STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                    U.T., CHANDIGARH 

The New India Assurance Company Limited, SCO No.828, N.A.C. Manimajra, Chandigarh, through Regional Office, SCO 36-37, Sector-17A, Chandigarh through its duly authorized officer.                                                                                                                         … Appellant

V E R S U S

1. Sanjeev Kumar Prop. M/s Sanjeev Constructions equipment, Booth No.770, Motor Market, Manimajra, Chandigarh. 
2. Sundaram Finance Limited, SCF No.56-57, 2nd Floor, Phase XI, Sector 65, SAS Nagar, Mohali through its Managing Director.

                                                                         ..... Respondents

Appeal under Section 41 of the Consumer Protection Act, 2019 against order dated 05.04.2023 passed by       District       Consumer Disputes Redressal Commission-I, U.T. Chandigarh in Consumer Complaint No.983/2019.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                       Mr.PREETINDER SINGH,MEMBER

Argued by:  Sh.Vinod Gupta, Advocate for the appellant.

                       Sh.Neeraj Pal Sharma,  Advocate for respondent No.1 (on VC)

                    Sh.Vishal Bali, Advocate for respondent No.2                                 

 PER PADMA PANDEY, MEMBER

                   This appeal is directed against the order dated 05.04.2023, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”),  in Consumer Complaint No.983 of 2019,vide which, it partly allowed the complaint with following directions to Opposite Party No.2/Appellant ;

1. to pay ₹6,43,100/- to the complainant alongwith interest @ 9% per annum from the date of repudiation i.e.30.3.2019 till realization of the same.
2. to pay an amount of ₹25,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant as costs of litigation.

This order be complied with by OP-2 within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.

 Since no deficiency in service or unfair trade practice has been alleged or proved against OP-1, therefore, the consumer complaint against OP-1 is dismissed with no order as to costs.”

2.      Before the Ld. Lower Commission, it was case of the complainant/respondent No.1 that he had purchased one Tata Hitachi EX 210 LC Super excavator by getting the same financed from Opposite Party No.1/respondent No.2 and got the same insured with Opposite Party No.2/appellant  w.e.f. 8.11.2017 to 7.11.2018 vide policy schedule cum certificate of insurance, a copy of which is Annexure C-2.  In pursuant to a contract work order awarded to the complainant, the said excavator was moved by a truck for transporting it  to the  site and was at work on 10.4.2018 when it met with an accident at Karali Road. The  subject excavator got imbalanced and fell down into the valley approximately 100 feet down from the road level, as a result of which, it was damaged.  Intimation about the accident was immediately given to OP-2/insurer vide claim intimation letter (Annexure C-3). Thereafter, Opposite Party No.2 demanded some documents vide its letter dated 5.2.2019 (Annexure C-4), which was properly replied  to  by the complainant vide letter dated 6.2.2019 (Annexure C-5) alongwith some documents. Subsequently, subject excavator was got repaired by the complainant from his own funds and after that he submitted claim to OP-2, but, the genuine claim of the complainant was rejected by the OP-2 on the ground that the driver of the subject excavator was not possessing a valid driving licence, which otherwise, was not required under law.  Alleging deficiency  in service and unfair trade practice on the part of Opposite Parties, a consumer complaint was  filed before the Ld. Lower Commission. 

3.             Pursuant to issuance of notice, Opposite parties appeared before the Ld. Lower Commission and contested the complaint.    In its written version, Opposite Party No.1 took  certain preliminary objections about  maintainability of the complaint and  also that the complainant was a defaulter in   paying the loan installments regularly.  On merits, it  denied that that the complainant ever approached the answering OP with the estimated claim amount, as alleged. Since the subject excavator was insured with Opposite Party No.2, answering OP has no concern with the present consumer complaint and the consumer complaint of the complainant was only maintainable against OP-2 and not against the answering OP.   The other allegations were denied and a prayer was made for dismissal of complaint against it.

