Gafoor Khan vs United India Insurance Co. Ltd.

THIS appeal is directed against the order of the learned District Forum, Jaipur-I dated 13.2.1995 whereby the complaint filed by the appellant has been dismissed.

FACTS relevant for disposal of this appeal in brief are that the appellant has been the owner of Jeep bearing No. RJ 14T-0531 which was insured with the respondent for the period between 24.1.1992 and 23.1.1993. It met with an accident on 18.2.1992 and got damaged. The appellant got repaired it by spending an amount of Rs. 40,328.18. Since the respondent repudiated his claim by their communication dated 21.3.1993, he approached the District Forum to claim a total amount of Rs. 50,328.18 including Rs. 10,000/- as compensation for loss to his business. The complaint was resisted by the respondent Insurance Company mainly on the ground that at the time of accident, its driver Mohd. Rafiq was not having an effective and valid driving licence. The District Forum accepted the version of the respondent and dismissed the complaint, hence this appeal. Since none has appeared despite notice, we perused the material available on the record and produced by the parties before the District Forum.

The learned District Forum dismissed the complaint holding that the vehicle in question was a public transport vehicle and since the driver was having a licence to drive Light Motor Vehicle hence there being a violation of the terms and conditions of the policy issued in favour of the appellant, the appellant cannot succeed in his claim as there has been no deficiency in service on the part of the respondent in repudiating the claim advanced by the appellant.

WE have given due thought and consideration to the matter. At the outset it may be stated that before the learned District Forum only two documents have been filed by the parties; one is a survey report of Shri P.K. Bhatia dated 4.8.1992 and another is a Certificate of Insurance issued by the respondent Insurance Company in relation to the vehicle in question. No other document has been filed before the District Forum. The respondent has also stated in their reply that neither the original policy has been produced by the appellant nor the driving licence of the driver was made available. Still the learned District Forum appears to have relied upon the report of the Surveyor, Shri Bhatia who opined that the driver was not having an effective and valid driving licence as the driver was authorised to drive only an LMV (Light Motor Vehicle). No affidavit of this Surveyor has been filed by the respondent. This Surveyor has assessed the total loss to the vehicle at Rs. 30,308/- whereas the complainant-appellant has claimed a total amount of Rs. 40,328.18 spent by him in repairing the vehicle. From a perusal of the certificate of insurance issued by the respondent Company, it is evident that it mentions only that the make of the vehicle is M&M (Mahindra and Mahindra) Jeep. This certificate nowhere states that this certificate of insurance relates to a Light Transport Vehicle (LTV) or a Public Transport Vehicle as stated by the respondent in para 5 of their reply. WE fail to understand that, without there being any cogent evidence to the effect that vehicle in question i.e. M&M Jeep having been described and classified by the respondent Co. as a Light Transport Vehicle or a Public Transport Vehicle in the certificate of insurance produced by the Company, how could the learned District Forum hold that the driver Mohd. Rafiq was not in possession of an effective and valid driving licence at the time of accident. In the case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., II (1999) ACC 463 (SC)=VII (1999) SLT 317=1999 CTJ 635 (SC) (CP), Hon''ble the Supreme Court after exhaustively dealing with the various relevant definitions viz. Driving Licence, Motor Vehicle, Vehicle, Transport Vehicle, Light Motor Vehicle, Heavy Goods Vehicle, Non-transport Vehicle as defined in Section 2 of the Motor Vehicles Act, 1988 has held in para 10 (page 639) as under : "Definition of "light motor vehicle" as given in Clause (21) of Section 2 of the Act can apply only to a "light goods vehicle" or a "light transport vehicle". A "light motor vehicle" otherwise has to be covered by the definition of "motor vehicle" or "vehicle" as given in Clause (28) of Section 2 of the Act. A light motor vehicle cannot always mean a light goods carriage. Light motor vehicle can be non-transport vehicle as well."

FURTHER Hon''ble the Supreme Court while drawing attention to the provisions contained under Section 66 of the Motor Vehicles Act reiterated : "Since a vehicle cannot be used as a transport vehicle on a public road unless there is a permit issued by the Regional Transport Authority for that purpose, and since in the instant case that is neither a pleading to that effect by any party nor is there any permit on record, the vehicle in question would remain a light motor vehicle."

In the instant case also, unladen weight of the vehicle has not been disclosed to be exceeding 7500 kgs. and it remains a light motor vehicle which can be a non-transport vehicle as well; as held by Hon''ble the Supreme Court in Ashok Gangadhar Maratha''s case. Further, no evidence has been tendered on behalf of the respondent that at the time of accident, the vehicle in question i.e. M&M Jeep was carrying any goods or that it was necessary to have any endorsement on the driving licence to the effect that the said vehicle can be used as a transport vehicle in any public place where it actually carries any passenger or goods. In other words, there is total absence from the side of the respondent to establish that the vehicle in question was a light transport vehicle or a public transport vehicle as stated by the respondent and as has been mentioned by the Surveyor, Shri Bhatia in his report dated 4.8.1992 which too has not been supported by the Surveyor''s affidavit. Consequently, we are of the firm opinion that the learned District Forum has erred in categorising the vehicle as light transport vehicle or motor transport vehicle and thereafter holding that the driver Mohd. Rafiq (who died in the accident) was not in possession of an effective and valid driving licence. It may be stated that though the driving licence has not been produced before the District Forum but with the Memo of Appeal, a photo copy of the driving licence of Mohd. Rafiq has been filed which authorises him to drive light motor vehicle (which is not denied by the respondent also) and jeep in question as analysed earlier falls within the category of light motor vehicle and not in the category of a light transport vehicle or public transport vehicle.

ACCORDINGLY, the order of the learned District Forum dated 13.2.1995 is not sustainable in the eye of law and has to be quashed. The question now remains as to the extent of compensation which can be allowed to the complainant-appellant. The appellant has claimed an amount of Rs. 40,328.18 for the repair of the vehicle but has not produced any evidence in support of it. On the other hand, the Surveyor of the respondent has assessed the total loss at Rs. 30,308/- which is not denied by the respondent. We, therefore, accept the loss as assessed by the Surveyor of the respondent and hold the appellant entitled to receive an amount of Rs. 30,308/- only in respect of damage caused to the vehicle in question which was insured with the respondent under the policy in question. Consequently, the appeal succeeds. The order of the learned District Forum dated 13.2.1995 is quashed and the respondent is directed to pay to the appellant an amount of Rs. 30,308/- as compensation with interest @ 9% p.a. w.e.f. 1.4.1993 till payment along with cost of Rs. 2,000/-. Appeal allowed.