This revision petition has been filed by the Divisional Manager, Untied India Insurance Co. Ltd. who was the opposite party before the District Consumer Disputes Redressal Commission, Cuttack (for short ‘District Forum’) whose order dated 19.5.1998 directing him to settle the claim of the respondent/complainant as per the assessment made by the surveyor with 18% interest p.a. and to pay him  a sum of Rs.5000/- as compensation and Rs.1000/- as cost of litigation which  has been affirmed by the State Consumer Disputes Redressal Commission Orissa, Cuttack (for short ‘State Commission’) in its order dated 14.12.2005.

Briefly stated, the facts of the case are that the Ambassador Car of the respondent/complainant while carrying eight passengers and being driven by one Shri Tutu Jena during the currency of the insurance policy, met with an accident on 4.6.1994.  The vehicle suffered heavy damage apart from injuries to the passengers and an FIR was lodged at Sadar Police Station, Dhenkanal.  The complainant incurred an expenditure of Rs.70,118.44 towards the repair of the vehicle.   He, therefore filed a claim with the petitioner/opposite party – insurance company for its reimbursement.  A surveyor who had been appointed soon after the accident vide his report dated 15.11.1994 assessed the loss at Rs.35,000/-. However, even this amount was not admitted and the claim on the whole was repudiated on the ground that the complainant has committed  breach of the policy conditions inasmuch as the driver was not authorized to drive a Public Service Vehicle/Transport Vehicle such as Taxi and was not having a valid and proper driving licence at the time of the alleged accident.  It was also carrying eight passengers as against the permitted capacity of six.

          It was in this background that a complaint came to be filed before the District Forum, who as already stated partly allowed the complaint and directed the opposite parties to honour the reimbursement of the loss as assessed by their surveyor. When this order was challenged by the petitioner/opposite party before the State Commission, it did not find any justification to interfere with the order passed by the District Forum and dismissed the appeal.  Aggrieved thereupon, the petitioner/opposite party has filed this revision petition.

          The arguments of the learned counsel for the petitioner are only a reiteration of the stand taken before the State Commission. While admitting that the vehicle met with an accident during the subsistence of the period of insurance and further that the incident was reported to the Police and an FIR has been lodged and further that they appointed a surveyor  who assessed the loss to the vehicle at Rs.35,000/- ; it has been contended that the claim was repudiated since the insured had committed breach of the policy conditions.  In that the driver was not authorized to drive a Public Service Vehicle and was not having a valid and proper driving licence at the time of the accident.  Further, he was carrying eight passengers as against the permitted capacity of six.  There was also a breach of the Motor Vehicle Rules as the driver was not wearing the uniform and PSB badge as prescribed under the Rules.  Referring to Section 3 of the Motor Vehicle Act, learned counsel submits that it is mandatory for a person to obtain an endorsement on the licence if he was to drive a Transport Vehicle in any public place.  In this case, he contends that the driver did not have any endorsement on his licence authorizing him to drive a Public Service Vehicle/Transport Vehicle and thus there was a clear breach of the provision of the Motor Vehicle Act and the policy conditions. In this regard, he has relied upon the judgment of the Hon’ble Supreme Court in the case of United India Insurance Co.Ltd. Vs. Gian Chand reported in JT 1997 (7) SC 736 and National Insurance Co.Ltd. Vs. Kusum Bai & Ors. reported in 2006 ACJ 1336.  He has, therefore, contended that both the fora below have failed to consider this proposition of law in its proper perspective and their orders cannot be legally sustained.

          Learned  counsel for the respondent/complainant on the other hand, has rebutted the contentions of the learned counsel for the petitioner stating firstly that as per clarification given by the Licensing Authority vide their letter dated 24.4.1995, the driver Tutu Jena was authorized to drive both ‘Light Motor Vehicle’ and ‘Heavy Goods Vehicle’ w.e.f. 26.5.1993 which was subsequently renewed upto 20.5.1996.  On the day of the accident i.e. on 7.6.1994, the driver, Tutu Jena, therefore possessed a valid and effective licence to drive ‘Heavy Goods Vehicles’.  ‘Transport Vehicle’ besides other categories means a ‘Goods Carriage’ and ‘Public Service Vehicle’ as defined in Section 2 (47) of the Motor Vehicle Act and when the Licensing Authority has authorized the driver to drive a ‘heavy goods vehicle’, the District Forum has rightly held that the driver is deemed to have been authorized to drive a ‘Goods Carriage’ and a ‘Public Service Vehicle’.            Contending that reliance placed on the orders of the Hon’ble Supreme Court by learned counsel for the petitioner are clearly distinguishable on the facts of the case, the counsel submitted that they would not support the case of the petitioner.

