Haryana

StateCommission

A/837/2015

NATIONAL INSURANCE CO.LTD. - Complainant(s)

Versus

PARVEEN KUMAR - Opp.Party(s)

SWATANTAR KAPOOR

02 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      837 of 2015

Date of Institution:      05.10.2015

Date of Decision :       02.02.2016

 

The National Insurance Company Limited, Branch Offices, Yamuna Nagar and Kurukshetra through Manager, National Insurance Company Limited, RO II, SCO No.337-340, Sector 35-B, Chandigarh.

 

                                      Appellant/Opposite Party

Versus

 

Parveen Kumar s/o Sh. Jagdish Chander, Resident of Ward No.3, Gali No.2, Mahavir Colony, Ladwa, Tehsil Thanesar, District Kurukshetra.

                                      Respondent/Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Ms.Swatantar Kapoor, Advocate for appellant.

                             Shri Parmod Chauhan, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This appeal has been preferred against the order dated 31^st August, 2015, passed by District Consumer Disputes Redressal Forum, Kurukshetra (for short ‘the District Forum’) in Complaint No.67 of 2003.

2.      Eicher Canter, bearing registration No.HR-45/2626, was insured with The National Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Party/appellant, for the period 24^th August, 2001 to 23^rd August, 2002, vide Insurance Policy Annexure A-4.  The sum assured was Rs.2,75,000/-. During the intervening night of 25/26-07-2002, the vehicle was damaged in an accident in the area of Behrod, District Alwar (Rajasthan). The Police of Police Station Behrod, was informed vide Report Annexure P-1.  The Insurance Company was also informed. The surveyor of the Insurance Company inspected the vehicle and assessed the loss at Rs.50,480/- vide report dated September 13^th, 2002. The complainant got the vehicle repaired at Karnal. He filed claim with the Insurance Company but the same was repudiated vide letter dated 21^st March, 2003 (Annexure A-7) stating as under:-

“It is to inform you that your claim stands repudiated by this letter on the ground that Driver Parveen Kumar was not holding a valid Driving Licence at the time of accident, because unladen weight of the vehicle is 8770 Kgs for which a Licence of MGV is required and moreover an unauthorized person Om Lal s/o Darshan Lal was also sitting in the vehicle at the material time of accident. there is no privity of contract between you and the Company because the insurance of the vehicle is in the name of Darshan Lal and Prem Singh and not in your name and you have not get the policy transferred within 14 days of transfer of R.C., if any, in your name. You have also lodged the claim very late intentionally and deliberately and not arranged for the spot survey of the vehicle. You have also not replied the queries intimated to you vide letter dated 3.3.2003 and as such, your claim stands repudiated.”

3.      Aggrieved of the repudiation of his claim, the complainant filed complaint before the District Forum.

4.      The Insurance Company in its reply while reiterating the stand taken in the repudiation letter, prayed for dismissal of the complaint.

5.      On appraisal of the pleadings and evidence of the parties, the District Forum vide impugned order allowed complaint directing the Insurance Company as under:-

“…we partly allow the present complaint and direct the opposite parties to make payment of Rs.50,480/- alongwith simple interest at the rate of 9% per annum from the date of filing of present complaint i.e. 10.3.2003 till realization to the complainant. We also direct the opposite parties to pay a further amount of Rs.5,000/- as compensation to the complainant.” 

6.      Learned counsel for the Insurance Company has assailed the impugned order by raising two fold arguments. Firstly, that the Insurance Policy was purchased by Darshan Lal and Prem Singh, that is, the previous owners of vehicle. They sold the vehicle to Parveen Kumar-complainant/respondent. The vehicle was transferred in the name of complainant but he did not get the insurance policy transferred in his name. Even no intimation was given to the Insurance Company in this respect.  Secondly, that Parveen Kumar, who was driving the vehicle at the time of accident, was not holding a valid driving license to drive canter which is a Medium Goods Vehicle, whereas the driving license (Annexure A-6) produced alongwith the claim form was valid to drive Motor Cycle and Scooter only.

7.      It is not disputed that the vehicle was comprehensively insured with the Insurance Company from 24^th August, 2001 to 23^rd August, 2002. During the intervening night of 25/26-07-2002, the vehicle was damaged in accident. It is also not in dispute that the complainant was the registered owner of the vehicle on the date it was damaged.

8.      In Mallamma (Dead) by LRs versus National Insurance Company Limited & others, 2014(3) CLT 1, Hon’ble Supreme Court held as under:

“Motor Vehicle Act, 1988, Section 157 – Insurance claim –Transfer of ownership – Once the ownership of the vehicle is admittedly proved to have been transferred, the existing insurance policy in respect of the same vehicle will also be deemed to have been transferred to the new owner and the policy will not lapse even if the intimation as required under Section 103 of the M.V. Act is not given to the insurer.”

