SMT. BANDANA ROY, PRESIDENT

            The synopsis of the complaint is that the complainant is the owner of vehicle No. WB-29B/1798. Said vehicle was insured with the OPs being policy No. 0317013116P105814582 for the period from 02.08.16 to 01.08.2017.  The said vehicle was in accident on 17.11.2016 at about 10.30 AM on Digha- Mechada Road near Global Nursing Home at village Heria under Khejuiri PS. On complaint Khejuri  PS started a case on 17.11.2016 U/sec 279/338/304 IPC.  The said vehicle was repaired and an amount of Rs. 14,00,000/- was incurred by the complainant. The complainant lodged claim petition which was received by the OPs on 31.01.2017. As per requirement the complainant deposited all the documents relating to the car and accident and also repair, but the OPs denied to pay any amount.

Hence, the instant case with the prayers as made in the complaint petition on the allegation of deficiency of service on the part of the OP.

            The  OPs.  United India Insurance Ltd. contested the case by filing a single written version and denied the material allegations of the complaint and claimed dismissal of the complaint on various provisions of law.

            The specific case of the OPs is that at the time of the accident the driver concerned had no valid and effective license. The complainant also violated the terms and conditions of the   insurance policy issued by the OP. The complainant did not file all the requisite papers and documents for consideration of the claim. The complainant also did not file any bill or assessment of cost for repair of the accident

             Under such circumstances, the OPs pray for dismissal of the complaint petition with costs.

            Point to be considered in this case is whether the complaint case is maintainable and (2) whether the complainant is entitled to get the reliefs as prayed for.

Decision with reasons

            Both the points are taken up together for consideration for the sake of convenience.

            We have carefully perused the affidavit of the complainant, the written version and all  the documents filed by both the parties, the affidavit in chief, the questionnaires and reply thereto filed by the respective parties and heard the submission of the ld advocate for the complainant. Considered.

            The OP no.1 did not deny the existence of the insurance policy  issued by them  being policy No. 0317013116P105814582 for the period from 02.08.16 to 01.08.2017.Accordiong to the  complainant the disputed vehicle met with an accident  on 17.11.16 at about 10.30 AM  on Digha – Mechada road  near Global Nursing Home at village Heria, under PS Khejuri. The complainant lodged a complaint at Khejuri PS.  U/Sec. 279/338/304 of IPC.  The OP no1. In its investigation has stated that the complainant did not produce police report for proving the accident. The Insurance policy issued by the OP had certain terms and conditions. According to the OP no1  the policy prescribes that  the person driving the vehicle holds an effective valid driving license.  But on verification  by the Licensing Authority , Contai  it is found that the D L   of the driver at the relevant time was not  valid. The disputed vehicle were carrying passengers which is permitted for only transport vehicle.

            Ld Advocate for the OP no.1 submitted that there was breach of the condition of the policy by the complainant firstly for not informing the OP no. 1  immediately and  secondly for not producing the documents for inspection or verification when the  documents were called for  by the OP no.1 from the complainant.  Thirdly the license of the driver was for driving transport vehicle  and he was not authorized to drive passengers in the transport vehicle.

             In support of the contention of the complainant the ld lawyer for the complainant has produced a decision of Hon’’ble Supreme Court, reported in 2017 ACJ 2011 wherein it has been held that  no separate endorsement  on the license is required  to drive a transport vehicle of light motor vehicle class;  a license  issued U/Sec 10(2_(d) continued to be valid after amendment Vide Act 54  of 1994 in M V Act.

            Ld Advocate for the complainant also submitted various unreported decisions in favor of the complaint case.

            We  have examined the documents filed by the complainant in order to prove his case.

            It is settled law that burden is on the complainant to prove his case, not upon the loopholes of the defense.

            It appears that one complaint was filed on 17.11.16 before the Khejuri PS regarding the alleged accident which was treated as FIR.  No further document has been filed by the complainant  to prove that whether investigation was held  and whether any charge sheet  has been filed in the case. It also appears from a letter issued by the United India Insurance Co. Ltd dated 23.08.17 informing the complainant that at the time of processing  the claim of the complainant it was found that the DL No. 3120090857215 issued in the name of Mirza Manirul Beg, which was submitted by the complainant had no endorsement for driving vehicle carrying passengers in the transport vehicle on the date of the accident.  It was also mentioned in the said letter that as per Rule III of the Central Motor Vehicle Act 1989 driver should hold an affective and valid driving license to drive the category of  vehicle insured at the time of the accident. Hence, the OP 1 rejected the claim of the complainant. It is also seen that another letter was given on 17. 05. 2016 to the complainant stating by one Sasidhar Goutam  that he is the surveyor and mentioned that the complainant should submit doucments relating to the repair of the damaged vehicle at the workshop of M/S. Chatradhar Autu Service,Contai, Purba Medinipur and also  asked the complainant to submit his vehicle at a Dearler’s point  or submission of proper spares  estimate through a Dealer of the said vehicle and during discussion it was found that the estimate submitted by the complainant was not proper and he was requested to submit proper estimate within seven days. Same Sashidhar Goutamagain by letter to the complainant  requested him to submit the vehicle at Dearler’s point  or submission of proper spares estimate through his Dealer  of the said vehicle. He was again requested to submit proper estimate within seven days  otherwise report would be submitted based on the estimates  which earlier was submitted by the complainant.

