CONSUMER DISTRICT DISPUTES REDRESSAL FORUM. BOLANGIR.
……………………………
Presents:-
- Sri P.Samantara, President.
- Sri G.K.Rath, Member.
- Smt. S.Rath, Member.
Dated, Bolangir the 13th day of July 2016.
C.C.No.51 of 2014.
Saroj Kumar Mishra, age- 44 year, son of Dhobei Chandra Mishra.
Residet of Santipada, Bolangir Town, P.O/P.S/Dist- Bolangir.
.. .. Complainant.
-Versus-
1.The Oriental Insurance Co. Ltd. Divisional Office, At-Bolangir,
1st Floor, Basuderv Bhawan, Bolangir –Sambalpur Main Road,
P.O/P.S/Dist- Bolangir, represented through its Divisional
Manager.
2.M/S. Magma Fincorp Ltd. Bolangir Branch Office, At-Khadalpara,
Bolangir Town, P.O/P.S/Dist- Bolangir, represented through it’s
Branch Manager.
.. .. Opp.Parties.
Adv. for the complainant- M/s. P.C.Naik & Associates.
Adv. for the O.P.No.1 - Sri J.K.Sai.
Adv. for the O.P.No. 2 - Sri B.S.Satpathy.
Date of filing of the case- 14.07.2014
Date of order - 13.07.2016
JUDGMENT.
Sri P.Samantara, President.
The complainant owned a Bolero Pick up light goods vehicle bearing Engine No-GHBID23141 and Chassis No.MAIZN2GHKBID 27549, financed by Magma Fincorp Limited. The registration No-OR-93H-0097. The Policy No. 311500/31/2013/1616 valid from dt.07.06.2012 to 06.06.2013.
2. The complainant also averred on dt.14.07.2012 met accident while returning from Khariar to Bolangir. Laba Podha was driving the vehicle accompanied with the collection Manager namely Harischandra Mohalinga of Bolangir. It is also said while said Harischandra Mohalinga was driving the empty vehicle from Kantabanji to Bolangir near village Podhchhapar in between 4.30 P.M to 5 P.M. met accident. The P.S. case No.132 dt.15.07.2012.On intimation the Insurance company deputed surveyor E.Balakrushna Patra and in advise shifted to Gupta Automobiles being the authorized service center.
3. The it is further stated, post surveyor assessment the company remain silent not settled the claim such inaction and deaf ear amounts to deficiency of service. The cause of action arose on dt.14.07.2012. Relied on police paper under P.S. case No.132/2012, Patnagarh, insurance policy copy, estimate copy, R.C. copy and affidavit.
4. In pursuance to notice,the O.P.1 submitted contending the section 12 of C.P.Act is not applicable in the present case and liable to be rejected in limine but issuance of policy No.311500/31/2013/1616 is valid from 07.06.2012 to 06.06.2013 is admitted along with limitations to use and drivers clause in satisfaction to the requirements of Rule -3 of the Central Motor Vehicle Rule 1989.
5. Employming of driver described in para 4 and 5 of the petition are concocted narration rather it is submitted on the day of accident the complainant authorized his vehicle to Harish Chandra Mohalinga to drive his vehicle as the said Harish Chandra Mahaling was paid driver under the complainant. On the day of the accident his deputation to drive the vehicle in question is confirmed under P.S. case No.132 as he is the prime accused.
6. It is also submitted, post intimation of the incident, spot surveyor Er. Balakrushna Patra has been deputed,then surveyor Dilip K.Mohanty assess the damage vehicle but the complainant delayed and deferred to submit the required documents in help of settlement of the claim. Mr. Dilip Kumar Mohanty submitted his report on dt.02.12.2014 and in failure of several reminder and assessed the net loss amounting to Rs 1,65,506/- high lighting that in para-2 of his report that the date of accident is 14.07.2012 whereas the validity of D/L to drive transport vehicle expires on dt.23.06.2011. Further added the M.A.C.No.132/2012 of Bolangir as filed reveals one Harish Chandra Mohaling was driving the vehicle at the time of accident under the employment of the complainant. And the certified copy obtained on Driving License No.OR-0219980106952 from licensing Authority, Bhubaneswar speaks the driver Harish Chandra Mohalinga was authorized to drive Transport Vehicle till 23.06.2011 but the accident occurred on dt.14.07.2012 and the vehicle also insured & registered as Goods carrying Commercial Vehicle. So this O.P specifically deny it’s liability on the ground that the complainant has deliberately violated the terms and conditions of the Insurance Policy by allowing his driver Harish Chandra Mohalainga to drive being in on authorized state to drive transport vehicle at the time of accident.
7. Consequence to notice, the O.P.2 appeared and made version contending, the present complaint is not maintainable against the O.P.2 and liable to be dismissed, although the vehicle is admitted of finance but the financier is not liable for compensation. The complainant is the registered owner at the time of accident. The vehicle is neither plying under instruction of O.P.2 nor the driver was it’s employee.
