STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1]    N & N Logistics Private Limited, SCO 33-A, 1^st  Floor, Swastik Vihar, Mansa Devi Complex, Panchkula, through its Director.

2]    Sh. Piyush Malik, Director, N & N Logistics Private Limited, Transport Area, Plot No.9, Sector 26, Chandigarh.

……Appellants/complainants

V e r s u s

1]    The Branch Office, Oriental Insurance Company Limited, Direct Agent Branch, SCO 45, Sector 20-C, Chandigarh.

2]    The Manager, Regional Office, Oriental Insurance Company Limited, SCO 109-110-111, Surindra Building, Sector 17-D, Chandigarh.

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER  (Retd.), PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh. Gaurav Gupta, Advocate for the appellants.

PER  JUSTICE SHAM SUNDER (Retd.), PRESIDENT

1.             This appeal is directed against the order dated 12.04.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainants (now appellants).

2.             The facts, in brief, are that the complainants, being owner of the Truck/Eicher 1110 Refrigeration Van bearing Regd. No.HR-68-8575, got the same insured,  with the Opposite Parties, for the period from 04.02.2009 to 03.02.2010, vide Policy Annexure C-6. The truck, aforesaid, on 12.10.2009,  at about 10.30 hours, while loaded with costly medicines, being driven by Parmanand driver, who was holding  Learner’s Licence,  for Heavy Motor Vehicle, when reached near village Moure, G.T. Road (Ambala), while on the way to New Delhi Airport, met with an accident.  At the time of accident, one Sh. Chaman Singh, holding a valid driving licence, for Heavy Motor Vehicle, was sitting by the side of Sh. Parmanand, driver. In the said accident, the vehicle was badly damaged. Sh. Parmanand, driver, suffered serious injuries, and succumbed to the same. First Information Report, Annexure C-9, was lodged with the local Police, about the accident. The accident was also reported to the Opposite Parties. They appointed a Surveyor & Loss Assessor, to assess the loss. All the requisite documents, as asked for, by the Surveyor, were supplied to him.  The vehicle was got repaired from the authorized dealer i.e. Swami Auto Care Pvt. Ltd., for which a total sum of Rs.5,05,596/-,  incurred on the repair of the vehicle, was paid by the complainants. A claim was lodged, with the Opposite Parties, which, vide letter dated 12.4.2010 (Annexure C-15), repudiated the same as “No claim” on false and flimsy grounds.  It was stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.             The Opposite Parties, in their joint written version, admitted the subsistence of the insurance policy, when the accident took place. It was also admitted, that the information, with regard to the accident, was given to the Opposite Parties. It was stated that, on receipt of information, a Surveyor was appointed, who visited the spot, and submitted his report,  on the basis of physical verification of the vehicle, as well as the facts disclosed by the representative of the insured.  Thereafter, Er. G.S. Riar, Surveyor, was appointed for final survey, who assessed the loss in the sum of Rs.3,00,513.28p,  payable subject to the terms & conditions of the Insurance Policy. It was further stated that, at the time of accident, the vehicle was being driven by Sh. Parmanand, who was holding a Light Motor Vehicle Licence, and was also having a Learner’s Licence with him, for Heavy Motor Vehicle.  It was further stated that since Sh. Parmanand, driver, was only holding a Learner’s Licence with him, for driving a Heavy Motor Vehicle, so he was not an authorized person,  to drive the H.M.V,  as per the terms & conditions of the policy.  It was denied that Sh. Chaman Singh, who was allegedly holding a valid and effective licence for driving Heavy Motor Vehicle, was sitting by the side of Sh. Parmanand, driver, at the time of accident. It was further stated that the name of Sh. Chaman Singh, was introduced later on, just to cover up the lacuna, and get the claim.  It was further stated that since the terms & conditions of the insurance policy were breached, therefore, the claim filed by the complainants, was rightly repudiated. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.             The Parties led evidence, in support of their case.

5.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, came to the conclusion, that Sh. Parmanand, driver of the vehicle, in question, when the accident took place, was holding only a Learner`s Licence for Heavy Motor Vehicle, when it was transporting the goods. It was further held by the District Forum, that he was not accompanied by Sh. Chaman Singh, or any other instructor, holding a valid and effective driving license, to drive the vehicle, in question, at the relevant time. It was further held by the District Forum, that, as such, there was breach of Rule 3 of the Central Motor Vehicle Rules, 1989, as also the terms and conditions of the Insurance Policy. It was further held by the District Forum, that, as such, the claim of the complainants, was rightly repudiated, by the Opposite Parties. 

