H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 67/2008.

Date of Decision 25.3.2009.

United India Insurance Company Ltd., through its

Divisional Manager, Timber House, Circular Road, Shimla-1.

……..Appellant.

Versus



1. Leela Kumari Wd/o Sh. Dharam Chand.,



2. Anjana Kumari D/o late Sh. Dharam Chand.,



3. Naresh Kumari D/o late Sh. Dharam Chand.,



4. Ranbir Singh S/o late Sh. Dharam Chand

All LRs of deceased Dharam Chand registered

co-owner of Tractor No. HP-20-4719 R/o Vill. Jhalera,

PO Rainsary, Tehsil and District Una, HP.

…….Respondents.



For the Appellant. Mr. G.D. Sharma, Advocate



For the Respondents. Mr. Jeet Ram Poswal, Advocate



Appeal No. 139/2008.

1. Leela Kumari Wd/o Sh. Dharam Chand.,



2. Anjana Kumari D/o late Sh. Dharam Chand.,



3. Naresh Kumari D/o late Sh. Dharam Chand.,



4. Ranbir Singh S/o late Sh. Dharam Chand

All LRs of deceased Dharam Chand registered

co-owner of Tractor No. HP-20-4719 R/o Vill. Jhalera,

PO Rainsary, Tehsil and District Una, HP.

…….Appellants.

Versus



United India Insurance Company Ltd., through its

Divisional Manager, Timber House, Circular Road, Shimla-1.

……..Respondent.



For the Appellants. Mr. Jeet Ram Poswal, Advocate.



For the Respondent. Mr. G.D. Sharma, Advocate.



Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.



Whether Approved for reporting? No.



O R D E R:



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



Since both these appeals have arisen out of the order dated 29.12.2007, passed by District Forum, Una in Consumer Complaint No. 62/2005, as such they were heard together and are being disposed of by this order.

2. Admitted facts giving rise to this case are that Messy Ferguson Tractor MF-1035, 1993 model was owned by Dharam Chand predecessor-in-interest of the Leela Kumari and others, (hereinafter to be referred as the complainants), with the Insurance Company, (hereinafter to be referred as the OP). Registration number of this tractor was HP-20-4719. It was insured in the sum of Rs. 2 lacs for the period 25.10.1993 to 24.10.1994.

3. During the currency of this insurance policy, it met with accident on 30.4.1994, wherein its registered owner Dharam Chand also died.

4. Claim petition was filed by the OPs. It appears that claim petition under Section 166 of the Motor Vehicles Act, 1988 was filed by the complainants for grant of compensation. Motor Accident Claims Tribunal (MACT) allowed compensation to them as also for the tractor in question. This resulted in filing of two appeals being FAO No. 194/1998 by Insurance Company-OP and FAO No. 31/1999 by complainants in the Hon’ble High Court of H.P.

5. Both were disposed of by a common order by Hon’ble High Court on 21.6.2005. It was held that MACT had no jurisdiction to entertain the claim petition filed, as such appeal of the claimants was dismissed and in the appeal filed by the Insurance Company, the award of the MACT was set aside. Regarding amount released in favour of the complainants it was observed by the Hon‘ble High Court, that the same shall remain with them and shall abide by the directions which may ultimately be passed by the appropriate forum in the proceedings which may be commenced by them within 3 months from today i.e. passing of the judgment by the Hon’ble High Court on 21.6.2005.

6. It was thereafter that Complaint No. 62/2005 was filed by the complainants. This complaint was allowed in the following terms:-

“The opposite party is ordered and directed to pay to the complainants a sum of Rs. 1,70,000/- as assessed by the Surveyor on repair basis i.e. Rs. 1,85,000/- (-) salvage value of Rs. 25,000/- with interest at the rate of 9% per annum from the date of institution of claim petition No. 11 of 1996 before the learned M.A.C.T. Una i.e. 13.02.1996 besides cost of complaint, which we assess at Rs. 2,000/-. The amount already received by the complainants in pursuant to order of Learned M.A.C.T. Una in petition No. 11/1996 shall be adjusted towards the amount awarded. The complaint stands disposed of accordingly. Certified copy of this order, be supplied to the parties, free of cost. The file after its due completion, be consigned to record room.”



7. In the aforesaid background Appeal No. 139/2008 has been filed against the aforesaid award of the District Forum below by complainants for enhancement of compensation and Appeal No. 67/2008 has been filed by the OP for setting aside the impugned order and consequently dismissing the complaint.

8. We have heard learned counsel for the parties and have also examined the record of the complaint file with their assistance.

9. Mr. Sharma learned counsel for the OP urged, that the deceased driver Dharam Chand was not holding a valid and effective driving licence under the Motor Vehicles Act, 1988 as according to him he was licensed to drive a military vehicle by the military authorities and not by the authority in accordance with this provisions of this Act. Besides this, Mr. Sharma also submitted that there was violation of the policy conditions subject to which the vehicle was insured by his client, by ignoring both these vital aspects. District Forum below fell into error.

