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2007 DIGILAW 26 (UTT)

NEW INDIA ASSURANCE CO. LTD. v. TIKAM SINGH RANA

2007-02-08

IRSHAD HUSSAIN, LAXMI SINGH

body2007
JUDGMENT (Per: Justice Irshad Hussain, President) : The appellant in this matter is the insurer. The order challenged dated 26.09.2006 was passed by the District Forum, Dehradun in consumer complaint No. 02/2003, whereby the insurer was directed to pay compensation of Rs. 34,750/- together with interest @ 8% p.a. within the stipulated period and to further pay sum of Rs. 1,500/- as litigation expenses to the complainant. 2. The matter pertain to accident of Auto Rickshaw (three wheeler) which was driven during the period of insurance on 07.03.2002 by the complainant. The claim preferred was repudiated on the ground that the complainant was not having a valid driving licence to driving a three wheeler, a public carrier vehicle at the time of the accident. The plea raised in defence before the District Forum was not accepted and complainant was awarded compensation on the basis of the surveyor’s report together with interest and litigation expenses. 3. The submissions of the learned counsel give rise to following points for determination of this appeal on merit: (i) The complainant was not having a valid driving licence to drive a three wheeler, a public carrier vehicle at the time of the accident and the District Forum fell in error in not properly appreciating the factual and legal aspect of the matter in issue in rejecting the said plea raised by the insurer. (ii) The District Forum wrongly granted interest @ 8% p.a. instead of rate of interest awarded in such matter usually @ 6% p.a. (iii) The litigation expenses to the tune of Rs. 1,500/- awarded on the higher side. 4. Point No. (i)- Initially there was some controversy about the actual driving licence number of the complainant in as much as Xerox copies of two licences nos. T-383 and T-384 (Paper nos. 46 & 45 respectively) were placed on record. However, by evidence, the controversy stand resolved and it was found by the District Forum that some mistake was made by the transport department in giving the number to the driving licence and that the correct and actual driving licence number of the complainant is T-384. 5. T-383 and T-384 (Paper nos. 46 & 45 respectively) were placed on record. However, by evidence, the controversy stand resolved and it was found by the District Forum that some mistake was made by the transport department in giving the number to the driving licence and that the correct and actual driving licence number of the complainant is T-384. 5. Learned counsel for the insurer submitted that as is evident from the driving licence, the same entitled the complainant to drive light motor vehicle only and there being no endorsement permitting driving of public carrier vehicle (three wheeler), the District Forum fell in error in holding that light motor vehicle driving licence entitle a person to drive a motor vehicle, the unladen weight of which does not exceed 7500 kg and as such the complainant was having a valid driving licence to drive the vehicle in question at the time of the accident. To bring home his point of view, learned counsel drew attention to the provisions of Section 2(21), 2(35) and 2(47) of the Motor Vehicles Act, 1988 in order to explain the distinction between light motor vehicle, transport vehicle and public service vehicle. Learned counsel also referred to section 10(j) of the Act to impress that the driving licence of the complainant required an endorsement of motor vehicle of a specified description, namely, three wheeler, which was the subject matter of the policy of the insurance. On the other hand, learned counsel for the complainant persuasively submitted that the complainant’s driving licence has endorsement of transport vehicle from 17.08.2001 onwards and to bring home his point of view drew our attention to the original driving licence, Xerox copy of which has been placed on record as Paper No. 66. Learned counsel also pressed into service the provision of section 14 of the motor Vehicle Act to support the view that the endorsement of transport vehicle is correct and genuine, which is evidenced by the fact that the licence was made effective for a period of three years and was as such also renewed for a further period of three years after expiry of initial period of three years of licence. Learned Counsel then urged that there has neither been gross violation of the terms of the policy, nor the provision of law and, therefore, the view taken by the District Forum being just, reasonable and proper, does not warrant any interference. 