Haryana

Karnal

415/2013

Dinesh S/o Jaipal - Complainant(s)

Versus

Chollamandlam Ms General Insurance Company Ltd - Opp.Party(s)

Sh. S.S. Rana

10 Feb 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.     

                                                                Complaint No.415 of 2013

                                                                Date of instt.: 26.09.2013

                                                                Date of decision:10  .02.2016

 

Dinesh son of Jaipal resident of village Manana tehsil Samalkha district Panipat.

                                                                  ……..Complainant.

 

                             Versus

1.Branch Manager, M/s Cholamandalam MS General Insurance Company Ltd.SCO No.206, IInd Floor, Sector 12, Karnal.

 

2.Regional Manager, M/s Cholamandalam MS General Insurance Co.Ltd.SCO No.2463-2464, IInd floor Sector 22-C, Chandigarh 160022.

 

                                                                           ……… Opposite Parties.

                     Complaint u/s 12  of the Consumer

                     Protection Act.

Before          Sh.K.C.Sharma……….President.             

                   Sh.Anil Sharma…….Member.

Present:-      Sh.Kavinder Tyagi Advocate for the complainant.

                   Sh. Vineet Rathore, Advocate for the Opposite Parties.

ORDER:                     

.  

                   This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986, on the averments that he got insured his  tractor bearing registration No.HR-60-7516 from the Opposite Parties, vide  cover note No.8499753, which valid from 14.7.2011 to 13.7.2012.  On 13.5.2012, the said tractor met with an accident while being driven by him and in the said accident, he suffered multiple and grievous injuries on vital parts of his body. He had paid  premium of personal accident of owner cum driver alongwith total premium of comprehensive insurance of the tractor. Intimation was given to the Opposite Parties and all the required documents and bills were submitted. He had spent an amount of Rs.five lacs on treatment and  an amount of Rs.three lacs on transportation , special diet and attendants etc. His representative met the officials of the Opposite Parties, but the matter regarding payment of claim was lingered on one pretext or the other. Ultimately, he sent registered legal notice on 1.8.2012, which was replied by the Opposite Parties on 26.8.2012. In the reply, it was intimated that claim was repudiated due to  the reason that driver was not holding  valid and  effective driving licence. In fact , he was having the driving licence, which was valid from 25.2.2005 to 20.2.2020, The repudiation of the  genuine claim of the complainant illegally, amounted to deficiency in services on the part of the Opposite Parties,  due to which he suffered mental pain and agony apart from financial loss.

 

2.                Notice of the complaint was given to the Opposite Parties, who filed their written statement disputing the claim of the complainant. Objections have been raised that the complaint is not maintainable; that the complaint is false and frivolous; that the complainant has not approached this Forum with clean hands; that the complaint is bad for mis joinder and non joinder of the parties.     

                   On merits, it  has not been disputed that tractor of the complainant was insured with the Opposite Parties and the same had met with an accident on 23.5.2012 and in the said accident, complainant suffered injuries. I t has been submitted that the  alleged accident occurred on 23.5.2012 and the intimation to the company was given on 31.5.2012. As per condition of the insurance policy, the intimation was required to be given about the accident  without any delay. Thus, the complainant violated the mandatory condition of the insurance by giving belated information to the insurance company. It has further been alleged that driver of the vehicle namely Dinesh Kumar was not  having valid and effective driving licence as per Motor Vehicle Rules and terms and conditions of the policy. He was authorized to drive Motor Cycle,  LMV/NT as per driving licence, which was clear cut violation of the policy and as such his claim was rejected by the Opposite Parties, vide letter dated 26.8.2012. The other allegations made in the complaint have been specifically denied.

 

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C19 have been tendered.

 

4.                On the other hand, in evidence of the Opposite Parties affidavit of Sh.Jitender Dhabai, Assistant Manager, Legal, Ex.OP1/A and documents Ex.OP1/B to Ex.OP1/J have been tendered.

 

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.                There is no dispute that the tractor of the complainant bearing registration No. HR60-7516 was insured with the Opposite Parties for the period of 14.7.2011 to 13.7.2012 and that the complainant had paid premium for personal accident of owner cum driver alongwith premium of comprehensive insurance policy. As per the case of the complainant, the tractor met with an accident on 23.5.2012 and in the said accident, he sustained injuries. Daily Diary Report regarding the said accident was registered, the copy of which is Ex.C4.The claim of the complainant was repudiated by the Opposite Parties on the ground that he was not holding an effective and valid driving licence at the time of accident, which was a breach of  driver’s clause contained in the policy apart from violation of Motor Vehicles Act.  The copy of the letter of repudiation of the claim is Ex.OP1/G.

