S. CHANDRASEKHAR vs Oriental Insurance Co. Ltd

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act, 1986.

THE complainant is the owner of a light motor vehicle bearing Registration No. KA-01 / 2279, THE said vehicle was insured with the Opp. Parties for the period from 17.9.1991 to 16.9.1992. THE amount assured was Rs. 3,20,000/-. On 16.7.1992 the said vehicle met with an accident and a claim was preferred by the complainant with the opp. parties. THE opp. parties rejected the claim on the ground that the driver of the vehicle who drove the vehicle at the time of the accident was not having a valid licence to drive a light goods vehicle. THE complainant claimed a sum of Rs. 5,01,000/- from the opp. parties towards compensation. The opp. parties in their counter pointed out that the vehicle of the complainant was a light goods vehicle and that the driver who drove the vehicle at the time of the accident was not having a proper licence to drive a light goods vehicle. According to the opp. parties, for driving a light goods vehicle, a specific authorisation is necessary under the Motor Vehicles Act and there was no such authorisation in the licence issued to the driver, the policy was therefore unenforceable. The specific averments of the opp. parties in this regard at Para 2(b) read as under: "(b) The complainant herein has submited the required documents as called for by the Company i.e., R.C., driving licence. On going through the driving licence of the complainant i.e., the insured himself who was driving the tempo at the time of the accident. It was seen that the Complainant did not possess an effective driving licence to drive a light goods vehicle. It is submited that the complainant was possessed of a driving licence to drive a Light Motor Vehicle earlier and later on was authorised to drive an autorickshaw and further later on he was authorised to drive Heavy Passenger Vehicle w.e.f. 27.5.85. But, the comlainant did not possess the valid driving licence to drive a transport vehicle i.e., goods vehicle, the one which was involved in the accident. On the date of the accident the complainant had driven the vehicle in question i.e., tempo bearing registration No. KA-01-2279 without effective driving licence to drive the same in contravention of the conditions of the policy of insurance issued"

The opp. parties, on the basis of these averments, sought the complaint to be dismissed.

DURING enquiry the complainant examined himself a C.W. 1 and another witness C.W.2 - the Assistant R.T.O. and got Exs. C.1 to C.14 marked in evidence. The opp. parties examined its Assistant Divisional Manager as R.W.1 and got Exs. R.1 to R.4 marked in evidence. Having regard to the pleadings of the parties, and the submissions made by the learned Counsel for the parties, the points that arise for our consideration are: (i) Whether the driver who drove the vehicle at the time of the accident was holding a valid driving licence to drive the vehicle in question ? (ii) Whether the complainant is entitled for compensation and if so, to what amount of compensation he is entitled. ?

Regarding Point No. 1:

EX. R. 1 is the copy of the policy of insurance of the vehicle. It shows that it was a light motor vehicle; Gross weight of which is 5950 Kgs. i.e., less than 6,000 Kgs. Ex. C-3 is the Xerox copy of the driving licence of the driver i.e., the complainant who drove the vehicle at the time of the accident. It shows that the driver-the complainant had the driving licence for driving Heavy Passenger Vehicle (HPV) with effect from 27.5.1985. This licence shows that this was from 4.6.1985 to 3.6.1988. Subsequently it was renewed upto 3.6.1991 and again it was renewed upto 3.6.1994. The accident occurred, as referred above, on 16.7.1992. Admittedly on the date of the accident, the driver of the vehicle was having licence for driving a heavy passenger vehicle. In the Policy, Ex. R.1, as against column ''Driver'' it is stated as follows: "Drivers Clause: Persons or Classes of persons entitled to drive-Any person including the insured. Provided that a person driving holds an effective driving licence at the time of the accident and not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective learner''s licence may also drive the vehicle when he used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule No. 3 of the Central Motor Vehicles Rules, 1989."

AS referred above, the driver of the vehicle-the complainant, at the time of the accident was holding a driving licence for driving a heavy passenger vehicle and the vehicle insured which met with the accident was a light goods vehicle i.e., a light motor vehicle. AS per the conditions of the policy of insurance, as referred above, the person driving the vehicle at the time of the accident must hold an effective driving licence.