6.             Ultimately, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order. 

7.             Feeling aggrieved, the instant appeal, has been filed by the appellants/complainants.

8.             We have heard the Counsel for the appellants, and, have gone through the evidence, and record of the case, carefully. 

9.             The Counsel for the appellants, submitted that the vehicle, in question, being driven by Sh. Parmanand, driver, at the relevant time, when it met with an accident, did not fall within the category of a Heavy Motor Vehicle. He further submitted that the said vehicle, fell within the category of  a Light Motor Vehicle, for which Sh. Parmanand was holding a valid and effective driving licence. He further submitted that even if, it was assumed that the vehicle, in question, was Heavy Motor Vehicle and Sh. Parmanand was only holding a Learner`s Licence,  for driving the same, Sh. Chaman Singh, who was having an effective driving licence, for driving the said vehicle, was sitting by his side, at the time of accident, and, as such, there was neither any breach of Rule 3 of the Central Motor Vehicles Rules, 1989, nor of the terms and conditions of the Insurance Policy.  He further submitted that, even if, it was assumed that there was breach of the aforesaid Rule, as also the terms and conditions of the Insurance Policy, the claim of the complainants could be settled,  by the Opposite Parties, on “Non Standard Basis”, by paying 75% of the claim amount. He further submitted that the order of the District Forum, thus, being illegal and invalid, is liable to be set aside.

10.           After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. The submission of the Counsel for the appellants, that it was only a Light Motor Vehicle, and Sh. Parmanand, driver, was having a valid and effective driving licence, to drive the same, does not appear to be correct. In the complaint, it was nowhere stated by the complainants, that it was a Light Motor Vehicle, and not a Heavy Motor Vehicle. Sh. Parmanand, driver, who was driving the vehicle, in question, at the relevant time, was only having a valid licence for driving a Light Motor Vehicle. In paragraph number 3 of the complaint, at page 25, of the District Forum file, it was in clear-cut terms, stated by the complainants, that at the time of accident, the vehicle was being driven by Sh. Parmanand, son of Nand Lal, who was holding a Learner`s Licence, issued by the Licencing Authority, Chandigarh, for Heavy Motor Vehicle, valid from 08.10.2009 to 07.04.2010. It means that, in this paragraph, it was admitted by the complainants, that it was infact a Heavy Motor Vehicle,  which was being driven by Sh. Parmanand, driver, at the time of accident, and that he was only holding a Learner`s Licence,  for driving the same.  There is also, no dispute, about the factum, that the costly medicines were being transported, in the truck, in question, which was being driven by Sh. Parmanand, driver, to New Delhi Airport, at the time, it met with an accident on the way. The submission of the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same stands rejected.

11.            The next question, that falls for consideration, is, as to whether, Sh. Parmanand, driver, who was holding a Learner`s Licence, for driving a Heavy Motor Vehicle, and transporting the goods, at the relevant time, was competent to drive the same, as per the relevant Rules, and the terms and conditions,  contained in the Insurance Policy, or not. Perusal of the copy of Learner`s Licence of Parmanand, reveals that the same was issued as per the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, as framed under the Motor Vehicles Act, 1988. Relevant part of Rule 3 aforesaid reads as under:-

“3.General.—The provisions of sub-section (1) of section 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as—

(a)       such person is the holder of an effective learner's licence issued to him in Form 3 to drive the vehicle;

(b)       such person is accompanied by an instructor holding an effective driving license to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle;”

The relevant condition of the Policy of Insurance (Annexure R-3) also reads as under:-

              “Driver’s Clause

Any person including insured: Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence.  Provided also that the person holding an effective Learner’s licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.”

12.           The plain reading of the relevant part of Rule 3, extracted above, as also of the condition aforesaid, of the Insurance Policy, clearly goes to reveal that the driver possessing a Learner`s Licence for driving a particular vehicle,  should drive the same, when he is accompanied by an instructor, holding an effective driving licence to drive the same,  and such instructor is sitting in such a position, so as to control or stop the vehicle, and, that when the said vehicle was not being used for transporting goods, at the relevant time. In the instant case, the vehicle, in question, being driven by Sh. Parmanand driver, holding a Learner`s Licence for driving the same, as per the admission of the complainant, in the complaint, was transporting costly medicines. As would be discussed hereinafter, no instructor having effective and valid driving licence, to drive the vehicle, was sitting by the side of Sh. Parmanand, driver, at the relevant time,  so as to be in a position to control or stop the vehicle. As such, the District Form, was right, in holding that Sh. Parmanand (now deceased), was transporting the costly medicines in the Heavy Motor Vehicle to New Delhi, on the strength of Learner`s Licence, for driving the same, without any instructor sitting by his side, at the relevant time, so as to enable him to control or stop the vehicle. The District Forum was also right, in holding, that, thus, there was breach of the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, and the aforesaid condition of the Insurance Policy.

