Order dictated by:

Sh.S.S.Panesar,President.

1. Gurpreet Singh (now deceased) through his legal representative Mandeep Kaur has filed the present complaint under section 11,12 ,13 & 14 of the Consumer Protection Act on the allegations that complainant (now deceased)  got insured his truck bearing registration No. PB-02-BK-9898 having Engine No. VBP119788 ,Chassis No. MBICTDYCOBPTB7785 from opposite party No.1. The cover note No. 9528621 was issued on 24.7.2014 which was valid from 28.7.2014 to 27.7.2015 for the sum insured Rs. 13,80,825/- by paying premium of Rs. 34,838/-. Unfortunately on 1.9.2014 at G.T. Road Main Phagwara, said truck met with an accident . The complainant (now deceased) got the vehicle repaired and spent an amount of Rs. 8,30,279/- on the vehicle. Thereafter complainant (now deceased) reported the matter to the opposite parties after fulfilling all the legal formalities  and lodged claim with the opposite parties . But on 18.11.2014 opposite parties rejected the insurance claim of the complainant on the pretext that the driving license of the driver was not effective. The driver of the truck namely Davinder Singh son of  Kuldip Singh was holding valid driving license issued on 19.9.2009 bearing No. PB-1120090133599 valid till (transport mode) 27.1.2016 and valid till (non transport mode) 14.5.2019 issued by DTO Patiala. The complainant informed in this regard to the opposite parties but they flatly refused to issue the insurance claim. The complainant (now deceased)had suffered a lot of mental and financial pain and agony at the hands of the opposite parties  as complainant (now deceased) had visited their office several times. But the opposite parties did not pay any heed to the request of the complainant. The complainant (now deceased) served upon legal notice dated 15.6.2015 but the opposite party did not reply to the notice . The complainant (now deceased) has sought for the following reliefs vide instant complaint:-

1. Opposite party be directed to make the payment of the claim amounting to Rs. 8,30,279/-  alongwith interest @ 18% p.a. from the date of filing of claim till payment ;
2. Compensation to the tune of Rs. 1,00,000/- may also be awarded to the complainant;
3. Opposite party be also directed to pay litigation expenses to the tune of Rs. 20000/- to the complainant.

Hence, this complaint.

2.       Upon notice, opposite parties appeared and contested the complaint by filing written statement taking certain preliminary objections therein inter alia that present complaint is legally not maintainable ; that complainant has not come to this Forum with clean hands and has suppressed the material facts . The driver, Davinder Singh son of Sh.Kuldip Singh, of the vehicle in question bearing registration No. PB-02-BK-9898 was not holding a valid driving license at the time of alleged accident on 1.9.2014, as such the complainant is not entitled to any relief ; that complainant has no locus standi to file the present complaint against the replying opposite parties. On merits, facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.

3.       In his bid to prove the case complainant (now deceased) stepped into the witness box and tendered his duly sworn affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-19 and closed his evidence. However, in additional evidence  Smt.Mandeep Kaur wd/o late  Sh.Gurpreet Singh tendered into evidence copy of letter dated 11.8.2015 Ex.C-20, copy of LPG distributorship agreement Ex.C-21 and closed the additional evidence.

4.       To rebut the aforesaid evidence Sh.Sumit Sharma,Adv.counsel for the opposite parties  No.1 & 2 tendered into evidence affidavit of Sh.Ashutosh Kumar, Legal Manager Ex.OP1,2/1 alongwith documents Ex.OP1,2/2 to Ex.OP1,2/16 and closed the evidence on behalf of opposite  parties No.1 & 2. However, Sh.Sumit Sharma,Adv.counsel for the opposite parties made statement that he does not want to lead any rebuttal evidence on behalf of the opposite parties.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of both the parties.

6.       On the basis of the evidence on record, ld.counsel for the opposite parties has vehemently contended that complaint as framed is not legally maintainable. The complainant has not come to the Forum with clean hands and is guilty of suppression of material facts from the Court. Driver Davinder Singh son of Kuldip Singh of the vehicle in question i.e. PB-02-BK-9898 was not holding a valid driving license at the time of alleged accident on 1.9.2014. As such the complainant is not entitled to any relief. The opposite parties have placed on record repudiation letter, copy whereof is Ex.OP1,2/2, final survey report commercial Ex.OP1,2/3, claim form Ex.OP1,2/4, detail of driving license Ex.OP1,2/6 and policy terms and conditions Ex.OP1,2/16.

