Haryana

Ambala

CC/98/2020

Ramesh Chand - Complainant(s)

Versus

DM NIA - Opp.Party(s)

D.S.Punia

17 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	98  of 2020
Date of Institution	:	20.04.2020
Date of decision	:	17.10.2023

 

Ramesh Chand S/o Sh. Des Raj, aged about 57 years R/o 3474-B, Manmohan Nagar Owner of Truck no.HR695844, Ambala City.

……. Complainant

                                                                                          Vs. 

Divisional Manager, The New India Assurance 172-C, Luxmi Niwas, opp. Northern Motor, Rai Market, Ambala Cantt. Teshil and Distt. Ambala

….…. Opposite Party

Before:       Smt. Neena Sandhu, President.

                    Smt. Ruby Sharma, Member,

        Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri D.S. Punia, Advocate, counsel for the complainant.                                                                                                                                    Shri Mohinder Bindal, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

i) To pay the claim amount of Rs.2,74,500/- alongwith interest @ 9% per year from the date of accident till realization

(ii) To pay Rs.2,00,000/- as damages to the complainant, for causing harassment, agony and mental torture, financial loss

(iii) To pay Rs.22,000/- as litigation expenses

                                      OR

Grant any other directions which this Hon’ble Commission may deems fit.

2.           Brief facts of the case are that on 27/08/2015 at 11.30 p.m. near Gulmohar City, Jind Road, bypass Kaithal, an accident took place between two trucks in which truck no. HR 69-5844 MADE Tata motors driven by Vishal, owned by the Complainant and insured with the OP was totally damaged. Surveyor namely Mr. Girish Sharma was deputed by the OP, who issued a report of cause nature and extent of loss and damages arose out of accident. He assessed loss to be Rs.9,85,960/-, out of which the OP  had agreed to pay Rs.5,49,000/- as per policy terms and conditions. Consent to this effect was also obtained from the complainant by the OP on the ground that the said amount will be paid to him through cheque in due course. However, subsequently the complainant was surprised to receive a letter from the OP repudiating his claim on the ground that "at the time of accident driver was not holding a valid driving license." In the said accident cleaner of truck no HR69-5844 suffered injuries and he filed a claim petition in respect of the injuries suffered by him vide MACP no. 60 of 2017 under the case titled as Ram Dhan Vs. Ram Kumar and others wherein the driver, owners and insurance companies of both the trucks were impleaded as parties. On getting notice of the said case the complainant also filed a separate claim petition (MACP no. 57 of 2017) in respect of loss suffered by him due to damage of his truck. Both the aforesaid petitioners were tried and heard together though the same were decided separately but in both the cases the learned court held that it was a case of head on collusion, consequently it is a case of contributory / composite negligence on part of both the drivers. The learned court further held that driver of truck no HR695844 namely VISHAL SHARMA S/O BALDEV RAJ R/o HOUSE NO. 2329 B-12 SHIV COLONY AMBALA CITY was holding a valid driving license (141922BPR dated 11/07/2013 valid upto 07/04/2018 issued by DTO MANIPUR). On such finding the learned court allowed the claim petition of complainant holding it to be case of contributory/composite negligence of drivers of both the trucks and further held that the loss suffered by the Complainant on account of damage to his truck No.HR69-5844 to be compensated by the owner/insurer of other truck No.RJ18GA-6641 to the extent of 50% i.e. ½ share of agreed loss of Rs.5,49,000/- and the complainant was held entitled to file a claim as alternative remedy before civil court of competent jurisdiction or competent consumer dispute redressal forum for his remaining 50% claim against the insurance company of his truck as observed in para no.23 of the MACP No.57 of 2017 titled as Ramesh Chand vs Manoj Kumar decided on 04/12/2019. As per the aforesaid finding / observation in the aforesaid judgment / order dated 04/12/2019, the OP is liable to pay the balance 50% (i.e. Rs.2,74,500 with interest @ 9% PA) from the date of accident onwards till actual payment, yet, the OP repudiated the claim of the complainant illegally. Thereafter, the complainant got issued a legal notice dated 06-01-2020 calling upon the OP to pay the aforesaid amount Rs.2,74,500/- with interest @ 9% per year from the date of accident till actual payment but to no avail.  Hence this complaint.
