2) To be referred to the Reporters or not? Yes/No

3) Whether judgment should be reported in the Digest? Yes/No Argued by:- For the appellant : Shri Kashish Garg, Advocate. For the respondent : Shri Sanjeev Goyal, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT: The instant appeal has been filed by the appellant/complainant for modification of the order dated 18.7.2019 passed by District First Appeal No.773 of 2019 Consumer Disputes Redressal Forum, Bathinda (in short, District Forum), whereby the complaint filed by it, under Section 12 of the Consumer Protection Act, 1986 (in short, C.P. Act) was partly accepted with 10,000/-, as cost and the opposite party was directed to pay claim amount of 1,19,578/- with interest, as compensation @ 9% p.a. with effect from 12.3.2017 (date of repudiation) till realization. The complainant prayed in the present appeal that the complaint be allowed in toto i.e. entirety.

2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the complaint:

3. Brief facts, as averred in the complaint, are that the complainant firm is a registered partnership concern and Shankar Kumar Garg is one of its partners. All the partners in order to earn their livelihood constituted a partnership firm for doing the construction work. For smooth functioning of work, the complainant firm purchased Mahindra Bolero Pickup van from Mahindra Dealer at Bathinda bearing Registration Certificate No.PB-03-AJ-8023 and it was got insured from opposite party, vide policy No.3003/110782036/00/000 for the period from 7.12.2015 to 6.12.2016 for IDV of 6,29,593/-. It is further averred that the said vehicle met with an accident on the intervening night of 31.10.2016/1.11.2016 near Village Khudda (Tanda), District Hoshiarpur, while its driver Bhushan Kumar tried to save a stray animal on the road and struck it with the pillar on the left side of the First Appeal No.773 of 2019 road. DDR was lodged at PS-Tanda, District Hoshiarpur on 1.11.2016. The vehicle was totally damaged in the accident. The complainant lodged the insurance claim with the opposite party and it appointed the Surveyor, who after completing formalities submitted his report and recommended settlement of the claim on total loss basis. The complainant completed all the formalities as per requirement of the opposite party. However, the opposite party repudiated the claim on the baseless ground of validity of the driving licence, vide letter dated 12.3.2017. The opposite party has failed to notice that the unladen weight of the vehicle was only 1800 kilograms, which falls in the definition of light motor vehicle as per specification given in the Motor Vehicles Act, 1988. The driving licence issued for light motor vehicle was valid to drive the vehicle involved in the accident. Alleging deficiency in service on the part of the opposite party consumer complaint was filed before the District Forum for directions to the opposite party to pay 6,29,593/-, as loss to the insured vehicle along with interest @ 18% per annum and 2,00,000/- as damages and 5,000/-, as charges for visiting the office of the opposite party time and again. Defence of the opposite party:

4. Upon notice opposite party appeared and filed its reply taking preliminary objections to the effect that intricate questions of law and facts are involved in the complaint, which require voluminous documents and evidence and the same is not possible in summary procedure under the C.P. Act. The appropriate remedy, if any, lies First Appeal No.773 of 2019 only in Civil Court. The complaint is not maintainable. The complainant has no locus standi or cause of action to file the complaint. Immediately on the receipt of the claim it was duly registered, entertained and processed. Er. Ranjeet Singh Chandhoke was appointed as Surveyor and Loss Assessor, who inspected the vehicle and submitted his report dated 2.3.2017. The complainant has concealed the fact that the vehicle in question was being driven by a person, who did not have a valid driving licence to drive goods vehicle. No claim is payable as per terms and conditions of the policy. The claim was repudiated, vide letter dated 13.3.2017. The Surveyor has assessed the loss to the tune of 1,19,578/-. On merits, it is pleaded that the vehicle was being used by the complainant-Company for business/commercial purposes and not for earning livelihood. However, it is not denied that the complainant firm is the registered owner and the vehicle was insured. The insurance is subject to terms and conditions of the policy. Denying all other averments made in the complaint and denying any deficiency in service on its part a prayer for dismissal of the complaint was made. Evidence of the Parties:

5. In order to prove the case, the complainant tendered in evidence two affidavits dated 5-9-2017 and 13-4-2017 of Shankar Kumar Garg, as Ex.C-1 & Ex.C-3, respectively, copy of survey report as Ex.C-2, copy of policy schedule, as Ex.C-4, copy of driving First Appeal No.773 of 2019 licence as Ex. C-5, copy of DDR as Ex.C-6, copies of letter as Ex.C7 and certificate-cum-authority letter as Ex. C-8.

