Haryana

StateCommission

A/71/2022

ORIENTAL INSURANCE COMPANY LTD. - Complainant(s)

Versus

SHAKTI PARSHAD - Opp.Party(s)

KRISHNA KANT

16 Jul 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                Date of Institution:25.02.2022

                                                          Date of final hearing: 24.05.2024

                                                     Date of Pronouncement: 16.07.2024

 

First Appeal No.71 of 2022

 

1.      The Oriental Insurance Company Ltd. through its Branch Manager Service Centre SCO No.109-111, Sector 17-B, Chandigarh.

2.      The Oriental Insurance Company Ltd. through its Branch Manager, Near Bus Stand, Pinjore, Tehsil Kalka, Distt. Panchkula.

          Both through its authorized signatory Gurupdesh Kaur, Manager, SCO No.109-110-111, Surendra Building, Sector-17-B, Chandigarh.                                                       .....Appellants

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Shakti Parshad aged 45 years S/o Sh.Dayal Chand, R/o House No.4, Village Kajiyana, Post Office, Pinjore, Tehsil Kalka, Distt. Panchkula.

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CORAM:             Mr.Naresh Katyal, Judicial Member

                             Mrs. Manjula Sharma, Member

 

Argued by:-       Mr.Krishna Kant, counsel for the appellants.

Mr.Sunidh Kashyap, counsel for the respondent.

 

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

          Challenge in this Appeal No.71 of 2022 of appellants/OPs have been invited to legality of order dated 28.01.2022 passed by District Consumer Disputes Redressal Commission, Panchkula (In short “District Consumer Commission”) in Consumer Complaint No.315 of 2020, vide which complainant’s complaint has been partly allowed.

2.      Factual matrix:  Complainant-owner of TATA 407 vehicle bearing No.HR-68B-2663 whose total weight is 4450KG which is less than 7500 KG., was having driving license for driving “Light Motor Vehicle, Non Transport” valid from 26.04.2010 to 04.10.2026 and to drive “Transport Vehicle”driving license valid from 31.12.2013 to 30.12.2016 and then from 10.10.2018 to 09.10.2021. He had also taken National Carrier Permit of vehicle No.HR-68B-2663 valid from 03.07.2015 to 02.07.2020; Fitness Certificate from State Transport Department valid from 02.07.2017 to 29.06.2018. Token Tax has been paid to State Government from 03.07.2015 to 31.03.2018. Vehicle was insured with appellants-insurer vide policy valid from 04.07.2017 to 03.07.2018.

3.      Vehicle met with an accident on 31.12.2017 and FIR No.01 dated 01.01.2018 U/s 279, 304-A was registered on 01.01.2018 at P.S-Parvanoo. Vehicle fell in ditch about 500 mtrs. It was totally damaged and, as per plea in complaint, it is still lying at the place of accident, not possible to tow it. Complainant lodged total loss claim on 04.01.2018 with OPs along with all documents. It also appended repair bill/estimate dated 17.09.2018 of Rs.11,53,091/- issued by PASCO Motors-Chandigarh. He requested OPs for making payment of total loss and also sent letter dated 25.09.2018 in this regard. Surveyor Shri S.K. Sharma surveyed the spot as vehicle had fallen 500 mtrs. down in ditch and was impossible to bring it out. Surveyor took photographs of damaged vehicle. OPs/Appellants/Insurer put queries to complainant vide its letter dated 19.11.2018 to which complainant replied through letter dated 24.12.2018. Complainant came to know that OPs/Appellants/Insurer had rejected his claim vide letter dated 31.10.2019 and not released the amount. Complainant sent Legal Notice dated 22.09.2020 to OPs thereby requesting to release Rs.11,53,091/- on account of total loss of insured vehicle No.HR-68B-2663 along with miscellaneous expenses incurred by him. OPs/Appellants/Insurer had sent reply dated 05.10.2020 to legal notice thereby it has flatly refused to pass the claim of complainant. By alleging that he had suffered financial loss, mental agony, harassment and torture due to act and conduct of OPs/Appellants; he has filed the complaint.

