NEW INDIA ASSURACE CO LTD vs NIRMLA DEVI & ANR ; SWARAJ MAZDA LTD; KAMLESH DEVI

V. B. Gupta, J.

[1] Petitioner/Opposite Party No.1 being aggrieved by impugned order dated 05.06.2008 passed by H.P. State Consumer Disputes Redressal Commission, Shimla (for short, ''State Commission'') has filed present revision under Section 21 of the Consumer Protection Act, 1986 (for short, ''Act'').

[2] Brief facts are, that Respondent No.3/Opposite Party No.3 is owner of Swaraj Mazda, bearing registration No.HP-64-0346 which was purchased through its authorized dealer Respondent No.2/Opposite Party No.2. Petitioner No.1 had floated a scheme in association with respondent no.2 for providing personal accident insurance cover of Rs. 5,00,000/- for driver on wheel for vehicle purchased from respondent no.2.

[3] It is stated that Sh. Om Parkash son of Respondent No.1/Complainant was employed as driver and was holding valid and effective driving licence to drive the transport vehicle. On the morning of 21st June, 2004 at about 4 A.M., the truck met with an accident at about one and half kilometers ahead of Delhi, due to sudden coming of a cow on the road. The driver sustained multiple injuries and died on the spot. A report was lodged with Police Station, Gharonda, District Karnal. Respondent No.1, being class I legal heir of deceased, lodged the claim with petitioner and respondent no.2 for release of sum of Rs. 5,00,000/-. Petitioner repudiated the claim on the ground, that her son was not holding legal and valid driving licence to drive Swaraj Mazda, at the relevant time. So, respondent no.1 filed a consumer complaint under Section 12 of the Act for payment of sum of Rs. 5,00,000/- and litigation cost before District Consumer Disputes Redressal Forum, Shimla, Camp at Solan, H.P.(for short, ''District Forum'').

[4] Petitioner in its written statement has admitted the issuance of insurance policy. It is stated that liability of petitioner was to arise only, if the driver on wheel had a valid and effective driving licence. Truck in question was a ''Medium Transport Vehicle'' and Om Parkash-driver did not have licence to drive Swaraj Mazda, since his driving licence was valid for a ''Light Motor Vehicle only''. Further, respondent no.1 did not give any intimation of accidental-death petitioner nor completed the codal formalities. Therefore, respondent no.1 is not entitled for the amount.

[5] None had put appearance on behalf of respondent no.2, before the District Forum and as such was ordered to be proceeded exparte.

[6] District Forum vide order dated 22.2.2007, allowed the complaint. It directed petitioner to indemnify the complainant to the extent of Rs. 5,00,000/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint i.e., w.e.f 25.08.2005, till realization. In addition, Rs. 5,000/- were awarded as litigation cost.

[7] Being aggrieved, petitioner filed First Appeal No.141 of 2007 before the State Commission, which was contested only by respondent no.1/complainant, whereas respondents no.2 and 3 were proceeded exparte. Vide impugned order, State Commission modified the order of District Forum and instead of Rs. 5,00,000/-, amount was reduced to Rs. 3,75,000/-.

[8] Hence, present revision.

[9] Notice of Revision Petition was issued to all the respondents. Earlier, counsel for respondents no.1 and 2 had appeared before this Commission. Later on they absented and were proceeded exparte.

[10] Respondent No.3 was duly served but has chosen not to appear, hence was also proceeded exparte.

[11] I have heard the learned counsel for petitioner and gone through the record.

[12] It is submitted by learned counsel for petitioner, that at the time of the accident, the vehicle was being used in contravention of terms and conditions of the insurance policy. During investigation, it was found that driver who was driving the vehicle had driving licence for ''Light Motor Vehicle (Transport) only''. Whereas, driver was driving ''Medium Transport Vehicle'' at the time of accident. Since, driver was not having valid driving licence at the time of accident, therefore claim of the respondent was rightly repudiated. Thus, both Fora below have committed error on this count. In support, learned counsel has relied upon a decision of Hon''ble Apex Court Oriental Insurance Company Limited Vs. Zaharulnisha and Ors., 2008 12 SCC 385.

[13] District Forum in its order has held; "The ground taken by the OP-Company for repudiating the claim of the complainant is not sustainable. Annexure R-5 is copy of registration certificate of Swaraj Mazda which makes it evident that it was a medium transport vehicle and the driver Shri Om Parkash was having driving licence to drive light transport vehicle per Annexure R-9 on the date of accident. The unladen weight of the vehicle was 2800 kilograms. So, the vehicle is a light motor vehicle. Therefore, the driver Shri Om Parkash was having valid and effective driving licence to drive Swaraj Mazda at the time of the accident."

[14] While State Commission, in its order observed; "8. However, for the reasons to be recorded hereinafter and in the face of the instructions issued by General Insurance Corporation of India Ltd., how to deal with such type of cases, we are of the view that the claim in this case has to be treated, as well as settled as a non standard claim.

This position was again seriously resisted by Mr. Sharma. He submitted that in the face of the violation of the provisions of Motor Vehicles Act, 1988, guidelines issued by the General Insurance Corporation of India Ltd. for the settlement of cases as non standard claim are inapplicable in this case. Therefore, he prayed for allowing this appeal while setting aside the impugned order and consequently dismissing the complaint. Mr. Sharma relied upon the decisions in United India Insurance Co. Ltd. V/s Jaya Rajendra Kumar Nanda, 2004 1 CPJ 25 NC, New India Assurance Co. Ltd. V/s Prabhu Lal, 2008 1 CPJ 1 (SC) as also in the decision of United India Insurance Co. Ltd. V/s Davinder Singh, 2008 CTJ 11 (Supreme Court) (CP) in support of his submission. The question regarding applicability and or settling the claim in case of violation of the terms of policy including limitations as to its use was not considered in these cases, as such in our opinion no benefit can be derived by Mr. Sharma from these decisions.