6. In rebuttal, the opposite party tendered into evidence photocopy of policy schedule as Ex.OP-1/1, photocopy of registration as Ex.OP-1/2, photocopy of driving licence as Ex.OP- 1/3, photocopies of letters as Ex.OP-1/4 to Ex.OP-1/6, affidavit dated 22-12-2017 of Apurva Sharma, Legal Manager as Ex.OP-1/7, affidavit dated 16.2.2018 of Er. Ranjit Singh, Surveyor as Ex.OP-1/8 and photocopy of Survey Report as Ex. OP-1/9. Finding of the District Forum:

7. After going through the evidence tendered by both the parties and after hearing the learned counsel for them, the District Forum partly accepted the complaint in the above mentioned terms, vide impugned order. Hence this appeal for modification of the said order.

8. We have heard learned counsel for both the sides and have carefully gone through the records of the case. Contentions of the Parties:

9. It has been vehemently contended by the learned counsel for the appellant-complainant that the District Forum has rightly concluded in the impugned order that Bhushan Kumar, who was driving the vehicle in question at the time of accident was holding valid licence for LMV. However, it committed an error by blindly relying upon the report of Surveyor of opposite party and allowing the complaint only to the extent of loss assessed by the Surveyor to First Appeal No.773 of 2019 the tune of 1,19,578/-. Actually the vehicle was a totally damaged vehicle and, as such, the total loss caused to the vehicle is 6,29,593/- i.e. the IDV of the vehicle at the time of taking the insurance policy was to be allowed. The surveyor report prima facie is false and procured one in order to cause wrongful gain/benefit to opposite party. As per the report, the Chassis Frame Assembly has been destroyed, which is to be replaced and is the major part on which the entire engine and body rest but as per report none of the parts of engine has been destroyed, which is next to impossible from the bare perusal of the photographs on record and from the survey report itself. It has further been contended that the District Forum further failed to appreciate the estimate of repairs given by the authorized dealer/service centre to repair the vehicle and the details of the parts, which are required to be replaced in order to make the vehicle in good working condition. It has been prayed that the complaint be allowed in toto and the impugned order may kindly be modified accordingly.

10. On the other hand, learned counsel for the opposite party has taken all the pleas, which were taken by the opposite party in the reply to the complaint and during the course of arguments before the District Forum. It has been prayed that there is no merit in the complaint filed by the complainant and, as such, the appeal is liable to be dismissed and the impugned order passed by the District Forum is liable to be set aside. First Appeal No.773 of 2019 Consideration of Contentions:

11. We have given our thoughtful consideration to the contentions raised before us by the learned counsel for both the sides.

12. So far as the plea of the opposite party that the vehicle in question was being used for business/commercial purposes and as such, the complainant-firm does not fall in the definition of consumer as defined under Section 2(1)(d) of the C.P. Act is concerned, it has been specifically written in the complaint that all the partners in order to earn their livelihood and in the lack of funds constituted a partnership firm for doing the construction work so that by meeting their hands they can do the business. It is further written that in continuation of their efforts to earn their livelihood and smooth running of the work the complainant firm purchased a Mahindra Bolero Pickup Van from Mahindra Dealer at Bathinda and got the same insured from the opposite parties. Moreover, the opposite party failed to show any cogent reason or evidence that how the complainant-firm does not fall within the purview of definition of consumer, as given in Section 2(1)(d) of the C.P. Act. As such, there being no weight in the objection, the same is hereby rejected. Otherwise also insurance of the vehicle has no nexus or relationship with regard to the commercial activity so far as the loss to the vehicle is concerned.

