NEW INDIA ASSURANCE CO LIMITED Vs. SANJAY BAHUGUNA

JUDGEMENT

(1.) This appeal has been filed by New India Assurance Company Limited against the judgment and order dated 28.4.2000. passed by District Consumer Forum, Dehradun in Complaint Case No.97/1994.

(2.) Briefly stated the facts of the case are as follows : the complainant, Sanjay Bahuguna in order to earn his livelihood, purchased a Maruti Van in 1991 after taking loan from Oriental Bank of Commerce, Dehradun. The said Van bearing Registration No. UP-07a-7581 was insured from the beginning with the appellant. The latest policy for comprehensive insurance bearing No.31311400075543 was valid from 28.9.1992 to 27.9.1993 and the premium paid on the value of Rs.1,43,000/-. The complainant in order to ply the taxi, hired the services of licensed driver who had a valid driving licence renewed till 22.4.1994. The said Maruti Van taxi met with an accident on 22.10.1994 while on the way from Dehradun to Haridwar and was completedly damaged. The complainant informed the opposite party and preferred his claim with the Insurance Company within 30 days. All the formalities required by the Insurance Company were completed. The complainant also made several visits to the opposite party at Dehradun and Delhi but with no results. The damaged taxi of the complainant is still lying in the garage and the complainant is paying a monthly rent of Rs.300/- per month. In spite of the notices given on 6.8.1993 7.10.1993 and 11.11.1993 the opposite party failed to do anything. As a result of the said accident, the complainant has become unemployed and the interest on the bank loan is increasing. The complainant then lodged a claim for Rs.1,43,000/-against the Insurance Company along with the interest, rent of garage and the cost of proceedings, aggregating to Rs.1,84,926/-.3. The opposite party contested the claim and denied the allegations contained in the complaint. It was admitted that the vehicle was insured with the opposite party as per terms and conditions of the policy. The driver was not an authorised licence holder to drive the Public Services Vehicle. The accident was admitted. The complainant was not entitled to Rs.1,43,000/- as damages but the total loss assessed as per own statement of the complainant was Rs.1,00,000/-. As per terms and conditions of the policy, the person driving the vehicle should have an effective driving licence with required endorsement thereon as per provisions of Motor Vehicle Act, 1988 and therefore, the complainant is not entitled to any relief as the driver was net entitled to drive the taxi and his licence was not endorsed for Public Services Vehicle. The claim of the complainant has been rightly repudiated by the Insurance Company.4. The District Consumer Forum, after examining the stands taken by both the parties, directed the opposite party to pay to the complainant a sum of Rs.1,43,000/- with simple interest at the rate of 12 per annum with effect from 1.3.1993 till the date of payment. A sum of Rs.500/- as cost was also awarded to the complainant.5. Aggrieved against this order of the learned District Consumer Forum, the New India Assurance Company has come in appeal and has challenged the correctness of the order passed by the District Consumer Forum.6. In the grounds of appeal, it has been stated that the driver of the taxi in question was not holding a valid driving licence and the District Consumer Forum has brushed aside the consent letter dated 7.12.1992 of the complainant through which he had consented to accept a sum of Rs.1,00,000/- in full and final settlement of his claim as total loss of the vehicle.7. We have heard the arguments of the learned Counsel of both the parties. The learned Counsel for the appellant has argued that the vehicle in question was a Public Services Vehicle and in the driving licence of the driver, there is no endorsement that he was entitled to drive a Public Service Vehicle. The driver had a licence merely for a light motor vehicle. It has also been argued by the learned Counsel that the complainant had consented to accept Rs.1,00,000/- as total loss of the vehicle in terms of full and final payment. The learned Counsel, therefore, came forward with an alternative that in case the plea to the effect that the driver had no valid driving licence is not accepted, then the complainant is only entitled to Rs.1,00,000/- in terms of the consent he had given.8. The insurance of the vehicle in question is not disputed. What is in dispute is that the driver of the insured Maruti Van taxi had no valid licence. The District Forum has dealt with this aspect of the matter in great detail. The learned District Consumer Forum has observed that the driver of the vehicle who was issued the licence in April, 1988 from 23.4.1988 to 22.4.1991 and as such the licence was issued under 1939 Act. The Motor Vehicles Act, 1988 was published in the Gazette of India, Extraordinary Pt-II, Section-1 on 17.10.1988 and it came into force with effect from July 1, 1989. The Sec.3 (33) and Sec.3 (25) of the Motor Vehicles Act, 1939 define "transport Vehicle" as a Public Service Vehicle or a goods vehicle. The District Consumer Forum has rightly held that if anyone is entitled to drive a transport vehicle, he is also entitled to drive a public service vehicle as the definition of transport vehicle includes a public service vehicle. The licence of Sri Amarson has got a tick mark over the said clause in the driving licence which is issued in Form-D. The clause is "he/she is also authorised to drive as a paid employee of a transport vehicle". The District Consumer Forum has further observed that a letter from the Licensing Authority over a stamp of Rs.7/- has been filed which shows the category of licence as "lmv (P. E.) only (Taxi)" and the said licence has been renewed till 22.4.1994.9. In the memo of appeal or during the arguments this observation of the District Consumer Forum has not been rebutted by the opposite party, the appellant. We are, therefore, in agreement with the finding of the District Forum that the licence of Sri Amarson had a proper endorsement and he was entitled to drive the vehicle in question at the relevant time when the accident took place.10. In regard to the argument of the appellant that the complainant had settled the amount of loss at Rs.1,00,000/- in full and final settlement, it is noteworthy that the Insurance Company, the appellant has repudiated the claim of the complainant on the ground that the driver of the vehicle had no valid licence, therefore, the consent letter given by the complainant becomes infructuous. If the Insurance Company had settled the claim at Rs.1,00,000/- and had not repudiated the claim for a different reason then the consent letter given on 7.12.1992 by the complainant could have been considered. It appears that the Insurance Company in the process of minimising the claim obtained such a consent from the complainant and later on repudiated the claim. After the claim has been repudiated on an entirely different pretext, the consent letter carries no value. The Insurance Company has repudiated the claim on the pretext that the driver had no valid licence but the fact of the matter is the driver had a valid licence and that is why the Insurance Company is now prepared to pay Rs.1,00,000/- to the complainant in the alternative. It is unbecoming of a Public Sector Organisation like the appellant to have indulged into such a practice which is certainly a gross deficiency of service. The Insurance Company repudiated the claim without any valid ground and now is taking advantage of the said consent letter which is of no help to the opposite party. Since the vehicle was insured for Rs.1,43,000/- and in the event of total loss that much amount for which the vehicle was insured has to be paid by the Insurance Company.11. In view of the above discussion, the judgment and order of the learned District Consumer Forum is perfectly alright and does not need to be interfered with. The result is the appeal is liable to be dismissed and the judgment and order of the District Consumer Forum are liable to be confirmed. It is however added that the salvage of the vehicle shall be returned to the opposite party. ORDER 12. The appeal is dismissed and the judgment and order dated 28.4.2000 passed by learned District Consumer Forum in Complaint Case No.97/94 are confirmed. The appellant shall also pay to the complainant a sum of Rs.2,000/- as cost of the proceedings before this Commission.13. Let compliance of the order be made within a period of six weeks from the date of this order.14. Let copy of this order be made available to the parties as per rules.