BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint Case No.183 of 2018.
Date of institution: 29.06.2018.
Date of decision:18.12.2019.
Baldev son of Bhag Singh, resident of Gali No.2, Cheeka Road Arjun Nagar, Ward No.2, Tehsil and District Kaithal-136027, Phone No.7206411715.
…Complainant.
Versus
- Cholamandalam MS General Insurance Company Ltd. through its Regional Manager, Ist Floor, Plot No.6, Pusa Road, Karol Bagh, New Delhi.
- IndusInd Bank, Kaithal through its Branch Manager.
….Respondents.
Before: Sh. D.N.Arora, President.
Sh. Rajbir Singh, Member.
Smt. Suman Rana, Member.
Present: Sh. O.P.Gulati, Advocate, for the complainant.
Sh. M.R.Miglani, Advocate for the OP.No.1.
Sh. Manoj Ichhpilani, Adv. for the Op No.2.
ORDER
D.N.ARORA, PRESIDENT
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the complainant got insured his vehicle heavy goods bearing registration No.HR-63B-5704 with the Op No.1 vide policy No.3379/01392004/000/00 valid for the period w.e.f. 18.04.2016 to 17.04.2017 for the sum insured of Rs.12,87,000/-. It is alleged that the said vehicle met with an accident on 16.11.2016 in the area of SBS Nagar Punjab and regarding which a false FIR No.153 dt. 16.11.2016 under Sections 279/337/427/304 IPC was lodged against the real son of complainant namely Satwant in Police Station Rahon SBS Nagar Punjab. Although there was no negligence on the part of son of complainant but still he has been falsely involved in that criminal case. It is further alleged that in the said accident, the vehicle of complainant became totally damaged/burnt and regarding this, consecutive accident/occurrence, another FIR bearing No.154 dt. 18.11.2016 was lodged in the Police Station Rahon under Sections 353, 186, 332, 435, 427, 148 and 149 of IPC. Information regarding accident was given to the Ops. The complainant lodged the claim with the Op No.1 and submitted all the necessary documents but the Op No.1 repudiated the claim of complainant vide letter dt. 16.05.2017 on the ground that the driver at the time of accident was not holding an effective driving licence. The complainant met with the officials of Op No.1 and after long persuasion, the Op No.1 agreed to release the claim and pressurized the complainant to give consent for Rs.6/7 lacs only instead of releasing the claim but the complainant did not agree with their proposal. Now it has come to the knowledge of complainant that the Op No.1 had deposited Rs.5 lacs in loan account of complainant with Indusind Bank Ltd. Vehicle Finance Division Loan No.HDA00425D on 29.03.2018 and Rs.1 lac on 31.03.2017. The complainant requested the Op No.1 several times for getting full amount of OD claim but the Op No.1 did not redress the grievances of complainant. So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint. Hence, this complaint.
2. Upon notice, the OPs appeared before this Forum and contested the complaint by filing their replies separately. Op No.1 filed the reply raising preliminary objections with regard to locus-standi; maintainability; cause of action; that the complainant has concealed the true and material facts from this Forum. The true facts are that upon receiving intimation, the answering Op appointed Sh. Vipin Manyal as surveyor for assessing the actual loss of damaged vehicle of the complainant, who assessed the actual loss of Rs.8,89,000/-. The claim was paid on the request of financier as-well-as complainant to the tune of Rs.5 lac on non-standard basis. The complainant submitted DL of driver namely Satwant Singh which was got verified by the answering Op and as per report of Licensing Authority, DL holder is authorized to drive motor-cycle, PSV Bus LMV NT & Transport which is valid from 16.03.2017 and has not covered the date of accident. So, at the time of alleged accident, the driver was not possessing valid licence, so, the answering Op has repudiated the claim of complainant. There is no deficiency in service on the part of Op. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
3. Op No.2 filed the reply raising preliminary objections with regard to mis-joinder of parties; jurisdiction; cause of action. On merits, it is submitted that the complainant had availed financial assistance of Rs.11,00,000/- from the answering Op for purchasing the vehicle in question and he has to repay the same in 42 monthly installments (i.e. EMI of Rs.38,000/- for 30 months & EMI of Rs.35,700/- for remaining 12 months) alongwith interest & other charges upto 21.09.2018. But the complainant did not adhere to the repayment schedule and he paid only 17 installments against 42 installments. It is correct that the answering Op has received Rs.5 lacs on 29.03.2018 & Rs.1 lac on 31.03.2017 in the loan account of complainant deposited by Op No.1. The other objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
4. The complainant tendered into evidence affidavit Ex.CW1/A and documents Annexure-C1 to Annexure-C11 and thereafter, closed the evidence.