THE learned Counsel for the opp. parties submitted that the vehicle in question was a light goods vehicle and the driver of such a vehicle must necessarily have a specific endorsement in the licence to entitle him specifically to drive the said vehicle. As it is evident that no such specific endorsement was found on the licence of the driver so the driver who drove the vehicle at the time of the accident was not entitled to drive the vehicle. THErefore the claim of the complainant was untenable. He relied upon the following decisions: (i) Shammamma & Another v. Syed Khaja Maunudin & Ors., reported in 1992 (1) ACJ. 375; (ii) United India Insurance Co. Ltd. v. Palaniammal & Ors., reported in 1991 (1) ACJ. 434=II (1991) ACC 377; (iii) United India Insurance Co. v. K. Subramaniam & Ors., reported in 1991 (2) ACJ. 625=II (1991) ACC 520. In the decision of M. Shammamma & Anr.; (1), the driver holding licence to drive a light motor vehicle was driving a heavy motor vehicle and so that decision has no application to the facts of the case. THE decision in 1991 ACJ and the decision of the learned Single Judge of the High Court of Madras, in view of the Division Bench Decision of the Madras High Court in Dhanaraj and Anr. v, Rubia and Anr., (1992 ACJ 84), in our opinion, these decisions of the learned Single Judge of 1991 ACJ would in no way help the Opp. parties. The Division Bench of the Madras High Court in, Dhanraj and Another v. Rubia and Another, 1992 ACJ. 84=I (1992) ACC 132 considering his material question held at para 5 of its judgment as under: "6. The appeal by the claimants is not only for enhancing the compensation but also for a decree against the Insurance Company. A similar question arose before this Court in E. Enjanadevi v. Armugham, 1983 ACJ. 625 (Madras). This Court passed the following point for determination: "The substantial question that arises in this case is to determine whether driver of a tourist car is required under the Motor Vehicles Act, 1939 to have a special authorisation in addition to the usual licence to drive a light motor vehicle to enable him to drive the tourist car as contended by the learned Counsel for the Insurance Company."

The Insurance Company in that case showed that the vehicle had been registered as a tourist taxi and it can be used only in connection with the insured''s business of running it as a tourist vehicle. Further under the head ''driver'' the policy in that case had stated that the vehicle could be driven by the insured or by any other person in his employ, holding a licence to drive the vehicle. Relying on Sec. 3(1) of the Motor Vehicles Act, it was held that the driver did not have a valid licence to drive a tourists taxi. It was therefore, held that the Insurance Company was not liable to meet the compensation. In the case before us, there is some proof that the driver of TMV 8481 did not have a licence to drive a tourist vehicle. But the question that still remains is whether the policy in this case insisted on the driver .having a licence to drive a tourist vehicle. It is not disputed that the driver did have a licence to drive light motor vehicle like the car TMV 8481. Exh. 7 is the policy issued by the second respondent-Company for the period from 28.9.1981 to 27.9.1982. As against the column ''Business/profession'' the policy is left blank. Therefore, the endorsement in the policy that usage in connection with the insured''s business does not convey any meaning, because the business is not indicated. This vital point of difference between the judgment in E. Enjanadevi v. Arumugham, 1983 ACJ. 625 (Madras), because in that case, it is seen from the judgment that the insured''s business was running a tourist taxi. Secondly, as against the word ''driver'' it is stated as follows: "(a) the insured; (b) any other person provided he is in the insured''s employ and is driving on his order or with his permission; Provided that the person driving holds a valid driving licence at the time of the accident or had held a permanent driving licence (other than a learner''s licence) and is not disqualified from holding or obtaining such a licence."

The words "holds a driving licence at the time of the accident" is definitely satisfied in this case because the driver of TMV 8481 did have a licence to drive a light motor vehicle. In the judgment quoted above, it is seen that as against the word ''driver'', it was stated that the vehicle could be driven by the insured or by any other person in his employ holding a licence to drive the vehicle. The reference to the vehicle is missing in the policy before us. Further, the words "or had held a permanent driving licence (other than a learner''s licence) and is not disqualified from holding or obtaining such a licence" suggest that even if the driver had a permanent driving licence and is subsequently not disqualified from holding such a licence, the Insurance Company cannot escape liability. The words seem to suggest that even if on the date of the accident, the driver did not have a licence the fact that he had earlier a permanent licence and is not disqualified on the date of the accident is sufficient to fasten the liability on the Insurance Company. Learned Counsel for the appellants relied on Rule 5 (b) of the Motor Vehicles Rules to say that the eligibility for getting a licence to drive a tourist vehicle is only one year experience as a driver."

Our High Court in Oriental Insurance Co. Ltd., v. Hazira Begum, (ILR. 1994 Kar. 2879) at para 6 of its judgments observed thus: "6. Section 2(21) of the 1988 Act defines "Light Motor Vehicle" as follows: "(21) "Light Motor Vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which of a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 6,000 Kilograms."

The learned Counsel invited my attention to Section 2 (23) of the M.V. Act, which defines "Medium Goods Vehicles". The definition reads: "(23) "Medium Goods vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle."

According to him, Exs. R-5 to R-7 show that the vehicle is registered as a medium goods vehicle and hence, by virtue of Section 10(2), the deceased is not entitled to drive the vehicle. At this stage, it is necessary for us to refer to the definition of "Transport Vehicle" made mention of in Section 2 (21) while defining a "Light Motor Vehicle".

