Punjab

Rupnagar

CC/19/118

khushal singh - Complainant(s)

Versus

Daimler India commercial vehicle pvt lt - Opp.Party(s)

Hemant Chaudhary

19 Feb 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ROPAR

                                                Consumer Complaint No.118 of 2019

                                                Date of institution: 16.10.2019

                                                Date of Decision: 19.02.2021

 

Khushal Singh son of Manjeet Singh, resident of Village Gaddiwal, PO Thana, District Rupnagar.

…….Complainant

Versus

 

1. Daimler India Commercial Vehicle Private Limited, Sipcot Industrial Estate, Mattur, PO Orgadam Village Sriperambudur Taluk, Kancheepuram, Tamil Nadu, Pin Code 602105
2. Globe CV Private Limited, Village Mehandipur, Tehsil Khanna District Ludhiana having its local office at SCF No.24, Anaj Mandi, Ropar Pin 140001
3. National Insurance Company Limited, having its office at Nangal Chowk, Rupnagar.   

                                                      ……..Opposite Parties

 

Complaint under Consumer Protection Act.

 

Quorum:   Shri Sanjiv Dutt Sharma, President.

                        Capt. Yuvinder Singh Matta, Member

 

Present:     Sh. Hemant Chaudhary, Adv. counsel for complainant

Name of the O.Ps. No.1 & 2 are deleted vide order dated 04.12.2020  

Sh. Amit Gupta, Adv. counsel for O.P. No.3

               
 

Order dictated by :-  Shri Sanjiv Dutt Sharma, President and

Capt. Yuvinder Singh Matta, Member

 

Order

The present order of ours will dispose of the above complaint filed under Consumer Protection Act, by the complainant (hereinafter referred as ‘CC’ for short) against the Opposite Parties (hereinafter referred as ‘OPs for short) on the ground that OP1 is the manufacturer of the vehicle and OP2 is the authorized dealer. It is averred that the CC went to OP2 at Ropar for the purchase of the truck and accordingly purchased the same known as Bharat Benz 4023t bearing Engine No.400950D0034551 Chassis No. MEC2621CHGP034612 from OP2. He was asked by the OP2 to get the same insured with the OP3 since the insurance policy of the OP3 was cashless and CC will not face any problem as and when the truck requires any repair etc. Accordingly, the CC subscribed the policy of the OP3 bearing No.404001/31/16/6300001616, which was valid from 12.1.2017 to 11.01.2018 by paying an amount to the tune of Rs.67,818/- as premium. CC also got the vehicle financed from HDB Financial Service Limited, on monthly installments of Rs.73,400/- per month. Accordingly, CC got registration No. PB-12-Y-4243. Insurance policy was again renewed by the CC on previous terms and conditions. Accordingly, the OP3 issued policy bearing No.404001311710000717 which was valid from 12.01.2018 to 11.1.2019 and payment of Rs.72,435/- as premium. CC also employed a driver namely Sh. Hardeep Singh son of Hardial Singh, resident of Gaddiwal of Rupnagar, who was having a valid Driving License bearing No.PB-1220140110244 issued by the Licensing Authority, SAS Nagar. Even, CC checked the competency of the driver before employing him.

2.     It is averred that on 24.6.2018, the vehicle of the CC met with accident and front portion of the vehicle was badly damaged. Regarding this, he immediately informed the OPs as well as the Police and spot surveyor was conducted by the OPs through their various local branches. At the time of alleged accident, the vehicle was being driven by Sh. Hardeep Singh, the driver of the CC. On allurement from the OPs No.1 & 2, the CC took his vehicle for repair with the OPs No.1 & 2 and CC had to pay towing charges of Rs.1,00,000/- to the OPs No.1 & 2 on 4.7.2018 and was assured that he will not have to pay anything for the repairs etc. The vehicle was repaired in the workshop of the OP No.2 by 10.8.2018. The copy of the bill is dated 13.8.2018 was provided by the OP No.2 and the CC was assured that the vehicle will be released within one week as the insurance policy is cashless and he will not pay anything to the OPs. It is alleged that the O.Ps. No.1 & 2 did not hand over the vehicle to the CC and were demanding some illegal gratification and were compelling the CC to pay the bills in order to get the vehicle released from there possession. But the CC time and again averred that the insurance policy was cashless and he was not supposed to pay anything. Since, the vehicle in question was the only source of income of the CC and he was already paying a monthly installment of Rs.73,400/- but his request fell on deaf ears. A legal notice dated 15.9.2018 was also sent to the OPs to hand over the vehicle to the CC but in a reply dated 25.9.2018, was also received by the CC. The CC under compelling circumstances had to pay Rs.8,49,173/- to the OP No.2 in order to get his vehicle released as full and final payment and then to start his work again. It is alleged that during the pendency of the case on 12.2.2019, the OP3 repudiated the claim of the CC on the ground that the Driving License was not genuine. It is alleged that the OP3 has malafidly and arbitrarily has repudiated the claim of the CC. Thus, alleging deficiency in service on the part of the OPs, the CC has sought the following relief:-

1.                        That OPs be directed to pay Rs.8,49,173/- the repair charges Rs.1,00,000/- per month w.e.f. 13.8.2018 to 24.1.2019 and Rs.10,000/- as cost of litigation along with interest. Further, he has sought Rs.1,00,000/- as compensation for mental and physical harassment. The complaint of the CC is signed and also verified. 

