Punjab

StateCommission

FA/257/2014

New India Assurance Co. Ltd. - Complainant(s)

Versus

Dhian Singh Mand - Opp.Party(s)

Vinod Gupta

20 Jan 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

First Appeal No.257 of 2014                                                      

Date of institution  :   13.03.2014        

Date of decision     :   20.01.2015

 

New India Assurance Company Ltd., Shaheed Udham Singh Chowk, Malwal Road, Ferozepur City, through its duly Authorised Officer, SCO No.36-37, Sector 17/A, Chandigarh.

…….Appellant/Opposite Party

Versus

Dhian Singh Mand, Ex-Member of Parliament, aged 55 years son of Ajaib Singh, resident of Village Saide Ke Ruhela, Tehsil and District Ferozepur, Punjab.

……..Respondent/Complainant  

First Appeal against the order dated 9.1.2014 of the District Consumer Disputes Redressal Forum, Ferozepur.  

Quorum:- 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Mr. Jasbir Singh Gill, Member.

Present:-

          For the appellant       : Shri Vinod Gupta, Advocate.

          For the respondent   : Ex parte.

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

          This appeal has been preferred by the appellant/opposite party No.1-Insurance Company against the order dated 9.1.2014 passed by District Consumer Disputes Redressal Forum, Ferozepur (in short, “District Forum”), vide which the complaint filed by Dhian Singh Mand, respondent/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed with Rs.5,000/-, as litigation expenses and the opposite parties-Insurance Company were directed to pay the sum of Rs.4,70,519/-, as assessed by the Surveyor, on account of the damage to the insured car in the accident, along with interest at the rate of 9% per annum from the date of filing of the complaint till realization.

2.      The complainant alleged, in his complaint, that he purchased one Car make i-20 Asta, fully described in para no.2 of the complaint, for Rs.7,17,552/- and got the same insured with the opposite parties for Rs.6,81,700/- for the period 10.6.2011 to 9.6.2012.  On 16.8.2011 he along with his nephew Manbir Singh and other relatives was coming back from Village Kot Saddar to Village Kot Isse Khan and when at about 8.30 P.M. they reached near the gate of B.I.S. College, one truck bearing No.MH-04-AL-8339 came from the opposite side, which was being driven by one Hardeep Singh; as a result of which he received the injuries and the car was totally damaged (It has not been alleged in the complaint that the car was damaged or the injuries were received on account of the accident between the car and the truck).   Regarding that FIR No.51 dated 19.8.2011 was registered in Police Station-Kot Isse Khan against Hardeep Singh under Section 279, 337, 338 and 427 IPC.  He submitted all the documents before the Insurance Company and filed his claim by completing all the formalities.  The Surveyor of the Insurance Company came and inspected the spot as well as the car and gave his report.  The car was taken into possession by the Insurance Company and was sold to one Junk Dealer for Rs.1,50,000/-; out of which Rs.1,00,000/- was paid to him by saying that the remaining amount would be paid to him after the clearance of the loan, as he got the car financed from Oriental Bank of Commerce, Kot Isse Khan.  Subsequently, he came to know that the Insurance Company got prepared a cheque of Rs.4,50,000/- in his name but the same was never handed over to him.  He approached them many a times for the payment of the sum assured by the insurance policy but they kept on putting off the matter on one pretext or the other and about one week before the filing of the complaint finally refused to pay the same on the ground that the driving licence was invalid and no such assured sum was payable.  He is ex-Member of Parliament and paying the instalments to the Bank and being the ex-Member of Parliament, he used to go out of station etc. for the works of inhabitants and spent Rs.2.50 to Rs.3.00 lacs on hired vehicles from the date of accident till the filing of the complaint.  The Insurance Company is guilty of adopting unfair trade practice by not paying the sum assured and other benefits on false excuses.  He is entitled to recover the insured sum of Rs.6,81,200/-, as compensation and Rs.11,000/-, as costs for the harassment and mental agony suffered by him.  He prayed for issuance of directions accordingly.

3.      The complaint was contested by the Insurance Company, who filed joint written reply before the District Forum.  In that written reply they admitted that the complainant was the owner of the car and the same was got insured with them.  They also admitted that the complainant had submitted the documents and that the Surveyor was appointed by them.  They also admitted that the claim of the complainant was repudiated.  While denying the other allegations made in the complaint, they pleaded that the complainant, who was driving the car, was allegedly holding driving licence No.3577/F dated 20.1.2004 issued by the D.T.O., Ferozepur.  The same was got verified from the issuing authority and was found to be fake/false.  Thus, the complainant committed the breach of the terms and conditions of the insurance policy and his claim was rightly repudiated.  The Surveyor had been asking the complainant to get the car repaired, vide letters dated 16.1.2012 and 12.3.2012 but he failed to do so.  On the receipt of the information from the complainant, Charanjit Garg was appointed as a Surveyor for spot survey and thereafter R.P. Bhasin and Company, Surveyor, was deputed to assess the loss and the same was assessed on repairs basis at Rs.4,70,519/-.  It was confirmed by the Surveyor that at the time of alleged accident, the car was being driven by the complainant himself.  There was no deficiency in service on their part, as the claim of the complainant was validly repudiated.  He has developed a false story that the car was being driven by Hardeep Singh.  As per the contents of the FIR itself, the same was driven by the complainant himself.  The complainant has concealed and suppressed the material facts and has not come to the District Forum with clean hands.  Complicated questions of law and facts are involved and the lengthy procedure of production of evidence is to be adopted in deciding the same.  Therefore, the matter is required to be relegated to the Civil Court. They prayed for the dismissal of the complaint with special costs; being false, frivolous and vexatious to the knowledge of the complainant.