IN the present case, it is not disputed that the driver of the vehicle who drove the vehicle at the time of the accident was holding a licence to drive heavy passenger vehicle. Admittedly the vehicle in question was a light goods vehicle i.e., a light motor vehicle. The specific wordings used in the policy regarding driver''s clause, as referred above, any person including the insured, provided that a person driving the vehicle holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. These words suggest that if the driver had a driving licence and subsequently was not disqualified from holding or obtaining such a licence, the INsurance Company cannot escape its liability. The words seems to suggest that even on the date of accident, if the driver did not have a licence, the fact that he was not disqualified on the date of accident from holding or obtaining such a licence was sufficient to fasten the liability on the INsurance Company. In the present case, as referred above, the driver who drove the vehicle at the time of accident, had as a matter of fact, a valid driving licence for driving a heavy passenger vehicle and there is no material on record to show that he was disqualified from driving a light motor vehicle at the time of the accident. Ex. C.6 is the clarification issued by the Assistant Regional Transport Officer regarding the driving licence of the complainant, which reads as under: " Sub : Clarification in regard to D.L. No.112/ 79 C.43 V. 42 (HPV & A/R) of Sri. S. Chandrashekar. Ref : Claim No. 421202/MV/112/93 Vehicle No. KA. 01-2279 Canter Goods Vehicle Department Motor Claims dt. 17.3.93. In inviting your attention to above, I write to inform Sri S. Chandrasekhar he is holding the Driving Licence for A/Rand H.P..V. as requires under Section 3 of Motor Vehicles Act, 1989. Since, he is already holding Driving Licence for H.P.V. he is also authorise to drive L.M.V. (Transport) with Registered Laden Weight up to 6000 Kgs. This is for your kind information."

THIS would clearly go to show that the complainant was entitled to drive a light motor vehicle. C.W.2 is the Assistant Road Transport Officer. He has in his evidence stated thus: "Ex. C.15 is the endorsement issued by our office in favour of the complainant. If a person were to hold a licence to drive for Light Motor Vehicle and H.P.V. (Transport) he would be entitled to drive light motor vehicle (transport) unlaiden weight of 6,000 Kgs." In view of these facts and in the circumstances of the case, we are satisfied that the driver who drove the vehicle in question at the time of the accident was holding a valid driving licence for driving the vehicle in question. Accordingly, we hold and answer point No. 1 in the affirmative i.e. in favour of the complainant. Regarding Point No. 2

THE vehicle in question was insured for a sum of Rs. 3,20,000/- as per the terms in Ex. R.1-the policy of insurance. Ex. R.2 is the survey report which shows that the value of the vehicle on total loss basis was at Rs. 2,50,000/--. Rs. 50,000/has been shown as realizable wreck value. Ex. C.4 is the copy of the letter given by the complainant to the Divisional Manager of the opp. parties dated 2.11.1992 which reads as under: "Re: Accident to Vehicle No. KA-01-2279 on 16.07.92 Policy No. 421202/206/0MV/ 92/4465. With reference to the discussion I had with the Deputy Manager on 26.10.92 at your Regional Office along with Mr. Hussain, Surveyor. I hereby agree and give my consent to settle my claim on Total Loss Basis for Rs. 2,50,000/and request you to settle the same at an early date. Thanking you."

THIS would go to show that there was a discussion between the complainant and the opp. parties and the complainant had agreed to accept a sum of Rs. 2,50,000/- in full and final settlement of the claim. That letter shows that even the Surveyor was present during the said discussion. The said Surveyor Mr. Hussain has not been examined. His Report Ex. R. 2 has been filed. Having regard to these facts, we are of the opinion that the complainant is entitled for compensation on total loss basis and so he would be entitled for a sum of Rs. 2,50,000/-. Hence, point No. 2 is answered in the affirmative i.e., in favour of the complainant.

The accident took place on 16.7.1992. It was repudiated only on 5.8.1993 as per Ex. R4. There was undue delay in settling the claim of the complainant.

THE Insurance Company is enjoined with the duty to investigate the claim of the claimant with utmost care and diligence. THE circumstances would go to show that the opp. parties failed to perform their duties in settling the claim, admittedly, without any loss of time. In the circumstances, we have no other alternative except to compensate the claimant for the loss which he has suffered by awarding interest on the amount of Rs. 2,50,000/- at 15% p.a. In the result, therefore, this complaint is allowed. The Opp. parties-Original Insurance Company is directed to pay a sum of Rs. 2,50,000/- to the complainant with interest at 15% per annum from 1.3.1993 till its payment to the complainant. The complainant has to deliver the said damaged vehicle to the opp. parties at the time of payment of the said amount by the opp. parties to him. The opp. parties shall pay a sum of Rs. 2,500/- to the complainant towards costs of this proceeding. The opp-parties shall pay the sums so awarded to the complainant within a period of two months from this day. Complaint allowed with costs.