Oriental Insurance Co. Ltd. vs RAJESH TIWARI

SINCE both these appeals under Section 15 of the Consumer Protection Act, 1986 are directed against the same order, they are being disposed of by this common order.

THE impugned order dated 5.5.2004 was passed in Complaint No. 346/2003 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called District Forum for short), whereby the insurer-Oriental Insurance Co. Ltd., has been directed to pay compensation of Rs. 48,245/- to the complainant/respondent with interest @ 9% per annum payable from 30.9.2003. The complainant averred that the Jeep bearing No. CG-04 ZT 9671 was owned by him and that he had comprehensively insured the said vehicle with the insurer, for the period from 7.10.2002 to 6.10.2003. It was further averred that while going from Raipur to Sarangarh the said jeep met with an accident at about 4 a.m. on 30.3.2003 near Village Jogidepa as a truck dashed against it. As a result of the accident, the jeep was damaged. Report of the incident was lodged by the complainant with the police at Police Chowki Patewa, Police Station Tumgaon, District Mahasamund. A charge-sheet against the driver of the truck which dashed the complainant''s jeep was also filed in the Court of Judicial Magistrate, First Class, Mahasamund. The complainant also reported the matter to the insurer and also submitted claim form. It was further averred by the complainant that he was entitled to reimbursement of the expenditure, incurred by him, in the repairs of the jeep. However, since the appellant did not pay to him the said amount, he claimed compensation of Rs. 1,71,715/- towards repairs as well as compensation of Rs. 50,000/- for mental harassment and deficiency in service, etc.

The complaint was resisted by the opposite party/insurer. It was averred that the complainant''s vehicle was registered as private vehicle, however, it was being used for commercial purpose for carrying Hari Bhoomi Newspaper. It was also alleged that passengers were also travelling in the said jeep at the time of accident. It was also averred that the driver had no valid and effective driving licence. Appellant/insurer thus averred that there was breach of terms of policy as above, by the complainant hence he was not entitled to any benefit under the policy.

THE District Forum in the impugned order held that the contention of the insurer that the jeep was driven by a person who was not having a valid and effective driving licence, cannot be accepted as the driver was having learner''s driving licence. It was further held that since it was established that the jeep was being used for carrying newspaper and was thus being used for commercial purpose, while it was registered as private vehicle, therefore, the complainant''s claim should be treated as non-standard. THE Surveyor has estimated the loss at Rs. 70,327.50 paise, 75% thereof i.e., Rs. 48,245/- was accordingly awarded to the complainant, as compensation. The learned Counsel for the parties were heard and record perused.

THE first contention of the learned Counsel for the insurer/appellant (Appeal No. 228/2004) was that the driver was not having effective and valid driving licence. It may be noted that the complainant has produced in the District Forum, the learning licence of the driver Yashwant Kumar Vaishnav. It would thus appear that the Yashwant Kumar Vaishnav was having a valid and effective driving licence. THErefore, it cannot be said that the jeep was being driven by a person who was not holding licence. THE insurer has not placed on record any material to show that the jeep was not being driven by the driver in accordance with the conditions of driving the vehicle as per requirement of law. It may be noticed that the Supreme Court in National Insurance Co. v. Swaran Singh, I (2004) SLT 345=I (2004) ACC 1 (SC)=2004 ACJ (1) has held that the wilful breach of the policy conditions has to be proved by the insurer. It was further held that the learner''s licence is also a valid licence under the Motor Vehicles Act, 1988. In this case, as noticed above, the insurer has not placed on record any material to show that the vehicle was not being driven in accordance with the terms and conditions of the learner''s licence issued in favour of the driver Yashwant Kumar Vaishnav. The District Forum has considered the material on record and circumstances of the case and has come to the conclusion that the learner''s licence was issued in favour of the driver Yashwant Kumar Vaishnav and that the said licence has not been shown to be fake. There is no reason to differ from the said finding. Therefore, the contention of the learned Counsel for the appellant that the driver was not having valid and effective driving licence, cannot be accepted. The learned Counsel for the complainant (appellant of Appeal No. 242/2004) has submitted that the complainant ought to have been awarded the whole of the amount spent by him in repairs of the vehicle. It may be noticed in the above context that the District Forum has recorded a finding after consideration of the documents placed on record that the vehicle was being used for commercial purpose while it was undisputably registered for private use. In the circumstances, the District Forum did not err in treating the claim as non-standard and awarding the amount to the extent of 75% of the amount of the damage as assessed by the Surveyor. Though, the learned Counsel for the complainant submitted that the amount of expenses in repair of the vehicle was much more. We do not find any material not to rely upon the damage as assessed by the Surveyor. As the vehicle was being plied for commercial purpose, the District Forum was justified in treating the claim as non-standard. We do not find any reason to set aside the said finding.

ACCORDINGLY both these appeals have no substance, and accordingly both the appeals are dismissed. Impugned order is affirmed. Appeals dismissed.