4.      Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.

5.      We have heard learned counsel for the appellant-Insurance Company as the complainant was proceeded against ex parte having failed to appear before this Commission in spite of his service.  We have also carefully gone through the records of the District Forum.

6.      It was submitted by the learned counsel for the Insurance Company that the ratio of the judgment of the Hon’ble Supreme Court reported in 2004(2) RCR (Civil) 114 (National Insurance Company Limited vs. Swaran Singh and others) was wrongly applied to the facts of the present case.    That was a judgment, which was rendered in a third party case and the ratio thereof is not applicable to “own damage” case. It was wrongly concluded by the District Forum, while allowing the claim of the complainant, that the accident had not occurred due to the negligence on the part of the driver of the car and that the absence of the driving licence was not the contributory cause of the accident.  The alleged licence being possessed by the complainant at the time of accident and proved by him on the record as Ex.C-3 was got verified from the issuing authority and it was reported, vide report Ex.R-3 that the same was in fact issued in the name of one Jaganathan son of M. Gopal.  Once the driving licence held by the complainant was found to be fake, the Insurance Company was justified in repudiating his claim by invoking the terms and conditions of the Policy, according to which, only a person holding a valid driving licence was competent to drive the car.  It was a case of breach of fundamental condition of the Policy and, as such, the Insurance Company was justified in repudiating the claim of the complainant.  Therefore, the findings so recorded by the District Forum in favour of the complainant are liable to be reversed and the order passed by it is liable to be set aside.

7.      No finding was recorded by the District Forum as to whether the complainant was holding a legal and effective driving licence at the time of the accident.  He himself proved on record the insurance policy Ex.C-2.  The relevant clause of the Policy reads as under:-

                   “Persons or classes of persons entitled to drive

Any person including the insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license.  Provided also that the person holding an effective Learner’s License may also drive the vehicle and that such a person satisfies the requirement of Rule 3 of the Central Motor Vehicles Rules, 1989.”

8.      The complainant did not state in his complaint as to who was driving the car at the time of alleged accident.  He only disclosed his name and the names of the other persons, who were travelling in the car at that time.  The FIR, which was got recorded regarding this accident, was proved by him as Ex.C-5.   The same was registered on the basis of the statement of one Manbir Singh and he stated therein that the car was being driven by the complainant, who is his paternal uncle.  It becomes very much clear from the letter dated 18.6.2012 that the complainant furnished the particulars of his driving licence to the Insurance Company.  He had disclosed the driving licence No.3577/F and the date of issue thereof as 20.1.2004.   Sanjeev Narula, who was appointed as the Surveyor by the Insurance Company, got that licence verified from the issuing authority; namely, DTO, Ferozepur.  The report of the DTO, Ferozepur was proved on the record as Ex.R-3, made on the said letter dated 18.6.2012, and as per that report, this licence had been issued in the name of Jaganathan son of M. Gopal.  No evidence was produced by the complainant for proving that this licence had been issued in his name by the Licensing Authority.  In support of the allegations made in the complaint, he proved on record his affidavit Ex.C-1 but did not depose therein that at the time of accident he was holding a valid and effective driving licence.  From the evidence produced by the Insurance Company, it stands proved that the driving licence held by him was fake.

9.      While recording a finding in favour of the complainant, the District Forum relied upon the ratio of Swaran Singh’s case (supra).  It appears that the District Forum never cared to go through the details of that judgment.  That was a judgment rendered in third party case and it has no application to “own damage” case.  It was also wrongly concluded by the District Forum that the accident occurred due to the negligence on the part of the driver of the truck and there was no negligence on the part of the driver of the insured car.  We are unable to find any evidence on the record, on the basis of which such a finding could have been recorded.  As already observed, while narrating the facts of the complaint the complainant never alleged that the car had met with an accident with the truck nor it was alleged that the accident took place on account of the negligence of Hardeep Singh, who was allegedly driving the truck at the time of accident.  No doubt, the said fact was narrated in the FIR Ex.C-5, but the affidavit of the author of that FIR was never proved on the record.  The best for the complainant was to depose about all those facts in his affidavit but he never deposed about those facts and it has even not been deposed therein that there was collision between the car and the truck.

10.    The above reproduced condition of the insurance policy made it mandatory for the driver of the car to possess a valid and effective driving licence.  The driver of the insured car was not having any such licence and the alleged licence possessed by him was found to be fake.  In these circumstances, the Insurance Company was justified in repudiating the claim of the complainant on account of the breach of that fundamental condition of the Policy.  The District Forum committed an illegality by recording a finding to the contrary and such a finding cannot be sustained.

11.    In the result, the appeal is allowed.  The order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed.

12.              The appellant/Opposite Party No.1 deposited the sum of Rs.25,000/- at the time of filing of the appeal on 13.3.2014.  It deposited another sum of Rs.2,49,594/- on 7.4.2014 in compliance of the order dated 20.3.2014.  Both these sums along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant/opposite party No.1 by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to the parties.

13.    The arguments in this case were heard on 16.01.2015 and the order was reserved.  Now, the order be communicated to the parties.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                          (JUSTICE GURDEV SINGH)

                                                                          PRESIDENT

                                             

                                                                                                                                                                                     (JASBIR SINGH GILL)

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