(AS PER A.A.JAIN, HON’BLE MEMBER)
Complainant filed this complaint against Opposite.Party for seeking various relief as per prayer clause :-
1. Complainant's case in short is that he was owner of new Bajaj L.M.V.Ambulance bearing Registration No. MH-35/K-520 and he has obtained the comphrensive insurance of his vehicle from the O.P. vide cover note No. MOT/SL/NO NRO 615272 for the period from.30-01-2006 to 29-01-2007. This policy covered the damages towards third party as well as own damages due to any accident.
2. That, on date 06-05-2006 the vehicle ambulance while returning to Gondia at about 4.30 A.M. meet with an accident between Dandegaon and Gangajhari. The matter was reported to the Police Station Gangajhari and police department has done panchnama on the same day. Complainant has given intimation regarding the accident of his vehicle to the O.P. and the O.P. has sent his surveyor. The accidental vehicle was inspected and the surveyor estimated the loss of the vehicle due to the said accident. After instruction of O.P. the vehicle was repaired by expending Rs.30108/-. At the time of the accident the vehicle was driven by valid license holder driver Shri. Suresh Bharatlal Damahe.
3. That, the Complainant submitted the calim form to the O.P. for compensation of loss due to the accident along with all necessary documents and the O.P.verified all documents but the O.P. repudiated the claim on the gorund that the vehicle was commercial vehicle (Yellow Black Number Plate) and the driver was having L.M.V. (Non transport) driving license.
4. So the complainant filed this complaint praying for direction to the O.P. to pay the claim amount of Rs.30108/- with 18% interest of the accidental vehicle, Rs.10000/- towards mental and physical harassment and cost of the complaint Rs.3000/-(Ex.1).
5. In response to Notice U/s. 13 of Consumer Protection Act.1986 , the O.P. appeared and filed his reply (Ex.7).
6. The O.P. denied all allegations of the complainant and the O.P. submitted that “It is the false submission of the complainant that the ambulance does not comes under the commercial vehicle and apart from it there is no relation of commercial vehicle with the transport vehicle and the number plate would not decide the type of the vehicle.” The O.P. further submitted that the settlement of claim is out side the preview of policy condition and beyond the scope of O.P. The O.P. further submitted that complainant is not a consumer and there is no deficiency in service and proper platform for the complaint is only before the Civil Court.
7. The O.P. specifically pleaded that the claim filed by the complainant comes within the own damage categories i.e. O.D.Claims. The ambulance comes within the preview of commercial transport vehicle as per the motor vehicle Act. As per the Sec.2(47) of the definition of Transport Vehicle is as under “Transport vehicle means a public service vehicle, a goods carriage,an educational institution bus or private service vehicle.” Ambulance is comes within the definition of public service vehicle as ambulance means vehicle specially designed, constructed or modified and equipped and intended to be used for emergency transportation of person who are sick, injured, wounded or otherwise incapacitated. As per the notification No. S.O.451 dated 19/06/1992 an ambulance is Transport vehicle (entry No.XIV).
Thus there is a breach of policy condition and the O.P. has rightly rejected the O.D.Claim of the complainant. The O.P. prayed to dismiss the complaint with cost in the interest of justice.
8 On verifying all records thoroughly and hearing
arguments from both of the parties, the only point arose for our consideration whether the complainant is entitled for any relief as sought in prayer clause and our finding is “Affirmative” due to following reasons.
REASONS
9 Complainant is running the said vehicle by engaging himself in self employment for his lively hood, therefore the complainant is consumer within the meaning of section 2 (d) (ii) of the Consumer Protection Act., 1986. The section 2 (d) (ii) explanation as effected from 15/03/2003 states that “For the purpose of this clause “Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.”
Thus, in the light of above explanation the complainant is a “consumer” .
10 At the time of argument the only point discussed that
the driver holding only light motor vehicle driving license but the accidental vehicle falls under the transport vehicle. In Motor Vehicle Act., it is very clear that there are two category as Light Motor Vehicle Non Transport (NT) and second is Light Motor Vehicle Transport (T).
