMV transport.  Accordingly, OP due to said shortcomings and cause repudiated the claim and there was no lapse, deficiency on the part of the OP.

Decision with Reasons

On overall evaluation of the entire materials on record including the argument as advanced by the Ld. Lawyer of both the parties and also the copy of the driving licence of the said vehicle being no.WB291753 it is found that the driver had authorized driving licence but it was a licence for LMV transport but no doubt there is no endorsement in DL to drive HGV transport.  But it is admitted fact that driver has his driving licence and at the time of accident the licence was valid but it is already decided by the Hon’ble Supreme Court that on the technical ground no claim shall be denied even after it is found that the driver possesses a driving license having authority to drive LMV but that does not mean that driving licence is invalid.  But at best for possessing such a driving licence if any driver drives any heavy vehicle in that case the compensation amount may be deducted to some extent of 25% out of total assessed amount and that is the general rule which has been adopted in so many judgment of the Supreme Court and the Insurance Company knows that principle when Insurance Companies are facing such litigation before Forum, before High Court and before Supreme Court.  So, it is within the knowledge of the OPs that if there is technicalities in respect of any driving licence but if it is found that driving licence is valid in that case OP ought to have deduct certain part reasonably out of the total assessed loss as made by the surveyor and ought to have paid it to the complainant but that has not been done.  But anyhow, fact remains the accident took place.  But as per definition of transport vehicle, transport vehicle means public service vehicle and goods carriage and educational institutional bus or a private service vehicle.  In the said definition no specific classes of licence is defined and in the present case it is no doubt a goods carriage and a public service vehicle and so, we have gathered that no doubt complainant’s driver ought to have secured a driving licence for heavy vehicle but that was not there and for that technicalities only entire claim cannot be repudiated.  Though there was some fault on the part of the complainant the Vehicle Owner acts for engaging a driver having valid driving licence in respect of LMV and not HGV and for this the complainant is not entitled to entire claim amount but at best for his fault 25 % of the assessed admitted or loss shall be deducted and that is the principle as adopted in so many cases by the Hon’ble Supreme Court.  So, we have considered the report of the surveyor wherefrom we have gathered that surveyor assessed a loss of Rs.1,92,000/- and out of that Rs.50,000/- shall be deducted for engaging a driver having driving licence for driving light vehicles by the complainant and after deducting that the complainant is entitled to Rs.1,43,000/- only and that is awarded considering the fault of the complainant for engaging driver having driving licence of light vehicles.  After giving much reliance upon the different judgments of Hon’ble Supreme Court we are convinced to hold that the complainant is entitled to Rs.1,43,000/- as final claim against the claim of the complainant as made to the OP and it is awarded to the complainant after considering some flaws on the part of the complainant for appointment of a driver having valid licence in respect of LMP not in respect of HGV and no doubt for that reason 25% of the total claim including some other deduction are made by this Forum considering the entire bill and also report of the surveyor as engaged by the OP.

          No doubt there was no fault on the part of the insurance company.  Insurance Company entertained the claim application but there was some fault on the part of the complainant for which it was repudiated and no doubt the insurance company is not in a position to grant such relief to the complainant in view of the fact complainant failed to produce heavy driving licence of his driver and in this regard it is to be mentioned that as per Motor Vehicle Rules there are different categories of driving licence.  So, OP relied upon the said categories of driving licence and repudiated the claim and that was to some extent justified but anyhow, a question may be raised that why the Forum is releasing part claim because it has become settled principle of law that if there is any technicalities for which the claim has been repudiated in that case in any case if the insured is found at fault for that reason certain amount may be deducted and some reasonable amount may be awarded as compensation against the claim and that is the basic principle and observation and findings of the Hon’ble Judges of the Supreme Court in so many cases and by adopting that procedure we have granted the present amount of Rs.1,43,000/- in favour of the complainant.  But we are not accepting that complainant was justified in engaging on driver having valid licence for LMV to drive HGV transport and the present complainant in future shall not get any compensation if his vehicle faces any accident when it is found that it is being driven by any driver having driving licence of LMP and the very act of the complainant in the present case was completely illegal and against the principle of conditions and terms of the policy.

          In view of the above findings and considering the materials and also the spirit of the judgment of the Hon’ble Supreme Court we are allowing only Rs.1,43,000/- finally as compensation in respect of the present claim in disposing the present claim of complainant which has been repudiated by the OP and to that effect that repudiation is not treated as valid and we are giving relief to the complainant by allowing this complaint in part.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest against the OP but without any cost and the cost is not awarded in view of the fact complainant was partly at fault.

          OP insurance company is hereby directed to pay a sum of Rs.1,43,000/- (Rupees One lakh Forty thousand only) in respect of the claim as made by the complainant to the OP as we have already decided that repudiation was not as per legal norms and that amount shall be paid within 45(forty-five) days from the date of this order to the complainant failing which for non-compliance of the Forum’s order OP shall be imposed a penal interest @Rs.200/- (Rupees Two hundred only) per day till full satisfaction of the decree and it said amount is collected shall be deposited to the Forum.

          OP is directed to comply this order failing which penal proceeding shall be started for which he shall be prosecuted.