KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 276/2010 JUDGMENT DATED: 9.9.2010 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER The Oriental Insurance Co.Ltd, rep.by : APPELLANT Its Divisional Manager Trivandrum. (By Adv.V.Manikantan Nair) Vs. Viswanathan.C.A., : RESPONDENT Chozhiyankunnath House, Pothole.P.O., Thrissur. JUDGMENT SMT.VALSALA SARANGADHARAN : MEMBER This appeal is preferred against the order dated 3.2.10 of CDRF, Thrissur in CC 111/2006. The complaint was filed by the respondent herein as complainant against the appellant as opposite party whereby the Forum below directed the opposite party to pay Rs.74,700/- with 9% interest from 13.10.05 till realization with costs of Rs.500/- to the complainant. 2. The case of the complainant is that his Swaraj Masda vehicle which was insured with the opposite party met with an accident and suffered extensive damage. The matter was informed to the opposite party and the surveyor assessed the damages. According to the complainant the driver has LMV licensee and badge and also has permission to drive a vehicle having weight upto 7500 Kgms and at the time of accident the vehicle had weight below 7500 Kgms. So there was no policy violation on the part of the complainant. But the opposite party rejected the claim on the ground that the driver did not possess a valid driving license to drive the class of vehicle . Hence alleging deficiency in service on the part of the opposite party he filed complaint before the Forum. 3. The opposite party filed version and contended that the claim of the complainant was repudiated since the driver was only authorized to drive LMV and autorikshaw and was not authorized to drive the medium goods vehicle and that being a violation of the terms and conditions of the policy, the opposite party is not liable to indemnify the complainant. The opposite party further submitted that driver of the vehicle was a necessary party and therefore the complaint was bad for non joinder of necessary parties. Thus he prayed for dismissal of the complaint. 4. We heard the learned counsel for the appellant. There was no representation for the respondent/complainant. The learned counsel for the appellant submitted before us that the claim of the complainant/respondent was not legally sustainable since the driver was not having an effective valid driving license to drive the medium goods vehicle at the time of accident and thus the complainant had violated the policy condition by entrusting the vehicle with a person not holding the valid license to drive the said class of vehicle. A person holding license to drive a LMV is authorized to drive a motor vehicle having the gross weight upto 7500 Kgms and not authorized to drive a motor vehicle having gross weight of 8800 Kgms and if the gross vehicle exceeds 7500 Kgms a driver, who possess HGV or HPV is authorized to drive. He further submitted that the lower Forum allowed the entire amount claimed by the complainant for which he had not adduced any evidence. Thus he prayed for setting aside the impugned order passed by the Forum below. 5. On hearing the learned counsel for the appellant and on perusing the records we find that in the driving license it has been certified that its holder was licensed to drive LMV and autorikshaw and also has a badge. This document would show that no authority was given to the driver to drive medium goods vehicle. In the complaint it is stated that the said vehicle is having a total weight of less than 7500 Kgms, and comes in the category of LMV. But the records would show that the vehicle had a gross weight of 8800 Kgms. Ext.R3, the copy of RC book and Ext. R10 the goods carriage permit would show that the gross vehicle weight is 8800 Kgms. As per Section 2(21) of the Motor Vehicle Act , 1988 LMV-means – a transport vehicle or omni bus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7500 Kgs. From the permit issued by the Transport authority it is clear that the vehicle was a ‘goods carrier’ and if it is so it was a transport vehicle falling under clause 47 of section 2 of Motor Vehicle Act, 1988. From Ext.P5, the copy of registration certificate it is made clear that the vehicle falls under the category of medium goods vehicle for which the driver should possess a HGV or HPV authorizing him to drive. We also find that a person holding driving license to ply LMV cannot ply medium goods vehicle. In the light of relevant documentary evidence it is clear that the vehicle which met with an accident was a transport vehicle and the driver was having a license to drive LMV only. Hence we are of the view that the insurance company could not be held liable and there was no deficiency of service on the part in repudiating the claim made by the complainant. 6. In the circumstances we are of the view that order of the Forum below is unsustainable and is liable to be set aside and we do so accordingly. In the result the appeal is allowed and the impugned order dated 3,2.10 of CDRF, Thrissur in CC.111/06 is set aside. As far as the present appeal is concerned there shall be no order as to costs. SMT.VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER ps | 