7.       It is further contended that moreover complainant is proprietor of Ajnala Gas  Service  and the RC of the said vehicle is in the name of Ajnala Gas Service, as per the settled law the company is not a consumer.  Reliance in this connection has been placed upon Fineskin Leathers & Supplies Co.Pvt.Ltd-complainant Vs. New India Assurance Company Limited-Opposite party 1999(2) CPJ 167 (TN) wherein it has been laid down that company does not fall within the definition of consumer as defined u/s 2(1)(d) of the Consumer Protection Act.. On the basis of the aforesaid contention, it has been vehemently canvassed  before this Forum that instant complaint is not maintainable and the same has rightly been repudiated vide repudiation letter Ex.C-3 and, therefore, instant complaint may be dismissed with cost.

8.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the vehicle in dispute was insured with the opposite party vide insurance cover copy whereof is Ex.C-5 on record. It is also an admitted fact that the vehicle in dispute met with an accident on  1.9.2014 during the subsistence of the policy in dispute. “The only objection raised by the opposite party in the preliminary objections in para 2 of the written statement has been that the complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum. Driver Davinder Singh son of Kuldip Singh of the vehicle in question PB-02-BK-9898 was not holding valid driving license at the time of alleged accident on 1.9.2014. As such the complainant is not entitled to any relief.” However, complainant has placed on record copy of the driving license Ex.C-4 issued by DTO Patiala. Said driving license was issued on 17.9.2009 for heavy vehicle (Transport) valid upto 14.5.2029. Moreover, complainant filed RTI application   to the District Transport Officer, Patiala regarding the validity of the said license which is Ex.C-15 to Ex.C-17. As per the said exhibited documents, the driving license of Davinder Singh son of Kuldip Singh is valid and has been issued by D TO, Licensing Authority, Patiala and the opposite party intentionally and deliberately refused the claim of the complainant. Ex.C-5 is the copy of the cover note  which is admitted by the opposite parties. The complainant got the vehicle repaired and had spent  the amount on the vehicle as per bills/invoices mentioned as below:-

9.       The other objection raised by the opposite party that the complaint having been filed by Gurpreet singh, insured is not maintainable on account of the fact that the vehicle in dispute was in the name of Ajnala Gas Service which was a company, is not at all tenable , because no such objection  in specific has been taken in the written statement, for the reasons best known to the opposite party. Moreover, it is not denied that Gurpreet Singh was the proprietor of Ajnala Gas Service and on his death it is his wife Smt.Mandeep Kaur, who is the prop of that venture. It was incumbent upon the opposite party to have raised a specific objection to the maintainability of the complaint in the written version and at the time of arguments, no fresh plea can be raised by the opposite party which does not fall within the purview of objections taken in the written version. Moreover, insurance is obtained for indemnification of loss and the purpose of insurance is never commercial. Reliance in this connection can be had on  Preeti Anand (Mrs.) –Appellant Vs. The Sr. Divisional Manager, National Insurance C.Ltd. & Ors-Respondents,  in First Appeal No. 807 of 2014 decided on 1.12.2015 of our own Hon’ble Punjab State Consumer Disputes Redressal Commission,wherein it has been held that  as per the settled law, even if the Insurance Policy is obtained regarding the vehicle, which is being used for a commercial purpose, even then the owner thereof falls under the definition of “consumer”. Therefore, the order passed by the District Forum is liable to be se-aside. Since Gurpreet Singh was the proprietor of the said firm and at present it is his wife Mandeep Kaur, who happen to be the prop. of the said firm  and  complaint filed by her is legally maintainable.

10.     From the aforesaid discussion, it transpires that complainant has been able to prove that Davinder Singh driver of the vehicle in dispute was holding a valid driving license at the time of accident and the claim to the tune of Rs. 8,30,280/- filed by the complainant for indemnification has been wrongly repudiated by the opposite party without any reasonable cause.

11.     As such instant complaint succeeds and the opposite parties are directed to pay the amount of Rs. 8,30,280/- as insurance claim to the complainant alongwith interest @ 9% p.a. from the date of filing of the complaint until full and final recovery. Cost of litigation are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of this order ; failing which complainant shall be entitled to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated:  1.11.2016.