3.     In reply, the OP No.1 has raised a number of preliminary objections on the ground of maintainability of the complaint and on the point of cause of action etc. On merits, the allegations of the CC are parawise denied by the OP No.1. Thus, by simply denying the allegations of the CC, the OP No.1 has prayed for the dismissal of the complaint against OP No.1.

4.     In reply, the OP No.2 has also raised a number of preliminary objections on the ground of jurisdiction and maintainability etc. It is averred that earlier the CC filed a complaint bearing No.132/2018 titled as Khushal Singh Vs Daimler India Commercial Vehicle Limited and the same was withdrawn on 15.3.2019 without seeking any liberty to file fresh complaint. As such, the OP No.2 has challenged the genuineness of the present complaint on the ground of maintainability. It is further averred that the CC was himself in touch with the OP3 regarding the completion of documentation, formalities and processing of his claim etc. and was asked to take the delivery of the vehicle in question after making the payment towards the OP2. Since, the OP3 was raising the objections on the veracity of the license of the driver and they were not getting the money from the insurance, as such, claiming the amount from the CC directly was the only alternative left with them. Thus, alleging the allegations of the CC against OP2 are false and frivolous, OP NO.2 also prayed for dismissal of the complaint.

5.     The OP No.3 has also raised a number of objections in the reply but has admitted the subscription of the policy bearing No.404001311710000717 of the truck bearing No.PB-12-Y-4243 which was valid from 12.01.2018 to 11.01.2019. It is admitted that the truck met with accident on 24.6.2018 in Satna (MP)., accordingly, the OP3 deputed IRDA approved surveyor Sh. Arun.K.Jagiasi for spot survey, who submitted his report that at the time of accident, the vehicle driven by Hardeep Singh having Driving License No.PB1220140110244 issued by Licensing Authority, Mohali, was valid upto 23.11.2020. Thereafter, one Ravinder Kumar was appointed as surveyor for final survey, who submitted his report and observed that at the time of accident, the vehicle was loaded with Mineral Bauxite Grade Cement 36 M ton against the permitted carrying capacity as per Registration Certificate and Route Permit of 28,000/- Kg, which means that the vehicle was driven in gross violation of Section 113(3) of Motor Vehicle Act, 1988. It was further alleged that the Driving License issued by the Licensing Authority, Mohali, pertains to the renewal only and as per the verification report dated 18.7.2018, the original license was issued bearing No.52609/SPT, which was sent to Manipur Office, for verification and it was found that the same was not issued by that licensing authority. It is specifically alleged that the driver got the fake license renewed, as such, the claim was repudiated on this ground. Lastly prayed for dismissal of the complaint.

6.     The learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A along with documents Ex.C1 to Ex.C22. On the other hand, the learned counsel for the OP. No.1 has tendered affidavit of Sh. Jagadheesh Kumar Ex.OP1/A along with documents Ex.OP1/B & Ex.OP1/C. The learned counsel for the OP No.3 has tendered affidavits of Sh. Sanjeev Khurana, Deputy Manager, National Insurance Company Ex.OP3/1 and Sh. Ravinder Kumar Goyal, Surevyoer and Loss Assessor Ex.OP3/2 along with documents Ex.OP3/3 to Ex.OP3/11

7.     We have heard the learned counsel for the parties and have gone through the record file with written submission filed by the learned counsel for the OP No.3, carefully and minutely.

8.     The main point of controversy before us is whether the OP No.3 is justified in rejecting the claim of the CC. It is important to mention here that as per the version of OP3, the vehicle was loaded with Mineral Bauxite-Grade Cement 36 M Ton, against the permitted carrying capacity as per the Registration Certificate and Route Permit, which allowed only 28,000/- Kg., it means that the vehicle was driven in gross violation of Motor Vehicle Act, 1988.  

