SUSHILABEN BUPATRAI SONI vs NEW INDIA ASSURANCE CO. LTD.

COMPLAINANT who is a widow of the deceased Bhupatrai Soni (deceased for short) has filed this complaint for recovery of sum of Rs. 4,27,000/- alleged to be payable under the insurance policy, compensation of Rs. 50,000/- for mental agony and cost of Rs. 6,000/- on the following allegations.

THE deceased had purchased Mini Luxury Bus (bus for short) bearing Registration No. G-2T-4088 and insured it with the New India Assurance Co. Limited, opponent No. 1 herein for a sum of Rs. 4,27,000/-. THE insurance policy was valid for the period from September 3, 1992 to September 2,1993. THE deceased was driving the bus when it met with an accident on November 25,1992. THE deceased died on the spot and the bus was extensively damaged. It is submitted that the complainant informed opponent No. 1 regarding the accident and damage to the truck and made a claim for payment of the sum for which the bus was insured since the bus was a total loss. Opponent No. 1, however, did not pay the said sum. THErefore, the present complaint claiming the amount as aforesaid. Opponent No. 1 has filed written statement contesting the complaint. It is contended that the complainant is not a consumer and the complaint filed by her is premature. It is submitted that inspite of repeated requests, the complainant failed to produce the driving licence of the deceased in support of her claim. According to opponent No. 1, the deceased was not holding a valid driving licence to drive the bus and, therefore, opponent No. 1 is not liable to pay any sum to the complainant under the insurance policy. Opponent No. 1 has also denied any liability to pay compensation as claimed in the complaint.

In view of an endorsement to the effect that the deceased had entered into hire purchase agreement with the Bombay Mercantile Co., operative Bank Limited (Bank for short) made in the Registration Certificate an application was made to join the Bank as party. The Bank was therefore joined as opponent No. 2. Opponent No. 2 in its written statement has submitted that it had advanced loan to the deceased for pur chase of the bus and the bus was hypothecated with it to secure the loan. The complainant and one Laljibhai K. Soni had stood surety for the repayment of the loan. According to the Bank it had advanced Rs. 489,225/- to the deceased to purchase the bus. The deceased, however, failed to pay the amounts due under the terms and conditions on which loan was granted. The deceased was called upon to pay up the amount due. He, however, failed to do so. The sureties had also not paid the amount due from the deceased. It is further submitted that on coming to know that the deceased had died in the accident in which the bus was total loss the Bank had approached opponent No. 1 to pay up the amount payable under the insurance policy. Opponent No. 1, however failed to do so. On the above grounds, it is submitted on behalf of the Bank that the amount payable to the complainant be paid to it towards repayment of the loan taken by the deceased.

THE grievance of the complainant is that opponent No. 1 has been guilty of negligence or deficiency in service by refusing to indemnify her. In substance, the allegation is that by not paying the amount due under the policy to the complainant there is deficiency of service on the part of opponent No. 1. THE accident in which the bus was damaged occurred on November 25, 1992 and the complainant made claim for indemnification on May 6,1993. THE complainant also forwarded xerox copy of the driving licence to opponent No. 1 as requested by it also on May 6,1993. THE complaint is filed on November 30, 1993. Having regard to the definition of ''consumer'' under Section 2(1)(d)(ii) the complainant is a consumer because the definition includes any Beneficiary of services other than person who has hired services. THE complainant as widow of the deceased is beneficiary of the services which opponent No. 1 is liable to render under the contract of insurance. From the facts stated above it is clear that the complainant had waited for reasonable time before filing the complaint before this Commission. We, therefore, do not see any substance in opponent No. 1''s contention that the complainant is not a consumer and that the complaint is premature. Opponent No. 1 on one hand contends that the complaint is premature; on the other it contends that the complaint is barred by limitation. It is submitted that since the complaint is not filed within the time prescribed by Section 24A it is barred by limitation. It is submitted that cause of action for filing the complaint arose on November 25, 1992, the date of the accident whereas the complaint is filed on November 30, 1993. Opponent No. 1 appears to be laboring under the impression that period of limitation prescribed under Section 24A is one year and therefore it seems to have raised the ground regarding bar of limitation. However, Section 24A prescribes limitation period of two years. Therefore, obviously the complaint is not barred by limitation under Section 24A. It is also debatable whether Section 24A has application to a case where cause of action has arisen before Section 24A was inserted in the Consumer Protection Act. If the complainant''s case is governed by Limitation Act, undisputedly the complaint is not barred by limitation. We, therefore, do not find any substance in opponent No. 1''s contention that the complaint is barred by limitation.

