(Per: Justice B.C. Kandpal, President):

This is insurer’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 04.01.2013 passed by the District Forum, Nainital in consumer complaint No. 45 of 2010.  By the order impugned, the District Forum has allowed the consumer complaint and directed the appellant – opposite party to pay compensation of Rs. 3,62,895/- to the respondent – complainant together with interest @6% p.a. pendente lite and future; Rs. 5,000/- towards mental agony and Rs. 5,000/- towards litigation expenses.  It was also directed that on the date of compliance of the order, the complainant shall hand over the ownership documents of the vehicle / letter of subrogation to the insurance company.

2.       Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant is the registered owner of vehicle No. UA04-B-6905 (Tata Spacio).  The said vehicle was insured with the appellant – The Oriental Insurance Company Limited for the period from 05.01.2005 to 04.01.2006.  It was alleged that the complainant was himself driving the said vehicle and the vehicle was being used by the complainant for the purpose of earning his livelihood.  It was also alleged that the complainant was holding a valid and effective driving licence for driving the vehicle.  It was further alleged that during the currency of the insurance policy, the insured vehicle met with an accident on 16.05.2005 at 4:00 a.m. on Bhawali – Ramgarh road near Shyamkhet bend and got completely damaged.  The FIR of the accident was lodged with the P.S. Bhawali and intimation was also given to the insurance company.  The insurance company through their letter dated 25.07.2005 asked the complainant to submit the estimate of repairs.  However, the claim of the complainant was not settled by the insurance company and, as such, alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Nainital.  

3.       The insurance company filed written statement before the District Forum and pleaded that the complainant – driver was not holding a valid and effective driving licence to drive the insured vehicle, as there was no hill endorsement in the driving licence of the complainant; that at the time of the accident, the vehicle was overloaded; that the complainant has committed breach of the terms and conditions of the policy; that the claim was rightly repudiated by the insurance company and that there is no deficiency in service on their part.

4.       The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 04.01.2013 in the above terms.  Aggrieved by the said order, the insurance company has filed the present appeal.         

5.       None appeared on behalf of respondent – complainant.  We have heard the learned counsel for the appellant – insurance company and have also perused the record.   

6.       Rule 193 of The Uttar Pradesh Motor Vehicles Rules, 1998 reads as under:

“193. Endorsement of certain licences for hill roads – No person shall drive a public service vehicle or a goods vehicle on a hill road unless his licence to drive such public service vehicle or goods vehicle has been endorsed by a registering authority with a permission to drive upon hill roads situated within the jurisdiction of such registering authority or in the case of a public service vehicle hired by tourists, by the registering authority of the State with which reciprocal arrangements on the point have been agreed upon.”

7.       There is no dispute with regard to the fact that at the time of the accident, the insured vehicle was being driven by the complainant himself.  The complainant was issued driving licence bearing          No. 47209/K/98 by the Licencing Authority, Haldwani (Paper No. 20) on 25.05.1998 and by way of the said driving licence, he was authorized to drive motorcycle and light motor vehicle and the said driving licence was valid for the period from 25.05.1998 to 24.05.2018 and the said driving licence was endorsed for transport vehicle on 23.09.2003 for the period from 23.09.2003 to 22.09.2006.  There was no hill endorsement in his driving licence so as to authorize him to drive the vehicle in hill roads.  The insurance company has obtained the particulars of the said driving licence on Form No. 54 (Paper No. 21), which also shows that there was no hill endorsement in the driving licence of the complainant – driver.

8.       Thus, the fact remains that there was no hill endorsement in the driving licence of the driver who was driving the vehicle at the time of the accident.  The accident in question took place on 16.05.2005 at Bhawali – Ramgarh road near Shyamkhet bend.  Thus, there is no dispute that the accident in question took place in hilly area.  Therefore, the complainant was obliged to have hill endorsement in his driving licence so as to drive the vehicle in question in hill roads.

9.       In view of above quoted Rule of The Uttar Pradesh Motor Vehicles Rules, 1998, it was incumbent upon the driver to have hill endorsement in his driving licence, which he did not have.  Learned counsel for the appellant – insurance company cited a decision dated 24.08.2011 of this Commission given in First Appeal No. 54 of 2009; Sh. Bhagwat Singh Negi Vs. The New India Assurance Company Limited.  In the said case, there was no hill endorsement in the driving licence of the driver and it was held that the driver was not having a valid and effective driving licence to drive the vehicle on hill roads and, therefore, the insured has committed breach of the terms and conditions of the policy of insurance, which resulted in vitiation of the contract of insurance and the insurance company was absolutely justified in repudiating the claim and the complainant is not entitled to any compensation.

10.     The Hon’ble National Commission in the case of Rajinder Singh Negi Vs. Oriental Insurance Company Limited; IV (2008) CPJ 250 (NC), has held that the “hill road endorsement” on driving licence is not a mere formality, which can be brushed aside in a State, which is generally hilly.  In the said case, there was no hill endorsement on the driving licence of the driver at the time of the accident.  It was held that the driving licence was not in conformity with the Motor Vehicles Act and relevant Motor Vehicle Rules and the absence of hill endorsement in the driving licence, would render the driving licence invalid and the insurance company was justified in repudiating the claim.      

11.     The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside and the consumer complaint is liable to be dismissed.  Consequently, the appeal is fit to be allowed.

12.     For the reasons aforesaid, appeal is allowed.  Order impugned dated 04.01.2013 passed by the District Forum is set aside and consumer complaint No. 45 of 2010 is dismissed.  No order as to costs. 

(SMT. VEENA SHARMA)                        (D.K. TYAGI)                         (JUSTICE B.C. KANDPAL)

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