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2002 DIGILAW 94 (UTT)

Asha Ram v. United India Insurance Co. Ltd.

2002-11-15

K.D.SHAHI, LAXMI SINGH

body2002
JUDGMENT K. D. SHAHI, J. The complaint of the appellant has been rejected by the Forum, hence the appeal by the complainant. 2. The only dispute involved in the appeal as well as the Learned Forum was whether the driver of the vehicle, which was a truck, had a valid driving licensee at the time of the accident. 3. The truck was insured with the O.P. It met an accident on 29.10.89 during the insured period. After survey the claim of the appellant was rejected by the Insurance Company, on the ground, that the driver of the vehicle at the time of the accident had got no valid driving licence to drive a truck. The petition before the forum was also rejected on the same ground. The same dispute had' arisen in this appeal as well. 4. We have heard the learned counsel for the parties and have gone through the records. 5. The record itself speaks that in order to get the claim the claimant had not gone before the forum with clean hands. 6. It is true that the claimant was not an eye witness to the accident. The person who lodged the F.I.R. was also not an eye witness. But he saw the two vehicles after the accident, he brought the two victims to the Hospital, one died in the way, the other was alive. The Constable had an opportunity to talk with the victims. It is only after gathering information the constable lodged the F.I.R. He is the first person to give the version of the occurrence. According to this F.I.R., the driver of the truck was Rakesh Prasad s/o Mahimanand and Sri Sunder Lal was the conductor of the truck. No fact of this report is said to be false or untrue. 7. On 31.1 0.89, the owner of the vehicle i.e. the claimant lodged the information with the Insurance this truck had met with an accident. He did not deliberately mention the name of the driver but at least one thing is clear that he admitted that the driver of the truck had died. It is clear and admitted fact that Rakesh died not Sunder lal. It is not said that the driver was alive. 8. The claimant lodged the claim with the Insurance company under his signature. There he specifically mentioned the name of the driver as Rakesh Prasad. It is clear and admitted fact that Rakesh died not Sunder lal. It is not said that the driver was alive. 8. The claimant lodged the claim with the Insurance company under his signature. There he specifically mentioned the name of the driver as Rakesh Prasad. To the surveyor Deepak Gupta also the claimant informed the name of the driver as Rakesh Kumar. 9. The claimant when his claim was rejected by the insurance company, filed the complaint before the forum and here from he got legal advice and started to create a new case. In this complaint he nowhere wrote as to who was driving the truck at the time of the accident. He very cleverly pleaded in para 7 of the complaint that the said truck was under the charge of Sri Sunder Lal the injured. He did not even mention the name of Rakesh Prasad in the complaint. The complaint is dated 17.2.92. 10. The copy of the affidavit of the complaint is not on the record. He, however lost the case before forum. 11. When the appeal was filed then another new case taken and it was in para I (d) that at the time of the accident there were two drivers in the vehicle Sri Sunder Lal and Rakesh Prasad. Sri Sunder Lal had a valid licence for driving heavy vehicle whereas Sri Rakesh Prasad held licence for driving medium Motor Vehicle. He again pleaded that Sunder Lal was incharge of the vehicle. He, then, took the alternative plea that even if Rakesh is held to be driving then also the claim can not be rejected. 12. It is true that there were two drivers at the vehicle at the time of the accident but the question is who was driving the vehicle at the time of the accident. The theory of incharge driver and actual driver is unknown to these type of cases. One who was driving is only to be seen. It is not the case of the claimant that Sunder Lal was the driver of the truck, the claimant was not on the truck and Sunder Lal without the authority of the owner took an unauthorised person who was driving the truck and therefore the claimant can not be blamed. To the contrary the case of the claimant is that both were drivers at the truck and Sunder Lal was incharge. To the contrary the case of the claimant is that both were drivers at the truck and Sunder Lal was incharge. Here too he did not say Rakesh was not driving the vehicle. There is no question of the alternative' case, it is admitted as well as proved that Rakesh Prasad was driving the vehicle. 