Order dictated by:

Sh.Anoop Sharma, Presiding Member

1.       This consumer complaint has been received by remand from Hon’ble National Consumer Disputes Redressal Commission, New Delhi. Vide order dated 27.9.2016, Hon’ble National Commission, New Delhi  has directed this Forum to decide the complaint afresh in the light of this order within three months  of the parties appearing before it.

2.       Originally, complainant Pritam Singh has filed the complaint before this District Forum at Amritsar in Consumer Complaint No. 960-09 with date of institution 26.11.2009 and accordingly, this Forum had passed final order  dated 20.05.2010 to the following effect:-

“. S. Pritam Singh has filed this complaint with the submissions that his Mohindra Scorpio car bearing registration No. PB 01 AX 0853 was duly insured with the opposite party vide policy No. 163187 effective from 15.10.2008 to 14.10.2009. On 2.3.2009 the said car met with an accident with truck bearing registration No. PB 02 AM 9511 and a DDR was duly lodged with P.S. Bhikhiwind . Complainant thereafter lodged his claim with the opposite party but the opposite party declined the same on the ground that driver was not holding valid driving licence. Alleging the same to be deficiency in service complainant has prayed that opposite party be directed to pay a sum of Rs. 1,00,000/- on account of damages suffered by the complainant.

On notice, opposite party appeared and filed written version in which it was submitted that the claim has already been repudiated on two grounds that insurance of the vehicle has been obtained for private use yet the same was used for hire and reward t the time of alleged occurrence and driving licence is also not valid for driving the vehicle with sitting capacity 7+1 and the said repudiation has already been conveyed to the complainant.

It was submitted that complainant has claimed a sum of Rs. 121037/- being the alleged loss, whereas according to assessment made by the independent surveyor deputed by the company the same has been assessed to the tune of Rs. 78102.75 paise subject to adjustment of Rs. 1200/- towards salvage of the replaced parts. However the said report submitted by the independent surveyor was subject to fulfillment of terms and conditions of the policy. While denying and controverting other allegations, dismissal of complaint was prayed.

We have perused the pleadings and appraised the evidence brought on record. We have also heard the ld.counsels for the parties. The dispute in the present complaint arose between the parties when the opposite party repudiated the insurance claim preferred by the complainant in respect of his damaged vehicle I.e. Mahindra Scorpio, which was insured with the opposite party. The opposite party has alleged that the insurance claim was rightly repudiated since the vehicle , at the time of accident was being used for commercial purpose and that the driving was not holding valid driving licence and since the seating capacity of Scorpio exceeds that of a case for which the driving was holding the driving licence. The complainant has placed on record the repudiation letter exbt.C-4. A perusal of exbt.C-4 reveals that the opposite party has relied upon the DDR dated 4.3.2009 , registered at P.S. Bhikiwind, to conclude that the vehicle was being used for commercial purpose, at the time of the accident. DDR exbt.C-6 reveals that at the time of the accident, the vehicle was being driven from Amritsar to Bhikiwind. In the DDR, it is nowhere mentioned that the vehicle was taken on hire. Further the opposite party has not placed on record any bills or receipts of payments received by the owner of the vehicle, from the user of the vehicle, to establish hire or reward/commercial purpose. Further the opposite party has not placed on record the statements of the passengers who were travelling in the vehicle at the time of accident, nor is found, placed on record any statement of any other independent witness to the effect that the vehicle in question was used for commercial purpose or even for that matter was being used for commercial purpose at the time of accident especially when the DDR reveals that the father of the driver had suffered injuries in the accident and died on the way to Amritsar, which suggests that the vehicle was carrying the relatives of the driver. If the vehicle was being used for commercial purpose, the driver is either an employee of the owner or engaged on hire by the owner or the owner would drive the vehicle himself for hire and reward. It is highly improbable to give the vehicle for hire and reward even without a driver. Under such circumstances, the allegation of use of vehicle for commercial purpose gets reduced to a mere bald statement based on some assumption or presumption which can never assume the character of the truth which would be conclusive to repudiate the insurance claim. The second ground on which the claim is repudiated is that the driver of the vehicle did not have a valid licence to drive a vehicle such as Scorpio. We have perused the copy of driving licence exbt.C-3/R-6 which bears the endorsement scooter and car jeep . However when the investigator of the opposite party verified the licence from the issuing authority, as per their records, the licence was valid for scooter and car only. The opposite party has not alleged that the word 'jeep' had been endorsed by the driver himself nor does a careful perusal of exbt.C-3 & R-6 suggest the same. The driving licence is issued to a person by public authority, the driver generally does not have any access to the records of public office nor does any one support that the entry as on his driving licence may be different from the one as endorsed in the records of the issuing authority. The driver was driving the vehicle relying upon his own driving licence which had been duly issued to him by issuing authority. Under such circumstances the grounds on which the opposite party repudiated the claim are not genuine.