8. The O.P.2 also submitted that averments made therein are vague, baseless and with malafide intent. The O.P.1 is a insurance company and have separate entity and has no connection with O.P.2.
9. The agreement contains the Arbitration clause. The dispute between the parties has been already referred to learned Arbitrator and the Arbitrator has passed award on dt.27.04.2013 in favour of O.P.2 much prior before filing of this present complaint. So in view of NCDRC Judgments, the complaint is not maintainable.
10. Further submitted O.P.No.2 have committed no deficiency of service or any unfair trade practice. The complainant has not prayed any relief against the O.P.2 and award has already been passed ;by the Arbitrator in favour of O.P.2 and also against the complainant, so the proceeding against the name of O.P.No.2 to be dismissed on merit with exemplary cost.
11. Also submitted, the complainant is in admission that at the time of accident the vehicle was not plying by his authorized driver. Hence on this score the complaint should be dismissed under section 2(d)(i) of the C.P.Act.
12. The allegation in the complaint is concocted and is a frivolous claim. The complainant is not entitled to any relief as claimed by him and this case is liable to be dismissed on merit against O.P.No.2 with exemplary cost for filing such a frivolous and vexatious complaint.
13. Heard and perused the materials on record.
14. Perusal of the complaint pleadings and thereof documents reveals occurrence of incident, deputation of Surveyor, Assessment of loss by the surveyor is in order. But the claim was not settled due to violation of policy condition.
15. On above noted issue, we found, the O.P.1 has made reliance on MAC No-132/2012 in which the legal representative of the deceased Harish Chandra Mohalinga has admitted during the material time accident, he was driving the vehicle. Further it is evidenced, the P.S. case No.132/2012 of Patnagarh Police Station the prime accused is Harish Chandra Mohalinga, so both the document corroborate to each other, driver of the accident met vehicle No-OR-03H-0097 is Harish Chandra not Laba Podh as urged or twisted. The fact has been suppressed in willful manner.
16. Consequence to such admission, the certified copy as obtained reveals, the driver in question Harish Chandra Mohalinga, does not retained a valid Driving license which is sort of necessary authorization. The obtained information from licensing authority, Bhubaneswar depicts the D.L.No.OR-0219980106952 of Harish Chandra Mohalinga was authorized to drive transport vehicle till 23.06.2011 but the accident occurred on dt.14.07.2012. Thus at the material time of accident, the driving license invalid neither renewed nor renewal under taken, so as per the Motor Vehicle Act 1988,the person (driver) did not hold an effective driving license, so also it does not satisfy the requirements of Rule 3 of the Central Motor Vehicles Rules,1989. So denouncing the own damage claim settlement in principle does not a warrant a deficiency rather we hold a violation of policy condition.
17. On the such circumstance, the vehicle has been registered and insured as Goods carrying commercial vehicle and as per the rule it requires driving license of transport authorization and validity but in fact the certified copy speak ;it lacks transport endorsement the requirement of Rule-3 of the Central Motor Vehicle rules 1987.
Section-3(1) of the Act inter alia stipulates that:- Necessity for drive license. No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him to drive the vehicle.
Section 14- Currency of license to drive motor vehicle. Clause (2)(a):- In the case of a license to drive transport vehicle, be effective for a period of three years.
18. As a matter of fact, in view of the clear mandate of Section-3 of the Act, the deceased driver was not even permitted to drive the insured vehicle as the endorsement has been expired on the date of 23.06.2011, whereas the accident occurred on dt.14.07.2012. So holding a non-valid license on the date of accident in our opinion, the O.P is not liable to indemnify the claimant for the loss suffered by him in the accident of the insured vehicle. We are fortified in our view by the observation made in National Insurance Co.Ltd Versus Jarnail Singh & others – 2001(Suppl-2) SC 218 (Para-7).
19. In addition to the above observation, the O.P.2 submitted according to incorporation of Arbitration clause and consequence to same the Arbitrator has passed award on dt.28.04.2013 in favour of O.P.No.2 much prior to the filing of this present complaint and in line with the Judgment passed by NCDRC in RP No.97 of 2012, decided on 16.07.2013 and it is settled principle “A complaint can not be decided by the consumer forum after an arbitration award is already passed. Pitiably no such document or award copy has been enclosed for consideration .Even if that be the case, the case on that score is liable to be dismissed.
In view of the above facts discussed above and when it has been brought out clearly that the statutory provision has been violated and same is substantiated in such paradigm the complainant case pale in insignificance which mandates disallowment. Thus the case is dismissed.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 13TH DAY OF JULY 2016.
[S.Rath] [G.K.Rath] (P.Samantara)
MEMBER MEMBER PRESIDENT.