            It appears that the accident took place on 17.11.16 and the OP no1was informed about the same on 30.01.2017 at 2 PM.  It appears from the letter dated 28.03.2017 that OP.1’s surveyor went to the site and the complainant was directed to submit the valid license of the driver. AS the complainant was in belief that further documents are not required, the OP 1 did not settle the claim of the complainant.

            From the over all submission of the Ld. Advocates for the complainant and also the OP no. 1 it appears that  the OP no1 stated that the Insurance Co. Snot liable to pay  claim unless endorsement to driver commercial vehicle is not made. In this connection  we went to refer a decision  reported in 2018 (1) CPR 384 (NC) wherein  it has been held – law therefore, enshrines that insured should disclose  categorically all material facts  which are within the personal knowledge  or which he ought to have known had he may reasonable ensures.

            Ld advocate for the OP No.1 referred  2017 (4)CPR 292 (NC) wherein it has been held  that Insurance Co. is not liable to pay the claim unless an endorsement to drive commercial vehicle is made. It was held in said judgment that distinction between a Light Motor Vehicle  and Transport vehicle is therefore evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct license is required to be obtained. The distinction between a transport vehicle  and a passenger vehicle   can also be noticed from Sec 14  of the Act. Sub section (2) of Sec 14 provides  for duration of a period of three years in case of an effective license to drive a transport vehicle whereas in case  of any other license it may remain effective  for a period of 20 years.  In the case of New India Insurance Co.  Ltd Vs. Prabhu Lal  Hon’ble Apex Court clearly laid down that the Insurance Co was not liable to pay the claim unless there was an endorsement on the license required by Sec. 3 of the  M V Act, 1988.

            In this regard the ld. advocate for the complainant contended that the effect of amendment of 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 continues to the same as it was and has not be changed and there is no requirement to obtain separate endorsement to drive transport vehicle and no endorsement to that effect is required.

             In this regard we may refer a decision reported in the case of National Insurance Co Ltd VE Swaran Singh AIR 2004 SC 1531 wherein the Hon’ble Apex Court held that even Learner’s License  is valid within the meaning of the provisions of MV Act unless it is disqualified  under Sec 3 and 4 of the said Act.  So repudiation on the ground of lacking endorsement on the DL of the driver to drive commercial vehicle  is not enough to repudiate the claim.

            After consulting all the documents, submission of the ld advocates and also the decision referred above it appears that Survey was made by the surveyor and he submitted a report on 06.08.2017. So it appears that liability of the insurer ON TOTAL LOSS BASIS worked out at Rs. 899000/-.and to this expense  to collect /scrutinize . .…which would be uneconomical. So the liability of the insurer on NET OR SALVAGE LOSS BASIS  worked out to Rs.784000/- is the most economical mode of settlement  for the insurers , if the decision to disposal of salvage is taken within stipulated time limit.  There was also note in the surveyor’s report that 1. Insurer not produced proper estimate in this regard not shown his any interest after several reminders and letters. Secondly, assessment done on the physical verification of the surveyor and noted damage parts due to reported accident and same are assessed. Wreck value offer received from one buyer on22.04.2017 which is enclosed with the report. This survey report has been filed by the OP no1 during pendency of this case. The complainant did not challenge the surveyor’s report and it is a settled law that surveyor’s report should be given importance. Admittedly  the value of the vehicle in dispute  is Rs. 9,00,000/- but in the  instant case the complainant has prayed for Rs. 14,00,000/- The complainant has failed to prove cogent evidence that he is entitled to get Rs. 14,00,000/-  for repair of his vehicle.

           Considering the aforesaid documents on record, we are of the view that the complainant is entitled to get claim  of Rs. 7,84,000/- according to the surveyor’s report. The complainant has failed to prove by filing estimates to the tune of Rs. 14,00,000/- before the Surveyor of the OP No.1. So the claim application may be allowed in part. 

Both the issues are answered accordingly.

           Hence, it is

O R D E R E D

That CC/ 558 of 2017 be and the same is allowed in part on contest against both the OPs.

The Ops are jointly and severally directed to pay a sum of Rs. 7,84,000/- to the complainant towards repairing charge of the insured vehicle along with litigation cost of Rs. 5000/- within one month from the date of this order, id the OPs shall have to pay interest @ Rs 10 % per annum on the awarded amount.

There is no order of compensation.

Let copy of the judgment be supplied to all the parties free of cost.