PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT

1) The Complainant has prayed that the Opposite Party be directed to pay

Rs.2,33,186/- with interest and Rs.5,000/- towards the expenses and mental torture to

the Complainant.

2) According to the Complainant, he is owner of Excavator Tata Hitachi EX-200

LC/2006 bearing Machine Sr. No.2001-3634 having claim No.151304/31/06/01/

90000184-Engine No.6748433. It is submitted that the Opposite Party is the Insurer

of the said Excavator. It is the case of the Complainant the said insured Excavator

met with an accident on 12/03/2007 and damage was caused. The intimation regarding

the said accident was given to Opposite Parties Pandharpur Branch, 151304. The

Opposite Party by appointing surveyor and loss assessor carried out the survey and

the loss was assessed to the tune of Rs.88,275.92. It is submitted that the Complainant

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had incurred expenses to the tune of Rs.2,33,186/- for repairing the insured Excavator.

The Complainant accordingly lodged the claim for compensation alongwith the

relevant documents with the Opposite Parties branch at Pandharpur where Insured

Excavator was insured. It is alleged that the Complainant is entitled to Rs.2,33,186/-

towards the damage caused to the said Excavator. It is alleged that the Opposite Party

called upon the Complainant to produce some documents. The Complainant submitted

some documents, however, he could not produce registration certificate of insured

Excavator and driving licence of operator of the said Excavator. The Opposite Party

by letter dtd.10/03/2008 informed the Complainant that as Insured Excavator is not

registered and driver of insured excavator was not holding valid and effective driving

licence the claim is not refundable and stand rejected. The copy of the said letter is

marked as Exh.‘A’. According to the Complainant, he replied the said letter through

advocate on 25/03/2008 to the Branch Manager of Opposite Party’s Pandharpur

Branch and pointed out that the Insured Excavator is not motor vehicle as per the

provisions contemplated in the Motor Vehicle Act and therefore, the said Excavator

was not required to be registered under the Motor Vehicle Act. It was also informed

that as the Insured Excavator is not motor vehicle the driving licence was also not

required for the operator of the said Excavator. It is submitted that the Opposite Party

then also did not settle the claim. The copy of the Complainant’s advocates letter is

marked as Exh.‘B’. The said letter was replied by the advocate of the Opposite Party

on 02/04/2008 and repeated the earlier allegations. The copy of the said letter is

marked as Exh.‘C’. The Complainant thereafter, made correspondence with the

Chairman of the Opposite Party by letter dtd.12/05/2008 and 27/06/2008. The copies

of the said letters are at Exh.‘D’ & ‘E’.

3) It is submitted that in spite of the correspondence referred above made by the

Complainant as there was no response from the Opposite Party, the Complainant filed

his claim before Insurance Ombudsman, Mumbai. The Insurance Ombudsman by

letter dtd.06/01/2009 informed that the Excavator is used for commercial purpose and

in view of RPG Rules, 1998 the complaint is not on personal lines and therefore, the

same was not entertainable by that Forum. According to the Complainant, the said

Excavator has no tyres, it is being run on chain. The said Excavator is not adapted for

use upon roads. It is alleged the Excavator cannot be driven upon roads as the RTO

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cannot issue permission for the same. It is submitted that thus, the insured Excavator

is not motor vehicle and as such need not be registered under the Motor Vehicle Act.

The operator thereon therefore, needs no licence under the Motor Vehicle Act. It is

submitted that at the relevant time of the accident the Excavator was insured with the

Opposite Party and policy was in existence and valid. The Complainant therefore,

submitted that the claim made in the complaint is legal and the Opposite Party is liable

to pay the same to the Complainant. The Complainant has therefore, prayed to grant

the reliefs as mentioned in para 1 of this order.

4) The Opposite Party contested the claim by filing written statement. It is

contended that the Insured Excavator owned by the Complainant was subject to terms,

conditions, exception and limitation of the policy. It is contended that the Complainant

failed to submit registration certificate and driving licence of driver in spite of

repeated demands it is contended that as per the terms and conditions of the policy the

driver must hold the valid and effective driving licence. It is contended that the

Opposite Party has replied the letter of the Complainant’s advocate. It is submitted

that the Excavator has been classified as transportable vehicle and therefore its

registration is compulsory as per the Motor Vehicle Act, 1988 and hence, the driver

must hold valid and effective driving licence of driver. The Opposite Party has denied

that the Opposite Party is guilty of deficiency in service and unfair trade practice. It is

contended that the complaint as filed in the present form is not maintainable and the

same is liable to be dismissed. It is thus, submitted that the complaint be dismissed

with cost.

5) The Complainant has filed affidavit of evidence. The Opposite Party has not

filed affidavit of evidence. Both the parties filed their written arguments. We heard

oral argument of Shri. R.N. Javal, Ld.Advocate for the Complainant and Smt. Kalpana

Trivedi, Ld.Advocate for the Opposite Party.

6) The Ld.Advocate for the Complainant submitted that as per the provisions of

Sec.2(28) of the Motor Vehicle Act, 1988, the Excavator does not come within the

definition of Motor Vehicle or Vehicle. He thus, submitted that the Opposite Party

has wrongly repudiated the claim lodged by the Complainant as informed in the letter

dated 10/03/2008 on account of non submission of registration certificate and driving

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licence of the driver. He thus, submitted that the claim made in the complaint

therefore, needs to be allowed.

7) Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party by pointing out the

information supplied to her by RTO Office, Mumbai by its letter dtd.02/08/2014 made

submission that the RTO Office had informed that as per Sec.39 of Motor Vehicle

Act, 1988, the registration of Excavator is compulsory. She also made submission

that the driver of the Excavator is also required driving licence to run the said

Excavator in view of the provisions of Sec.3 to 10 of the Motor Vehicle Act, 1988.

She has also relied the information given by the RTO Office vide letter

dtd.02/08/2014. She made submission that therefore, the Complainant is not entitled

to the claim made in the complaint and the complaint is liable to be dismissed.

8) After going through the provisions of Motor Vehicle Act and the information

supplied by RTO Office, Mumbai, it appears that the registration of Excavator is

mandatory and the driver must hold valid and effective driving licence of specified

category. Admittedly from the pleadings of the Complainant, it appears that at the

time of accident of the Insured Excavator was not registered and the same was not

driven by the person holding the valid and effective driving licence. Furthermore, in

the policy document there is specific condition that the vehicle was required to be

driven by person who holds an effective driving licence at the time of driving said

Excavator. In the policy document the name of the registration authority is shown as

RTO Office, Satara, which suggests that while obtaining insurance policies, the

Complainant informed that the Insured Excavator was registered with RTO, Satara,

but failed to produce registered certificate. Thus, the Complainant in our view as

failed to produce the required documents to the Opposite Party which were rightly

demanded by the Opposite Party is not entitled to the reliefs sought. The submission

made by Shri. R.N. javal, Advocate relying upon the definition of Sec.2(28) of the

Motor Vehicle Act, in our view cannot be accepted as legal and proper as the Opposite

Party has placed on record the definite information supplied by RTO Office in respect

of registration of Excavator and the necessity of driving licence to drive the Excavator

by quoting the specific provisions under Motor Vehicle Act, 1988. In view of the

aforesaid discussion as well as factual and legal position we hold that the Opposite

Party has rightly rejected the claim for compensation lodged by the Complainant. In

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our view the Complainant has failed to prove deficiency on the part of the Opposite

Party. In the result we pass the following order –

O R D E R

i. Complaint No.59/2009 is dismissed with no order as to cost.

ii. Certified copies of this order be furnished to the partie