The driver of the said ambulance was holding the L.M.V. (NT) license at the time of accident which disqualified to drive the transport vehicle i.e. ambulance.
In our opinion there is no technical difference to drive the both vehicle. The intension of the framer of law may be that when driving the ambulance the driver should have take proper care in driving the vehicle, because the use of ambulance is for patients.
11 The point is deeply decided in one case law
I (2006) CPJ 15
Rajasthan State Consumer Dispute Redressal Commission , Jaipur
Prem Devi Versus United India Insurance Company Ltd. Decided on 17/11/2005
Consumer Protection Act., 1986- Section 15-
Insurance- Repudiation of claim-contention, driver not having licence to drive light motor vehicle not authorized to drive transport vehicle-contention rejected following view of Rajesthan High Court in National Insurance Co. Ltd. V/s. Abdul Majid and others, II (1994) ACC 195- Insurance Company not exempted from liability if unladen weight is less than 7500 Kgs-Unladen weight of vehicle less than 6000Kgs., licence for light motor vehicle valid –Forum erred in dismissing complaint- Order set aside in appeal –Company to pay loss assessed by Surveyor with interest @ 9%p.a. As to para 10. In National Insurance Co.Ltd.V/s.Abdul Majid and Others, II(1994) ACC 195 = ACJ 619, where the truck was being driven by a driver, who was holding a licence of light motor vehicle and in such a situation, the Insurance Company was held liable and the plea of the Insurance Company that it was exempted from liability on the ground that the driver was not holding licence for driving heavy motor vehicle, was rejected by the Hon’ble Rajasthan High Court.
As to para 11. In view of the above decision of the Hon’ble Rajesthan High Court, repudiation of claim of the appellant-complainant by the respondent Insurance Company on the ground that driver of the vehicle in question was only having licence of light motor vehicle and he was not having licence of driving transport vehicle, was not justified.
12 That , apart from the aforesaid authorities, the complainant has cited the following authorities namely:-
(i) III(2004)ACC623
ORISSA HIGH COURT
Oriental Insurance Company Ltd. V/s.Rajani Parida & ANR. M.A.No.1075 of 1999 decided on 19-03-2004.
Motor Vehicle Act, 1988-Section 141-Liability of insurer in absence of effective driving licence : absence of endorsement in licence to drive transport vehicle does not amount to breach of any of policy conditions : Appellant not absolved from its liability to pay awarded amount.
(ii) National Consumer Disputes Rederssal Commission , New Delhi
A.R.Geetha V/s. The Oriental Insurance Company Ltd.R.P.No.757 of 1997 decided on 13-08-2001
Insurance claim –Driving Licence-Denial of insurance claim by the O.P. insurance company on the grounds that the driver of the accidented vehicle at that time was not holding licence to drive maxicab and was having licence to drive a light motor vehicle-Held that maxicab which met with an accident was having the unladen weight of 1500 Kgs. And a transport vehicle-The driver was having effective driving licence within the meaning of Section 3 of the Motor Vehicle Act, 1988- Order of State Commission set aside and that of District Forum allowing the complaint restored.
13 That, the O.P. have also cited authorities reported in IV (2005) ACC 755 Himachal Pradesh High Court.
New India Insurance Co.Ltd.V/s.Savitri & Others FAOCMVA) No. 255 of 1998 decided on 12-08-2005.
It is to be noted that the aforesaid authority are not applicable to the case in hand in as much as the aforesaid authority are relating to cases of third party claims whereas the case in hand is claim of Own Damage Case.
In view of the above discussion we proceed to pass the following order :-
ORDER
1. The complaint is allowed.
2 The complaint is allowed and the O.P. is directed to pay to the complainant a sum of Rs.30108/- as amount of damages caused the vehicle in question along with interest @ 9%P.A. with effect from the date of filing of this complaint i.e. 28/06/2007 till the payment.
3 O.P.is also directed to pay Rs. 1000/- (Rupees One Thousand Only) as the cost of this complaint case.
