Complaint No: 371 of 2019.
Date of Institution: 19.12.2019.
Date of order: 16.02.2024.
Gurpal Singh Son of Sarwan Singh, resident of Village Khutha Tehsil and District Gurdaspur, (now deceased) through his Legal heir:-
Harkawalpreet Singh Son of Gurpal Singh, resident of Village Khutha, Tehsil and District Gurdaspur.
…........Complainant.
VERSUS
1. Bharati Axa General Insurance Company Ltd., Second Floor Pal Plaza, SCO 32, District Shopping Center, Ranjit Avenue, Amritsar – 143001, through its Manager.
2. Hyundai Assurance, Hyundai Motor India Ltd., Batala Road, Gurdaspur, through its Manager.
….Opposite parties.
Complaint U/S 12 of Consumer Protection Act.
Present: For the Complainant: Sh.P.S. Ghuman, Advocate.
For the Opposite Party No.1: Sh.Vikas Sharma, Advocate.
For the Opposite Party No.2: Sh.Sachin Mahajan, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Gurpal Singh, Complainant (Now Decreased) (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Bharati Axa General Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant has purchased vehicle Creta Car bearing No.PB-06-AS-5800 from the opposite party No. 2 in the year of May 2018. The opposite party No.2 being agent of the opposite party No.1. The above said vehicle was totally insured with cashless policy. As such the complainant is consumer of the opposite parties. It is pleaded that unfortunately above said vehicle met with an accident on dated 31.08.2018 with a moped PB-06-AC-2976 at village Sultani, Tehsil and District Gurdaspur. FIR No. 60 dated 01.09.2018 was registered by Police of P.S Dorangla relating to the above said accident U/s 304-A, 279, 427 IPC. It is further pleaded that the complainant's above said car damaged in accident on dated 31.08.2018. After it, the complainant handed over the damaged car to the opposite party No. 2 for repair. Although policy of the car was cashless, but the opposite party No. 2 received Rs.1,54,827.91/- (Rupees One Lac Fifty Four Thousand Eight Hundred Twenty Seven and ninety one paise only) as repair bill of the damaged car in question of the complainant. It is further pleaded that although the complainant and the opposite party No. 2 informed to the opposite party No. 1 about the alleged accident and the opposite party No. 1 also received surveyor report of the damages when car in question was lying with the opposite party’s No. 2 workshop for repair, but the opposite party No. 2 have not paid repair bill of Rs.1,54,827.91 paise without any reason till today. Thus, there is clear cut deficiency on the part of the opposite parties which falls under Consumer Protection Act. It is further pleaded that the license of the complainant cum driver was also valid at the time of accident, but the opposite parties refused to pay the repair amount of car in question illegally. Whenever, the complainant is entitled to receive the repair amount as per terms of insurance policy issued by the opposite parties. Due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. So, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay Rs.1,54,827.91/- with interest on account of repair of car in question to the complainant and may also be directed to pay Rs.30,000/- as mental pain and agony and Rs.10,000/- as litigation expenses to the complainant, in the interest of justice. The complainant may be awarded any other relief which he is found entitled to in the given circumstances.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint being frivolous and vexatious and is liable to be dismissed under Section 26 of The Consumer Protection Act as the complainant has concealed the true and correct facts as at the time of accident the complainant was not holding a valid & effective driving license to drive the vehicle in question. It is pleaded that the accident in question took place on dated 31.08.2018 whereas the license was valid upto 27.04.2018 for non-transport category (LMV and MCWG/Tractor) and valid upto 14.06.2018 for transport category. The complainant very cleverly got renewed the license on dated 11.09.2018 and the same was valid upto 10.09.2023 for non-transport category and upto 10.09.2021 for transport category. Therefore, at the time of accident the complainant was not holding a valid driving license, therefore there is a violation of the terms & conditions of the policy, which read as under:-
"Any person including insured provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license". It is further pleaded that this clause read in conjunction with General exception No. 3(b) and condition No. 8 of the policy which reads as under:-
General Exception 3(b)
"The company shall not be liable under this policy in respect of any accidental loss or damage and/or liability caused, sustained or incurred whilst the vehicle insured herein is being driven by or is for the purpose of being driven by him/her in the charge of any person other than a driver as stated in the Driver's clause".
