H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

Appeal No. 145/2009

Date of Decision 4.8.2009.

In the matter of:



Miss. Poonam Sharma daughter of Sh. Bidhi Chand Sharma,

R/o VPO Jeori, Tehsil & Distt. Shimla, HP.

… … Appellant.

Versus



1. National Insurance Company Ltd., Divisional Office,

through its Divisional Manager, Himland Hotel, Circular Road, Shimla, HP.,



2. Branch Manager, Branch Office National Insurance Company

Ltd., Main Market, Tapri, Distt. Kinnaur, HP.,



3. Smt. Sewa Dassi C/o Miss. Poonam Sharma, R/o VPO Jeori,

Tehsil & Distt. Shimla, HP.

… … Respondents.



Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? No.



For the Appellant.: Mr. J.L. Sharma, Advocate.



For the Respondents No. 1 & 2 : Mr. Anil Tomer, Advocate.



For the Respondent No.3: Ex-parte.



O R D E R



Justice Arun Kumar Goel (Retd.), President, (Oral).



When hearing in this appeal commenced, Mr. Sharma learned counsel for the appellant submitted that Smt. Sewa Dassi respondent No.3 was neither a necessary nor a proper party in the complaint as well as in this appeal reason being that she was the registered owner of the vehicle bearing Registration No. HP-02-5713 and had transferred the same in favour of the appellant on 18.6.2002 as is evident from copy of the registration certificate of the vehicle in question. At page 49 of the complaint file vehicle having been transferred in favour of the appellant is mentioned. That being the factual position based on documents we feel that there is no need to get her (respondent No.3) served as her presence is also not necessary for proper and effective adjudication of this appeal.

2. At the time of hearing, it was not disputed that vehicle bearing registration No. HP-02-5713 was insured under a valid policy of insurance on 27.10.2002 when it met with fatal accident resulting in extensive damage to it. Intimation of the accident was given to the police, as well as to the Insurance Company-respondents 1 and 2. Instead of settling the claim it was repudiated on 22.12.2003. This resulted in filing of complaint No. 192/2005 alleging deficiency in service on the part of the said respondents. While admitting insurance of the vehicle in question on the date of accident, it was pleaded in their reply to the complaint, that Mr. Pradeep Kumar was not having a valid and effective driving licence whereby he was licensed to drive the class of vehicle which was subject matter of the complaint.

3. In this behalf at the time of hearing of this appeal, Mr. Tomar learned counsel for the respondents 1 and 2 drew our attention to Annexure C-2/A copy of the driving licence of Mr. Pradeep Kumar, driver and urged that as per this licence, said driver was authorized to drive motorcycle/scooter and LMV, whereas according to learned counsel for the parties vehicle involved in the accident was admittedly a transport vehicle. In these circumstances, Mr. Tomar submitted that there is no infirmity in the order of the District Forum below which calls for interference in this appeal.

4. FIR No. 155/2002 was registered at Police Station, Jhakri. After accident appellant submitted estimate in the sum of Rs. 32,476/- for spare parts and of Rs. 17,000/- towards labour charges. Against estimated claim of Rs. 49,476.80, surveyor assessed Rs. 16,191/-. Perusal of Annexure R-4, the report of the surveyor suggests that he has substantially reduced the amount, on what basis, there are no reasons assigned by him. We are of the view that in case the report of the surveyor as an expert is to be accepted, it has to be based on some reasons, howsoever brief those may be.

5. Though the surveyor has stated prices allowed being as per dealers list and the labour as per damage to the vehicle. No reasons are assigned by him for not allowing cost of parts or disallowing the repair charges as is evident from the estimated cost as per the remarks column of his report Annexure R-2.

6. Ground for rejection of the complaint given by the District Forum below is, that the driver Pradeep Kumar was not holding a valid and effective driving licence as per the provisions of Motor Vehicle Act, 1988 and the rules framed thereunder.

7. In this behalf it may be appropriate to notice that Central Motor Vehicles Rules, 1989 were amended w.e.f. 28.3.2001. So far a driver holding driving licence to drive a LMV which was issued prior to 28.3.2001 is protected. That is the situation in this case, because date of issue of driving licence of Pardeep Kumar driver is 25.11.1998. As such in view of the decision of the Hon’ble Supreme court in National Insurance Company Ltd. Vs. Annappa Irappa Nesaria Alias Nesaragi and others, (2008) 3 SCC 464, this appeal deserves to be allowed. No decision to the contrary has been brought to our notice on behalf of respondents No. 1 and 2. However Mr. Tomer referred to the report of the surveyor who was appointed to verify the correctness of the licence. This report does not improve the case of his clients in the face of the decision of the Hon’ble Supreme Court.

8. In the circumstances of this we feel that some guess work needs to be applied, and then litigation put to an end instead of calling the surveyor and then calling him to justify his report. We feel that interest of justice will be well served if a sum of Rs. 30,000/- is held payable by the respondents No.1 and 2 to the appellant alongwith interest @ 9% per annum from the date of filing of the complaint. Ordered accordingly.

9. No other point is urged.

In view of the aforesaid discussion, while allowing this appeal order passed by District Forum Shimla, dismissing Consumer Complaint No. 192/2005 on 2.12.2008 is set aside and as a result of it, the said complaint is allowed. Thus it is held that the respondents are liable to indemnify the appellant alone in the sum of Rs. 30,000/- with interest @ 9% per annum w.e.f. 23.7.2005, the date of filing of the complaint till the date of deposit/payment whichever is earlier with cost of Rs. 2,000/-.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla,

August 4, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President.



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.