Haryana

Karnal

CC/175/2015

Kamlesh Saini W/o Krishan Lal Saini - Complainant(s)

Versus

Cholamandalam MS genral Insurance Company Limited - Opp.Party(s)

Gourav Sharma

29 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.175 of 2015

                                                         Date of instt. 13.08.2015

                                                         Date of decision:29.09.2017

 

Kamlesh Saini wife of Shri Krishan Lal Saini r/o House no.44 Sector 7, Urban Estate, Kurukshetra, Haryana

                                                                                                                                                                                                     …….Complainant.      

                                        Versus

 

Cholamandalam MS General Insurance Company Ltd., through its Branch Manager, Sector 12 Urban Estate Karnal.

                                         

                                                                     …..Opposite Party.

 

           Complaint u/s 12 of the Consumer Protection Act.            

 

Before   Ms. Veena Rani ………..Presiding Member.

              Sh. Anil Sharma……….Member.

               

 

 Present  Shri Gaurav Sharma Advocate for complainant.

               Shri Naveen Kheterpal Advocate for opposite party.

 

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that she got insured her tanker bearing registration no.HR-65-7379 from the opposite party, vide policy no.3379/00726016/000/02, valid from 27.5.2014 to 26.5.2014. The said vehicle met with an accident on 15.2.2015 in the area of Ladwa Road Kurukshetra due which the cabin of the vehicle as well as tool box of the tanker completely damaged. She spent Rs.66,800/- on the repaid of the tanker and Rs.9000/- was spent on lifting the accidental tanker, so she spent total expenses of Rs.75,800/-. Therefore, she lodged claim with the insurance company, who deputed surveyor in order to assess the loss. At the time of accident Shri Rajender was driver of the tanker who having a certificate to drive for ‘Hazardous Goods Vehicle’ and having a valid and effective Driving Licence to drive the vehicle in question, but opposite party repudiated the genuine claim of the opposite party illegally, arbitrarily without any basis, vide letter dated 9.3.2015. There was deficiency in service on the part of the opposite party, which caused her mental pain, agony and harassment apart from financial loss.

2.             Notice of the complaint was given to the opposite party, who put into appearance and filed written statement controverting the claim of the complainant on various grounds. Objections have been raised that the complainant has concealed the true and material facts from this Forum; that the complaint is wholly misconceived, groundless and unsustainable; that this Forum has got no jurisdiction to entertain and adjudicate the matter; that the complainant has got no cause of action; that the complaint is bad for mis-joinder and non-joinder of the parties and that the complainant is estopped for filing the complaint by his own acts and conducts.

                On merits, it has been submitted that the driver of complainant, who was driving the vehicle at the time of accident was not holding an effective driving licence. As per driving license, driver was authorized to drive LMV and HTV only but at the time of loss he was driving transport vehicle containing Hazardous Goods and there was no endorsement of Hazardous Goods in Driving License. Hence there was a serious breach of driver’s clause contained in the policy apart from violation of Motor Vehicle Act. The applicable policy condition is reproduced as under:-

“Persons or class of persons entitled to drive: Any person including insured: Provided that the person driving, holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license.”

 

Therefore, claim of complainant has been rightly repudiated by the opposite party. The other allegations made in the complaint have been denied.

3.             Complainant tendered into evidence her own affidavit Ex.C1 and documents Ex.C2 to Ex.C13.

4.             On the other hand, opposite party tendered into evidence affidavit of Jitendra Dhabhai Ex.RW1/A and documents Ex.R1 to Ex.R3.

5.             We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.             Admittedly, the tanker of the complainant bearing registration no. HR65-7379 was insured with the opposite party for the period from 27.5.2014 to 26.5.2015 and the same met with an accident on 15.02.2015. The claim lodged by the complainant was repudiated by the opposite party, vide letter dated 9.3.2015, on the sole ground that the complainant was not having valid driving licence to drive commercial vehicle on the date of accident.

7.             The onus was on the complainant to prove her case. In support of her contention complainant produced the copy of the driving licence of her driver Ex.C9. A perusal of the same it shows that the driving licence no.532/RTK/03 dated 30.11.2012 was issued by the Licensing Authority Rohtak for LMV/HTV. Further, complainant also produced a Certificate of driver Training Programme for Hazardous Goods Vehicle, the copy of which is Ex.C10, which was valid upto 26.4.2015 while the said vehicle met with an accident on 15.2.2015.  A perusal of the same it is clear that driver of the complainant was authorized to drive the Transport vehicle containing Hazardous Goods.  Consequently, at the time of accident driver was having a valid driving licence. Hence repudiation of the claim by the opposite party amounted to deficiency in service.  No other objection has been raised by the opposite party. Hence complainant is entitled for compensation. Learned counsel for the opposite party produced the authority titled as New India Assurance Company Ltd. Versus Nazma @ Babbu and others FAO no.5974 of 2013 date of decision 27.5.2014 of Hon’ble High Court wherein it is mentioned that the driver neither had a valid and effective driving licence nor having any Training Certificate for driving Hazardous Vehicle. While in present case the driver of the said vehicle has a certificate to drive the Hazardous Vehicle only the endorsement on driving licence of the driver of the said vehicle was not done. Hence, the cited authority is not applicable to the case in hand.  The learned counsel for the complainant produced the authority titled as Oriental Insurance Co. Ltd. Vs. Mangare and others 2011(8) RCR (Civil) 3041 wherein it is clearly mentioned in the headnote that there is no classification in the Act as a Hazardous Vehicle-Insurer brought no evidence to show that the offending tanker was carrying hazardous material-Plea of appellant that driver was not possessing valid driving licence rejected and directed to deposit the awarded amount within two months. This authority is fully applicable to the present case.

8.             Complainant produced the bills of Rs.75,800/-, which are Ex.C2 to Ex.C4. Hence complainant is entitled to that amount.

9.             As a sequel of aforesaid discussion, we accept the present complaint and direct the opposite party to make the payment of Rs.75800/-to the complainant with interest @ 8% per annum from the date of filing the complaint till its realization. We further direct the opposite party to pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 29.9.2017

                                                                   (Veena Rani)

                                                                Presiding Member

                                                        District Consumer Disputes

                                                        Redressal Forum, Karnal.

                        (Anil Sharma)

                          Member