3.           Upon notice, the OP appeared and filed written version and raised preliminary objections to the effect that the present complaint is time barred as cause of action had accrued to the complainant on 07.04.2016 when his claim was repudiated but he has filed this complaint in the year 2020; the complainant has not approached this Commission with clean hands etc. On merits, while admitting the factual matrix of the case with regard to insurance of the vehicle in question; accident of the insured vehicle and repudiation of claim aforesaid, it has been stated that   the claim was intimated by the complainant to the OP and while intimating the claim, the complainant himself submitted all the required claim papers with regard to the accident in question including the driving license of the driver namely Vishal vide D.L. number 2565/MKG/PROF/2012 issued by RTO MOOKOKCHUNG NAGALAND. Thereafter, the OP deputed the surveyor namely Girish Sharma to assess the loss of the vehicle in question and further deputed Sh. R.P. Kakkar, Investigator to get the verification of the above said driving license through RTI, with RTO MOOKOKCHUNG NAGALAND. Accordingly the said investigator moved an application dated 23.02.2016 with the said RTO asking the verification of the said licence. The said application was replied by the said RTO on 09.03.2016 and stated that DL No 2565/MKG/PROF/2012 was not issued by the said RTO office.  Section 3(1) of the Motor Vehicles Act, 1988 inter alia stipulates that no person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive the vehicle. Section 5 declares that no owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Section 3 of the Act, to drive the vehicle. The contract of insurance' is a contract of 'uberrima fides' and there must be complete good faith on the part of the assured. The assured thus is under a solemn obligation to make full disclosure of material fact. In the present case, the driver of the complainant i.e. Vishal Kumar was resident of Ambala, Haryana and obtained Driving License from RTO NAGALAND/Manipur. He is required to apply and obtain authorization for driving license only from DTO, Ambala within whose jurisdiction, he resides. The driving license from Manipur in the name of Vishal relied upon by the complainant, has no legal sanctity in view of provisions as laid down in Section 6, 8 and 11 of The Motor Vehicles Act, 1988. As per the settled law a person cannot have two different driving license at same time and hence the subsequent driving license i.e. DL No. 141922BPR dated 11.07.2013 issued by DTO MANIPUR is in contravention of Rule 6 of the M.V. Act, 1988 but the effect of Section 6 would be that the second driving license obtained by a person would be invalid for all practical purposes as the same was obtained in contravention of Provision 6 of the said Act. Insurance claim is not bounty, which can be paid to a law breaker or has least regard for the rules and regulations and safety of public and the complainant has engaged a driver, who has no valid license to drive the vehicle but even then permitted him to drive the Truck, which resulted into accident causing loss to the complainant. Hence, the claim was rightly repudiated by the OP. Rest of the averments of the complainant were denied by OP and prayed for dismissal of the present complaint.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-7 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP tendered affidavit of Mona Bagga, Sr. Divisional Manager and authorized signatory, New India Assurance Company Limited, Divisional Office, Ambala Cantt. and Shri Girish Sharma, surveyor and loss assessor having its office at # HIG-55, Sector-4, Parwanoo as Annexure OP-A & OP-B alongwith documents Annexure OP-1 to OP-7 and closed the evidence on behalf of OP. 
5.           Learned counsel for the complainant submitted that by repudiating the genuine claim of the complainant on flimsy grounds despite the fact that the driver who was driving the vehicle in question at the relevant time of accident was having a valid licence, the OP is deficient in providing service. He further submitted that even in the Court of Parveen Kumar Gupta, MACT, Ambala, vide order dated 04.12.2019 it has been held that the claim of the complainant is genuine and the said Tribunal has given liberty to the complainant to claim the compensation for damage caused to the insured vehicle before civil court or consumer court. He has placed reliance on the judgment dated 01.04.2003, passed by Hon’ble Supreme Court of India, New Delhi in the case of Arm Group Enterprise Ltd. Vs. Waldorf Restaurant and Others, wherein it has been held that under Section 14 of the Limitation Act, the period spent in prosecuting civil proceedings bonafide and with due diligence is liable to be excluded in computing the period of limitation for the suit of the application. He has also placed reliance on the order dated 12.10.2009, passed by the Hon’ble Chandigarh State Consumer Disputes Redressal Commission, UT, in the case of National Insurance Company Limited and another Vs. Nitin Bansal wherein it was held that “two different licenses at the same time is an infringement of Motor Vehicle Act-Insurance company cannot take refuge under this plea for repudiating the claim”.
