SURESH KUMAR vs NATIONAL INSURANCE COMPANY LTD.

THIS revision petition filed against the impugned order dated 1.6.2012 passed by State Consumer Disputes Redressal Commission, Shimla, H.P. (in short, ''State Commission'') has been filed on behalf of the Petitioner against the order passed by District Consumer Disputes Redressal Forum, Mandi, Himachal Pradesh (in short, ''District Forum'') in Consumer Complaint No. 299/2009 dated 7.9.2010. The District Forum partly allowed the complaint. The Complainant is owner of a Swaraj Mazda Tipper Vehicle with registration No. HP33 7445 for carriage of goods. It was insured with the respondent for the sum of Rs. 2,00,000, for one year during period from 21 -4 -2008 to 20.4.2009. Said vehicle met with an accident on 6.2.2009, and was extensively damaged. Intimation of the accident was given to the Respondent who assessed the loss through his deputed Surveyor. Claim was repudiated by the Respondent on the ground that the person, who was driving the vehicle at the time of the accident, did not possess a valid and effective driving licence, inasmuch as his licence was endorsed for driving a light transport vehicle'', whereas, the vehicle, in question, was a ''medium goods vehicle'', as its gross weight was more than 7500 kilograms.

COMPLAINAN T then filed a complaint before District Forum seeking a direction to the opposite party to pay the insurance claim and also to pay damages to the tune of Rs. 2,00,000. Opposite party contested the complaint and took the same plea, on which it had repudiated the claim. The District Forum allowed the complaint and directed the opposite party to pay 75% of Rs. 1,98,000, the amount assessed by the Surveyor, on total loss basis, i.e. Rs. 1,48,500, subject to return of salvage and transfer of the registration certificate by the Complainant in favour of the opposite party.

AGGRIEVED by the order of District Forum two appeals were filed in State Commission. Complainant filed an appeal No. 378/2010 as aggrieved by quantum of insurance claim was filed and the OP filed an appeal No. 393/2010 on the grounds that reason for repudiation of claim had been established hence seeking of dismissal of complaint.

THE State Commission heard Counsel of both parties and perused the evidence on record like Registration Certificate of vehicle in question, the driving licence. Also referred the Section 2(21) and Section 10(2) of Motor Vehicles Act. According to Section 2(21) of the Motor Vehicles Act, "light motor vehicle" means, a transport vehicle or omni bus, the gross vehicle weight of either of which does not exceed 7500.00 kilograms.

In the present case, as per registration certificate, the gross weight of the vehicle, in question was 8000.00 kilograms. That means, it was not a Tight motor vehicle''. Person, who was driving it, was authorized to drive only a light motor vehicle (transport), and therefore, apparently, he did not have the licence to drive the vehicle, in question. The State Commission relied upon judgments of this Commission, Oriental Insurance Company Ltd. v. Ashok Verghese,, III (2009) CPJ 73 (NC), and allowed the appeal filed by OP i.e. (FA 393/2010) and dismissed appeal FA 378/2010 filed by complainant.

Against the order of State Commission the complainant filed this revision petition.

WE heard the Counsel for both parties. The Counsel for petitioner argued that an amendment in the Motor Vehicles Act has been carried out in 1994 and therefore the Section 10(2) has only defined single category of vehicles like Transport Vehicle as per Clause (E) of Sub -section (2) of Section 10 and, therefore, there will not be any differentiation with a person to have a licence to drive transport vehicle can drive any type of transport vehicle that is Light Motor Vehicle and Medium or Heavy Motor Vehicle. Therefore, Section 10(2) which classifies the vehicles for the purpose of grant of licence does not clarify about Heavy or Medium Motor Vehicle.

THE learned Counsel for the Complainant brought our attention to the decision of his own State Commission in FA No. 108/2010, Mubarak Singh v. Oriental Insurance Company, decided on 11.8.2010; as per order the Complainant was entitled to at least 75% of the amount as assessed by the Surveyor. We relied upon another judgment of Hon''ble Apex Court in the case titled Amalendu Sahoo v. Oriental Insurance Co. Ltd., : II (2010) CPJ 9 (SC) : : II (2010) SLT 672, and held that if a driver holding a driving licence to drive a light transport vehicle but driving a medium goods vehicle, it would be a case of breach of the terms/conditions and warranties including "limitation as to use" and the insured will be entitled to 75% of the amount assessed by the Surveyor. The relevant portion of the aforesaid portion judgment reads as under: 4. Now coming to the alternate submission urged on behalf of the appellant. Suffice it to say in this behalf that this question need not detain us in the light of the decision of the Hon''ble Supreme Court in the case of Amalendu Sahoo v. Oriental Insurance Co. ltd. (supra), relied upon by Mr. Thakur in support of his alternate submission. As according to us, driver holding the driving licence whereby he was licensed to drive a L.T.V., whereas he was driving a Medium Goods Vehicle, would be a case of breach of any of the terms/conditions and warranties including limitation as to use. Therefore, we are of the view that the appellant is entitled to Rs. 4,20,750 being 75% of the amount assessed by the Surveyor who is an independent expert appointed by the appropriate authority for assessing the loss. Once this conclusion is arrived at, then there is no escape but for allowing this appeal. Order accordingly.

We put more reliance upon the judgment of Hon''ble Apex Court, Amalendu Sahoo v. Oriental Insurance Co. Ltd. (supra), which prevails over the judgment of this Commission in case, Oriental insurance Company Ltd. v. Ashok Verghese (supra). Hence, the State Commission is not justified to give preference to the judgment passed by this Hon''ble Commission by surpassing the judgment delivered by the Hon''ble Apex Court. It was held that a breach of driving clause in the basis of guidance/notification issued by the Insurance Company while dealing with own damage matter has directed to settle the claim of the insured on non -standard claim basis which means the 75% of the insured amount.

ON perusal of Surveyor report placed by OP on record clarify that he has assessed the loss oh repair basis at Rs. 1,97,268 on total loss basis at Rs. 1,98,000 and on the net of salvage basis Rs. 1,23,000. Since the Insured Declared Value of the vehicle is Rs. 2,00,000. In the interest of justice we are of considered view that claim should be settled on total loss basis at Rs. 1,98,000 as assessed by the Surveyor; accordingly the complainant is entitled to 75% of this amount. With reference to aforesaid discussion we set aside the order passed by State Commission in F.A. 378/2010 and restore the order of District Forum. We allow this revision petition. No order as to costs.