Haryana

Karnal

354/2012

Raghunath Tanwar S/o Sadhu Ram - Complainant(s)

Versus

Chollamandlam Ms General Insurance Company Ltd., C.E.O. Dare House., The Managing Director Dare Hous - Opp.Party(s)

J.S. Lather

03 Nov 2014

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  FORUM KARNAL.

 

                                                          Complaint No.354 of 2012

                                                          Date of instt.23.07.2012

                                                          Date of decision:31.3.2015

 

Raghunath Tanwar son of  Sh.Sandhu Ram Director/Signatory authority Tanwar Projects Pvt.Ltd. 1329, Sector 13, UE HUDA, Opposite  Barsat Road, Old Chungi Panipat.

 

                                                                  ……..Complainant.

                                  Vs.

1.Cholamandlam MS General Insurance Co.Ltd. 103, Mugal Canal, Karnal through its Branch Manager.

2. C.E.O.Dare House, 2^nd Floor, NSC Bose Road, Chennai 600001.

3.The Managing Director, Dare House, 2^nd Floor, NSC Bose Road, Chennai 600001.

 

                                                                        …..Opposite Parties.

 

                                      Complaint u/s 12 of the Consumer

                                      Protection Act.

 

Before        Sh.Subhash Goyal……..President.

                   Smt.Shashi Sharma……Member.

 

Argued by :-Sh. J.S.Lather Advocate for the complainant.

                    Sh.Rohit Gupta Advocate for the OP No.1.

                    OP No.2 and 3 ex parte.

ORDER

                        The complainant has filed the present complaint against the Ops u/s 12 of the Consumer Protection Act on the allegations that the tanker of the complainant bearing registration No. HR-55M-0641 was insured with the OP No.1 vide insurance policy NO. 3380/00371638 /000/00 dated 28.11.2011. valid w.e.f. 28.11.2010 to 27.11.2010.   On 15.3.2011 the said vehicle was  loaded with concrete  near Sushant City Ansal, near Sector 18, Panipat and as soon as the vehicle started unloading, suddenly land slided  near the driver side tyres of the vehicle  and  due to which the said vehicle turned turtle in deep excavated pit and got damaged. The   OP was duly intimated who deputed surveyor and the said surveyor inspected the vehicle and on the instructions of the surveyor the vehicle was got repaired and a sum of Rs.7,54,824/- was incurred .  Thereafter, the complainant lodged the claim with the OP and submitted all the relevant documents but the OP failed to pay the claim to the complainant which amounts to deficiency in services on the part of the OP. The complainant has also tendered his affidavit in support of the averments made in the complaint alongwith some other documents which would be discussed at the relevant stages.

 

2.                On notice the OP appeared and   filed written statement raising the preliminary objections that the complainant has no locus standi to file the present complaint; that this Forum has got no jurisdiction to entertain and to try the present complaint.

 

                   On merits, issuance of insurance policy and factum of accident of the vehicle in  dispute has not been denied by the OP. It was contended that  the loss was got assessed by appointing Sh.Virender Kumar, Surveyor and Loss Assessor and the surveyor assessed the loss to the tune of Rs.303306/- .It was also contended that  the claim has rightly been repudiated because the driving licence of Rajbir Singh driver was fake which was submitted by the complainant alongwith the claim form.  Thus, it was contended that there was no deficiency in services on the part of the OP and dismissal of the complaint has been sought.

3.                We have heard the learned counsel for the parties and have gone through the case file very carefully.

4.                 Therefore, the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel  for the parties, it emerges that the complainant has filed the present complaint against the OP  on the allegations that he got insured his vehicle bearing registration No. HR-55M-0641 with the OP w.e.f. 28.11.2010 to 27.11.2011. The said vehicle met with an accident on 15.3.2011 and the OP was informed and the OP appointed surveyor and thereafter the complainant got the said vehicle repaired after spending total sum of Rs.7,54,825/- .The complainant lodged the claim dated 13.3.2011 with the OP  but the OP has not paid the said claim and as such there was deficiency in services on the part of the OP.

 

5.                 However, on the other hand, as per the contention of the OP, the loss was got assessed by appointing Sh.Virender Kumar, Surveyor and Loss Assessor and the surveyor assessed the loss to the tune of Rs.303306/- .As per contention of the OP the claim has rightly been repudiated vide Ex.O2 because the driving licence of Rajbir Singh driver was fake which was submitted by the complainant alongwith the claim form Ex.OP8.

6.                 Therefore, after going through the evidence and circumstances of the case it emerges that the complainant got his vehicle insured with the OP vide insurance policy Ex.C4. It has come in evidence that the said vehicle met with an accident on 15.3.2011 when the said vehicle was unloading concrete at Sushant  City, Panipat. The complainant informed the OP who appointed Surveyor Sh.M.S.Makkar who inspected the spot and submitted report Ex.OP9 and thereafter Shri Virender Kumar  submitted detailed  Survey report Ex.P10 wherein he assessed the loss to the tune of Rs.,303306/-  after deducting the salvage value and excess clause in terms of the policy.

                    However, the claim has been repudiated vide Ex.O2 because driving licence of Rajbir Singh was found fake as shown in Ex.P3. Photo copy of the driving licence issued by  LA, Mathura has been placed on the file as Ex.O5 but the same was found to be  fake in view of the report Ex.OP3 and Ex.OP4. The complainant has also placed on the file driving licence of Rajbir issued by  LA , Faridabad , the photo copy of which has been placed on the file Ex.OP7 and the same has been mentioned in claim form Ex.O8 but the  investigator submitted report Ex.O6 to the effect that  upon verification the Driving Licence of Rajbir Singh issued by LA  Faridabad  was also bogus.