6.           On the other hand, learned counsel for the OP while reiterating his objections taken in its written version contended with vehemence that cause of action had accrued to the complainant on 07.04.2016, when his claim was repudiated by the OP, yet, he failed to come to this Commission within a period of 2 years from 07.04.2016. He further submitted that furthermore since the driver in question was holding two driving licenses, one of which was found to be fake, as such, the OP has rightly repudiated the claim filed by the complainant, as there was violation of relevant provisions of Motor Vehicle Act and even the Hon’ble Apex Court and the Hon’ble National Commission, in number of judgments have held that holding two licenses by the driver of a vehicle entitles the insurance company to repudiate the claims.  He has placed reliance on the judgment dated 19.01.2010 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of New India Assurance Company Limited Vs. Gouru Padma, 2010 (1) CPJ 254., wherein it has been held that subsequent letter will not give fresh cause of action-Insurer had neither reopened the case no acknowledged complainants right to receive compensation to be subsisting. Insurance claim repudiated on 06.09.2000 and complaint filed on 03.10.2002, without seeking condonation of delay was liable to be dismissed as barred by limitation.  Also placed reliance on the judgment dated 13.03.2015 passed by Hon’ble National Commission, New Delhi in the case of Ajit Prasad Jain Vs. New India Assurance Company Limited & Ors., 2015 (2) CPJ 537 wherein the Hon’ble National Commission while dismissing the revision petition has held that the driver did possess two driving licenses which by itself was an offence being prohibited under the law. 
7.           Admittedly, in the present case, the claim of the complainant was repudiated by the OP vide letter dated 07.04.2016, Annexure OP-1. In United India Insurance Company Limited and another Vs. R. Piyarelall Import and Export Ltd. I (2010) CPJ 22 (NC), it was held that cause of action will start running from the date of repudiation of insurance claim. Similar view was reiterated by the Hon’ble National Commission in New India Assurance Company Limited Vs. Gouru Padma, (supra).  At the time of arguments, learned counsel for the complainant submitted that because the Court of Parveen Kumar Gupta, MACT, Ambala, vide order dated 04.12.2019 has also held the claim of the complainant to be genuine and has given liberty to the complainant to claim the compensation for damage caused to the insured vehicle through civil court or consumer court having jurisdiction, therefore the period spent before the said court has to be excluded for determining limitation. It may be stated here that the mere fact that the complainant had filed case before the MACT, Ambala for any third party claim will not absolve him from his obligation of filing the consumer complaint before this Commission seeking claim for own damage i.e other than third party claim from the insurance company, within a period of 2 years from the date of cause of action i.e. from the date repudiation of the claim, in view of the above settled law and also as envisaged in Section 69, of Consumer Protection Act, 2019, pertaining to limitation in filing complaint before the Consumer Commissions. Even otherwise, the MACT, Ambala in para no.24 of its order dated 04.12.2019, Annexure C-6, has clearly given its findings to the effect that the order passed shall not bar the complainant from approaching civil court or consumer court, in accordance with law, meaning thereby that no express liberty. Thus, to our mind, from the sequence of events narrated above, it can easily be said that the cause of action arose in favour of the complainant on 06.04.2018 i.e. two years from the date of repudiation of his claim by the OP vide letter dated 07.04.2016, Annexure OP-1, yet, filing of this complaint on 20.04.2020 is clearly barred by limitation.  Because it has been held above that this complaint is barred by limitation, as such, in our considered opinion, even then if we proceed further on merits of this case, it would be nothing but commission of an illegality on the part of this Commission. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court in the case of State Bank Of India vs M/s. B.S. Agricultural Industries (I), CIVIL APPEAL NO. 2067 of 2002, decided 20 March, 2009,   wherein it was held as under:-           
   • If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside……”

 

8.           For the reasons recorded above, this complaint stands dismissed being barred by limitation, with no order as to costs. The case file be consigned to record room.  Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.                   

Announced:- 17.10.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President