NEW INDIA ASSURANCE CO. LTD.-/ vs P.Arumugam

THIS appeal is directed against the order dated 5.3.1997 in O.P. No. 207/1993 on the file of the District Consumer Disputes Redressal Forum, Coimbatore.

THE appellant is the opposite party while the respondent is the complainant. Short facts may be related in order to understand the crux of the issue arising for consideration in this action.

The complainant is the owner of a lorry bearing Registration No. TCI 7129. It was used for transporting goods to various places. A policy of insurance was taken respecting the said lorry with the opposite party. The policy was to enure for a period of one year commencing from 3.12.1990 to 2.12.1991. During the coverture of the policy, the lorry met with an accident at 3.30 hrs. on 24.4.1991 near All India Radio, Trichy.

AFTER complying with the formalities, the lorry which met with an accident was towed to Coimbatore and admitted in the workshop going by the name Stanes Motors (South India) Limited, Coimbatore-18. A Surveyor also inspected the lorry and submitted his report. The complainant submitted a claim form on 6.5.1991. He also submitted all the documents as required by the opposite party Insurance Company. The claim so made was however repudiated by the opposite party Insurance Company on the ground that the driver of the vehicle was not having a valid and effective driving licence to drive the vehicle.

IN such a backdrop and setting, the complainant knocked at the doors of the Forum below for the recovery of the amounts spent by him in restoring the lorry to its original position plus the incidental charges alleging deficiency in service on the part of the opposite party INsurance Company. The opposite party Insurance Company in pith and substance contended that there was no deficiency in service on their part. The repudiation of the claim as made was justifiable on the facts and in the circumstances of the case inasmuch as the driver of the said vehicle was not having a valid and effective driving licence to drive the vehicle in question on the date of the accident. The opposite party Insurance Company did not at all dispute the amounts spent for restoring the lorry to its original position by the complainant. The complaint as such is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, recorded a finding that there was deficiency in service on the part of the opposite party in repudiating the claim as made by the complainant. Consequently, the Forum below directed the opposite party Insurance Company to pay to the complainant a sum of Rs. 50,334/- with interest thereon @ 12% p.a. from 6.5.1991 till date of payment and a sum of Rs. 500/- as costs. The award so made is directed to be complied with within a period of two months from the date of receipt of the order by the opposite party Insurance Company or otherwise penal action would be taken against the opposite party as per the provisions of law.

AGGRIEVED by the order as above, the opposite party Insurance Company resorted to the present action by engaging a Counsel of their choice, namely learned Counsel Mr. A.P. Suryaprakasam.

ON service of process, the respondent/complainant entered appearance through a Counsel of his choice, namely learned Counsel Mr. K. Kalyanasundaram. During the pendency of the appeal, there was change of vakalat for the appellant/opposite party and learned Counsel M/s. M.B. Raghavan filed vakalat for the appellant/opposite party.

We heard the arguments of learned Counsel Mr. M.B. Raghavan, appearing for the appellant/opposite party and learned Counsel Mr. A. Bobblie, representing learned Counsel Mr. K. Kalyanasundaram, appearing for the respondent/complainant.

LEARNED Counsel Mr. M.B. Raghavan, appearing for the appellant/opposite party would contend that the Forum below did not at all approach the factual matrix of the case in the proper perspective in giving a legal fitment, therefore, and that perhaps was the reason it had penned down an erroneous order now impugned in this action. He would elaborate by saying that the driver of the vehicle in question was not having a valid and effective licence on the date when the accident took place and consequently the repudiation of the claim as made by the complainant is justifiable. In support of such a submission, he would place implicit reliance upon Sections 3 and 10 of the Motor Vehicles Act, 1988 (for short, "the Act, 1988") besides the decision, namely Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., III (1999) CPJ 5 (SC), emerging from the Apex Court of the country. Learned Counsel Mr. A. Bobblie repre-senting learned Counsel K. Kalyanasundaram appearing for the respondent/complainant would however strike a discordant note and what he would state is that if a perusal of the driving licence of the driver of the vehicle in question marked as Ex. B9 is made, it would reveal that he was possessed of a licence to drive Heavy Passenger Motor Vehicles.

THE tenability or otherwise of the projection of hues of views by the respective learned Counsel appearing for the parties may now fall for consideration in the arena of discussion to be ensued hereafter. Sub-section (1) of Section 3 of the Act, 1988 prescribes that "no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab 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 so to do". Sub-section (2) thereof prescribes that "the conditions subject to which Sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government".

SUB-section (2) of Section 10 thereto provides that "a learner''s licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely : (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) medium goods vehicle; (f) medium passenger motor vehicle; (g) heavy goods vehicle; (h) heavy passenger motor vehicle; (i) road-roller; (j) motor vehicle of a specified description".

THE decision emerging from the Apex Court in the case of Ashok Gangadhar Maratha (supra), happens to consider the meaning of the expression "motor vehicle" and "effective driving licence" in paragraph 5 at page 7 of its order. THE relevant portion of the said paragraph is to the following effect : "5. This section uses two expressions, namely, "motor vehicle" and "effective driving licence". "Effective" would mean a valid licence both as regards the period and type of vehicle..." The policy of insurance had been marked as Ex. A2. It contains a driver''s clause under the caption "Persons or classes of persons entitles to drive any of the following : "(a) The Insured (b) Any other person who is driving on the insured''s order or with his permission : Provided that the person driving holds or had held (sic.) has not been disqualified from holding an effective driving licence with all the required endorsements thereon as per the Motor Vehicles Act, 1988 and the Rules made thereunder for the time being in force to drive the category of motor vehicle insured hereunder."

The driving licence of the driver of the vehicle in question had been marked as Ex. B9. A cursory perusal of the said licence reveals that the driver of the vehicle in question was authorised to drive Heavy Passenger Motor Vehicles only. There is no endorsement at all authorising him to drive Heavy Goods Vehicle. We have to understand the meaning of the ''heavy goods vehicle'' in this context. Section 2 Sub-section (16) of the Act, 1988 defines "Heavy Goods Vehicle". According to the definition, it 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". So far as the weight of the lorry in question is concerned, it has been specifically referred to in Ex. A2 policy as 15400 kilograms. It goes without saying that the lorry in question is a Heavy Goods Vehicle. For driving such a vehicle, admittedly, the driver of the vehicle in question was not having the necessary and requisite licence. Such being the case, to say that the repudiation of the claim by the opposite party Insurance Company on the ground that the driver of the vehicle in question was not having the valid and effective driving licence on the date of the accident cannot at all be stated to be not sustainable in law. In the view we have taken, it goes without saying that the appeal has to be allowed.

IN fine, the appeal is allowed; the order of the Forum below is set aside and the complaint itself is dismissed. We make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.