Apart from that as per the contents of the FIR, at the time of accident, the complainant was under the influence of Alcohol, therefore the present complaint is liable to be dismissed. It is further pleaded that the complainant has concealed and has suppressed the material and relevant facts of the case. The complaint has been filed with malafide and dishonest intention and has not only concealed the material facts from the Hon'ble Commission, but has also twisted and distorted the same to suit their own convenience and to mislead this Hon'ble Commission. It is further pleaded that the complaint is devoid of any material particulars and has been filed merely to harass and gain undue advantage and unjustified monies from the answering opposite party and hence the complaint deserves to be dismissed in limine. The complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the answering opposite party which is company of high repute. The complainant has failed to setup nexus between the damages claimed in the present complaint and the damages suffered by him. The damages claimed are arbitrary, without basis and is an abuse of process of law. It is further pleaded that the fact of matter is that the vehicle of the complainant was insured with the answering opposite party No. 1 for the period from 02.05.2018 to 01.05.2019 subject to its terms & conditions. It is further pleaded that in the last week of September 2018 the answering opposite party received the intimation regarding the loss caused to the vehicle of the complainant. After getting the information, the answering opposite party immediately appointed Mr. Vikas Mahajan, IRDA Licensed Surveyor and Loss Assessor for assessing the loss caused to the vehicle of the complainant. On dated 01.10.2018 the said surveyor inspected the damaged vehicle at the workshop of the opposite party No. 2. The complainant supplied the license to the surveyor and thereafter the license was got verified by the surveyor from Regional Transport Office (RTO) Gurdaspur and on verification it was found that the Driving License No. PB-620100104886 was issued on dated 27.10.2010 in the name of the complainant for non-transport category (LMV/MCWG/Tractor) and on dated 15.06.2015 for transport category. It is further pleaded that the license for non-transport category was valid upto 27.04.2018 and for transport category it was valid upto 14.06.2018. After the accident, the complainant got renewed the license on dated 11.09.2018 and the same was valid upto 10.09.2023 for non-transport category and valid upto 10.09.2021 for transport category. Therefore, at the time of accident i.e. on 31.08.2018 the license had expired. It is further pleaded that the surveyor also verified the genuineness of the license from the website of Ministry of Road Transport of Highways, Govt. of India (https//parivahan.gov.in/privahan) and the status of the license was clearly shown as Non-transport (11.09.2018 to 10.09.2023), Transport (11.09.2018 to 10.09.2021). Thereafter, the surveyor submitted his report on dated 01.11.2018 with the answering opposite party and after getting the report, the claim of the complainant was repudiated vide letter dated 15.02.2019 as per terms and conditions of the insurance policy.
On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint filed by the complainant is not legally against the replying opposite party No.2 as relief sought for is only against the opposite party No.1 i.e. insurance company, as such, the complaint against the replying opposite party is liable to be dismissed on this ground alone. It is pleaded that the complaint is not legally maintainable and is liable to be dismissed, as no cause of action ever arose in favour of the complainant against the replying opposite party to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such, the same is liable to be dismissed and the present complaint has been filed by the complainant to get undue advantage from the replying opposite party and to cause harm the reputation of the replying opposite party. It is further pleaded that there is no deficiency in service on part of the replying opposite party. The dispute is in between the complainant and the opposite party No. 1 regarding the claim of repair bill of the complainant which the opposite party No. 1 has refused to pay to the complainant. As such, the replying opposite party is not liable to pay and compensation to the complainant. It is further pleaded that the complainant had purchased Car Creta from the replying opposite party No. 2 in the year 2018, but it is wrong that being agent of the opposite party No. 1, the replying opposite party No. 2 had insured the car of the complainant. The opposite parties No. 1 and 2 are separate distinct entities from each other and has no concern with each other. The car of the complainant was insured by the opposite party No. 1 for which, it had received premium and replying opposite party has no concern with the insurance policy. The dispute is regarding the insurance claim of the complainant, which has been rejected by the opposite party No. 1. It is further pleaded that the complainant had brought his car to service center of the replying opposite party on dated 31.08.2018 and as per instructions of the complainant, car of the complainant was got repaired. The complainant had informed about the accident of the car to the insurance company, but later on, the opposite party No. 1 had rejected the claim of the complainant and had refused to pay the repair cost of the car, which was legally claimed for and received from the complainant and car was handed over to him after its repair. It is further pleaded that intimation was given by the complainant and replying opposite party about repair of the car, but later on, the opposite party
No. 1 had not cleared the repair cost bill raised by the replying opposite party, which was later on paid by the complainant and car was handed over to him. It is further pleaded that there is no deficiency in service on part of the replying opposite party No.2 and the complaint of the complainant is liable to be dismissed.