Referring to the carrying of eight passengers against the permitted capacity of six, the counsel submits that in view of the decision of the Hon’ble Supreme Court in the case reported in 1996 (4) SCC 647 and IC (1995) CPJ 28 SC, this minor deviation cannot be treated to be a breach of the condition of insurance policy and the insurance company cannot absolve itself from its liability.  In so far as the driver not being in the prescribed uniform or not wearing the badge is concerned, the counsel submits that this cannot be said to be a fundamental breach of the policy condition and in any case cannot be said to have contributed to the cause of the accident.  It is too petty and technical an objection to absolve the insurer from its liability to pay compensation to the insured.  Thus, justifying the order passed by the fora below, the learned counsel has prayed that the revision petition be dismissed.

          We have heard the learned counsel for the parties and have perused the records.

          Learned counsel for the petitioner -  insurance company finds fault with the impugned order mainly on three counts ; first and primary objection is that the driver of the vehicle Tutu Jena did not possess a proper and valid driving licence and, therefore, he was not authorized to drive a Public Service Vehicle/Transport Vehicle like Taxi.  The second flaw pointed out relates to the vehicle carrying eight passengers as against the authorized six and thirdly, that he was not wearing the Public Service Badge (PSB). 

On the first point as to whether Tutu Jena was having an effective and valid licence ; it is not disputed that the Licensing Authority, Cuttack in his letter addressed to the Administration Officer of the petitioner – insurance company dated 24.4.1995 had clarified that the said Tutu Jena was authorized to drive both ‘Light Motor vehicle’ and ‘Heavy Goods Vehicle’.  The validity of the said authorization was upto 20.5.1996.  There being no dispute with regard to the period of validity, we have to consider whether the endorsement of ‘Light Motor Vehicle’ and ‘Heavy Goods Vehicle’ on his driving licence fulfilled the requirement of the provision of the Motor Vehicle Act, 1988.  Section 2 (47) defines ‘Transport Vehicle’ as under :-

“Transport Vehicle” means a ‘Public Service Vehicle’, ‘a goods carriage’, ‘an educational institution bus’ or ‘a private service vehicle’. 

Further, Section 2 (35) of the Motor Vehicle Act, 1988 defines ‘Public Service Vehicle’ 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 include a maxicab, a motorcab, contract  carriage, and stage carriage.” 

Since the driver of the vehicle Tutu Jena possessed a driving licence which as clarified by the Licensing Authority, Cuttack and also as per the endorsement on his driving licence authorized him to drive ‘Heavy Goods Vehicle’ which is a category even higher than a ‘Goods Carriage’ as defined under the head of ‘Transport Vehicle’, it cannot be said that he was not authorized to drive a ‘Public Service Vehicle’.  It has to be held that the Licensing Authority has authorized him to drive a ‘Goods Carriage’ and  ‘Public Service Vehicle’.  Since, the policy was for ‘passenger carrying vehicle’ which can only mean ‘Public Service Vehicle’ the objection raised by learned counsel for the petitioner, in our view cannot be sustained.  Reference to the judgment of the Hon’ble Supreme Court in the case of United India Insurance Co.Ltd. Vs. Gian Chand reported in JT 1997 (7) SC 736 and National Insurance Co.Ltd. Vs. Kusum Bai & Ors. reported in 2006 ACJ 1336 (supra) are therefore, not applicable.

          In so far as the objection of carrying of eight passengers against authorized six is concerned, the same cannot be termed to be a flagrant violation of the condition of the insurance policy.  Learned counsel for the respondent – complainant has rightly placed reliance in the judgment of the Hon’ble Supreme Court in the case of B.V.Nagaraju Vs. Oriental Insurance Co. reported in 1996 (4) SCC 647 and IC (1995) CPJ 28 SC in which the Hon’ble Apex Court has ruled that carrying of persons more than the number permitted in terms of the policy cannot be said to be a fundamental breach so as to deny indemnification.

          With regard to the allegations that the driver was neither wearing uniform prescribed for the drivers nor the Public Service Badge (PSB), the said omissions cannot be attributed to be of such a nature as to absolve the petitioner’s of the liability to indemnify the damage to the vehicle ; since the driver would be liable for explanation for the lapse separately.  In any event, it cannot be said that these lapses contributed to the cause of accident.

          We are, therefore of the view that the revision petition being devoid of any merit deserves to be dismissed and we order accordingly with a cost of Rs.3000/- to be paid by the petitioner to the respondent.

…………………………J

(B.N.P. SINGH)

PRESIDING MEMBER

…………………………

(S.K. NAIK)

 MEMBER

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