In view of the above discussion, the complaint is partly allowed. The opposite party shall pay the loss assessed by the surveyor to the tune of Rs. 78103/- by way of bank draft or account payee's cheque. Compliance of the orders be made within a period of one month from the date of receipt of copy of orders; failing which proceedings under section 27 of the Consumer Protection Act would be initiated against the opposite party. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.”

3.       Thereafter, against the impugned order dated 20.05.2010 passed by this Forum, Opposite Party-Insurance Company preferred an appeal before Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh  and accordingly, Hon’ble State Commission, Punjab, Chandigarh vide its order dated 28.2.2014 passed the following order:-

   “New India Assurance Company Limited, appellant/opposite party (In short “the appellant”) has filed this appeal against the order dated 20.05.2010 passed by the learned District Consumer Disputes Redressal Forum, Amritsar (in short “the District Forum”).

2. Facts in brief are that Sh. Pritam Singh, respondent/ complainant (hereinafter called as “the respondent”) filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, “the Act”) against the appellant, asserting that Mahindra Scorpio car of the respondent bearing Registration No.PB-01-AX-0853 was insured with the appellant vide policy No.163187 w.e.f. 15.10.2008 till 14.10.2009. On 02.03.2009, the said car met with an accident with a truck bearing Registration No.PB-02-AM-9511 which was parked wrongly on the road and the car was badly damaged. DDR dated 04.03.2009 was lodged with P.S. Bhikhiwind. The respondent lodged the claim with the appellant, but the appellant wrongly repudiated the same vide letter dated 11.08.2009 on the grounds that the driver was not holding a valid driving licence. Repudiation of the claim is illegal and the respondent suffered lot of mental tension and harassment.

3.       It was prayed that the appellant may be directed to pay the entire claim of Rs.1,21,037/- alongwith interest @ 12% p.a. and to pay Rs.1.00 lac as compensation.

4.       In the written version filed on behalf of the appellant, preliminary objections were taken that the claim has already been repudiated on the ground that the vehicle was being used for hire and reward and the driver was not having a valid driving licence and the repudiation was conveyed vide order letter dated 11.08.2009. The claim was repudiated on merits and the complaint is not maintainable. The respondent has claimed a sum of Rs.1,21,037/- as the loss, but the surveyor deputed by the appellant insurance company has assessed the loss to the tune of Rs.78,102-75p subject to adjustment of Rs.1,200/- towards salvage. The said report was subject to the terms and conditions of the policy and the loss assessed by the surveyor is not payable.

5.       On merits, it was admitted that the said Scorpio Mahindra was insured, but it was insured for private use and the same was used for hire and reward and the respondent committed the violation of the clause ‘limitations as to use’. Even the DDR dated 04.03.2009 shows that the vehicle was taken on hire. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.

6.       Parties led evidence in support of their respective contentions by way of affidavits and documents.

7.       After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the vehicle being used for commercial purpose, is not proved. Copy of the driving licence Ex.C-3/Ex.R-6 bears the endorsement of scooter, car and jeep. The appellant has not challenged the word ‘jeep’. The driver was driving the vehicle and the repudiation was not genuine. The complaint was allowed and the appellant was directed to pay the loss assessed by the surveyor to the tune of Rs.78,103/-.