13. We are fortified with the judgment reported in I(2005) CPJ 27 titled Harsolia Motors Versus National Insurance Co. Ltd., wherein it has been held as under:- First Appeal No.773 of 2019

25. it is apparent that even taking wide meaning of the words for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.

26. In view of the matter, a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit.

14. Opposite party took another objection that the present complaint involves disputed and complicated questions of facts, therefore, the remedy, if available to the complainant-firm is only to file a civil suit. In this regard, it is mentioned that the complainant- firm purchased a Goods Carrying Vehicles Package Policy bearing No.3003/110782036/00/000 for the period from 7.12.2015 to 6.12.2016, Ex.C-4/Ex. OP-1/1, which was a contract containing various terms and conditions. It is only the interpretation of terms and conditions of the Policy document and then to see whether there is any deficiency in service on the part of the opposite party? We do not see that any complicated question of law and facts is involved, which cannot be adjudicated by this Commission. In this regard, we First Appeal No.773 of 2019 are fortified by the judgment of Dr.J.J.Merchant and Ors. V. Shrinath Chaturvedi 2002(6) SCC 635, wherein it was held by the Honble Supreme Court that the State Commissions and District Forums are headed by retired High Court Judges and Officers of District Judge level and in its view, that was not such a case which could not be decided by the Consumer Fora' after obtaining evidence and if need be after getting an expert opinion.

15. Admittedly, the complainant-firm purchased the vehicle, in question and got the same insured with the opposite party, vide Insurance Policy, Ex.C-4/.Ex.OP1/1. The total IDV of the vehicle in the policy is mentioned as 6,29,593/-. Admittedly the vehicle in question met with an accident in the intervening night of 31.10.2016 and 1.11.2016 and badly damaged for which DDR No.026 dated 1.11.2016, Ex.C-6, was recorded in PS-Tanda, District Hoshiarpur. The complainant-firm lodged the insurance claim but the same was repudiated by the opposite party, vide letter dated 12.3.2017, Ex.C7/Ex.OP-1/6, on the ground that driving licence of Bhushan Kumar is not valid to drive vehicle on date of loss.

16. There is no dispute that Bhushan Kumar was driving the vehicle in question at the time of accident. The driving licence of Bhushan Kumar is proved on record by the opposite party as Ex.OP1/3 and a perusal of the same proves that it was valid for LMV (NT) only. The definition of light motor vehicle is given in Section 2(21) of the Motor Vehicles Act, 1988, which reads as under:- First Appeal No.773 of 2019 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 7500 kilograms. A perusal of the above definition makes it clear that any vehicle having unladen weight of less than 7500 kilograms will come under the definition of light motor vehicle. The Certificate of Registration of the vehicle has been proved on record as Ex.OP-1/2 and a perusal of the same reveals that the class of the vehicle in question is LGV (Light Goods Vehicle) and the Gross Vehicle Weight is 2510 kilograms. The unladen weight of the vehicle in question is 1800 kilograms.

17. Honble Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited etc. IV(2017) CPJ 13 (SC) has held as under:-

46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of light motor vehicle in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of light motor vehicles and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in section 10(2)(e) of the Act Transport Vehicle would include medium goods First Appeal No.773 of 2019 vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:

(i) Light motor vehicle as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, unladen weight of which does not exceed 7500 kg. and holder of a driving licence to drive class of light motor vehicle as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the unladen weight of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.

(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained medium goods vehicle in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and heavy passenger motor vehicle in section 10(2)(h) with expression transport vehicle as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

(iv) The effect of amendment of Form 4 by insertion of transport vehicle is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of light motor vehicle continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, First Appeal No.773 of 2019 and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. From the above, it becomes crystal clear that a person, who is having a licence to drive a motor car, can also drive a transport vehicle or omnibus, a motor car, or tractor or road-roller, the unladen weight of which does not exceed 7500 kilograms and no separate endorsement on the licence is required to drive such vehicle. Since the unladen weight of the vehicle in question i.e. Mahindra Bolero Pickup Van is 1800 kilograms and since as per definition of light motor vehicle, the weight of the vehicle is to be seen, therefore, it is held that Bharat Bhushan was competent to drive the vehicle in question at the time of accident, who was having a licence to drive a motor car, which falls under the definition of Light Motor Vehicle.