6. At the outset, it need to be stated that it have been the consistent case of the appellant that the complainant was having valid licence to drive light motor vehicle on the date of the accident. Section 2(21) of the Motor Vehicles Act define “light motor vehicle” as under: “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7,500] kilograms.” 7. The vehicle in question was a three wheeler (Auto Rickshaw) and according to appellant’s surveyor’s report (Paper nos. 52-56), the unladen weight of this vehicle was 275 kilograms, meaning thereby that it was less then the unladen weight of any light motor vehicle as mentioned in the above definition. By a notification issued by the Central Government under section 41(4) of the Motor Vehicles Act on 12.06.1989, the following vehicles were brought under the type of ‘light motor vehicle’: Motor Vehicle Type of motor vehicles Light motor vehicle Three-wheeler passenger vehicle Auto rickshaw Tempo Motorised cycle rickshaw Invalid carriage Delivery van Four-wheeler passenger vehicle Motor car Jeep Jeep stage carriage Taxi Taxicab Ambulance Station wagon Invalid carriage van Four-wheeler goods Carriage Delivery van Truck Fork lift Postal van Mobile canteen Mobile post office Mobile clinic We find reference to this in a reported decision in the matter of Kamal Kumar Vs. Oriental Insurance Co. Ltd.; I (2007) CPJ 110. 8. From the above said notification, it is evident that three-wheeler passenger vehicle was also brought under type of light motor vehicle and there can be no gain saying that the complainant has to be held entitled to drive three-wheeler passenger vehicle (auto rikshaw) on the basis of driving license of LMV issued to him by the competent transport authority. 8. From the above said notification, it is evident that three-wheeler passenger vehicle was also brought under type of light motor vehicle and there can be no gain saying that the complainant has to be held entitled to drive three-wheeler passenger vehicle (auto rikshaw) on the basis of driving license of LMV issued to him by the competent transport authority. It was immaterial if this type of vehicle with specific description was not endorsed in the driving license (Paper No. 66) of the complainant and in the totality of the circumstances of the case, we are inclined to agree with the submission of the learned counsel for the complainant that there has neither been gross violation of terms of the policy, nor the provision of the law. On this score, it could also be said that the district Forum made no error in coming to the conclusion that the complainant was having a valid driving license to drive three-wheeler passenger vehicle at the time of the accident. Considering these peculiar aspects of the matter, there appear to be no need to further dilate on the matter in issue and to take up any other submission of the learned counsel for the parties in relation to the complainant’s driving license. In the face of the facts of the case, the decisions reported in the matter of the Kamal Singh Panwar Vs. United India Insurance Co. Ltd.; III(2003) CPJ 503, National Insurance Co. Ltd. Vs. Nazir Ahmed; III(2003) CPJ 287, Prabhakar Transporters Vs. National Insurance Co. Ltd. Vs. National Insurance Co. Ltd..; III(2003) CPJ 125 (NC) and New India Insurance Co. Ltd. Vs. Ladu Kishore Sahu; III(2003) CPJ 99 (NC), pressed into service by the learned counsel for the appellant can be said to be having no bearing on the merit of the case and the decision in appeal. The reason being that the facts of the reported cases were at variance. The point is answered accordingly against the appellant. 9. Point No. (ii)- Interest awarded @ 8% p.a. on the amount of compensation cannot be said to be on the higher side in view of the prevalent rate of interest these days. Therefore, there is no merit in the submission of the learned counsel for the appellant that the interest should have been awarded @ 6% p.a. The point is answered accordingly against the appellant. 10. Therefore, there is no merit in the submission of the learned counsel for the appellant that the interest should have been awarded @ 6% p.a. The point is answered accordingly against the appellant. 10. Point No. (iii)- The litigation expenses were awarded to the tune of Rs. 1,500/- by the District Forum. In this regard also, the discretion exercised by the District Forum cannot be said to be arbitrary and unreasonable and, therefore, no interference is warranted in the order regarding grant of litigation expenses to the complainant. The point is answered accordingly against the appellant. 11. For the reasons aforesaid, the appeal fails and is liable to be dismissed. 12. Appeal is dismissed. No order as to cost.