8.       Aggrieved by the impugned order dated 20.05.2010, the appellant has come up in appeal.

9.       We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments submitted on behalf of both the parties.

10.     The appeal was filed on the grounds that the District Forum has ignored the fact that even as per DDR and claim form, the vehicle was being used against the purpose for which it was registered. It was carrying passengers, who were being taken in the vehicle for hire and reward and the same amounts to violation of provisions of Motor Vehicles Act and the risk of such persons was not covered under the insurance policy. The District Forum erred in ignoring the fact that the vehicle in question was Scorpio with seating capacity of 7 + 1, whereas the driver was holding the driving licence to drive motorcycle and car only. The driver was not holding the licence to drive the Light Motor Vehicle/Transport Vehicle and the repudiation was justified. The assessment made by the surveyor was subject to acceptance of the liability by the insurer. The insurer is not liable to pay any amount and the impugned order is not sustainable. It was prayed that the appeal may be allowed and the order under appeal may be set aside.

11.     In the written arguments submitted on behalf of the appellant, similar pleas were taken.

12.     On the other hand, in the written arguments submitted on behalf of the respondent, it was submitted that the impugned order passed by the District Forum is legal and valid and there is no ground to interfere with the same and the appeal may be dismissed.

13.     We have considered the respective written submissions of the parties and have thoroughly scanned the entire record and other material placed on the file.

14.     The vehicle in question is Mahindra Scorpio and as per Registration Certificate Ex.C-2, its seating capacity was nine (9). Copy of the licence is Ex.C-3 as per which, the driver was competent to drive scooter, car & jeep. Ex.R-5 is the verification of the driving licence No.12263 of Sh. Manbir Singh S/o Sh. Balwinder Singh obtained by the  investigator from the DTO, Ajnala and the remarks made by the office of the DTO are as follows:-

“Returned in original with the remarks that the D.L. No.12263 Dt. 18-05-1998 for Scooter, M/Car only, is in the name of Sh. Manbir Singh S/o Sh. Balwinder Singh & Valid upto 14.02.2030 as per office record.

 Therefore, the said D.L. is valid for Scooter & M/Car only. The said D.L. is not valid for jeep as per office record.”

15.     The original report of the Licensing Authority, Motor Vehicle (Amritsar) obtained by the investigator is Ex.R-7 which has been reproduced above. The repudiation letter is Ex.R-8 and one of the reasons was that the driver Sh. Manbir Singh was not holding a valid driving licence.

16.     From the above discussion, it is clear that the driver Manbir Singh of the vehicle in question was not holding a valid and effective driving licence. Similar question arose before the Hon’ble National Commission in case in case “United India Insurance Company Limited Vs Arvind Kumar Rajak”, III (2008) CPJ-191 (NC), and it was held that a Maxi Cab is a transport vehicle and in Para-3 (relevant portion) and Para-4, observed as follows:-

“Section 2 (22) of the Motor Vehicles Act, 1988 defines a Maxi Cab as under:-

“Maxi Cab means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward”. Section 2 (47) defines “Transport Vehicle” as:

“Transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle”.

‘Public Service Vehicle’ has been defined under Section 2 (35) of the Act as under:-

“Public Service Vehicle means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a Maxi Cab, a Motor Cab, contract carriage, and stage carriage”.

4. Combined reading of said Clauses (22), (35) and (47) of Section 2 would show that the Maxi Cab in question was a transport vehicle”.

17.     The above authority is applicable on all force to the facts and circumstances of the present case, because in this case, the Mahindra Scorpio vehicle was nine seater and the driver was holding a licence to drive Scooter & M/Car only and he was not competent to drive Mahindra Scorpio vehicle which is nine seater and for that, the licence to drive transport vehicle was required. To drive a transport vehicle, even the person holding licence to drive Light Motor Vehicle requires endorsement on the licence, but in the present case, there was nothing such and the driver was not holding a valid and effective driving licence and the claim was rightly repudiated.

