UNITED INDIA INSURANCE CO LTD vs ARVIND KUMAR RAJAK

-THIS revision is directed against the order dated 25. 8. 2005 of Consumer Disputes Redressal Commission U. P. , Lucknow allowing appeal against the order dated 12. 12. 2002 of a District Forum with direction to the petitioner to pay amount of Rs. 2,18,500 along with interest @ 9% p. a. from 25. 9. 2001 subject to return of salvage to the respondent. The District Forum had dismissed the complaint.

FACTS giving rise to this revision lie in a narrow compass. Maxi Cab bearing Registration No. UP 093 E 2334 belonging to the respondent/complainant was insured with the petitioner/opposite party-Insurance Company for all types of risks. During the currency of policy tanker No. MP 9 D 0997 while being driven carelessly, collided with the said Maxi Cab near village Jakholi as a result whereof Umesh, driver and six passengers died on the spot. Insurance Company was intimated of the accident. On claim not being settled, the respondent filed complaint which was contested by filing written version by the Insurance Company, inter alia on the ground that the Maxi Cab in question was a transport vehicle and Umesh, driver was not authorized to drive such a vehicle as he was having licence to drive LMV (Light Motor Vehicle) only. Complaint and appeal were decided by the Fora below in the manner noticed above. It was urged by Mr. S. M. Tripathi for the petitioner that the order of State Commission is mainly based on the decision in National Insurance Co. Ltd. v. Swaran Singh and Ors. , I (2004) SLT 345=i (2004) ACC 1 (SC)= (2004) 3 SCC 297. This judgment has no application to own damage cases. Reliance was placed on the decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut, III (2007) CPJ 13 (SC)=iv (2007) SLT 102=ii (2007) ACC 28 (SC ). This decision fully supports the submission that Swaran Singh''s case (supra) has no application to the cases other than third party risks. In support of the plea taken in written version about the Maxi Cab in question being a transport vehicle and Umesh, driver holding licence to drive LMV (Pvt.) only. Mr. Tripathi drew our attention to the documents at pages 37 to 43. These would show that the Maxi Cab was permitted to carry 10 passengers including the driver and Umesh was holding driving licence to drive LMV (Pvt.) only at the time of accident. Section 2 (22) of the Motor Vehicles Act, 1988 defines a Maxi Cab as under: "maxi Cab means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver for hire or reward. "

Section 2 (47) defines ''transport Vehicle'' as: "transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. "

''public Service Vehicle'' has been defined under Section 2 (35) of the Act as under: "public Service Vehicle means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a Maxi Cab, a Motor Cab, contract carriage, and stage carriage. "

Combined reading of said Clauses (22), (35) and (47) of Section 2 would show that the Maxi Cab in question was a transport vehicle.

IN the decision in National Insurance Co. Ltd. v. Kusum Rai and Ors. , II (2006) CPJ 8 (SC)=iii (2006) SLT 162=ii (2006) ACC 19 (SC)= (2006) 4 SCC 250, it was held by the Supreme Court that if transport vehicle which is being driven by a driver holding licence for driving Ligh Motor Vehicle only without there being any endorsement for driving transport vehicle, the Insurance Company cannot be ordered to pay compensation. In Civil Appeal No. 5539 of 2007, New India Assurance Co. Ltd. v. Prabhu Lal, I (2008) CPJ 1 (SC)=ix (2007) SLT 841=i (2008) ACC 54 (SC), decided on 30. 11. 2007 by the Apex Court, it was held that Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is Light Motor Vehicle, but falls under the category of Transport Vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, the person holding driving licence to ply Light Motor Vehicle cannot ply transport vehicle. Indisputably, licence of said Umesh, driver did not have such an endorsement. In view of ratio of these two decisions, the petitioner Insurance Company in present case is not liable to pay any compensation to the respondent. In the decision in B. V. Nagaraju v. Oriental Insurance Co. Ltd. , II (1996) CPJ 28 (SC)=i (1997) ACC 123 (SC)= (1996) 4 SCC 647, on which heavy reliance was placed by Mr. S. K. Sharma for the respondent, there was breach of condition as to carry to passengers in a goods vehicle more than the numbers permitted in terms of the insurance policy and in that context, it was held by the Supreme Court that, such a breach could not be said to be of such a fundamental character so as to afford ground to the insurer to deny indemnification. This decision being distinguishable on facts, has no applicability to this case. Point in regard to Insurance Company only issuing a cover note and not the policy raised by Mr. Sharma, Advocate is to be mentioned to be rejected as it was not taken before the Fora below as is evident from the aforesaid orders dated 12. 12. 2002 and 25. 8. 2005. Order passed by the State Commission, therefore, deserves to be set aside being legally erroneous. Accordingly, while allowing revision, aforesaid order dated 25. 8. 2005 is set aside and complaint dismissed. No order as to cost. Revision Petition dismissed.