 

7.                 The learned counsel for the Opposite Parties put a great thrust upon the contention that the complainant who was driving the tractor at the time of accident, was having driving licence to drive Motor cycle, Light Motor Vehicles/Non Transport. Thus, he was not   having valid and effective  driving licence to drive tractor on the date of accident and as such violated the terms of the policy. It has further been contended that as per the copy of the Daily Diary Report Ex.C4, the complainant disclosed before the police that he had gone to Gharaunda Mandi after loading onion from his house and while he was returning from there after selling the onion, accident had taken place. Thus, it is quite clear that at the time of accident trailer was also attached with the tractor which was used for commercial purpose whereas the complainant was not having any licence to drive tractor propelled  with trailer  used for commercial purpose and in this way condition of the policy regarding driving of the vehicle  by duly licensed driver was violated, therefore, the claim of the complainant was rightly repudiated by the insurance company.  In support of his contention he placed reliance on New India Assurance Company Ltd. Versus Katika Girdhar Rao and another 2014(3) Andh. LD 706,   Iffco Tokio General insurance co. Ltd.Vs.Sunita Mishra and others 2015 ACJ: 1900, Anubhav Kumar Agarwal Vs. The New IndiaAssurance Co.Ltd.and others 2009 (1) U.D.161,  K.A.M.Ashraf Vs. National Insurance co.Ltd. 1993 (2) CPJ 1179,  United India Insurance Co.Ltd. Versus K.Subramaniam and others 1991 ACJ 625 and The New India AssuranceCo.Ltd. Versus Mazo and others 2015 AAC 2303.

 

8.                 To wriggle out of the aforesaid contention, the learned counsel for the complainant  vehemently argued that as per  definition of the light motor vehicles u/s 2(21) of the Motor Vehicles Act 1988, the vehicle having unladen weight of 7500  Kgs. is a light motor vehicle.  The  unladen weight of the tractor was 1690  Kgs. as evident from the copy of registration certificate Ex.C3, therefore, the same falls in the category of Light Motor Vehicle. The complainant was having driving licence to drive Light Motor Vehicle , therefore, it cannot be said that he was  not having  valid and effective driving licence at the time of accident. In support of his contention he relied  upon  P.P.Prabhakaran Vs.James and others 2008 AIR(Kerala) 229, New India Assurance Company Limited Vs. Kirpa Nand Negi 2015 AAC 1688 and New India AssuranceCo.Ltd.Vs.Smt.SavitriDevi and others 2013(i) AICJ 688. It  has further been argued that there is no evidence on record to prove  trailer was attached with the tractor at the time of accident. Even if, it is accepted that trailer  was attached with the tractor, then also, the same was used  for transporting agricultural produce of the complainant, therefore, it cannot be said that the tractor was being used for commercial purpose.

 

9.                There is no dispute regarding propositions of law laid down in the aforecited authorities cited on behalf of the Opposite  Parties but the same do not render any help to the Opposite Parties, because the same were based upon the facts peculiar to those cases whereas the facts of the present case are  “obviously” on different footings.  Katika Girdhar Rao’s  case (Supra), the driver of the tractor was not having valid driving licence to drive tractor  propelled with trailer and thereby committed breach of the terms of the policy. However, Learned Motor  Accidents  Claims Tribunal directed the insurance company to pay the amount and recover the same from owner. The Insurance company challenged the  said order before the Hon’ble Andhra Pradesh High Court. The appeal was allowed in part while confirming  the quantum of compensation awarded by the Tribunal with the directions to pay and recover the same from insured (owner) and driver  by execution in the same proceedings  without need  of fresh claim. Rate of interest was also modified from 9% to 7.5%. In Sunita Mishra’s case (Supra) the offending vehicle was  tractor, which   was with a water tanker as trailer, which was not  being used for  agricultural purposes. It was held by the Hon’ble Delhi High Court that tractor was being used as a transport vehicle and the driver required an endorsement on his license to drive a transport vehicle. Insurance company was directed to pay the awarded amount to the claiment  with liberty to initiate separate appropriate proceedings to seek recovery of the awarded amount from owner and driver of the offending vehicle.In Anubhav Kumar Agarwal’s case (Supra) the offending tractor   was registered for commercial purpose.  Trailer  attached with the tractor was filled with sand at the time of accident and the same was being used for commercial purposes. The driver was having license to drive motor cycle as well as light motor vehicle. Under those circumstances, it was held by the Hon’ble Uttrakhand High court  that driver of the offending  tractor trailer did not possess a driving licence to drive commercial  vehicle, therefore, it can safely be inferred that he was not having valid driving licence.          In K.A.M.Ashraf’s case (Supra),  van canter Mitsubishi  met with an accident. The driver was not having valid license to drive  transport vehicle. Under those circumstances, it was held by the Hon’ble Tamil Nadu State Consumer Disputes Redressal Commission, Madras that     even though the driver was having a licence to drive Light Motor Vehicles but he was not authorized to drive transport vehicle like  Van Canter  Mitsubhishi as there was no endorsement authorizing him to drive  transport vehicle at the time of accident  as required u/s 3 of the Motor Vehicles Act. In  K.Subramaniam and other’s casea (Supra)     offending vehicle was a three wheeler  goods vehicle and the same was being driven by driver who was holding license to drive Light Motor Vehicles. The licence was endorsed  after the date of accident authorizing him to drive transport vehicle as paid employee. It was held by the  Hon’ble   Madras High court that it cannot be said that  the driver had a valid  driving licence on the date of accident to drive the tempo. Insurance company cannot be held liable.  In Mazo and other’s case (Supra)  a trailer was  attached  with the tractor at the time of accident.  The story showed that the trailer was being used for commercial purposes and not for agricultural purpose.  Admittedly,  the trailer did not have a registration number, much less any insurance cover.  Under those circumstances, Hon’ble Uttarakhand High court  held that liability cannot be fastened upon the insurance company, rather owner of the vehicle was liable to pay compensation.

