Haryana

Yamunanagar

CC/969/2010

M/S Janta transport - Complainant(s)

Versus

ICICI Lombard Company Ltd. - Opp.Party(s)

Amit Bansal

30 Nov 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 969 of 2010.

                                                                                                Date of institution: 13.10.2010

                                                                                                Date of decision: 30.11.2016.

      M/s Janta Transport & Carriage Contractor, Chhachhrauli Road, Jagadhri through its Proprietor Rakesh Kumar son of Sh. Sadhu Ram R/o        #439 Sethni Street, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                                        …Complainant.

                                        Versus

1. ICICI Lombard Insurance Company Limited, Yamuna Nagar through its Manager/Authorized Signatory.
2. ICICI Lombard Insurance Company Limited, Zenith House, Keshavrao Khadye Marg, 2^nd Floor, Mahalaxmi, Mumbai-400034 through its Regional Manager/Authorized signatory.

                                                                                                                          …Respondents.

BEFORE:       SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh.  Amit Bansal, Advocate, counsel for complainant.

              Sh. Rajiv Gupta, Advocate, counsel for respondents

 

ORDER

 

1.                     Complainant has filed the present complaint under section 12 of the Consumer Protection 1986 praying therein that the respondents (hereinafter referred as OPs) be directed to pay Rs.6,56,120/- on account of damaged of truck and further to pay compensation as well as litigation expenses.  

2.                     Brief facts of the present complaint, as alleged by the complainant, are that M/s Janta Transport & Carriage Contractor is a company and Sh. Rakesh Kumar is its proprietor and registered owner of truck bearing registration No. HR-58-9489    (Annexure C-4)  which was duly insured with the OPs Vide policy bearing No. 3003/54874025/01/800 (Annexure C-2) valid w.e.f. 31.08.2009 to 30.08.2010 for a sum of Rs. 6,56,120/-. On 12.06.2010, the truck of the complainant met with an accident and an FIR bearing No. 146 dated 12.06.2010 (Annexure C-1) under section 279/337 IPC was registered and due to accident the truck of the complainant was badly damaged and it was handed over to M/s Rama Motors “Tata Authorized Service Station.” Buria Chowk, Jagadhri. An intimation regarding the accident and damage to the truck of complainant was immediately given to the OPs Insurance Company. As per the estimate report dated 17.06.2010 prepared by Rama Motors an amount of Rs. 7,67,725/- was the total cost of repair including cost of spare parts and repair charges of the truck. The complainant had completed all the formalities and had supplied all the documents well within time as and when required by the official of the Ops Insurance Company and the official of OPs had assured the complainant that the claim will be released as early as possible but even after a lapse of four months the OPs had not released the claim amount to the complainant and are not ready to possess the salvage of the truck.  Complainant visited several times but the Ops did not pay any heed to the genuine request of the complainant and every time lingering on the matter on one pretext or the other. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, no negligence or deficiency in service on the part of Ops, the complaint is bad on account of non joinder and mis joinder of necessary parties and proper party; complainant has submitted a false and fabricated estimate showing exaggerated damages having no force in the eye or law. It has been submitted that an intimation was received by the OPs to the effect that the truck No. HR-58-9489 has met with an accident on 12.06.2010. On receipt of said intimation the OPs Insurance Company immediately deputed Sh. Pankaj Rohilla an independent Surveyor and Loss Assessor of Sonepat to conduct the spot survey and spot survey was conducted on 15.06.2010 