9.    Another point is raised by the OP3 is that the Driving License of the driver, who was driving the vehicle on that relevant time was renewed by the Licensing Authority, Mohali, but the original license was of Licensing Authority, Manipur office bearing No.52609/SPT. It is specifically the case of the OP3 that for the purpose of verification from the Licensing and Registering Authority, DTO Senapati, Manipur, where it was sent for verification and received the report that this license had no concern with this office, which shows that the license was fake. It is further argued by the learned counsel for the Insurance Company that the fake license will remain a fake license and renewal of the same will not allow the driver to change its nature by getting it renewed from any other office. As such, it is a clear violation of driver clause terms and conditions of the policy. The learned Advocate has brought our attention on the judgment of the Hon’ble Supreme Court of India, titled as National Insurance Company Limited Vs Laxmi Narain Dhut, decided on 02.03.2007, where it is mentioned that Motor Vehicle Act, 1988 (Central Act 59 of 1988)- Section 147 and 149. The principles laid down in Swaran Singh’s case (2004) 3 S.C.C. 297, held not applicable in an own damage claim not involving any third party. In an own damage claim, once the insurer discharges the initial burden to prove that the license was originally a fake one, the natural consequences will follow. It is also held that the it is also to be noted that the terms of the policy have to be construed as they are and there is no scope for adding or subtracting something. However, liberally the policy may be construed, such liberalism cannot be extended to permit substitution of words, which are not intended. The decision in Swaran Singh’s case has no application to own damage ceases. Once the license is a fake one the renewal cannot take away the effect of fake license. As noted above, the conceptual difference between third party right and own damage cases has to be kept in view. Initially, the burden is on the insurer to prove that the license was a fake one. Once it is established the natural consequences have to follow. In view of the above analysis, it held that where originally the license was a fake one, renewal cannot cure the inherent fatality.

10. He has brought our attention on another judgment of the Hon’ble Supreme Court of India, case titled as United India Insurance Company Limited Vs Davinder Singh, decided on 12.10.2007, wherein it is held that Renewal of fake license cannot cure the inherent fatality. Liability to indemnify, in case driver has fake license, insurance company will not be liable to indemnify the owner of the vehicle for the loss sustained by him.

11.  We feel, that the claim filed by the injured himself as far as the claim filed by the injured himself is concern the same would not be payable where the driver of the vehicle was not holding a valid Driving License at the time of meeting with an accident. Since, the driver did not have a valid Driving License authorizing him to drive on roads at the time of when the accident took place. We feel, that the insured is not entitled to any reimbursement from the insurer. We are also equiped with another judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, case titled as Amandeep Sharma and ors Vs Oriental Insurance Company Limited, decided on 17.01.2012, wherein it is held that since initial license was fake/forged one then mere fact that the same has been renewed by some other authority would not validate the initial fake/forged license.      

12. However, the learned counsel for the complainant has argued that no official of office of the concerned licensing authority along with record produced to prove report as such, the report or the version relying on such report is not admissible, despite the fact that insurance company is claiming that the license was fake. It is important to mention here that the complainant has not rebutted this contention of the OP3 by filing rejoinder. Neither the complainant had moved any application for calling of the record. It is pertinent to mention here that the licensing authority, Manipur, has categorically mentioned that no such license was issued by their department. Under this situation, we feel that there is no requirement from the side of the OP3 when no such record was available there.

13.  The learned counsel for the complainant has cited the judgment of the Hon’ble Supreme Court of India, titled as Nirmala Kothari Vs. United India Insurance Company Limited, decided on 04.03.2020. We feel, that the facts of the present case are different from the facts mentioned in the judgment cited by the learned counsel for the complainant. It is important to mention here that besides having a fake license by the driver of the CC, it was also a case where he overloaded the vehicle. He was only permitted to load 28,000/- Kg. Probably due to that reason met with an accident.

14.  We feel, that it is definitely a willful breach of the conditions of the policy established against the CC. We also feel, that the driver of the CC has committed two different offences one is that he got renewed a fake license rather he had no license to drive secondly he overloaded the vehicle. There is nothing any rebuttal against these two allegations from the side of the CC. It is also on the file that at the time of accident, the vehicle was very heavily loaded. Insured vehicle as per invoice No.51 dated 22.6.2018 of Maheshwari Lime Works and Electronic Transit Part No.1801323687 dated 22.6.2018, issued by the Mineral Resources Department, Government of Madhya Pradesh that at the time of accident the vehicle was loaded with Mineral Bauxite Grade Cement 36 M Ton against the permitted carrying capacity as per the Registration Certificate and Route Permit of 28000 Kg, which means that the vehicle was definitely driven in gross violation of Section 113(3) of Motor Vehicle Act, 1988.

15.  In view of our above discussions, we do not find any merit in the present complaint and the same is dismissed. The parties shall bear their own cost. Free certified copies of this order be sent to the parties, as per rules. The files be consigned to record room.

•  

February 19, 2021

(Sanjiv Dutt Sharma)

•  

                                               

 

(Capt. Y.S. Matta)

•