 

10.               In the instant case, the complainant was having valid driving license for scooter, M/car and LMV. The light motor vehicle has been defined u/s 2(21) of the Motor  Vehicles Act, according to which Light Motor Vehicle means  transport vehicle or   or Omni bus gross vehicle weight  of either of which or  a motor car or tractor or road roller does not exceed 7500 Kgs. From  copy of the registration certificate of the tractor Ex.C3 it is established that unladen weight of the same was 1690 Kgs.  Thus, the tractor being driven by the complainant at the time of accident falls within the definition of Light Motor Vehicle, therefore, it cannot be said that the complainant was not having a valid and effective driving licence to drive tractor at the time of accident. Such view stands fortified from the proposition of law laid down by the Division  Bench of Hon’ble Kerla High court, in  P.P.Prabhakaran’s case (Supra)  and also by the Judgment of Hon’ble Himachal Pradesh High court  in Kirpa Nand Negi’s case (Supra).  In both the authorities it was held that tractor with unladen weight  less than 7500 Kgs is covered under the definition of Light Motor Vehicle and the  license to drive Light Motor Vehicles is a valid  license to drive the tractor.

 

11.               Now the question arises whether a trailer was attached with the tractor at the time of accident and if so, whether the trailer was used for commercial purpose.

 

                   A perusal of the copy of the Daily Diary Report shows that complainant no where stated that trailer was attached with the tractor at the time of accident. He only stated that he had gone to Gharaunda Mandi after loading onion from his house and the accident took place while he was returning to his house after selling the onion crop. The Onion could be loaded on the tractor itself, because a trailer was required to be attached with the tractor when it was  not possible to transport the onion on the tractor  itself. Even if for the sake of arguments, it is accepted that  trailer was attached with the tractor and the same was used for transporting onion to the Mandi, then also it cannot be said by any stretch of imagination that tractor attached with the trailer was used for commercial purpose. The onion was unloaded at the Mandi and the same was sold and accident had taken place while complainant was returning to his house. Therefore, at the time of accident,  there could not be any material/ goods in the trailer/trolley attached with the tractor.   Moreover, the complainant specifically stated that he had loaded onion from his house for transporting the same to Gharaunda Mandi. There is not  even an  iota of evidence on record, which may show that complainant was doing the business of selling vegetables and was using the tractor with trailer for transporting vegetables for his business purposes. Transporting agricultural produce by an agriculturist in a trailer attached with the tractor does not mean that tractor is being used for commercial purposes. Trolley/trailer is an agricultural equipment, therefore, the driver holding a driving license to drive tractor  can also drive the tractor with trailer.  In this regard sustenance may be sought from the judgment of Hon’ble Punjab and Haryana High court in case  Bajaj Allianz General Insurance Company Ltd. Versus Tarun Kaura and others FAO 2887/2008 decided  on 2.3.3.22010. In view of  such facts and circumstances , argument advanced by the learned counsel for the Opposite Parties cannot be accepted.

 

12.                       The complainant lodged claiam for injuries sustained by him in the accident in question, on the ground that he had paid premium for personal accident of owner cum driver alongwith total premium of comprehensive insurance of the tractor.  As per copy of the policy Ex./OP1/B, the complainant had paid premium for personal accident cover also. For owner-driver the personal accident cover is upto Rs. Two lacs. The complainant has produced discharge summary Ex.C7, according to which he sustained injuries, the details of which have been given in the said summary.  His right leg had been amputated and as per copy of the disability certificate Ex.C6, he has suffered permanent disability to the extent of 85%. He has produced the copy of medical bills Ex.C8 to Ex.C14 and Ex.C16 to Ex.C19 for total amount of Rs.5,23,345.00. Under such circumstances, the complainant is entitled to get the entire sum  insured of Rs.Two lacs under personal accident claim from the Opposite Parties. Therefore, repudiation of the claim of the complainant by the Opposite Parties  amounted to deficiency in services.

 

13.               As a sequel to the foregoing discussion, we accept the present complaint and direct the Opposite parties to make the payment of Rs.two lac to the complainant alongwith interest @ 9% per annum from the date of filing of the present complaint i.e. 26.09.2015 till its actual realization. The complainant shall also be entitled for a sum of Rs.20,000/-  as compensation for the mental pain and  harassment caused to him and a sum of Rs.5500/- for the litigation expenses. The Opposite Parties shall make the compliance of this order within a period of thirty days from the date of receipt of the 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:10.02.2016

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

 

 

 

 

 

 

Present:-      Sh.Kavinder Tyagi Advocate for the complainant.

                   Sh. Vineet Rathore, Advocate for the Opposite Parties.

 

                   Remaining arguments heard. 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:10.02.2016

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.