To the contrary in Kesarben V/s United India Insurance Co. Ltd.,2000 NCJ 632 as well as in Poly Mat India Pvt. Ltd. and another_V/s National Insurance Co. Ltd.,2000 CCJ 64, the matter as in the present appeal before us was directly under consideration. After placing reliance on the guidelines of General Insurance Corporation of India Ltd., the National Commission settled the cases treating those as non standard claims. That being the position, no benefit can be derived by the appellant from the decisions referred to hereinabove on which emphasis was laid by Sh. Sharma."

[15] As per documents placed on record, vehicle in question is Swaraj Mazda (Canter) bearing Registration No.HP-64-0346 and registered laden weight of vehicle in question is 8,800 Kgs. Whereas, registered unladen weight of vehicle is 2800 Kgs. and pay load of the ''Light Motor Vehicle'' is 6,000 Kgs. Admittedly, driver who was driving this vehicle at the time of accident was having a valid driving licence to driver ''Light Motor Vehicle only''.

[16] Similar question arose in Oriental Insurance Company Vs. Ashok Verghese, Revision Petition No.3046 of 2005, decided by this Commission on 8th May, 2009.

[17] In Ashok Verghese this Commission observed; "The short question to be decided in this revision is whether the driver of the vehicle, in question, who was holding Light motor vehicle, was entitled to drive medium goods vehicle. The vehicle, in question, was registered as medium goods vehicle and unladen weight of which is stated to be 3160 kg and the gross vehicle weight certified by the manufacturer and as registered is stated to be 8770 kg.

Section 3(1) of the Motor Vehicle Act, 1988 provides for necessity of driving licence and it reads as under:-

"Necessity for driving licence:- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor car hired for his own use or rented under any scheme made under Sub-section 92 of Section 75 unless his driving licence specifically entitles him so to do."

Section 2(21) defines Light motor vehicle as under:-

"Light motor vehicle means a transport vehicle or omnibus 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 7,500 kilograms;"

Thus in case of a transport vehicle, gross weight has to be less than 7500 kg to qualify as light motor vehicle whereas in case of motor car it is the unladen weight which is relevant.

Section 2(23) deals with Medium goods vehicle which is as under:-

"Medium goods vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle:"

Section 2(16) provides for Heavy Goods Vehicle which is as under;-

"Heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;"

Section 2(14) defines goods carriage as"

"goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods."

Section 2(15) defines gross vehicle weight as:

"Gross vehicle weight" means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle."

Section 2 (47) defines transport vehicle as:

"transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;

Therefore, in order to qualify as Light Motor Transport Vehicle, the gross weight should not exceed 7500 kg. In case of motor car it is unladen weight which is relevant. Thus, a transport vehicle exceeding 7500 kg gross weight and less than 12000 kg gross weight is medium goods vehicle.

The case of the Complainant is that the Motor Vehicle Eicher is a water tanker registered as Medium Goods vehicle. The unladen weight of the vehicle is 3160 kg and with full load it weight''s 8700 kg. According to Complainant, the water tanker was empty at the time of accident and as such unladen weight has to be considered which makes the vehicle as LMV for which the driver had valid licnece. The contention of the Complainant is without any merit whatsoever. What is relevant is the gross vehicle weight and not unladen weight.

The vehicle in question is admittedly water tanker, Medium Goods Vehicle with gross vehicle weight as 8770 kg. Light Motor Vehicles in the context means a transport vehicle the gross vehicle weight does not exceed 7500 kgs. Thus, it is gross vehicle weight which is relevant for the decision of the case before us and unladen weight has nothing to do. When the gross weight of a transport vehicle exceeds 7500 kgs., it becomes medium goods vehicle. In terms of Section 2(15), gross vehicle weight means the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle. The vehicle in question being a goods carriage is transport vehicle within the meaning of Section 2(47) of the Act. The State Commission erred in taking the unladen weight of the medium transport vehicle in order to determine that the vehicle in question is Light Motor Vehicle. The said findings are erroneous in law.

Besides this, Section 3 clearly provides that no person shall drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under Sub-section (2) of Section 75 unless his driving licence specifically entitles him to do so. Section 2(10) defines driving licence as :

"driving licence" means the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description.;

The driving licence of the driver in the case before us does not entitle him to drive Medium goods vehicle and there is no endorsement to that effect on his licence which is only for Light Motor Vehicle. The ruling of the Apex Court in New India Assurance Company Ltd. V/s. Prabhu Lal, 2008 AIR(SC) 614 is applicable on all fours in the matter under consideration. The Apex Court had dealt with the relevant provisions of Motor Vehicle Act, 1988 and has laid down that a person holding driving licence to ply Light motor vehicle cannot ply transport vehicle unless there is specific endorsement to that effect as required under Section 3 of the Motor Vehicle Act read with Rules 16 of the Rules and Form No.6."

[18] In view of the above decision of this Commission, I am in full agreement with learned counsel for petitioner, that not only there has been breach of policy condition vis- -vis light motor vehicle licence held by the driver inasmuch as the vehicle driven was "Medium Transport Vehicle" and there is also breach of Section 3 of the Motor Vehicle Act on account of which, petitioner is not liable to pay any compensation to the respondent.

[19] Accordingly, orders passed by both Fora below are not sustainable. The same are hereby set aside. Consequently, complaint filed by respondent before the District Forum stand dismissed.

[20] Present revision petition accordingly stand allowed.

[21] No order as to cost.