 

7.                 The argument of the learned counsel for the OP that the  driving licence of Rajbir Singh issued by  DTO Zunheboto Nagaland , the copy  of which has been placed on the file Ex.C15 cannot be said to be a valid licence because earlier two driving licenses  of Rajbir Singh were found fake and as per provisions of Section 6(1) of the Motor Vehicles Act a driver was  not entitled to possess more than one licence in view of the law  laid down  by the Hon.ble Punjab and Haryana High Court in case   Bharat Kharbanda Vs. New India  Assurance Company Ltd. and others decided on 16.4.2009.

8.                 Faced with the argument, the learned counsel for the complainant has argued that possessing of more than  one driving licence  will not tantamounts to breach of condition of the insurance policy  in view of the law laid down in cases  NIC Veruss Balraj and others 2012 (1)RCR (Civil) 899 and  OIC Ltd.  Versus Ramesh Chand Sethi  PLR 2013(2) 788.

                   However, the above argument of both the parties  is of no avail in the present circumstances of the case because the complainant has placed on record only one driving licence of Rajbir Singh, the photo copy of which has been placed on the file Ex.C15 which has been issued by DTO Zunheboto Nagaland and has also placed on record RTI information Ex.D16 showing that the said licnece has been validly issued. Therefore, we are inclined to rely upon the driving licence Ex.C15 and  RTI information Ex.D16.  Therefore, validity of driving licence issued by LA, Mathura  and issued by LA, Faridabad is of no consideration before us and there is no contrary evidence that the DL  of Rajbir issued by the ITO Zunheboto Nagaland was  not  valid.

9.                 After going through the driving licence of Rajbir Singh issued by DTO Zunheboto Nagaland the photo copy of which has been placed on the file Ex.P15 it emerges that  the said licence was issued on 4.10.2008 and the same was valid upto 20.12.2015.  As per Ex.C15 and Ex.D16, the driving licence of Rajbir Singh son of Maha Singh was authorized to drive MC, LMV, HTV, HGV, HPN only and the said driving licence was valid upto 20.12.2015. Therefore, in view of Ex.C15 and Ex.D16, driver Rajbir Singh was authorized to drive the vehicle in question.

 

                   

                    Therefore, in view of our above discussion that nonpayment of the amount assessed by the surveyor tantamounts to deficiency in services on the part of the OP.

10.               The complainant has assessed the loss to the tune of Rs.7,54,824/- as shown in Ex.C5 in view of the bills Ex.C6 to Ex.C12. However, the final report of surveyor has assessed the loss to the tune of Rs.303306/- vide Ex.P10. There is nothing on the file as to how Ex.P10 is not worth relying upon. It is settled law that report of surveyor    has got high evidentiary value  until and unless there is reason to set aside the same,  and the same is liable to be made basis for assessment.  Therefore, in the instant case, the loss as assessed by the complainant is not worth relying upon   being highly exaggerated  and the damages as shown inEx.C11 and Ex.C12 are not liable to be granted, rather the report of surveyor Ex.P10 is worth relying upon. However, in the said report Ex.P10, the surveyor has deducted the depreciation to the extent of 5% of metal parts but the said depreciation of 5% is in contravention of the policy  because the depreciation of 5% is applicable when the age of vehicle exceeds six months. In the instant case, the vehicle was registered on 29.12.2011 and the same met with an accident6 o9n 15.3.2011 i.e. within six months, therefore, we hold that the claiment is entitled to Rs.303306/- plus 5% which has been deducted on account of depreciation on metal parts together interest @ 9% per annum from the date of filing of the present complaint i.e.  23.7.2012 till its actual  realization. The complainant shall also be entitled for a sum of Rs.25, 000/- for the harassment caused to him and a sum of Rs.2200/-  towards legal fee and litigation expenses. The present complaint is accepted accordingly. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated: 31.03.2015                                                                           

                                                              (Subhash Goyal)

                                                             President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                   (Smt.Shashi Sharma)

                             Member.

 

 

Argued by :    Sh. J.S.Lather Advocate for the complainant.

                    Sh.Rohit Gupta Advocate for the OP No.1.

                    OP No.2 and 3 ex parte.

 

                   Reply to the application for additional evidence not filed. However, arguments heard. The OP/applicant wants to summon the record of Licence issued by the Licensing Authority, Faridabad.  However, the learned counsel for the complainant has argued that additional evidence is of no use because the complainant has placed on the file Driving Licence Ex.C15 issued by the Licensing authority Zunheboto Nagaland and the RTI Information Ex.D16 issued by the DTO Zunheboto Nagaland. Therefore, since the complainant has relied upon the DL issued by Licensing Authority Zunheboto Nagaland and hence summoning of clerk of Licensing Authority, Faridabad is of no use and thus the application for additional evidence is hereby dismissed.

                   Final arguments heard. To come  up for orders after lunch.

Announced
dated: 31.03.2015                                                                           

                                                              (Subhash Goyal)

                                                             President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                   (Smt.Shashi Sharma)

                             Member.

 

 

After Lunch

Argued by :-   Sh. J.S.Lather Advocate for the complainant.

                    Sh.Rohit Gupta Advocate for the OP No.1.

                    OP No.2 and 3 ex parte.

 

                   Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated: 31.03.2015                                                                           

                                                              (Subhash Goyal)

                                                             President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                   (Smt.Shashi Sharma)

                             Member.