DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 31 of 24.1.2008 Decided on : 30.4.2008 <br /> <br /> <br /> Rajinder Singh S/o Sh. Harbhajan Singh, R/o House No. 85, Ward No. 5, Nai Basti, Goniana Mandi, Tehsil & District Bathinda.<br /> .... Complainant<br /> Versus <br /> <br /> 1.Bajaj Allianz General Insurance Company Limited, Registered Office, GE Plaza Road, Yarwada Pune-411006 through its Managing Director.<br /> 2.Bajaj Allianz General Insurance Company Limited, Pune having its branch at G.T Road, Bathinda through its Branch Manager.<br /> ..... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Ashok Gupta, Advocate<br /> For the opposite parties : Sh. Sanjay Goyal, Advocate<br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. This complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay him Rs. 53,852/- alongwith interest @ 12% P.A from the date when claim was lodged upto the date of payment alongwith bonus; Rs. 20,000/- as compensation for mental tension, harassment and botheration, besides costs of the complaint.<br /> 2. Briefly put, the case of the complainant is that he had purchased a product Commercial Vehicle-Package Policy for a sum of Rs. 3,00,000/- from the Divisional Office, SCO 147, Feroz Gandhi Market, Ludhiana of opposite party No. 1 vide policy No. OG-08-1212-1803-00000023 dated 18.6.2007 for his Tata-AC bearing registration No. PB-03-G-9229 valid for the period 18.6.2007 to 17.6.2008. Cover note No. CW 0610118313 was prepared. Insurance policy was obtained by him through ICICI Bank Limited with which vehicle was hypothecated for a sum of Rs. 2,36,217/-. Due premium of Rs. 8,993/- was paid to opposite party No. 2 under the policy. Vehicle was purchased to earn livelihood. Kewal Singh S/o Sh. Jarnail Singh was employed by him as his driver after going through his driving licence and after taking drive test. He had disclosed that he was driver with good experience. On 10.10.2007, this vehicle was being brought from Kotthe Nattha Singh Wala towards Goniana Mandi after leaving Buffaloes taken in it. When vehicle was in the area of Kotthe Nattha Singh Wala, a cow, all of a sudden, came from the fields which were situated towards the left side. To save the cow, vehicle was swerved towards right hand side, as a result of which it touched the Tractor due to which it was badly damaged. Kewal Singh sustained injuries. His right leg was fractured. Gurjiwan Singh of village Balahar Mehma came there. He got him admitted in the hospital. It was a natural accident and there was no fault on the part of any person. Intimation of the accident was given to the opposite parties. At their asking, vehicle was got repaired from Padam Motors, Bibi Wala Road, Bathinda. A sum of Rs. 53,852/- has been spent on its repairs. Claim was lodged with the opposite parties. He visited office of the opposite parties many a times. He was told that claim has been repudiated. He alleges that reasons for repudiation have not been disclosed. Repudiation is illegal, arbitrary and unjustified although his case was genuine. He further alleges that he has undergone mental tension, harassment and botheration due to the act and conduct of the opposite parties. It is added by him that he has no objection if claim amount is paid directly to ICICI Bank with which the vehicle has been hypothecated. <br /> 3. Opposite parties filed their reply taking legal objections that complainant has got no locus-standi and cause of action to file this complaint; he has not approached this Forum with clean hands; insurance policy was purchased for commercial purpose and as such, complaint is not maintainable; complainant is not consumer; complaint is bad for non-joinder of necessary parties; intimation of the accident was given on 11.10.2007. Claim was submitted on 15.10.2007. Immediately Surveyor was appointed to verify the validity of the driving licence. Report was received from him on 1.12.2007. Letter dated 8.12.2007 was issued bringing to the knowledge of the complainant that as per Licensing Authority, Faridabad, driving licence of Kewal Singh was not issued by him. He was required to reply as to why the claim be not repudiated for violating the terms and conditions of the policy. Reply was received from him on 21.1.2008. It was not satisfactory. So claim was repudiated. He was duly informed vide repudiation letter dated 29.1.2008. Complainant has willfully violated the statutory and contractual obligations by handing over the vehicle to a person who did not have valid and effective driving licence. There is no deficiency in service on their part. Moreover, complaint requires extrinsic oral and voluminous documentary evidence which cannot be taken by this Forum in summary procedure and complaint is false and vexatious. Complaint is bad for non-joinder of ICICI Bank Ltd. as party. They deny the remaining averments in the complaint.