and the said surveyor submitted his report dated 17.06.2010 to the Ops Insurance Company. Thereafter, Sh. Amit Sharma an independent Surveyor and Loss Assessor was deputed by the OPs Insurance Company to conduct the final survey and to assess the loss if any. The said surveyor conducted the final survey on 18.06.2010 in the premises of M/s Janta Transport and Carriage Jagadhri and after taking into account the damages and after applying relevant depreciation clause as per terms and conditions of the insurance policy, he assessed the loss vide report dated 16.07.2010 on repair basis to the tune of Rs. 4,20,639.50 and said surveyor in the same report dated 16.07.2010 also assessed the loss on net of the salvage basis to the tune of Rs. 4,05,120/- after deducting a sum of Rs. 2,50,000/- from ID.V. of Rs. 6,56,120/- as wreckage value with RC of the said truck. On receipt of the report of said surveyor, the OPs further processed the claim of complainant and found that the insured at the time of surveys had handed over the copy of driving license of driver Sh. Pawan Kumar son of Sh. Ram Dass bearing No. 22770/AG/02 dated 31.12.2002 endorsed for H.T.V. on 08.02.2005. The said driving license was got verified by the OPs Insurance Company from the office of Licensing Authority Agra and the said office vide its report dated 15.12.2010 reported that the said driving license has not been issued by R.T.A. Agra. The insured has handed over the vehicle to a person who was not holding a valid and effective driving license which amounted to violation of the terms and conditions of the insurance policy pertaining to the driver clause. Therefore, the OPs Insurance Company vide its letter dated 05.01.2011 repudiated the claim of the complainant on the ground that the driver Sh. Pawan Kumar was not holding a valid and effective driving license to drive the vehicle at the time of accident. On merit, controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objectioins and lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of FIR No. 146 dated 12.06.2010 as Annexure C-1, Photo copy of Insurance Policy as Annexure C-2, Photo copy of Estimate as Annexure C-3, Photo copy of Fitness certificate as Annex. C-4, Photo copy of Certificate of fitness as Annexure C-5, Photo copy of form No. 47 Authorization for tourist/ National permit as Annexure C-6, Photo copy of driving license as Annexure C-7,  Driving license verification report dated 24.04.2007 as Annexure C-8 and Photo copy of No Objection Certificate as Annexure C-8/A and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs tendered into evidence affidavit of Sh. Gurpreet Bhullar, Manager (Legal) as Annexure RX, Affidavit of Amit Sharma Surveyor & Loss Assessor as Annexure RY and documents such as Annexure R-1, Photo copy of driving license as Annexure R-2, Photo copy of verification report dated 15.12.2010 as Annexure R-3, Photo copy of letter for repudiation letter as Annexure R-4, Photo copy of registration certificate as Annexure R-5, Photo copy of insurance policy alongwith its terms and conditions as Annexure R-6, Photo copy of claim form as Annexure R-7 and closed the evidence on behalf of OPs Insurance Company.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                     It is admitted fact that the complainant is registered owner of truck bearing registration No. HR58-9489 which was insured with the OPs Insurance Company vide policy bearing No. 3003/54874025/01/B00 valid from 31.08.2009 to 30.08.2010 for a sum of Rs. 6,56,120/-. It is also not disputed that truck in question met with an accident on 12.06.2010 during the currency of insurance policy  and surveyor and loss assessor was deputed and Rs. 4,20,639/- was assessed on “Net Loss on Repair Basis” after applying the relevant depreciation clause and subject to terms and conditions of the insurance policy in question as Annexure R-1. The main question involved in the complaint is whether the driver Sh. Pawan Kumar of the vehicle in question was having valid and effective driving license at the time of accident or not? 