18.     Hon’ble Supreme Court in a case reported as “Oriental Insurance Company Limited Vs Jharu Nisha & Others”, IV (2008) ACC-781(SC) held that if the driver was not holding a valid and effective driving licence at the time of accident and in those circumstances, the insurance company was justified in repudiating the claim.

19.     In view of above discussion as well as the law laid down, the order passed by the District Forum is not sustainable and is liable to be set aside.

20.     Accordingly, the appeal filed by the appellant is accepted and the impugned order under appeal dated 20.05.2010 passed by the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed. No order as to costs.

21.     The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.

22.     The arguments in this appeal were heard on 26.02.2014 and the order was reserved. Now the order be communicated to the parties.

 23.    The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.”

4.       Against the order dated 28.02.2014 passed by Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, further the New India Assurance Company preferred an appeal before Hon’ble National Consumer Disputes Redresssal Commission, New Delhi  and accordingly, Hon’ble National Consumer Disputes Redresssal Commission, New Delhi in Revision Petition No. 1053 of 2015 has passed the order  setting aside the impugned order passed by Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh and the matter was remitted back to this District Forum for deciding the same afresh after summoning and examining the record of the Licensing Authority (MV), Ajnala (Amritsa) and finding out as to whether Driving Licence No. 12263 dated 18.5.1998 issued to Shri Manbir Singh at Ajnala authorized him to drive a jeep or not. 

5.       In view of the directions of Hon’ble National Consumer Disputes Redresssal Commission, New Delhi, notice was sent to the Licencing Authority (MV), Ajnala for 16.11.2016 with direction to appear before the Forum alongwith record pertaining to driving licence No. 12263 dated 18.5.1998 issued to Shri Manbir Singh at Ajnala.  On notice, Sh.Pargat Singh son of Sh.Boor Singh, Licence Clerk, Office of SDM, Ajnala appeared on 8.12.2016 and made the following statement:-

“I have brought the summoned record. As per the record, licence bearing No. 12263 was issued in the name of Manbir Singh son of Balwinder Singh, Khalsa College, Nawi Abadi, Mohni Park, Amritsar on 18.5.1998 and is valid till 14.2.2030 and is valid for scooter/ car only. The attested copy of the entry made in the register is Ex.CA and the same is correct as per the record. I have also brought the original register today in the court.

RO & AC   dated 8.12.2016.”

6.       Undisputedly,   the vehicle in question is Mahindra Scorpio and as per Registration Certificate Ex.C-2, its seating capacity was nine (9). As per the statement of Sh.Pargat Singh son of Sh.Boor Singh, Licence Clerk, Office of SDM, Ajnala made on 8.12.2016 in this Forum,  as per the record, licence bearing No. 12263 was issued in the name of Manbir Singh son of Balwinder Singh, Khalsa College, Nawi Abadi, Mohni Park, Amritsar on 18.5.1998 and is valid till 14.2.2030 and is valid for scooter/ car only. The attested copy of the entry made in the register is Ex.CA. But however, the vehicle in dispute was Mahindra Scorpio, which can not be treated as a car. Ld.counsel for the Opposite Party has also produced the Certificate of Registration (Form No.23 rule 48) before this Forum which fully proves that  complainant S.Pritam Singh son of S.Malook Singh, resident of 49-50-A, New Gurnam Nagar, Peeran Wala Bazar, Sultanwind Road, Amritsar is registered owner of Mahindra Scorpio,  bearing Registration No.PB02AX0953, bearing Chassis No. 62G81479, Engine No. 52496, Tax valid upto 29-Jan-2022. From the aforesaid statement of Sh.Pargat Singh son of Sh.Boor Singh, Licence Clerk, Office of SDM, Ajnala made on 8.12.2016 in this Forum and from the Certificate of registration produced at the time of arguments before this Forum, it fully proves that Manbir Singh son of Balwinder Singh, Khalsa College, Nawi Abadi, Mohni Park, Amritsar was not competent to drive the Mahinda Scorpio and he was having only the driving licence valid for driving the scooter/ car only.

7.       In view of the aforesaid facts and circumstances, this Forum found no merit in the instant complaint and the same is hereby dismissed. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated: 27.01.2017.