<br /> 4. In support of his allegations and averments in the complaint, Rajinder Singh complainant tendered into evidence his own affidavits (Ex.C.2 & Ex.C.12), affidavit (Ex.C.1) of Kewal Singh, photocopy of driving licence (Ex.C.3), photocopies of bills (Ex.C.4 to Ex.C.6), photocopy of Certificate-cum-policy Schedule (Ex.C.7), photocopies of letters dated 2.1.2008, 8.12.2007 & 29.1.2008 ( Ex.C.8 to Ex.C.10) & photocopy of DDR dated 11.10.12007 (Ex.C.11). <br /> 5. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1 & Ex.R.5) of S/Sh. Vikas Bhutani, Area Manager and Rajiv Singla, Surveyor respectively, photocopy of Certificate-cum-Policy Schedule (Ex.R.3), photocopy of motor Insurance Claim Form (Ex.R.4), photocopy of driving licence (Ex.R.5/1), photocopy of verification of driving licence (Ex.R.6) and photocopies of letters dated 8.12.2007, 2.1.2008 & 29.1.2008 (Ex.R.7 to Ex.R.9).<br /> 6. We have heard the learned counsel for the parties. Apart from this, we have perused the record.<br /> 7. Some facts do not remain in dispute in this case. They are that complainant had obtained Commercial Vehicle Package Policy of his vehicle Tata AC bearing registration No. PB-03-G-9229 for the period 18.6.2007 to 17.6.2008. Copy of the Certificate-cum-Policy Schedule is Ex.C.7. Vehicle had met with an accident. Intimation of the accident was given by him. Claim has been repudiated by the opposite parties on 29.1.2008 through letter, copies of which are Ex.C.10 and Ex.R.9, on the ground that as per Licensing Authority, Faridabad driving licence of Kewal Singh was not issued by him.<br /> 8. Sole ground for repudiation of the claim is that Kewal Singh driver of the vehicle was not possessing valid driving licence. Onus to prove that repudiation is justified is upon the insurer. Opposite parties are relying upon documents Ex.R.4, Ex.R.5/1 & Ex.R.6 to Ex.R.8. Ex.R.4 is the copy of the letter written to the Registering Authority, Faridabad for verification of the particulars of the driving licence No.13.23452 in the name of Kewal Singh S/o Sh. Jarnail Singh renewed on 18.5.2006 and valid upto 17.5.2009. Sh. Rajiv Singla had been appointed as Surveyor & Loss Assessor. He wrote letter to the opposite parties regarding the verification of the driving licence of Kewal Singh from DTO/Licensing Authority, Faridabad. He had contacted Mr. Hukam Singh, Dealing Clerk of the office of Licensing Authority, Faridabad. He (Hukam Singh) had informed him that LTV/HTV driving licence No. 13.23452 has not been issued by Licensing Authority, Faridabad. Thereafter, opposite parties issued letter, copy of which is Ex.R.7, to the complainant for showing cause within seven days as to why his claim for insurance be not repudiated. Reply of the letter was sent by the complainant stating that driving licence of Kewal Singh was checked by him. He had also taken his driving test. It was found that he had enough experience in the field of driving light and heavy vehicles. <br /> 9. Learned counsel for the complainant argued that opposite parties did not get the driving licence of Kewal Singh driver of the vehicle of the complainant verified from the licensing authority. <br /> 10. Mr. Goyal, learned counsel for the opposite parties argued that infact the licence of Kewal Singh driver, copy of which is Ex.R.5/1, has been got verified and it has been found fake as is evident from the letter of Sh. Rajiv Singla, Surveyor and Loss Assessor, copy of which is Ex.R.6. For this, reliance is placed on the authorities Salvador Rodrigues Margo Vs. New India Assurance Company Limited-2005(1)CPC-531, Jagat Dev Singh Vs. Branch Manager, National Insurance Co. Ltd.-2000(1)CPC-451 and Mr. Sachin Bhalchandra Shah Vs. Oriental Insurance Company Limited-2003(1)CPC-632.