4.                In its written version, Opposite Party No.2  admitted that the subject excavator was insured with the answering OP for the period w.e.f 8.11.2017 to 7.11.2018.  It was also admitted that during the currency of the subject policy, a claim was reported for loss qua the subject excavator and a surveyor was deputed by the answering OP.  It was alleged that the complainant had informed the answering OP that the subject excavator was being operated by Mr.Aman Chaudhary a skilled operator but the driving licence of the said operator was not sent by the complainant, as required by the answering Opposite Party. It was further alleged   that the subject excavator was being used for commercial purpose, and as such, the claim of the complainant was rightly repudiated by the answering OP. The other allegations were denied and a prayer was made for dismissal of the complaint. 

5.                  On appraisal of the complaint, and the evidence adduced on record by the parties , Ld. Lower Commission  partly allowed the complaint against the appellant, as stated in the earlier part of the order and respondent No.2 was exonerated from any liability as no deficiency in service or unfair trade practice was alleged or  proved against it. .

6.               Aggrieved against  the  aforesaid order passed by the Ld. Lower Commission, the instant Appeal  has been filed by the Appellant/Opposite Party No.2 for setting aside the impugned order.

7.               We have heard Counsel for the parties  and   have gone through the evidence and record of the case with utmost care and circumspection.

 8.              The ground taken by the appellant is that the Ld. Lower Commission has failed to appreciate that respondent No.1/complainant has not produced any driving licence which was required for driving the subject excavator as the said vehicle comes under the definition of ‘Motor Vehicle’ under the Motor Vehicles Act  and further as per the Central Motor Vehicle Rules, it needs special training to operate such a vehicle whereas the driver has not been able to produce any such special certification to drive the vehicle.  It was also contended that the  amount awarded on account of punitive compensation is  on the higher side and viewed from any angle, the view taken by the Ld. Commission is not sustainable  in the eyes of law.

9.              The claim of respondent No.1/complainant was repudiated by the appellant by stating the reason that the driver of the vehicle was not holding a valid & effective driving licence/training certificate from the recognized institution at the time of the accident.  The accident occurred on 10.04.2018 when the machine was working at Karali Road and suddenly retaining wall of the road settled and the machine lost its balance and fell down into the valley approximately 100 feet down from the road level causing damages.  The main contention of the appellant is that the subject excavator falls under the dentition of Motor Vehicle and no driving licence has been produced for driving the said excavator.  The definitions of “driving licence” and “motor vehicle”, as provided under the Motor Vehicles Act 1988,  are reproduced as under ;

2(10) “driving licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description;

2(28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding1 [twenty-five cubic centimetres];

Further, the definition of “construction equipment vehicle” has also been given in the Central Motor Vehicle Rules, 1989 in Rule 2 (ca) as under :-

“2(ca) "construction equipment vehicle" means rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted, self-propelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fork lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with "on or off" or "on and off" highway capabilities.

10.               As per product brochure/specifications available on the complaint file, the maximum speed attainable by the machine is 4.2 Kilometre per hour and it is a chain/metallic rails  driven machine and there are no rubber based hard/pneumatic wheels attached to it. Thus, the machine of the respondent No.1 does not fall under the definition of a Motor Vehicle as such  its operator does not require a Driving Licence .    This fact has also been endorsed by the surveyor deputed by OP-2 in his final survey report dated 1.12.2018 (Annexure OP-2/4) wherein he has categorically mentioned in para 5 as under :-

In the case titled Lakhvinder Singh Bhamra Vs. Cholamandalam MS General Insurance Co. Ltd. & Anr., II (2012) CPJ 109,State Commission, Chhatishgarh also held that as it is a machine, so may be it comes in the category of special type of vehicle, but is not covered under the term ‘Motor Vehicle’.

11.             The Ld. District Commission rightly observed that the machinery in question is an excavator which is not covered under the definition of a motor vehicle and as it does not fall under the definition of a ‘motor vehicle’, the driving licence for operating such machines are not required. Further the amount awarded by the Ld. District Commission as compensation for causing mental agony and harassment   to respondent No.1/complainant is quite just and reasonable.   

12.              In view of the above, we find that the order passed by the Ld. District Commission is based on correct appreciation of   evidence and law on the point and does not suffer from illegality and perversity warranting any interference of this Commission.                

13.                   For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed,   with no order as to costs. The order of the Ld. Lower Commission is upheld.  

14.             Pending interlocutory  application, if any, also stands disposed of

15.         Certified copies of this order be sent to the parties free of charge.

16.                     The file be consigned to Record Room, after completion.