5. On the other hand, the Op No.2 tendered into evidence affidavit Ex.RW2/A and documents Annexure-R1 to Annexure-R3, Op No.1 tendered into evidence affidavit Ex.RW1/A and documents Annexure-R4 & Annexure-R5 and thereafter, closed the evidence.
6. We have heard the learned Counsel for both the parties and perused the record carefully.
7. Undisputedly, the complainant got insured his vehicle heavy goods bearing registration No.HR-63B-5704 with the Op No.1 vide policy No.3379/01392004/000/00 valid for the period w.e.f. 18.04.2016 to 17.04.2017 for the sum insured of Rs.12,87,000/-. According to the complainant, the said vehicle met with an accident on 16.11.2016 and in the said accident, the vehicle of complainant became totally damaged/burnt. The grievance of the complainant is that the Op No.1 pressurized the complainant to give consent for Rs.6/7 lacs only instead of releasing the claim but the complainant did not agree with their proposal. Now it has come to the knowledge of complainant that the Op No.1 had deposited Rs.5 lacs in loan account of complainant with Indusind Bank Ltd. Vehicle Finance Division Loan No.HDA00425D on 29.03.2018 and Rs.1 lac on 31.03.2017.
8. We have considered the rival contentions of both the parties. The main contention of Op No.1 is that the complainant failed to produce the valid driving licence to drive the transport vehicle which was mandatory for renewal of three years but the complainant failed to renew the licence for three years. As per Annexure-C10, the licence issued by Licensing Authority, Nagaland, the driver was authorized to drive the light motor vehicle for the period 15.07.2009 upto 14.07.2029 and to drive the transport vehicle for the period 16.08.2011 to 15.03.2020. On the other hand, ld. Counsel for the Op No.1 argued that as per the provision of Section 14 (2)(A) of the Motor Vehicle Act, 1988 the driver is allowed to drive the transport vehicle, be effective for a period of three years not beyond it but the Licensing Authority issued the licence for the period 16.08.2011 to 15.03.2020 and it is violation of Section 14 (2)(A) of the Motor Vehicle Act, 1988. To rebut the contention of Op No.1, the complainant produced the copy of driving licence Annexure-C7 which was issued on 30.03.2017 and it is also mentioned that the validity of transport vehicle shown as 16.08.2011 to 15.03.2020. To support his contention, he placed on record the similar copy of another driving licence of Kuldeep Singh which was obtained from internet wherein it is mentioned that transport licence was issued for the period 27.02.2017 to 26.02.2020 and non-transport licence was issued for the period 08.06.2007 to 07.06.2027. He further contended that it is general practice that Licensing Authority usually not mentioned the renewal of the previous period for three years i.e. from 2014 to 2017. He further contended that if Licensing Authority renewed the licence for the period 2017 to 2020, it means that it was earlier renewed for the previous three years. Similarly, in this case, the licence has been renewed for the period 2017 to 2020 and intervening period i.e. 2014 to 2017 has not been shown, hence, there is no violation of Section 14 (2)(A) of the Motor Vehicle Act, 1988 and it is valid driving licence which covered the period of accident. Even otherwise, when the accident was occurred in collusion with the motor-cycle and after the accident, the driver of the offending vehicle namely Onkar Singh died at the spot in the accident as per versions of FIR Annexure-C3 as-well-as final survey report Annexure-R4wherein the surveyor has mentioned that the motor-cylist died in the accident and local public burnt the vehicle and the same was totally burnt. It means that the vehicle was not in running condition and it was standing, so, there was/is no nexus of driving licence. Hence, we are of the considered view that the Op No.1 has wrongly repudiated the claim of complainant on the ground that the driver of the damaged truck was not holding effective driving licence.
9. Now the question arises that what type of loss was occurred by the complainant. The contention of complainant is that in the accident occurred on 16.11.2016, the vehicle of complainant became totally damaged/burnt and he is entitled for the sum insured of Rs.12,87,000/-. On the other hand, ld. Counsel for the Op No.1 contended that the surveyor has assessed the loss of damaged vehicle to the tune of Rs.8,89,000/- and claim was paid to the tune of Rs.5,00,000/- on the request of financier as-well-as complainant on non-standard basis to avoid the further controversy and so, nothing is payable to the complainant. Ld. Counsel for the complainant contended that there was no written consent given by the complainant and he never requested the Op No.1 to pay the amount of Rs.5,00,000/- on non-standard basis. He further pointed out that as per statement of account Annexure-C8, the Op No.1 has paid the amount of Rs.5,00,000/- on 29.03.2018 to the Op No.2 directly and also paid the amount of Rs.1,00,000/- on 31.03.2017, so, question of full and final payment made by the Op No.2 does not arise and the complainant is entitled for the total damaged loss to the tune of Rs.12,87,000/- as IDV of the vehicle. To decide the said controversy, we have perused the surveyor report Annexure-R4. In the present case, the surveyor has assessed the loss to the tune of Rs.8,89,000/-. It is clear that the Op No.2 has received Rs.5 lacs on 29.03.2018 and Rs.1 lac on 31.03.2017 from the Op No.1 in the loan account of complainant. Perusal of the surveyor report, the surveyor has mentioned that the depreciation has been shown as Rs.4,44,500/-, it means that the surveyor has assessed the loss 75% above which tantamount to total loss and the surveyor has wrongly deducted the depreciation value as Rs.4,44,500/- which is not sustainable in the eyes of law. This depreciation cannot be looked into consideration and the same is not binding upon the right of complainant. The surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. In this regard, we can rely upon the judgment titled as New India Assurance Company Ltd. Vs. Pardeep Kumar, date of decision: 09.04.2009 bearing Civil Appeal No.3253 of 2002 decided by Hon’ble Apex Court. The insurance policy was issued for the period 18.04.2016 to 17.04.2017 and IDV is shown as Rs.12,87,000/- and the accident has occurred on 16.11.2016 within a period of six months, so, no depreciation cannot be deducted before expiry of insurance period. The Op No.1 has assessed the IDV after deduction of deprecation of the vehicle. We are of the considered view that as per the I.R.D.A. instructions, if any vehicle damaged above 75% which tantamount to total loss. So, the complainant is entitled for the total loss of the vehicle i.e. Rs.12,87,000/-. So, the complainant is entitled for the amount of Rs.6,87,000/- (Rs.12,87,000/- less Rs.5,00,000/- which were paid on 29.03.2018 and Rs.1 lac on 31.03.2017 to the Op No.2 in the loan account of complainant). Hence, in view of facts and circumstances of the case, we are of the considered view that there is deficiency in service on the part of Op No.1.
9. Thus, as a sequel of above discussion, we allow the complaint partly against the Op No.1 and direct the Op No.1 to pay the balance amount of Rs.6,87,000/- to the complainant alongwith interest @ 9% p.a. from the date of filing of present complaint till its realization and further to pay Rs.10,000/- as lump sum compensation on account of harassment, mental agony including the litigation charges. However, it is made clear that the Op No.2 has claimed that there is outstanding amount of Rs.4,32,390/- is due as on 18.02.2019 against the complainant. So, the Op No.1 will clear the outstanding amount to the Op No.2 directly after obtaining the statement of account from the Op No.2 and if any amount remained balance, then the same will be paid by the Op No.1 to the complainant. Let the order be complied with within 30 days from the date of preparation of copy of this order. A copy of said order be supplied to the parties free of costs. File be consigned to record-room after due compliance.
Announced in open court:
Dt.:18.12.2019.
(D.N.Arora)
President.
(Suman Rana), (Rajbir Singh)
Member Member.
