United India Insurance Company Ltd vs Marappan

THE opposite parties in O. P. No. 14/2002 on the file of the District Consumer Disputes Redressal Forum, Karur, is the appellant herein. The case of the complainant was as follows: (a) He had insured his tractor TN-47-F-2682 and trailer TN-47-F2683 with the opposite party for the period from 19. 12. 2001 to 18. 12. 2002. An accident occurred on 3. 1. 2002 at 7 p. m. on Karur-Trichy main road near Renganathapuram Sub-road. The vehicle was carrying sugarcane from Renganathapuram to Pettavaithalai. After crossing the railway gate, the vehicle went out of control and capsized. On 4. 1. 2002 at about 10 a. m. , the complainant met the opposite party in person and intimated about the accident. The opposite party deputed a surveyor M/s. Ravi Associates, who did spot survey on the same day. The survey report was given on 7. 1. 2002. As per the request of the opposite party, the complainant handed over his driver Chinnappan''s statement dated 4. 1. 2002 at about 4. 40 p. m. on the same date to the opposite party at Kulithalai. A complaint was also lodged before Mayanoor Police in Crime No. 4/2002. On 7. 1. 2002, the complainant submitted the workshop estimate for the tractor and the trailer and requested the opposite party to depute the surveyor for workshop inspection. On 11. 1. 2002 the complainant produced the claim form copies of F. I. R. , Registration certificate, book, driving licence, and policy copy to the opposite party. On 17. 1. 2002 when the complainant approached the opposite party and reminded for workshop certificate, the opposite party requested the complainant to alter the date of the claim form as 17. 1. 2002 in place of 11. 1. 2002 for showing that there was no delay on their part in forwarding the claim form to the Divisional Office. The opposite party official himself altered the date as 17. 1. 2002 and got the signatures from the complainant. Subsequently, the opposite party sent a letter dateed 17. 1. 2002 to the complainant asking for explanation as to why the complainant had changed the driver''s name as Chinnappan in the place of Anandan. The complainant did not know anybody by name Anandan. He also sent a reply explaining the true facts to the opposite party. After receiving the explanation letter, the opposite party on 24. 1. 2002 deputed surveyor Elango for inspecting and assessing the extent of loss at the workshop. The surveyor assessed the loss at Rs. 98,663 and submitted his report to the opposite party. On 21. 1. 2002, the complainant submitted to the opposite party bills for repairs and made a claim for the same. He also told the opposite party that the tractor was driven at the time of accident only by Chinnappan and not by the alleged Anandan. The complainant submitted to the opposite party the statement of his driver namlly Chinnappan on 4. 1. 2002 evening itself. He did not submit any statement from any Anandan. The opposite party not having come forward to pay the claim, a notice was issued. The opposite party had committed deficiency in service in the following manner- (1) Having received the report of the complainant''s driver Chinnappan, the opposite party had clandestinely mis-substituted one statement of driver Anandan, whom the complainant did not even know. (2) Having received all the documents including the bills for repair, etc. , and accepted to pay the claim, now repudiating arbitrarily and without any basis; and (3) causing unnecessary and abnormal delay in the settlement of the claim. In these circumstances, the complaint came to be filed calling upon the opposite party to pay the complainant a sum of Rs. 98,663 being the loss caused to his vehicle as assessed by the surveyor with interest @ 18% p. a. from 21. 2. 2002 till realisation, Rs. 25,000 as compensation for mental agony and Rs. 5,000 as cost.

THE version was to the following effect: On 4. 1. 2002 the accident was intimated and M/s. Ravi Associates inspected the vehicle and submitted their report. It was false to say that the complainant handed over driver Chinnappan''s statement dated 4. 1. 2002 to the surveyor. As per the report of the surveyor, the tractor and trailer were driven by one P. Anandan, s/o. Palaniappan, Nathamedu Railway Station, Melapalayam Post, Karur District. The said Anandan alone furnished his statement to the surveyor on 4. 1. 2002 itself. He was authorised to drive only motor-cycle with gear and light motor vehicle. No doubt, the complainant lodged a complaint with Mayanoor Police in Crime No. 4/2002. On coming to know about the false complaint, the opposite party sent a letter to the Inspector of Police with Mayanoor Police Station on 31. 1. 2002 setting out the real facts. Though the accident took place on 3. 1. 2002, the complaint to the police was made only on 10. 1. 2002 after 7 days from the date of accident. Even the RC book, driving licence of P. Anandan, were produced on 7. 1. 2002 by the son-in-law of the complainant viz. Kalimuthu for verification in the office of the opposite party. After knowing that Anandan did not have the requisite endorsement, the complainant falsely implicated another person with the name Chinnappan. It was false to state that the opposite party requested the complainant to alter the date of claim as 17. 1. 2002 in the place of 11. 1. 2002. On the other hand, the complainant came to the opposite party with the claim form and other enclosures in which the official of the opposite party noticed that they were dated l 1. 1. 2002. The complainant on his own volition altered the dates and got them attested. The opposite party deputed surveyor R. K. Elango for inspecting and assessing the extent of loss at workshop. As the driver who actually drove the tractor-cum-trailer namely Anandan was not holding a valid driving licence, the opposite party rightly repudiated the claim. There was no deficiency in service. Before the District Forum on the side of the complainant Exs. Al to A14 were marked while on the side of the opposite party Exs. Bl to B6 were marked.

The District Forum accepted the case of the complainant and by order dated 28. 3. 2003 directed the opposite party to pay the complainant a sum Rs. 98,663 being the loss caused to his vehicle as assessed by his surveyor with interest @ 12% p. a. from 21. 2. 2002 till date of realisation, Rs. 5,000 as compensation for mental agony and Rs. 1,000 towards cost of litigation within a month from the date of the order. It is as against that the present appeal has been filed.

LEARNED Counsel Mr. P. V. Raghavan, appearing for the appellant opposite party submitted as follows: The vehicle involved in the accident was a tractor-trailer and the person at the wheels did not possess the necessary endorsement to drive the vehicle. Unladen weight of the tractor was 1765 kgs. and trailer was 6500 kgs. thus the total unladen weight was 8265 kgs. As per Motor Vehicles Act, Light Motor Vehicle (LMV) definition is, unladen weight of LMV is 7500 kgs. Therefore, the person with LMV licence could not drive tractor-trailer with unladen weight of 8265 kgs. Again, the claim was repudiated on the ground that Anandan who actually was the driver at the time of the accident possessed the licence only to drive motor-cycles and cars. Knowing the consequences, the insured changed his version and gave another person as the driver and it was significant to note that that person also did not have transport endorsement. The matter involved disputed questions of fact which required elaborate evidence to be taken. The actual driver was Anandan and this fact was suppressed. Anandan did not possess requisite licence to drive a tractor trailer. Chinnappan whose name was falsely substituted also did not have transport endorsement to drive tractor trailer. The District Forum erred in passing an award for Rs. 98, 663 towards the claim ignoring the assessment of the surveyor as Rs. 34,906. Per contra, the learned Counsel for the respondent/complainant Mr. V. Balaji submitted as follows: The one and only contention of the opposite party was that at the time of the accident one Anandan was the driver and not Chinnappan. The District Forum held on a perusal of the two letters of Anandan date 4. 1. 2002 in Ex. B4 that even naked eye could find out the differences in the style of writing between the said two letters and that these letters should have been manipulated after getting the signature. It was also not stated as to whom the letters were addressed and they could be only an afterthought of the opposite party. On the other hand, the complainant had proved by production of Exs. A3 to A7 that at the time of accident one Chinnappan was the driver of the vehicle who possessed all the requisite qualifications. Counsel relied on the following judgments: (i) Surjan Ram v. Anchal Singh, 1999 ACJ 53. (ii) New India Assurance Company v. Rani, 2001 ACJ 1912. for the proposition that survey report was not conclusive proof to show that driver was not possessing the licence. Again tractor was a Light Motor Vehicle and not a medium goods vehicle. This proposition had been upheld by the Madras High Court in The New India Assurance Co. Ltd. v. Subbu and Others, reported in I (1987) ACC 23=1987 ACJ 833. The said judgment had been followed by the Madras High Court in another case in New India Assurance Co. v. Vasantha Mani and Five Others, 1998 (2) LW 161. If the proposition laid down by the said decisions was applied, even conceding without admitting that Anandan was the driver, it should be held that he had a valid licence to drive the tractor and trailer which was an L. M. V. The District Forum had rightly held that the opposite party had to pay the amounts fixed by the District Forum.

IT is to be noted that the complainant did not file an F. I. R. immediately. The accident took place on 3. 1. 2002. The F. I. R. was lodged only on 10. 1. 2002. It would appear that on 4. 1. 2002 the complainant had approached the opposite party. The opposite party deputed their surveyors Ravi Associates to inspect the vehicle. Accordingly Ravi Associates inspected the vehicle made inquiries and submitted their report. Along with the report the surveyor had furnished two letters from one Anandan who had stated that he was the driver of the vehicle at the time the accident occurred. He had described in the letter as to how the accident took place. The letters are dated 4. 1. 2002. The District Forum has discredited these two letters on the ground that the contents were not written by the same person and that the signature of the person had been obtained and contents supplied in effect the letters had been created for the purpose of the case. We have perused those two letters and, in our view, they are genuine letters. Absolutely no motive could be attributed to the surveyor for creating those letters. In the letter, it is clearly given as to when the accident took place and why he did not report the accident to the police. Along with these letters, Xerox copy of the licence of Anandan has also been produced. A comparison of the signature found in the letter with the signature in the licence leaves one with absolutely no doubt that they had been signed by the same person. It is seen that only Anandan had driven the vehicle and that he did not have a licence for driving a goods vehicle. Photographs have been filed with negatives showing the vehicle in a damaged condition. Photographs of licence and letters have been made part of survey report by Ravi Associates. In the survey report, it is mentioned that the name of the driver was Anandan. The driving licence number is given though at that point of time apparently the driving licence had not been produced. It is in evidence that the R. C. book copy along with driving licence of Anandan was produced on 7. 1. 2002 by the son-in-law of the complainant. It is clear that because Anandan did not have a valid licence for driving a tractor with trailer, the complainant attempted to substitute the name of one Chinnappan S/o. Nalliyannan, as the driver who drove the tractor with trailer. It is also to be noted that the complainant had approached the opposite party on 17. 1. 2002 with a letter dated 4. 1. 2002, the date subsequently corrected as 17. 1. 2002 along with two claim forms dated 17. 1. 2002, FIR copy bearing No. 4/2002 date 10. 1. 2002, copy of driving licence of Chinnappan S/o Nalliyannan, and a statement given by Chinnappan dated 4. 1. 2002 and corrected as 17. 1. 2002 without any shells. A letter had been sent under Ex. A8 dated 17. 1. 2002 by the opposite party to the complainant asking the complainant to explain why he had substituted the name of Chinnappan in place of Anandan which was responded to by the complainant stating that it was only Chinnappan who drove the vehicle on that day and that the complainant did not know any Anandan from Adam and stating that it was only at the instance of the opposite party, the date was corrected and only Chinnappan drove the tractor-trailer. We have already noted that complaint to the police was not given immediately. The accident took place on 3. 1. 2002. F. I. R. was filed only on 10. 1. 2002. Absolutely no explanation had been given by the complainant for not lodging the complaint with the police immediately. Apparently, this Chinnappan was made to plead guilty in the criminal proceedings as if he drove the vehicle and it met with an accident. Such things are common occurrences and we cannot accept the documents of the police as sacrosanct. We are not accepting the case of the complainant that it was only Chinnappan who drove the tractor-trailer and not Anandan. Admittedly, Anandan had a licence only for L. M. V. So far as Chinnappan was concerned, his licence which came to be marked as Ex. A14 before the District Forum shows that he is authorised to drive transport vehicle but there is no endorsement to drive tractor-trailer. The learned Counsel for the respondent/complainant submitted that even conceding that Anandan was the driver, the tractor with trailer would be an L. M. V. and it has been so held by the decision of the Madras High Court and also the Supreme Court. We have already taken the view that it was only Anandan who drove the tractor trailer. The complainant had put forward a false case. He had not approached the Court with clean hands. On this solitary ground, his complaint ought to have been rejected. Even otherwise conceding without admitting that Chinnappan was the driver, let us now examine whether the licence he had had the necessary endorsement for driving a tractor-trailer. In New India Assurance Co. v. Subbu (Minor) and Ors. (supra), the driver had a licence to drive L. M. V. The Insurance Company disputed its liability that tractor-trailer was involved in the accident and the driver had no licence to drive the vehicle which was not an L. M. V. as the combined weight of tractor trailer was 5,900 kg; Unladen weight of tractor was 1,780 kg. , and that of the trailer was 4,120 kg. , The Division Bench of the Madras High Court held that ''the definition of tractor would not include a trailer and that the tractor is a motor vehicle that draws a trailer and the tractor would not include the trailer that it is an LMV and not a medium goods vehicle. The Insurance Company would be liable''. The Bench proceeded on the footing that the unladen weight of the tractor is not defined as including the weight of an unladen trailer also. This decision was followed in New India Assurance Co. v. Vasantha Mani and Five Others, (supra ). A similar contention was raised before the learned Single Judge; that the driver in that case did not have a licence to drive the tractor-cum-trailer that it was breach of the condition of the policy and therefore the Insurance Company should be exonerated. The learned single Judge held that ''the Insurance Company could not be absolved from its liability unless the Court felt that there was intentional breach of the policy. The learned Single Judge further observed that it had been settled that a tractor-cum-trailer also came within the definition, of medium motor vehicle and that when a person was having a driving licence, the Court should not lightly brush aside the same on the allegation that the vehicle which was driven by him was not intended for the purpose.