9.      Hon’ble Punjab and Haryana High Court in M/s United India Insurance Company Co. Ltd. versus Manjit Kaur and others, 2000(3) R.C.R. (Civil) 441 (D.B.), held as under:-

“A plain reading of sub-section (1) of Section 157 shows that when a vehicle is sold with the insurance policy, the same is deemed to have been transferred to the purchaser. This deeming provision is not subject to any other limitation. It is true that sub-section (2) provides that the purchaser shall apply for the transfer of the policy in his name within 14 days to the insurance company but it does not, in any manner, provide that failure to make such application would nullify either the deemed transfer as envisaged under sub-section (1) of section 157 of the Act or the insurance policy.”

10.    In United India Insurance Co. Ltd. versus Sharanjit Kaur and others, 2005(1) R.C.R. (Civil) 481 (DB), Hon’ble Punjab and Haryana High Court held as under:-

“7.     In our opinion, the above Section does not provide that if the transferee fails to apply on the prescribed form to the insurer for the transfer of the certificate of insurance, then whether the policy would become invalid or lapse. Rather, Section 157(1) of the Act provides that where a person in whose favour the certificate of insurance has been issued in accordance with the provision of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. By Act No.54 of 1994 an explanation has also been added, which came into force with effect from 14.11.1994. In this explanation, it is declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.”

11.    From the above, it is established that once the ownership of vehicle is admitted to have been transferred, the existing insurance policy in respect of the said vehicle shall be deemed to have been transferred to the new owner and the policy would not lapse even if the intimation as required under Section 103 of the Motor Vehicle Act is not given to the insurer. Since on the date of accident the complainant was the registered owner of the canter, so the Insurance Company is liable to indemnify the complainant.

12.    In view of the above, the first plea of the learned counsel for the Insurance Company is repelled.

13.    As regards to the second plea with respect to the driving licence, the complainant produced driving license (D/L.No.4431/T/C/96 dated 12.10.1996) issued by Licensing Authority (MV), Thanesar (KKR). The date of expiry of the above said licence was 30.10.2003. Copy of the verification report in this respect has been produced (at page 89 of the District Forum file).  The complainant has also placed on the file copy of same driving license bearing No.4431/T/96, wherein an endorsement dated 03.11.2000 was made authorizing the license holder to drive Light Transport Vehicle (LTV) also. The accident had taken place on 25.07.2002. Thus, the driving licence of Parveen Kumar-driver, was valid for driving the vehicle of ‘LTV’ category. However, the vehicle in question falls under the category of MGV, as is evident from the Registration Certificate. The gross weight of vehicle as per Registration Certificate is 9770 Kgs.

14.    Now the question for consideration is that under which category the vehicle of the complainant falls. The categories of HGV, MGV and LTV have been defined in The Motor Vehicle Act, 1988, as under:-

“2(16)         “heavy goods vehicle” means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen wiehgt of either of which, exceeds 12,000 kilograms”

 

“2(21)         “Light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms”

                  

“2(23)         “medium goods vehicle” means any goods carriage other than a light motor vehicle or a heavy goods vehicle”

 

15.    As per Registration Certificate, the gross weight of vehicle being 9770 Kgs, it falls in category of ‘Medium Goods Vehicle’.  Parveen Kumar-driver, was holding driving licence to drive Light Motor Vehicle w.e.f. 03.11.2000.

16.    Sub Section (1) (C) of Section 8 the M.V. Act, prescribes for requirement of experience to have driving licence to drive Medium Goods Vehicle, which reads as under:-

“(c)              to drive a medium goods vehicle or a medium passenger motor vehicle unless he has held a driving licence for at least one year to drive a light motor vehicle.”

 

17.    It is clear that a person having one year experience to drive LTV, can apply for obtaining driving licence of a Medium Goods Vehicle. In the case in hand, Parveen Kumar-driver, had completed one year experience of LTV and thus he was entitled to obtain licence to drive Medium goods vehicle after 03.11.2001, however he did not apply for the same, though he was entitled to get the licence of Medium Goods Vehicle.  

18.    Faced with this situation, though the complainant has placed on the file photo copy of another driving license (Annexure P-17) purporting to have been issued by the Licensing Authority, Nagaland, valid for driving HMV, MGV, HGV only while the complainant in the claim form has mentioned license issued by Licensing Authority, Yamuna Nagar, which was found to be valid only for LTV. The complainant by placing on the file photo copy of another driving license purporting to have been issued by the Licensing Authority, Golaghat Road, Dimapur, Nagaland, disabled the Insurance Company from its verification besides no person can hold two driving licenses at one time. Without going into that controversy, in any case driver was holding licence to drive LTV. Even if treating it as violation of policy, the complainant is yet entitled to compensation on non-standard basis in view of the judgment of Hon’ble Supreme Court in Amalendu Sahoo Versus Oriental Insurance Company Limited, 2010 CTJ 485 (S.C.).

19.    In view of the above, this Commission is of the view that the complainant is entitled to compensation on non-standard basis, that is, 75% of the loss suffered by him.  As per report of the surveyor the loss was of Rs.50,480/-, and 75% of it comes to Rs.37,860/- to which the complainant is entitled.     Hence, it is directed that the Insurance Company shall pay Rs.37,860/- to the complainant, however, without any interest and compensation.

20.    The impugned order is modified in the manner indicated above and the appeal stands disposed of.

21.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

 

Announced 02.02.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL