AI Structured Summary
Not yet generated for this judgment
Judgment
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") is to the order dated 27.11.2012 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (for short "the State Commission.") in FA No. 1057/2010.
By the impugned order, the State Commission has allowed the Appeal preferred by Iffco Tokyo General Insurance Company Ltd. (for short "the Insurance Company") and set aside the order dated 31.05.2010 of the District Consumer Disputes Redressal Forum, Bhuj-Kachchh (for short "the District Forum") and resultantly dismissed the Complaint preferred by the Complainants.
Briefly put, the facts of the case are that on 03.11.2005, the Complainants, who are legal heirs of Late Sh. Pachan Pala Rabari, along with him were going to Village Kotada in Tehsil Anjar to Dudharej, District Surendranagar in Jeep No. GJ-12-X-6767 in connection with some community work. It was pleaded that due to the negligence of the driver, the said jeep met with an accident at around 4.00 hrs as it collided with a bridge. Late Sh. Pachan Pala Rabari who was 39 years old, lost his life in the said accident. Police Station Aadhoi was informed about the accident and post-mortem of the deceased was conducted.
It was pleaded that the said ill-fated jeep was insured with the Insurance Company and Mr. Arjan Sava Rabari who was owner of the said jeep also paid premium to cover personal accident risk of the occupants of the jeep. It was further pleaded that under the provision of the said Personal Accident Risk cover, the Complainants were entitled to get a claim of ₹1,00,000/- as the deceased died when he was travelling in the insured jeep. The owner of the vehicle namely Mr. Arjan Sava Rabari wrote letters dated 22.11.2005 and 27.01.2006 to the Insurance Company informing them about the accident and the death of Late Pachan Pala Rabari and requested the Insurance Company to send the necessary claim form. As per the conditions of the Policy, the amount of claim was to be paid within 45 days from the date of receipt of the intimation and documents but the Insurance Company had failed to do so despite repeated requests. It was stated that the Insurance Company neither paid the insured amount nor informed the Complainants about its decision regarding their claim. Hence, the Complainants preferred a Complaint before the District Forum seeking directions to the Insurance Company to pay a sum of ₹1,00,000/- towards insurance claim, ₹10,000/- towards compensation for physical & mental harassment and ₹5,000/- towards costs.
Insurance Company filed their Written Submissions stating therein that no claim was reported to them and thus they were not able to proceed in the matter or reply to the Claimant. Insurance Company denied all the averments made in the Complaint except those specifically admitted by them. It was pleaded that there was no deficiency in service on their part; that the ill-fated jeep was a transport vehicle and the driver who was at the wheel of the said jeep at the time of accident was not holding a legal, valid and effective Licence to drive the jeep; that this was a fundamental breach of the policy conditions and that the non-settlement of the claim was according to the terms and conditions of the policy.
The District Forum allowed the Complaint, directing the Insurance Company to deposit the insured amount of ₹1,00,000/- before the District Forum. It was further directed that after deposit of the insured amount before the District Forum ₹20,000/- would be paid equally to all the five Complainants. The District Forum also directed that the share of the first and fifth Complainants would be paid in cash and the share of the Complainants, who were minor, would be deposited in a Fixed Deposit with a nationalized bank till their attaining the majority. Additionally, a sum of ₹5000/- towards compensation for physical & mental agony and ₹3000/- towards costs was also awarded.
Aggrieved by the said order, Insurance Company preferred an Appeal before the State Commission which allowed the same and set aside the order of the District Forum. The State Commission has observed as follows:-
"Argument stands by the advocate for opponent insurance company for only one issue, that for the instance it is presumed as per the opinion of learned Forum that driver not having valid and effective license, then also risk of the unnamed passenger of the vehicle is covered as per the clause 16 of IMT. Hence if the driver of the vehicle does not have valid and effective license, then also insurance company is liable to pay the compensation. Now looking to the terms of the insurance, which were produced by original complainant before the Forum, are presently produced in this appeal. In the opposite part heading, the person or classes of persons who are capable to drive any of the vehicle is mentioned. And thereunder it is mentioned that any person who are included as insured, and driving the vehicle, it is necessary that he must have valid and effective licence to drive the vehicle at the time of accident. Now facts of the licence of the driver are produced before them, looking at this, it is observed that it seems to be a light motor vehicle license and not transport vehicle license. Because above mentioned jeep is called as transport vehicle. Thus in this circumstances, as per the terms of the insurance policy, person who is driving the vehicle must have license as per the terms of insurance. Which is not available in present case, we are not agreeing for that issue with the learned forum. No any type of averments is presented by the appellant for rest two issues. Thus looking to the abovementioned facts, this appeal is liable to be allowed. Because driver not having valid and effective license to drive the vehicle at that time. And hence order of the learned forum is erroneous So it is necessary to interfere in the order, this appeal is allowed ........................."
Ld. Counsel for the Revision Petitioner submitted that the order of the State Commission was passed ex-parte without hearing them; that the Petitioner filed Motor Accident Claim Petition (MACP) No. 654 of 2005 against the Insurance Company and that the Claims Tribunal vide a letter dated 13.07.2006 ordered that the amount payable to the Petitioner shall be kept in a fixed deposit. The Counsel relied on the observations of the District Forum which stated in the order that the Insurance Company had produced certificate of the RTO regarding driving license of the driver, which was issued for a light motor vehicle. As the subject vehicle was of 2750 kgs., and falls under the definition of a light motor vehicle as defined in the Motor Vehicle Act, it can be construed that the driver was having a valid license to drive the said vehicle.
The facts not in dispute are that the deceased Late Sh. Pachan Pala Rabari was travelling in the subject jeep along with his relatives on 03.11.2005; at about 4.00 p.m., the driver lost control of the steering and the jeep went off to the left-hand side of the highway and met with an accident; the deceased who was sitting at the left side rear window seat sustained serious injuries and succumbed to the injuries at the spot; the subject jeep was insured and it is the Petitioner's case that an additional premium was paid to cover compulsory personal accident risk of the occupants of the subject jeep as per the terms and conditions of the policy. It is also an admitted fact that the claim was made on 27.01.2006 but there was no response. Ld. Counsel appearing for the Insurance Company drew our attention to the copy of the policy and submitted that it was a policy taken for a commercial vehicle and that as per IMT 16 personal accident to unnamed passengers other than the insured and the paid driver and the cleaner is subject to certain conditions and that being a transport vehicle the terms are not applicable to the Petitioner herein.
A brief perusal of the policy clearly shows that to cover the personal accident to passengers a premium of ₹300/- was paid and the name of the insured was Arjan Sujabhai Rabari. When the Insurance Company themselves issued the policy for the subject vehicle which is a Bolero and had collected a specific premium of ₹300/- towards personal accident to passengers the contention of the Ld. Counsel that it is not applicable to the subject vehicle is unsustainable, specially keeping in view that no such specific plea was taken in the Written Version. The next contention of the Ld. Counsel appearing for the Insurance Company that having received some amount from MACT the Petitioner herein is not entitled to receive any further amounts is untenable, in the light of the observations made by the Hon'ble Supreme Court in Helen C. Rebello & Ors. Vs. Maharashtra State Road Transport Corporation & Anr. 1999 ACJ 10 wherein it was held by the Hon'ble Apex Court that the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual and also that when there are two possible interpretations in the beneficial Statute then the one which subserves the object of the legislation should be accepted. It is pertinent to note that the Insurance Company neither repudiated the claim nor filed their Affidavit by way of evidence before the District Forum.
It is also significant to mention that the main ground, which has been taken by the Insurance Company that the claim cannot be settled as the driver was not having a valid and proper driving licence as he had a licence to drive a 'light mother vehicle' but he was driving a transport vehicle, was held to be not a fundamental breach by the Hon'ble Supreme Court vide its order dated 03.07.2017 passed in Civil Appeal No. 5826 of 2011 titled Mukund Dewangan Vs. Oriental Insurance Company Ltd., in which judgement the Hon'ble Apex Court has observed as follows:-
"(i) Light motor vehicle as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2 (48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No. 54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a road roller, unladen weight of which does not exceed 7500 kg. and holder of a driving licence to drive class of light motor vehicle as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the unladen weight of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2011 in the form.
(iii) The effect of the amendment made by virtue of Act No. 54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained medium goods vehicle in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and heavy passenger motor vehicle in section 10(2)(h) with expression transport vehicle as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of transport vehicle is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of light motor vehicle continues to be same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
In view of the afore-noted judgement which squarely applies to the facts of the case, it is observed that having a licence to drive an LMV, a transport vehicle can also be driven and its not a fundamental breach. Hence, we are of the considered view that there is deficiency of service on the part of the Insurance Company in not settling the claim and this Revision Petition is allowed and the order of the State Commission is set aside and we direct the Insurance Company to pay the amounts as awarded by the District Forum with interest @ 9% p.a. from the date of the filing of the Complaint till the date of realization.
In the result, this Revision Petition is allowed to the extent indicated above.