SO far as the merits of the case are concerned, the only ground on which opponent No. 1 has resisted the claim of the complainant is that the deceased was not holding a valid licence. It is not disputed that there was an accident on November 25,1992 and in this accident the bus was extensively damaged. It is submitted that the deceased was holding driving licence for driving Light Motor Vehicle and he also had licence to drive vehicle as taxi. The deceased however could not have driven the bus with the licence which he was holding. In support of this contention reliance is placed on letter dated February 24,1994 addressed to opponent No. 1 by It. Regional Transport Officer, Ahmedabad in which it is stated to the effect that person holding badge to drive taxi cab cannot drive passenger bus. A copy of this letter is on page 49. On the other hand it is submitted on behalf of the complainant that the deceased was holding a valid driving licence and having regard to the definition of Light Motor Vehicle and the fact that the deceased had taxi badge, he was entitled to drive a bus. In support of this contention reliance is also placed on letter dated November 18, 1995 addressed to opponent No. 1 by Regional Transport Officer, Ahmedabad. Section 3 of the Motor Vehicles Act provides among other things that no person shall drive a transport vehicle unless his driving licence specifically entitles him to do so. The deceased was holding driving licence to drive Light Motor Vehicle and taxi. Light Motor Vehicle is defined in Section 2(21) of the Motor Vehicles Act. It lays down that "Light Motor Vehicle" means a transport vehicle or omni bus, the gross vehicle weight of either of which or a motor car or tractor or road roller the unladden weight of any of which does not exceed 6000 kgs. The certificate of registration issued in respect of the bus which is at page 18 shows that its unladden weight was 3960 kgs. The bus was therefore a Light Motor Vehicle. Section 2(47) which defines ''transport vehicle'' says that transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Private service vehicle is defined to mean ''a motor vehicle constructed or adapted to carry more than six persons including driver and a public service vehicle is defined to mean any motor vehicle used and adapted to be used for carriage of passengers for hire or reward and includes a taxi cab, a motor cab, contract carriage and stage carriage'' (see Sections 2(33) and 2(35) of the Motor Vehicles Act). Having regard to the above definitions, it is clear that the deceased was holding a valid driving licence to drive the bus. This is made clear by Regional Transport Authority by its letter dated November 18,1995 addressed to opponent No. 1. It was submitted on behalf of opponent No. 1 that the said letter is not consistent with letter dated February 24, 1994 addressed to opponent No. 1 by Joint Regional Transport Officer and, therefore, no reliance should be placed on it. We are not inclined to accept this submission. As held by us above, having regard to the definitions referred to above, the deceased was entitled to drive the bus under the driving licence which he was holding. Letter dated November 18,1995 written to opponent No. 1 by the Regional Transport Authority strengthens our conclusion. This letter is a de tailed letter as compared to the short reply given to opponent No. 1 by Joint Regional Transport Officer by his letter dated February 24, 1994. Letter dated November 18, 1995 is a detailed letter explaining as to how the deceased was entitled to drive the bus. We, therefore, reject opponent No. 1''s contention that the deceased was not holding a valid driving licence to drive the bus. In our opinion, therefore, the complainant is entitled to claim the amount payable under the insurance policy. The next question is what amount should be awarded to the complainant. It was submitted on behalf of opponent No. 1 that it had appointed Vinodbhai Patel as Surveyor to assess the loss and the Surveyor had in his report dated January 20, 1993 estimated the loss at Rs. 318,496/-on repair basis and at Rs. 2,01,000/-on total loss basis. It was submitted that complainant is not entitled to claim more than Rs. 2,01,000/- from opponent No. 1. Besides this survey report, no evidence is adduced by the complainant to prove the loss due to damage to the bus. It appears from the survey report that the bus was extensively damaged and on repair basis the loss was estimated at Rs. 3,18,496/-. On total loss basis the loss was estimated at Rs. 2,01,000/-. The Surveyor has not explained as to in what manner he has deducted depreciation of 10 to 15%. He has also not given break up of depreciation of Rs. 60,660.06 worked out by him. The estimate of loss of Rs. 2,01,000/- on total loss basis is also not satisfactorily explained. The basis for adopting salvage value of damaged vehicle at Rs. 1,50,000/- is also not explained. However, the report of the Surveyor can be taken as basis for estimating the loss suffered by the complainant. In our opinion, it would be reasonable to assess the loss at Rs. 3,25,000/- in round figures. Opponent No. 1 is, in our opinion, liable to pay to the complainant the said amount.

OPPONENT No. 2, Bank has not produced documents in support of its written statement. We do not know the terms and condition''s on which the loan is alleged to have been advanced to the deceased. We also do not know what amount was due from the deceased at the foot of the account. It is also not possible to give any relief to the Bank on the complaint filed by the complainant. We will, however, protect the interest of the Bank as stated in the final order.

WE do not see any reason to award any compensation for mental agony or torture as claimed by the complainant. Compensation if any, payable under this head would be taken care of by the interest which we propose to award as stated in the final order. In the result, this complaint is partly allowed and opponent No. 1 is directed to deposit sum of Rs. 3,25,000/- together with interest @ 18% p.a. from the date of this complaint till the deposit is made, within one month from the date of this order. On the amount being deposited as aforesaid, it shall be invested in Fixed Deposit with a nationalised bank for a period of not less than three years with the condition that the complainant shall be entitled to receive only the interest accruing due thereon and that she will not be entitled to raise any loan or advance thereon. The amount when deposited will be so invested by the Registrar of this Commission in the name of the complainant. This order for deposit of the amount as aforesaid is made subject to the right, if any, of opponent No. 2 Bombay Mercantile Co-op. Bank Limited and subject to any decree or award that may be passed in favour of the said Bank. Opponent shall also pay to the complainant cost of Rs. 2,000/- within one month from the date of this order. There will be no order as to costs so far as opponent No. 2 is concerned. Complaint partly allowed with costs.