10. On the other hand submission of Mr. Poswal was, that compensation assessed is on lower side. Vehicle had met with accident within one year of its purchase during validity of the insurance cover. As such according to him after allowing 5% depreciation, his client is entitled to the remaining amount of Rs. 1.90 lacs on total loss basis as recommended by the surveyor. Thus he prayed for allowing the appeal of his clients and at the same time to dismiss the appeal filed by the OP.

11. Plea that the driver was holding a driving licence issued by the army authority to drive the army vehicle is controverted from the driving licence issued by Additional Licensing Authority Hyd-bad. West. Zone. Its copy is Annexure C-9 at page 89 of the complaint file. This document is also relied upon by the OP who has filed it as R-5 and it is at page 123. Faced with this situation Mr. Sharma on behalf of the OP submitted that the licence issued under the Motor Vehicles Act, 1988 by the Licensing Authority at Hyderabad, West Zone, does not contain any endorsement whereby deceased Dharam Chand was authorized to drive a tractor.

12. In this connection when a reference is made to Form No. 4 of the Central Motor Vehicles Rules, 1989 before its amendment in 2001, following are the categories mentioned in it:-

“(a) Motor cycle without gear.

(b) Motor cycle with gear.

(c) Invalid carriage.

(d) Light Motor vehicle.

(e) Medium goods vehicle.

(f) Medium passenger motor vehicle.

(g) Heavy goods vehicle.

(h) Heavy passenger motor vehicle.

(i) Road-roller.

(j) Motor vehicle of the following description.”



13. There is no specific category of tractor shown in it and nothing could be pointed out with reference to the Motor Vehicles Act or the rules framed thereunder, that the tractor is a special category vehicle, for driving which a specific licence is required, as such this plea urged on behalf of the appellant is hereby rejected.

14. Now coming to the other submission of Mr. Sharma, that there was violation of policy conditions. In this behalf learned counsel for the complainants drew our attention to Annexure R-1 which is issued for commercial vehicles (India) Motor Vehicles Act, 1988 by the OP. It further shows that it has been issued for commercial vehicles (goods carrying vehicle) by the appellant. That being the position, then on the basis of this document which is placed on record and relied upon by the OP, submission of Mr. Sharma that the policy conditions stood violated with the carriage of stones in the trolley at the time of accident is hereby rejected being without substance.

15. Now coming to the appeal filed by the complainants i.e. FA No. 139/2008. In this case according to Mr. Poswal learned counsel, his clients are entitled to Rs. 2 lacs i.e. the sum for which the vehicle was insured, it had met with accident after six months and six days of its being insured by the OP. Fact remains that it met with accident after six months, therefore on the sum insured 5% depreciation is applicable is again not disputed on behalf of the parties. Value of its salvage is Rs. 25,000/-, has also not been disputed by the parties. In these circumstances, it is felt that interest of justice demands that after deducting Rs. 35,000/- out of sum of Rs. 2 lacs, the sum for which the tractor was insured, total sum payable to the complainants works to Rs. 1,65,000/-, thus the impugned order passed by the District Forum below needs to be modified by holding that complainants are only entitled to a sum of Rs. 1.65 lacs to be shared equally by them, being Class-I heirs of late Shri Dharam Chand. So far interest is concerned, it is allowed at the rate and from the date alongwith cost, as assessed by the District Forum below.

16. Catching the last straw Mr. Sharma on behalf of the OP submitted that interest has been wrongly allowed by the District Forum below, this according to him should have been allowed from the date of filing of the complaint before District Forum below, or at best from the date of order of the Hon’ble High court in FAO Nos. 194/1998 and 31/1999, dated 21.6.2005. We reject this submission. Reason being that complainants were bonafide prosecuting the litigation under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal on the legal advice according to Mr. Poswal which we have no reason to disbelieve. For acts of remissness/negligence, as well as of omission and commission on the part of their counsel, the complainants should not be made to suffer.

17. No other point is urged in both these appeals.

In view of the aforesaid discussion both these Appeals Nos. 67/2008 and 139/2008 are disposed of by modifying the order of the District Forum below in the following terms:-



(a) That the complainants are entitled to Rs. 1.65 lacs in all to be shared equally by them and on this sum, interest will be payable at the rate and from the date as ordered by the District Forum below, by the OP; and



(b) Order regarding cost passed by the District Forum below is upheld. Both the appeals stand disposed of with the above modification in the order of the District Forum below in Consumer Complaint No. 62/2005, dated 29.12.2007.



All interim orders passed in Appeal No. 67/2008 shall stand vacated forthwith.

Office is directed to place authenticated copy of this order on the file of Appeal No. 139/2008.

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



Shimla.

25th March, 2009 (Justice Arun Kumar Goel) Retd.

/K/ President.





(Saroj Sharma)

Member.