18. Now the issue is whether the vehicle is repairable or is a total loss as alleged by the complainant? The complainant-firm got the loss assessed from G.S. Associates and a copy of the survey report dated 10.8.2017 has been placed on record as Ex.C-2 by the complainant-firm in which the maximum liability of the opposite party was assessed at 4,79,093/-. The case of the complainant firm is that since the loss assessed by its Surveyor is more than 75% of the IDV, therefore, the vehicle is a total loss and the complainant-firm is entitled to the insurance claim on that basis. The opposite party also got assessed the loss from its Surveyors; namely, Er. Ranjeet Singh Chandhoke, Surveyor & Loss Assessor, who vide his report dated 2.3.2017, Ex.OP1/9, assessed the loss to the tune of 1,19,578/- First Appeal No.773 of 2019 and the District Forum relying upon the report of this surveyor allowed the sum of 1,19,578/- to the complainant. The further case of the complainant firm is that as per the report of the Surveyor dated 10.8.2017, Ex.C-2, the Chassis Frame Assembly was destroyed, which is a major part on which the entire engine and body rests but as per report of Er. Ranjeet Singh Chandhoke, Surveyor & Loss Assessor, Ex.OP1/9, none of the parts of engine has been destroyed. The further case of the complainant firm is that a number of other parts are required to be replaced to make the vehicle roadworthy than the parts mentioned in the report of the Surveyor appointed by the opposite party, Ex.OP-1/9. No details have been given in the Surveyors report appointed by the opposite party and only the loss to various parts has been mentioned. In these circumstances, we are of the view that it is for the Insurance Company to get the vehicle repaired from the authorized dealer and make it roadworthy whatever the expenses, the Insurance Company has to incur for the same. For this purpose, the Insurance Company firstly will send the vehicle for repair to the authorized dealer, who will give the estimate before starting the repair. It is for the reason that the Surveyors report cannot be treated as final. If the authorized dealer, to which Insurance Company will send the vehicle for repair, finds that the estimate of repair exceeds 75% of the sum insured then it will be treated as total loss. Otherwise also, the Insurance Company will make the vehicle roadworthy after getting it repaired with the genuine parts and paint etc. to the entire satisfaction of the First Appeal No.773 of 2019 complainant. Without this, the very purpose of getting the Insurance and paying premium will stand defeated.

19. Further, the Insurance Company shall provide a vehicle equivalent to the vehicle, in question, to the complainant till the vehicle is handed over to the complainant after getting it completely repaired and provide a Certificate of roadworthiness to be obtained from the Motor Vehicle Inspector of the Registering Authority, who registered the vehicle, in question.

20. During the course of arguments, learned counsel for opposite party argued that the complainant did not come forward to get the vehicle repaired as per Surveyors report despite giving number of reminders. However, opposite party is still ready to get the vehicle repaired as per surveyor report. No doubt, the vehicle got damaged and the complainant suffered the loss.

21. In view of the above discussion, the appeal filed by the complainant is allowed by giving following directions to opposite party:-

i) to get the vehicle repaired within a period of 90 days from the date of receipt of the certified copy of the order and hand over the same to the complainant with a certificate of roadworthiness to be issued by the Motor Vehicle Inspector of the Registering Authority, who registered the vehicle, in question. It is made clear that before getting the vehicle repaired, Insurance Company will get First Appeal No.773 of 2019 repair estimate of the vehicle from an authorized dealer and if the repair estimate of the vehicle exceeds 75% of the sum insured, the Insurance Company is directed to treat it as total loss and decide the claim accordingly; and ii) Opposite party is further directed to provide a vehicle equivalent to the vehicle, in question, to the complainant till the vehicle is repaired and handed over to it. The driver and petrol expenses would be borne by the complainant itself. If the opposite party fails to provide the vehicle to the complainant, then it will pay 20,000/- per month.

22. Similar view has been taken by this Commission in CC No.238 of 2019 (Vijay Kumar v. United India Insurance Company Ltd. and others) decided on 14.1.2020.