NEW INDIA ASSURANCE CO. LTD. vs Birender Mishra

THIS revision petition has been filed by the petitioner against the order dated 9.5.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission '') in Appeal No. 08 of 225 - New India Assurance Co. Ltd. Vs. Birender Mishra by which, while dismissing appeal, order of District forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent got his Tata Sumo HR 5BT 2888 insured with OP/petitioner for a period of one year from 22.8.2003 to 21.8.2004. On 9.5.2004, vehicle met with an accident and suffered extensive damage and complainant spent Rs.1,15,975/ - on repairs of the vehicle and submitted claim to OP. OP repudiated claim on the ground that driver was holding two driving licences and vehicle was registered as a taxi, but driver was holding licence of LM (NT) plus TSR. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and reiterated objections taken in letter of repudiation and prayed for dismissal of complaint. Leaned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.1,15,975/ - with 9% p.a. interest and further allowed compensation of Rs.5,000/ - and Rs.2,000/ - as cost of litigation. Appeal filed by the OP was dismissed by leaned State Commission vide impugned order against which, this revision petition has been filed along with application for condonation of delay of 14 days.

HEARD learned Counsel for the parties and perused record. As there is delay of only 14 days in filing revision petition, delay is condoned for the reasons mentioned in the application.

LEARNED Counsel for the petitioner submitted that inspite of the fact that driver of the vehicle was not having valid driving licence at the time of accident, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

IT is admitted case of the parties that complainant got his Tata Sumo insured from OP. As per insurance policy, vehicle was insured for carrying passengers and it was commercial vehicle having capacity of 9 passengers. It is also not disputed that driver of the vehicle Mr. Shyam Veer was holding permanent driving licence for driving vehicle LMV (NT) Plus TSR meaning thereby, he was authorized to drive light motor vehicle non transport plus 3 -seater rickshaw. Thus, it becomes clear that he was not authorized to drive transport vehicle whereas, vehicle in question which met with an accident was insured as commercial vehicle. This Commission in III (2010) CPJ 256 (NC) - National Insurance Co. Ltd. Vs. Sansar Chand has held that if the driver of the vehicle was holding licence for light vehicle and met with an accident while driving transport vehicle, Insurance Company is not liable. Same view has been expressed in III (2008) CPJ 191 (NC) United India Insurance Co. Ltd. Vs. Arvind Kumar.

IN the light of aforesaid judgments, OP has not committed any deficiency in repudiating claim. Learned State Commission observed in the order that Tata Sumo even if used as taxi would not become the transport vehicle which observation is not correct. It was further observed that capability and skill of the driver to drive particular vehicle determines liability of the Insurance Company which is apparently not correct. Insurance Company can be held liable only if driver holds valid driving licence to drive the vehicle at the time of accident. Further, it has wrongly been observed that use of non -transport vehicle as a taxi does not change the character of the vehicle from LMV to HMV or to any other category, because transport vehicle can be plied only by a person holding valid driving licence to drive transport vehicle. A person who does not hold licence to drive transport vehicle cannot drive transport vehicle and if he drives transport vehicle, Insurance Company cannot be fastened with any liability. Learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed.

CONSEQUENT LY , revision petition filed by the petitioner is allowed and impugned order dated 9.5.2008 passed by the State Commission in Appeal No. 08 of 225 - New India Assurance Co. Ltd. Vs. Birender Mishra and order of District Forum dated 7.1.2008 in Complaint No. 540/2006 - Birender Mishra Vs. New India Assurance Co. Ltd. is set aside and complaint stands dismissed with no order as to costs.