13.           The next question, that falls for consideration, is, as to whether, Sh. Chaman Singh, a person,  holding an effective driver licence, for driving the vehicle, in question, was sitting by the side of Sh. Parmanand, driver, at the relevant time, or not. In the complaint, no doubt, it was stated by the complainants, that Sh. Chaman Singh, was sitting by his side, at the relevant time. However, it appears that this fact was introduced later on, in the complaint, just with a view to get the claim, as would be discussed hereinafter. Annexure C-9, is a copy of F.I.R. This document came into existence, first, in the point of time, immediately, after the accident. This F.I.R. was lodged on 12.10.2009, itself, when the accident took place, on the basis of the statement made by Sunil Kumar, cleaner of the said truck, who was sitting therein, at the time of accident.  Sunil Kumar did not state, even a single word, in the F.I.R., that Sh. Chaman Singh, a regular driver for driving the vehicle, in question, was sitting by the side of Sh. Parmanand, at the time, when the accident took place. Had Sh. Chaman Singh, been sitting by the side of Sh. Parmanand, at the time, the accident took place, this fact would have certainly been mentioned in the F.I.R., referred to above. This was an important fact, which could not possibly be omitted by Sunil Kumar, while making a statement to the Police, on the basis whereof, the F.I.R. was recorded. Not only this, even no affidavit of Sh. Chaman Singh was produced, on record, to prove  that he was sitting by the side of Sh. Parmanand, driver, at the time, the vehicle, in question, met with an accident. Even, no affidavit of Sunil Kumar, Cleaner of the truck, who was sitting therein, at the time of accident, was also produced, on record. Under these circumstances, the District Forum was right, in holding that the name of Sh. Chaman Singh was introduced later on, just with a view, to get the claim. We agree with the findings of the District Forum, and hold that no instructor, holding a valid and effective driving licence, to drive the vehicle, in question, was sitting in the truck, at the relevant time, so as to enable him to control or stop the same.

14.           The next question, that falls for consideration, is, as to whether, it was a case, involving the breach of fundamental condition of the insurance policy, and the mandatory provisions of the relevant Rules, which went to the root of the case, justifying the repudiation of claim of the complainants. A person, who is not holding a valid and effective licence, for driving a vehicle, cannot be said to be competent, to drive the same. As stated above, Sh. Parmanand, driver, was only holding a Learner`s Licence, for driving the vehicle, in question, which was transporting the goods, aforesaid, to New Delhi Airport,  when it met with an accident on the way. As stated above, he was driving the vehicle, in breach of the Rule 3 of the Central Motor Vehicles Rules, 1989,  and the fundamental condition of the Insurance Policy. When there was breach of mandatory Rule, referred to above, and also of the fundamental condition of the Insurance Policy, going to the root of the case, then the repudiation of claim, by the Insurance Company/Opposite Parties, could certainly be said to be justified. It was not a case, where there was breach of some minor condition(s) of the policy, which had no nexus with the accident. Since, the vehicle, in question, was not being driven by a competent person, as per the provisions of the aforesaid Rule, and the terms and conditions of the Insurance Policy, the Opposite Parties, could not settle the claim on “Non Standard Basis”. The submission of the Counsel for the appellants,  in this regard, therefore, being without merit, must fail, and the same stands rejected.

15.           In view of the above discussion, it is held that there was neither any deficiency, in rendering service, on the part of the respondents/Opposite Parties, nor they indulged into unfair trade practice. The claim of the appellants/complainants, was legally and validly, repudiated by the Opposite Parties. The order of the District Forum, being legal, and valid, is liable to be upheld.

16.           No other point, was urged, by the Counsel for the appellants.

17.           The order, passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

18.           For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

19.           Certified Copies of this order be sent to the parties, free of charge.

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

Pronounced.

June 1, 2012

Sd/-

[JUSTICE SHAM SUNDER (Retd.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg