United India Assurance Co. Ltd. vs VESHNAVA INDUSTRIES

AGAINST the order dated 30.3.1992 the opposite party before the District Forum, Dausa has filed this appeal under Section 15 of the Consumer Protection Act, 1986 ("the Act" herein). The opposite party-appellant was directed to pay a sum of Rs. 10,800.7p to the complainant-respondent within one month from the date of the order failing which interest was made payable @ 18% p.a. on the aforesaid amount. Facts leading to this appeal lie in a very narrow compass. The complainant-respondent Chiranjilal owned vehicle No. RNG1653. He got it insured with the opposite party for the period 26.4.1989 to 25.4.1990 cover note No. J.R./88 146289 was issued. The vehicle was comprehensively insured. On 10.6.1989 the vehicle met with an accident on Lalsot-Dausa Road. At that time driver Rajendra Prasad was driving the vehicle. He was having licence of Light Motor Transport Vehicle i.e. Light Motor Transport Delux bearing No. 81991 which was valid upto 4.5.1992. The complainant informed the opposite party-appellant about the accident. The complainant got the spot survey done. On the advice of the mechanic the complainant submitted a claim for Rs. 40,000/- to the opposite party-appellant for the repair of the vehicle. While getting the vehicle repaired, Rs. 28,000/- were spent. The company did not accept the amount and told the complainant that according to the rules only a sum of Rs. 15-20 thousand can be paid and so the bills after reducing the amounts may be submitted. The complainant submitted some bills of the parts purchased and for other parts he only obtained kacha slips. As asked the complainant deposited the salvage. The complainant got his vehicle transferred to L.T. V. on 21.3.1989 as asked by the opposite party. The company avoided making the payment and on 26.4.1990 refused to make any payment. The complainant threatened them to pursue his remedy in a Court and so one month after the complainant was called and he was told that the payment will be made. He was told that only a sum of Rs. 10,000/- can be paid. The complainant insisted for the full payment. He was told to come after one month. As the payment was not made, ultimately the complainant was filed on 23.10.1989. The complainant filed a previous complaint in this regard and the date fixed was 28.5.1991. The complainant''s Counsel could not reach in time and, therefore, the second complaint was filed. In para 12 of the complaint it was so mentioned. The complainant prayed that a sum of Rs. 28,000/- together with interest @ 24% p.a. from the date of accident until payment may be awarded from the opposite party. In support of the complaint, affidavit of Shri Chandra Bhan Singh, Advocate was submitted.

THE opposite party submitted the version of the case dated 30.9.1991. It was presented on 1.10.1991. A peliminary objection was taken that previously Complaint case No. 1247/90 was filed which was dismissed in default on 28.5.1991 and, therefore, in respect of the same subject matter the complainant is estopped from bringing a new complaint. It was also submitted under the head preliminary objections that the vehicle was driven by a person who was not authorised to drive as the vehicle in question was Medium Motor Vehicle and the person driving the vehicle was having the licence of Light Motor Vehicles and as such on this ground the claim was repudiated and the claim was not payable. On merits amongst others it was submitted that the claim of the complainant was inflated. Facts stated by the complainant were denied. It was denied that the bills were submitted by the complainant. In para 2 of the additional pleas it was stated that on the basis of the bills that were submitted by the complainant the claim was processed and according to which amount of claim payable came to Rs. 10,800.7p. But as the vehicle was not driven according to the conditions the claim was repudiated. Shri Gajanand Gupta, Authorised Officer of the company submitted affidavit in support of the version of the case. Certificate of registration, photostat copy of the part of the policy and cover note and copy of the letter were submitted. Besides this no other evidence was placed on record. The District Forum heard the arguments and passed the impugned order. As stated above the opposite party has filed this appeal.

We heard Mr. Sanjeev Arora, Advocate for the appellant and Shri Jagdish Narain Sharma, Advocate for the respondent and have carefully examined the record.

BEFORE we proceed further we may briefly summarise the findings arrived at by the District Forum in the order under appeal: (i) that the complaint out of which the present appeal has arisen does not affect the opposite party-appellant adversely and therefore the complaint out of which the appeal has arisen is not maintainable. (ii) that the driver who was driving the vehicle was having licence to drive Light Motor Vehicles was competent to drive the vehicle in question and so on this ground the claim could not be repudiated. (iii) that the complainant has failed to establish the loss of Rs. 28,000/- . But the opposite party has admitted that a sum of Rs. 10,800.7p. is payable as loss and, therefore, the opposite party is liable to pay the loss.