4.      OPs/Appellants raised contest. In their defence it is pleaded that complainant was holding driving license valid for Non Transport vehicle from 26.04.2010 to 04.10.2026 and for Transport Vehicle from 31.12.2013 to 30.12.2016 and then from 10.10.2018 to 09.10.2021. It is pleaded that complainant was not holding a valid license on 31.12.2017 i.e. date of accident. It is admitted that OPs/Appellants issued insurance policy for vehicle No.HR-68B-2663 valid from 04.07.2017 to 03.07.2018. It is also admitted that FIR No.01 dated 01.01.2018 was lodged at P.S-Parvanoo, District Solan regarding accident and complainant submitted copies of documents and estimate dated 17.09.2018 for Rs.11,53,091/-prepared by PASCO Motors-Chandigarh, to OPs/Appellants on 26.09.2018. On receipt of estimate; surveyor was appointed on 03.10.2018, who conducted survey on 17.10.2018. As per plea; IDV (Insured Declared Value) as per policy was Rs.4,00,000/- and complainant cannot claim beyond IDV. Surveyor’s submitted report dated 12.11.2018. Surveyor went at site of accident to inspect damaged vehicle; clicked photographs. Complainant approached surveyor on 08.04.2019 and submitted copies of documents and spot survey was prepared by surveyor on 09.04.2019. OPs/Appellants repudiated the claim of complainant vide letter dated 31.10.2019. It is pleaded that OPs/Appellants are not liable to pay claim as it was dealt as per policy’s terms & conditions and found to be inadmissible on ground of ineffective and invalid driving license and same was rightly repudiated vide letter dated 31.10.2019. It is pleaded that OPs/Appellants sent reply to legal notice through counsel by stating that complainant was holding valid license of Light Motor Vehicle, but at the time of accident (31.12.2017), he was not holding valid and effective driving license to drive Commercial Vehicle. He was required to hold commercial driving license for TATA 407 vehicle having weight of about 4500 KG. Complainant was having Commercial Vehicle (Transport Vehicle)Driving License valid from 31.12.2013 to 30.12.2016 and then from 10.10.2018 to 09.10.2021. He failed to get necessary endorsement for Transport Vehicle from 31.12.2016 to 09.10.2018 and during this period accident took place i.e. on 31.12.2017. He did not possess valid and effective driving license to drive Transport Vehicle on 31.12.2017 and it was valid ground for repudiating his claim.

5.      Parties to this lis led their respective evidence, oral as well as documentary. On analyzing the same, learned District Consumer Commission vide order dated 28.01.2022 has partly allowed the complaint and issued directions as reproduced below:-

“(i)     To refund a sum of Rs.2,99,500/- as assessed by surveyor on net of salvage basis alongwith interest at the rate of 9% from the date of filing of the present complaint till its realization subject to the submission of following documents by the complainant to the OPs:-

1. Letter of subrogation (on non-judicial stamp paper of Rs.100/- duly notorized.
2. Letter of indemnity.
3. Form No.29 & 30 of M.V. Act duly signed by the owner.
4. Form No.35/No Due Certificate duly signed from the financier if the vehicle was financed.
5. Discharge voucher, consent letter and cancel cheque duly signed by the owner/complainant if not already given to OPs.

(ii)    To pay an amount of Rs.25,000/- to the complainant on account of mental agony and harassment.

(iii)   To pay an amount of Rs.5,500/- as litigation charges.”

6.      Feeling dissatisfied; Insurer/Appellants have filed instant appeal.

7.      We have heard learned counsel appearing for parties at length on 24.05.2024 and with their able assistance; record of learned District Consumer Commission, Panchkula has also been perused.

8.      Learned counsel for appellants/insurer, while urging for acceptance of this appeal, has contended that TATA 407 vehicle driven by complainant on ill-fated day of accident i.e. on 31.12.2017 was a Transport Vehicle. Its total weight was 4450 KG. Complainant was holding valid driving license from 26.04.2010 to 04.10.2026 to drive Non Transport Vehicle. To drive Transport Vehicle; he was holding driving license valid from 31.12.2013 to 30.12.2016 and then from 10.10.2018 to 09.10.2021. He did not possess valid and effective driving license to drive Transport Vehicle on date of accident i.e. on 31.12.2017. This was the precise reason to repudiate his claim which, as per contention was legally justified repudiation. It is urged that award dated 02.07.2009 (Annexure C-23), passed by Motor Accident Claims Tribunal, Panchkula in Claim Petition filed by LRs of deceased Shri Sanjeev Kumar (who had died in accident)has been wrongly relied upon by learned District Consumer Commission- Panchkula, as said award dated 02.07.2009 has yet not attained finality.

9.      Per contra, learned counsel for complainant, while supporting the impugned order dated 28.01.2022, has contended that impugned order passed by learned District Consumer Commission-Panchkula, is the outcome of proper appreciation of facts and evidence and same does not warrant any interference in this appeal.

10.    There is no denial that vehicle No.HR-68B-2663 had met with an accident on 31.12.2017. This vehicle is registered in name of complainant. Annexure C-1 is the Registration Certificate of this vehicle. It clearly reflects that gross weight of this vehicle is 4450 KG. Identical fact is reflected from document Annexure C-2 (Register of Motor Vehicle-Screen Report of Vehicle No.HR-68B-2663), as per which,unladen weight of this vehicle is 2250 KG. It has been categorized and classed as “Light Goods Vehicle and Transport Vehicle”.

11.    Driving License of complainant is Annexure C-3. It was issued on 26.04.2010. Extract of Driving License is Annexure C-4 and as per this document (Annexure C-4); driving license of complainant is valid from 26.04.2010 till 04.10.2026 for the purpose of driving Non Transport Vehicle. To drive Transport Vehicle; the validity of this license is admittedly from 31.12.2013 to 30.12.2016 and then from 10.10.2018 to 09.10.2021. Sole contention of learned counsel Appellants/Insurer is that vehicle in question (TATA 407) is a Transport Vehicle (apparent as such from document Annexure C-2)and complainant was not having valid driving license to drive it on the fateful day of its accident i.e. 31.12.2017.

