Appeal No.23/09

The Oriental Insurance Company Ltd.& anr. V. Smt.Sheela Malhotra


Before:


Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethiya-Member



Shri Amar Nath Pareek,counsel for the appellants

Shri Bhanwar Lal,counsel for the respondent




Date of Judgement: 3.8.09



BY THE STATE COMMISSION:


This appeal has been filed by the appellants insurance company which were ops before the District Forum,Chittorgarh against the majority order dated 28.11.08 passed by the Members of the District Forum,Chittorgarh in complaint no.166/08,by which the complaint of the complainant respondent was allowed against the appellants insurance company in the manner that the appellants insurance company were directed to pay Rs.84471/-,the amount as assessed by the surveyor, with interest @ 9% p.a from the date of repudiation of the claim and further to pay Rs.3000/- as amount of cost of litigation, though the President of the District Forum had dismissed the complaint on ground of licence.


It arises in the following circumstances:


That the complainant respondent had filed a complaint

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against the appellants insurance company before the District Forum,Chittorgarh on 1.4.08 interalia stating that her Tata S mini truck bearing registration no.RJ.09.GA.2010 was a Light Goods Vehicle and the same was got insured by the complainant respondent with the appellants insurance company for the period 17.11.06 to 16.11.07 for a sum of Rs.2,32,751/-. It was further stated in the complaint that on 4.5.07, when the offending truck bearing registration no.RJ.09.G.3701 had applied on the brakes suddenly and the vehicle in question had collided with the truck of the complainant respondent and as a result of which the driver of the truck of the complainant respondent had died on the spot and the truck was damaged and for that a report was lodged bearing FIR no.63/07 u/s 279, 304A IPC and thereafter a claim was preferred by the complainant respondent with the office of the appellants insurance company interalia stating that a sum of Rs.2,32,751/- were spent in getting the repair of the mini truck, but that claim was repudiated by the appellant insurance company through letter dated 21.2.08 interalia stating on the ground that the vehicle in question was a Light Commercial Vehicle and the driver of the vehicle was having a licence to drive a LMV and he was not authorised to drive Light Transport Vehcile,therefore,his licence was not valid for driving light transport vehicle. Thereafter the present complaint was filed.


A reply was fied by the appellants insurance company before the District Forum on 29.5.08 and in the reply they have taken the same pleas which were taken in the repudiation letter dated 21.2.08 and it was prayed that the complaint be dismissed, though the surveyor appointed by the appellants insurance company, Shri A.K.Deedwania in his report dated 17.8.07 had assessed the loss to the tune of Rs.84,471/-.


After hearing both the parties,through the majority order

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dated 28.11.08 the learned Members of the District Forum,Chittorgarh had found that the claim was wrongly repudiated on ground of licence as weight of the vehicle in question was below 6000 kg and licence was valid one, but the complaint was dismissed by the Learned President of the District Forum on the ground of licence.


Aggrieved from the majority order,this appeal has been filed by the appellants insurance company.


In this appeal,the main contention of the learned counsel for the appellants insurance company is that no doubt,the vehicle in question was Light Transport Vehicle and no doubt,the driver of the vehicle who had died in that accident was having a licence to drive LMV, even then his licence was not valid one and thus the majority order passed by the Members of the District Forum be quashed and set aside and appeal be allowed.


On the other hand,the learned counsel for the complainant respondent has supported the impugned order.


We have heard the learned counsel for the parties and perused the record.


In our considered opinion,the findings recorded by the Members of the District Forum in toto, could not be sustained.


It may be stated here that in the present case the vehicle in question was LTV and licence possessed by the driver was of LMV, and since there is a minor distinction between the LMV and Light Commercial Vehicle,therefore,the claim should be treated as sub standard specially in the present case when the accident was caused not by the truck of the complainant respondent, but by the

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driver of another truck. Apart from that, had the vehicle in question would be a Heavy Motor Vehicle and if the licence was of LMV, in such a case the claim could be repudiated in toto,but in the present case,the position is different one and the claim should be treated as sub standard.


Since the surveyor,Shri A.K.Deedwania in his report had assessed the loss to the tune of Rs.84,471/-,therefore,the complainant respondent is entitled to 75 % amount of Rs.84,471/- that comes to Rs.63,353/- with interest @ 9% p.a from the date of filing of the complaint and to that extent,this appeal deserves to be allowed partly.


For reasons as stated above,this appeal filed by the appellants insurance company is partly allowed in the manner that the appellants insurance company would pay a sum of Rs.63,353/- to the complainant respondent in place of Rs.84,471/- with interest @ 9% p.a from the date of filing of the complaint. To the above extent,the majority order 28.11.08 passed by the Members of the District Forum,Chittorgarh is modified. Rest order is maintained.




Member President