On merits, the opposite party No.2 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has filed Self-Attested affidavit of Gurpal Singh, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-5.
6. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Sh. Rishi Kant, (Authorized Signatory, Bharti Axa General Ins. Co. Ltd., New Delhi) as Ex.OPW-1/A alongwith other documents as Ex.OP-1/1 to Ex.OP-1/4 alongwith reply.
7. Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Sh. Rajesh Kakaria, (Authorized Signatory, Novelty Cars Pvt. Ltd., Gurdaspur) as Ex.OP-2/1 alongwith other documents as Ex.OP-2/2 to Ex.OP-2/3 alongwith reply.
8. Rejoinder not filed by the complainant.
9. Written arguments filed by the opposite party No.2 but not filed by the complainant and opposite party No.1.
10. Counsel for the complainant has argued that the car owned by the complainant was insured with opposite party No.1 and the said car met with an accident on 31.08.2018 and FIR Ex.C2 was registered. It is further argued that the damaged car was handed over to opposite party No.2 for repair who charged amount of Rs.1,54,827.91 from the complainant. However, opposite parties have refused to pay the claim on flimsy ground which amounts to deficiency in service.
11. On the other hand counsel for the opposite party No.1 has argued that the accident took place on 31.08.2018 whereas the license was valid upto 27.04.2018 for non-transport category and upto 14.06.2018 for transport category. The complainant only got renewed his license on 11.09.2018. Accordingly, complainant was not holding a valid license to drive the car at the time of accident and claim was repudiated for violation of terms and conditions of the policy and as such there is no deficiency in service on the part of opposite party No.1.
12. Counsel for the opposite party No.2 has argued that opposite party No.2 has nothing to do with the dispute between the complainant and opposite party No.1 and as such complaint is liable to be dismissed.
13. We have heard the Ld. counsels for the parties and gone through the record.
14. To prove his case complainant has placed on record his affidavit, copy of policy Ex.C1, copy of FIR Ex.C2, copy of invoice summary Ex.C3, copy of registration certificate Ex.C4, copy of driving license Ex.C5 whereas opposite party No.1 has placed on record affidavit of Rishi Kant Ex.OPW-1/A, copy of report of investigation regarding driving license Ex.OP-1/1 and Ex.OP-1/2, copy of letter dated 15.02.2019 Ex.OP-1/3, copy of terms and conditions Ex.OP-1/4, Opposite party No.2 has placed on record affidavit of Rajesh Kakaria Ex.OP-2/1, copy of authority letter Ex.OP-2/2, copy of invoice summary Ex.OP-2/3.
15. Perusal of file shows that the only dispute between complainant and opposite party No.1 is regarding validity of driving license of the complainant. Perusal of file further shows that the driving license of the complainant was valid upto 27.04.2018 and was renewed on 11.09.2018. Meaning thereby that when the accident took place on 31.08.2018 the complainant was not in possession of a valid license to drive the car. The claim has been repudiated only on the ground that there was a gap between the expiry and renewal of the license during which accident took place but it is not the case of the opposite party No.1 that complainant had lost his ability to drive the vehicle. Moreover, it is only a lapse to get license renewed in time and unfortunately the accident in question took place during the said period. Since the complainant was having a valid license upto 27.04.2018 which was later on renewed on 11.09.2018 which shows that complainant was fully conversant with the driving skills to drive the car, as such the said repudiation of the claim by the opposite parties on the ground of driving license is totally unjustified. Perusal of file shows that complainant has placed on record copy of award dated 01.02.2019 passed by the Court of Sh.Manoj Kumar, Additional District & Sessions Judge MACT Gurdaspur Ex.C6 wherein Ld. Tribunal had framed issue No.4 regarding the validity of the driving license. However, while deciding the issue No.4 the Ld. Tribunal had upheld the validity of the driving license and issues No.3 and 4 were decided against the insurance company. The counsel for the opposite party No.1 has not been able to explain whether any appeal has been filed by the opposite party No.1 against the said award which shows that the award passed by the MACT has been complied with by opposite party No.1. Accordingly, we have no hesitation in holding that the repudiation of the claim by the opposite party No.1 is totally unjustified.
16. Accordingly, present complaint is partly allowed and opposite party No.1 is directed to settle and pay the claim to the complainant within 30 days from the date of receipt of copy of this order. It is further held that if the claim is not settled and paid within 30 days of the receipt of copy of this order, the payable amount shall carry interest @ 9% P.A. from the date of accident i.e. 31.08.2018 till realization
17. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
18. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Feb. 16, 2024 Member.
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