12.    This contention of learned counsel for Appellants/Insurer has no credence at legal pedestal. Issue regarding validity of driving license in wake of given facts, particularly in the light of gross laden weight of vehicle in question, is no more res-integra. Hon’ble Apex Court in case titled as “Mukund Dewangan Vs. Oriental Insurance Co. Ltd.” (Civil Appeal No.5826 of 2011, decided on 03.07.2017)2017 (4) RCR (Civil) 111 has settled above quality controversy, which is moot proposition before this Commission. It has held as under:-

“(ii)    A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving license to drive class of “light motor vehicles” as provided in section 10 (2) (d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the license is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10 (2) (d) continues to be valid after Amendment Act 54/1994 and 28.03.2001 in the form.

(iv)    The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving license for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.”

 

13.    It would also be pertinent to mention about order dated 22.11.2023 passed by Hon’ble Apex Court in Civil Appeal No.841 of 2018 titled as “M/s Bajaj Allianz General Insurance Co. Ltd. Vs. Rambha Devi & Ors.” Hon’ble Apex Court in Para No.3 & 5 of said order has observed as under:-

“3.     This Court is seized of the reference where the correctness of the three-judge Bench decision in Mukund Dewangan Vs. Oriental Insurance Company Limited has been doubted. An element of certainty must be brought on the aspect which are raised in reference. At the same time, we do appreciate the stance of the Union government that any exercise for amendment would involve consultations with multiple stakeholders, including the State governments since the implementation of the provisions of the Motor Vehicles Act 1988 and the Rules which are framed under it lies with the States. In this view of the matter, we direct that the Union government in MoRTH should pursue the exercise which is sought to be conducted with utmost expedition. Since consultations with the State governments/Union Territories shall cooperate in the time schedule which may be laid down by MoRTH so as not to delay the process any further.

5.      During the Pendency of this reference, the judgment of three-judge Bench in Mukund Dewangan (supra) shall continue to hold the field and all courts, tribunals and authorities shall, therefore, act on that basis.”

 

Above matter before Hon’ble Apex Court is still sub-judice.

14.    Since Hon’ble Apex Court has already observed that; pending reference, the law laid down in Mukund Dewangan’s case (Supra) will continue to hold its light of day, to be followed, therefore, while keeping in view the ratio of law (reproduced above) so laid down by Hon’ble Apex Court in Mukund Dawangan’s case (Supra), this Commission is of firm view that license of complainant Shri Shakti Parkash was valid and effective on the day of accident of vehicle No.HR-68B-2663. Controversy involved in this appeal regarding validity of driving license has been well settled by Hon’ble Apex Court through Mukund Dewangan’s case (Supra). This Commission holds that since admittedly gross laden weight of vehicle No.HR-68B-2663 was less than 7500 KG as it is so proved ex-facie from document Annexure C-2, so no separate endorsement was required in license even if, complainant on fateful day of accident (31.12.2017) was driving Transport Vehicle of Light Motor Vehicle Class (categories thereof have been expressly mentioned in document Annexure C-2, to be Light Goods Vehicle-Transport).

15.    Learned District Consumer Commission-Panchkula, has also arrived at finding of learned Motor Accident Claims Tribunal as per its award dated 02.07.2019. The Accident Claims Tribunal has also fastened liability upon Appellants/Insurer and negated the contention of Insurer that the driver was holding driving license of Light Motor Vehicle but was driving Transport Vehicle. Award dated 02.07.2009 (Annexure C-23) is obviously a relevant evidence to refute the contention of learned counsel for the Appellants/Insurer.

16.    This being so, this Commission holds that impugned order dated 28.01.2022 is as per proper, critical & subjective appreciation of all relevant facets of this case. Impugned order dated 28.01.2022 passed by learned District Consumer Commission-Panchkula in Consumer Complaint No.315 of 2020 titled as “Shakti Parshad Vs. The Oriental Insurance Company Limited & Anr.” does not contain any fallacy on legal and factual front and same is accordingly affirmed, maintained and upheld. Insurer/Appellants has been rightly non-suited. This appeal of Insurer/Appellants, being devoid of any merit is hereby dismissed.

17.    Statutory amount of Rs.1,83,352/- deposited by Appellants/Insurer at the time of filing of this appeal is now ordered to be refunded to complainant-Shri Shakti Parshad against proper receipt, identification and verification as per rules and regulations. For recovery of balance amount from Insurer/Appellants; complainant would be at liberty to enforce execution.

18.  

19.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

20.    File be consigned to record room.

                                    

Date of pronouncement: 16^thJuly, 2024

 

 

 

                             Manjula Sharma                            Naresh Katyal                                          Member                                 Judicial Member

Addl. Bench-I                       Addl. Bench-I