Aggrieved the opposite party has come up in appeal. It was contended by the learned Counsel for the appellant that previous Complaint case No. 1247/90 was dismissed in default on 28.5.1991 and so the second complaint was not maintainable and the District Forum was not right in holding that the second complaint was maintainable on the ground that it does not affect the opposite party adversely. The District Forum itself has stated that the complainant should have made an application for the restoration of the complaint. According to the learned Counsel for the appellant if the complaint has been dismissed in default and it is not restored, the second complaint is not maintainable. Rule 4(9) of the Consumer Protection (Rajasthan) Rules, 1987 is as follows :- "Where the complainant or his authorised agent fails to appear before the District Forum on such day, the District Forum may in its discretion either dismiss the complaint in default or if a substantial portion of the evidence of the complainant has already been recorded decide it on merits. Where the opposite party or its authorised agent fails to appear on the day of hearing the District Forum may decide the complaint ex-parte."

IT, inter-alia, lays down that when the complainant or his authorised agent does not appear before the District Forum on the date of hearing, the District Forum in its discretion may dismiss the complaint in default. Complaint Case No. 1247/90 which was filed by the complainant previously was dismissed in default on 28.5.1991. The complainant in para 12 of the complaint has stated that the date fixed was 28.5.1991. But his Counsel being indisposed did not appear before the Court (Forum) in time and therefore the second complaint is being presented. IT is true that para No. 12 of the complaint is conspicuously silent as to what happened to the complainant on that date. Copy of the previous complaint is on record. Affidavits have been filed by the parties in the complaint which was dismissed in default as both the parties have sworn the contents of the complaint as well as the version of the case on affidavits. The complaint was dismissed in default under Rule 4(9). Where the complaint has been dismissed under Rule 4(9) then the second complaint brought in respect of the same subject matter, for which the first complaint was filed, the second complaint does not lie and it was barred. Learned Counsel for the appellant placed reliance on the principles underlying Order IX, Rule 9 C.P.C. which is as follows :- "Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non appearance when the suit was called on for hearing the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit".

It is firmly established that the principles underlying the provision of Order IX, Rule 9 C.P.C. are applicable to the proceedings under the Act. No enquiry could be held by the Redressal Forum.

THE District Forum was therefore not right in holding that since the complaint filed does not affect the opposite party adversely, it is maintainable though the previous complaint was dismissed in default. THE District Forum held that there was no breach of condition of the policy. At the time of the accident i.e. on 10.6.1989 the vehicle was a Medium Motor Vehicle and the driver was having licence of driving Light Mo tor Vehicles. According to the learned Counsel for the appellant, there was violation of the terms and conditions of the licence on 10.6.1989. Light Motor Vehicle has been defined in Section 2(13) of the Motor Vehicle Act, 1939 as follows:- "Light Motor Vehicle" Means a transport vehicle or omnibus the registered laden weight of which, or a motor car or tractor the unladen weight of which, does not exceed (4,000) kilograms. Section 2(21) of the Motor Vehicles Act, 1988 defines the Light Motor Vehicle which is as under : "Light Motor Vehicle" Means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor or tractor or road roller the unladen weight of any of which, does not exceed 6,000 kilograms.

AT the relevant time Motor Vehicles Act, 1939 was in force and according to which light vehicle is of registered laden weight not more than 4000 kilograms whereas the vehicle in question was of registered laden weight was 4900 kilograms and so it was registered as a Medium Motor Vehicle. Driving licence has been defined in Section 2(5-A) of Motor Vehicle Act, 1939 as under :- "Driving Licence" Means the document issued by a competent authority under Chapter II authorising the person specified therein to drive a motor vehicle or a motor vehicle of any specified class or description. If a particular licence is issued for a particular category of vehicle then the person is entitled to drive that vehicle only. The licence was issued to the driver of the complainant''s vehicle being Light Motor Vehicle. He was not competent to drive Medium Motor Vehicle. The conditions of the policy inter-alia provide as under:- "Persons or classes of persons entitled to drive is as under : Any perosn. Provided the person. driving holds a valid licence to drive the vehicle or has held a permanent driving licence (other than a learner''s licence) and is not disqualified for holding or obtaining such licence".

Limitation as to use : As per Motor Vehicle Act.

The District Forum was not right in holding that as on 21.3.1990 the vehicle in question was converted to a Light Motor Vehicle after the accident, there was no breach of condition. When the accident took place it was a light motor vehicle and a subsequent conversion cannot be availed of by the complainant. Rajendra Prasad, driver who was driving the vehicle at the time of the accident was not authorised to drive the vehicle i.e. 10.6.1989 and there was violation of the terms and conditions of the policy. No advantage can be taken by the complainant of the conversion after the accident. The District Forum, therefore, erred in holding that as the driver was holding a licence for driving a light motor vehicle there was no violation of the terms and conditions of the policy. The District Forum was also not right in awarding Rs. 10,800.7p. for the loss suffered by the complainant-respondent.

FROM the foregoing discussion it follows : (i) that the second complaint is not maintainable and it is barred . (ii) that on account of the breach of the terms and conditions of the policy, the complainant is not entitled to any compensation for the loss caused to him by the accident of the insured vehicle.

For the aforesaid reasons the appeal is allowed and the order dated 30.3.1992 passed by the District Forum, Dausa is set aside. The complaint shall stand dismissed. In the circumstances of the case we leave the parties to bear their own costs. Appeal allowed.