IN Nagashetty v. United India Insurance Co. Ltd. and Ors. , V (2001) SLT 848=ii (2001) ACC 303 (SC)= (2001) 8 SCC 56, a tractor having a trailer attached to it which was filled with stones while being driven on road met with an accident resulting in the death of a person. The driver of the tractor had a permanent licence to drive a tractor. In the Insurance Policy which has been issued for a tractor, an additional premium of Rs. 12 had been taken for a trailer. The policy provided as follows: for the "persons or classes of persons entitled to drive". Any person including insured provided that the person driving holds an effective driving licence at the time of the accident and is 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 not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989, limitations as to use". The Supreme Court observed as follows: "the question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr. S. C. Sharda is to be accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having valid driving licence to drive a particular category of vehicle does not become disabled to that vehicle merely because a trailer is added to that vehicle. . . . Thus a permanent licence holder having an effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, it cannot be said that the driver becomes disqualified to drive the tractor if a trailer was attached to it. "

AS against the above decisions, in M/s. Natwar Parikh and Co. Ltd. v. State of Karnataka and Others, VI (2005) SLT 513=iii (2005) ACC 749 (SC)=2006 ACJ 1, a Bench of three Judges of the Supreme Court has held as follows: ''a tractor and trailer are separately defined under the Motor Vehicles Act. The question is whether tractor and trailer when combined would constitute a ''goods carriage'' under Section 2 (14) and consequently a ''transport vehicle'' under Section 2 (47) of the Motor Vehicles Act, 1988. " The Supreme Court answered the query in the affirmative and held that when policy is attached to a tractor and is used for transporting goods from one place to another, the two combined would constituted a ''goods carriage''. No doubt, the question before the Supreme Court was whether the taxation authority was right in categorising tractor and trailer as a separate assessable entity and whether that authority was right in calling upon the appellant before the Supreme Court to obtain permit under Section 66 of Motor Vehicles Act, 1988. The Supreme Court laid down that ''the test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under Section 2 (14) as a ''goods carriage'' and consequently, it falls under the definition of ''transport vehicle'' under Section 2 (47) of the Motor Vehicles Act, 1988. As already noted, this is a three Judges Bench decision of the Supreme Court though one of the learned Judges was also a party to the other judgment in Nagashetty v. United India Insurance Co. Ltd. (supra ). Learned Counsel Mr. V. Balaji, for the complainant, submitted that the decision arose under different circumstances relating to taxation and that could not apply to the facts of the present case. We do not agree. The tractor with trailer attached can clearly be stated to be a vehicle adapted for the carriage of goods. Admittedly, in the present case, the tractor with trailer was transporting sugarcane to Pettavaithalai Sugar factory and further neither Chinnappan nor Anandan had a valid licence for driving the ''goods carriage''. We have already noted that the complainant had put forward a false case by projecting Chinnappan as driver while only Anandan, in our view, drove the tractor-trailer at the time of the accident.

Having regard to the discussion above, we hold that the District Forum was in error in ordering the complaint.

IN fine, the appeal is allowed; the order of the District Forum is set aside and the complaint is dismissed. No cost. However, it is open to the parties to have the matter settled at the amount offered by the opposite party namely Rs. 34,906 payable with reasonable rate of interest. Appeal allowed.