<br /> 11. We have given our thoughtful consideration to the rival arguments. Material question for determination is as to whether the licence of Kewal Singh driver who was employee of the complainant has been got verified by the opposite parties. The answer to our minds is in the negative. As per report of Sh. Rajiv Singla, licence No. 13.23542 was got verified. Dealing Clerk Mr. Sandeep on enquiry had informed him that in the year 2006 DTO/Licensing Authority, Faridabad had issued total 85 driving licences only. According to Mr. Rajiv Singla, he had seen the record of the year of 2006 and had noticed that in the year, 2006, the last driving licence No. was 85. A perusal of the copies of the driving licence EX.R-5/1 and Ex.C.3 reveals that number of the driving licence of Kewal Singh as it is read is either B. 23456 or 19.23456 dated 18.5.2006. Verification as per letter Ex.R.6 of Sh. Rajiv Singla is concerning licence no. 13.23452. Mere fact that opposite parties sent letter Ex.R.7 and complainant gave reply, copy of which is Ex.R.8, does not serve the purpose of the opposite parties as complainant does not admit through Ex.R.8 that driving licence of Kewal Singh was fake. Letter of Sh. Rajiv Singla does not bear the signatures of the DTO/Licensing Authority, Faridabad or any of his officials. There is no separate verification report given by the DTO, Faridabad. Opposite parties did not deem it fit to place on record the affidavits of DTO, Faridabad, Mr. Sandeep and Mr. Hukam Singh, Dealing Assistants. In these circumstances, letter of Surveyor appointed by the opposite parties does not prove their version that the driving licence of Kewal Singh driver at the time of accident was fake, particularly when number of the licence mentioned in the letter, copy of which is Ex.R.6, does not tally with the number of the driving licence of Kewal Singh. Generally Surveyors of the Insurance Companies are remunerated persons. They do not want to displease the Insurance Companies who are their bread givers. Kewal Singh in his affidavit Ex.C.1 has testified that his driving licence is genuine one. Hence, the conclusion is that opposite parties have failed to establish that the driving licence of Kewal Singh was fake and it was not issued by Licensing Authority, Faridabad. Accordingly, repudiation of the claim made by the opposite parties on this ground is illegal, arbitrary and is liable to be set-aside. Hence, there is deficiency in service on the part of the opposite parties. With utmost regard and humility to the authorities relied upon by the opposite parties, they are distinguishable on facts.<br /> 12. In view of per our forgoing discussion, repudiation of the insurance claim made by the complainant through insurance claim form, copy of which is Ex.R.3, is set-aside. Complainant is alleging that he has spent a sum of Rs. 53,852/- for repairs of the vehicle at the asking of the opposite parties from Padam Motors, Bibiwala Road, Bathinda. Copies of the bills issued by Padam Motors for Rs. 53,852/- are Ex.C.4 to Ex.C.6. Complainant supports his stance in his affidavits Ex.C.1 & Ex. C.12. Opposite parties while repudiating the claim has not taken the plea that amount of Rs. 53,852/- has not been spent by the complainant for repairs of the vehicle. In these circumstances, evidence of the complainant on this aspect of the matter deserves to be accepted especially when opposite parties did not get the loss/damage to the vehicle assessed from their Surveyor. Accordingly, direction deserves to be given to the opposite parties to pay this amount of Rs. 53,582/- to the complainant alongwith interest @ 9% P.A from 16.1.2008 (The date has been calculated on the expiry of three months period after lodging of the claim, a period required for processing the claim in an effective manner in normal course) till realization subject to deposit of salvage of replaced parts by the complainant. Complainant is also craving for compensation of Rs. 50,000/- for mental tension, harassment and botheration. There is no case to allow it in view of the relief which is going to be accorded as above. Moreover, out of interest and compensation, one can be claimed. <br /> 13. In the result, complaint is allowed against the opposite parties with costs of Rs. 1,000/-. Complainant and opposite parties are directed to do as under :-<br /> ( i ) Complainant would deliver the salvage of the replaced parts with opposite party No. 2 within 15 days from the date of receipt of copy of this order for which receipt would be given by opposite party No.2.<br /> ( ii ) Opposite parties would pay to the complainant Rs. 53,852/- alongwith interest @ 9% P.A from 16.1.2008 till realization within one month after the day salvage of the replaced parts is delivered to opposite party No.2. <br /> ( iii ) Compliance with regard to payment of costs be made within 30 days from the date of receipt of copy of this order.<br /> 14. Copy of the order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 30.4.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br />