13. The vehicle in dispute was a truck. Sri Deepak Gupta in his survey report mentioned that Rakesh had a driving licei1ce to drive light vehicle' only. In his report one surveyor reported that Rakesh had licence to drive Heavy-goods vehicle, this report is manifestly incorrect because this is not the case •of the either of the parties that Rakesh even had such a licence. The copy of the licence of the driver Sunder Lal was Ext 3 before the Forum. That is irrelevant because he was only incharge, no body even said that he was driving the vehicle at the time of the accident. At the time of the submission of the claim before the branch manager, the claimant filed annexure 6, the photocopy of the driving licence of Rakesh Kumar. It was valid for Driving Medium Motor vehicle goods. It was valid upto 12.4.89. The insurance company filed certified copy of the licence of Rakesh Prasad, that was renewed for light goods vehicle only up to 30.11.91. The driver was therefore entitled to drive paid light goods vehicle only. In his report Deepak Gupta surveyer .had given complete details, including the number of the licence R. 2028/RKS/88 dated 31.12..88. The claimant did no where said that this licence' was not of the driver Rakesh Prasad, But only said that the report of Deepak Gupta was not admissible in evidence. Manifestly the report of Sri Jain is not correct, because admittedly the driver was not having any licence to drive heavy goods vehicle. The claimant had very well participated in the survey by Sri. Gupta. Sri Gupta had also filed an affidavit to prove his report. He may be utmost a witness of the company but still his report is very much admissible in evidence. 14. Then the question is what type of vehicle this truck was, After all this was a truck and the learned forum has held it be a heavy vehicle. The appellant produced The Motor vehicle Act 1988. He may be utmost a witness of the company but still his report is very much admissible in evidence. 14. Then the question is what type of vehicle this truck was, After all this was a truck and the learned forum has held it be a heavy vehicle. The appellant produced The Motor vehicle Act 1988. Heavy goods vehicle had been defined the weight of which exceeds 12,000 kilograms. Medium Goods vehicle means any goods carriage other than a light Motor vehicle or heavy goods vehicle. Light Motor vehicle means a transport vehicle or omnibus the gross vehicle either of which or a motor car or tractor or road roller, the unladen weight of which does not exceed 6,000 kilogram. In 1994 there was an amendment and now the weight should be 7500 kilograms. The gross weight of the vehicle had not been given in the survey report of Sri Deepak Gupta but in the report of Sri Jain it said to be 6350 kgs. The claimant did not give any other weight of the vehicle. It is therefore clear, as the law was on the date of accident, this was a medium Goods vehicle. 15. The driver Sri Rakesh had a licence to drive light vehicle, the truck was a medium goods vehicle, he was not authorised to drive this vehicle, Sunder Lal maybe incharge or conductor or cleaner that is immaterial. 16. The learned counsel for. the claimant argued that if there was deficiency of driving licence, the claim could have been deducted proportionately, this argument may be good for other Negotiable deficiency, but if there is no valid driving licence, the total claim shall be rejected. 17. In the ruling reported in 1999. N.C.J. (N. C.) page 301, Sachin Salchandra vs The oriental Insurance, the driver had. misused the licence, the total claim was rejected. 18. In the ruling reported in 2002(1) CPR 6 (HC) United India Insurance Co. vs Jaya Rajendra Kumar it was held that where a person was holding a driving licence to drive a medium goods vehicle, he can not be said to be entitled to drive a taxi or light motor vehicle. The total claim was rejected. 18. In the ruling reported in 2002(1) CPR 6 (HC) United India Insurance Co. vs Jaya Rajendra Kumar it was held that where a person was holding a driving licence to drive a medium goods vehicle, he can not be said to be entitled to drive a taxi or light motor vehicle. The total claim was rejected. The ruling says that a person if entitled to drive heavy vehicle, it is not that he can drive light vehicle as well, because it shall not be difficult for him to drive light vehicle when he is already driving heavy vehicle. He is entitled to drive only the class of vehicle of which he had the driving licence. 19. In 1989 ACJ 1078 the Hon'ble Supreme Court in the case Kashiram Yadav Vs Oriental Fire also held that the absence of driving licence is a defence available to the Insurance Com. and on that ground the company rightly repudiated the claim. This view was also confirmed in A.I.R. 1997 S.C. 3824 United India Insurance Co. vs Gian Chand. 20. From the discussions above it is clear that the order of the forum is correct on facts, and this appeal has got no force and is to be dismissed. However on 'the facts and circumstances of the case it is just and proper that the parties should bear their own costs of this appeal. ORDER The appeal is dismissed. Costs easy.