8.                     Learned counsel for the complainant argued that the complainant has spent huge amount on the repair of his truck and all the bills have been submitted to the OPs insurance company but the OPs Insurance Company has illegally repudiated his claim on false and frivolous grounds that Sh. Pawan Kumar was not having a valid and effect driving license at the time of accident whereas the driver of complainant Sh. Pawan Kumar was holding a valid and effective driving license at relevant time and draw our attention towards the verification report of driving license No. 22779/AG/2002 dated 31.12.2002 issued by M.V. Agra (Annexure C-8) and No Objection Certificate issued by Motor Vehicle Department Agra (Annexure C-8/A) and argued that from there report it is clear that Pawan Kumar driver was holding valid DL at the time of accident. Learned counsel for the complainant referred the case law titled as Karam Singh vs. Balwinder Kaur and others 2002 ACJ page 697, (P&H) High Court and another case law titled as Suraj Ram vs. Anchal Singh (died) and others 1997(3) PLR page 844 and also case titled as Rukmani and others vs. New India Assurance Co. ltd. and others, 1999 ACJ page 171. Lastly, prayed that OPs Insurance Company be directed to pay the amount of repair of truck in question.

9.                     Whereas the counsel for the OPs Insurance Company hotly argued that the driving license of Pawan Kumar was got verified from the Licensing Authority, Agra and they have reported that the License is fake one as the driving license No. 22770/AG/02 dated 31.12.2002 has not been issued in favour of Pawan Kumar and no licensing fee has been deposited by Sh. Pawan Kumar. Meaning thereby that driver of the complainant Sh. Pawan Kumar was not having a valid and effective driving license and the OPs Insurance Company has rightly repudiated the claim of the complainant being violation of terms and conditions of insurance policy (Annexure R-4) and as such the claim is not payable and draw our attention towards the statement of Faiz Khan son of Late A.R. Khan, Junior Clerk, Office of R.T.O.  Agra has clearly stated that as per record driving license No. 22770/AG/02 dated 31.12.2002 was not issued by R.T.O. Agra. Further, this witness has admitted that he has seen the documents i.e. driving license (Annexure R-2) which has not been issued by RTO Agra as per record brought by him. As per record no driving license was issued from 28.12.2002 to 31.12.2002. Against the receipts issued on 28.12.2002, 30.12.2002 and 31.12.2002 the driving license were issued in January 2003, as per record. Learned counsel for the OPs further argued that from the statement of this witness RW1 it is duly proved that driving license (Annexure R-2) bearing No. 22770/AG/02 dated 31.12.2002 was not issued in the favour of driver Pawan Kumar. Hence, the claim of the complainant has been rightly repudiated by the OPs Insurance Company. Learned counsel for the OPs referred the case law titled as National Insurance Company Ltd. Versus Gurucharan Singh, 2010 ACJ page 2044 Supreme Court wherein it has been held that Forged license- liability of insurance company- Insured filed complaint under Consumer Protection Act, 1986 against Insurance Company and District Forum dismissed the complaint on the ground that driving license of the driver of vehicle was forged and as such there was no deficiency in service of insurance company- State Commission placing reliance on Swaran Singh’s case, 2004 ACJ page 1 (SC), reversed the order of District Forum- National Commission confirmed the order of State Commission- whether ratio of decision in Swaran Sigh’s case 2004 ACJ 1 (SC), is applicable in a dispute between the insured and insurance company arising out of own damage claim- Held No; decision is applicable to a case of third party; order of District Forum restored. (2007 ACJ 721 (SC) followed).

            Further referred the case law titled as Kuljeet Singh Versus Surinder Kaur and others, (2015-4) PLR page 273, wherein it has been held that Driving License- Driver of the offending vehicle belongs to a village in Malrerkotla District Sangrur- He produced the driving license issued by Regional Transport Authority, Mathura, it could be a prima facie reason to suspect that as to why the license of a far away place was produced with which driver had no connection- Recovery rights for the insurance company were rightly granted.   

            And referred the case law titled as Oriental Insurance Company Ltd. Vs. Rajnesh Tandaon, 2014(2) CLT page 272 (National Commission) wherein it has been held that Driving License- Held- Once certificate of verification of D/L issued by Licensing Authority placed on record by insurance company- No need to produce affidavit of L/A in evidence- It is incumbent upon complainant to rebut the verification report.

            Further referred the another case law titled as Mukesh Khosla Versus Smt. Amandeep kaur and others, 2015(1) PLR page 324 (P &H) wherein it has been held that- Where the license is found to be fake- the State is under obligation to file complaint or register an FIR- Where during the proceedings that the driver has more than one license, the Tribunal will take immediate notice of the same and recommend to the concerned police authorities to register FIR- After appointment/engaging of a driver, the owner shall seek information under the RTI Act/or any other provision available immediately regarding the genuineness of the driving license from the office of issuing authority within thirty days from the date of such appointment/engaged- directions issued.

            Further referred the another case law titled as Jitmani Bhagat Versus National Insurance Co. Ltd. & Another, 2012(3) CPC page 53 wherein it has been held that Renewal of fake license cannot make it valid if originally it was fake one- Repudiation of claim justified.  

10.                   After hearing both the parties, we are of the considered view that there is no deficiency in service on the part of Ops and the claim of the complainant has been rightly repudiated vide letter dated 05.01.2011 (Annexure R-4) as from the perusal of statement of RW1 Licensing Clerk, Office of RTO Agra recorded on 28.07.2016 summoned with record by the OPs Insurance Company, it is duly proved that driver Sh. Pawan Kumar was not holding valid and effective driving license to drive the vehicle in question i.e. truck at the time of alleged accident. The Licensing Clerk has specifically stated in his Chief “ that as per record, the last DL No. 20420/AG/02 was issued on 27.12.2002 in the year 2002 and no license thereafter was issued in the year 2002. As per record driving license No. 22770/AG/02 dated 31.12.2002 was not issued by the RTO Agra. I have seen document Annexure R-2 ( Photo copy of driving license) which has not been issued by the RTO Agra as per record brought by me. As per our record no driving license was issued from 28.12.2002 to31.12.2002. The receipts which were issued on 28.12.2002, 30.12.2002 and 31.12.2002, the driving license against these receipts were issued in January 2003 as per record”. This witness was cross examined by the learned counsel for the complainant at length but the learned counsel for the complainant could not succeed to prove that the alleged driving license bearing No. 22770/AG/02 dated 31.12.2002 was issued in the name of Pawan Kumar driver by the RTO Agra, meaning thereby that the driving license produced by the complainant was fake one. We have also perused the verification report issued by the RTO Office Agra (Annexure R-3) dated 15.12.2010 in which it has also been specifically mentioned that  “ as per information from the cash department no such license fees was found to be deposited on the date of issuing of the driving license i.e. 31.12.2002 and further on 08.02.2005 and without depositing the licensing fee no license can be issued. So, the DL in question has not been legally issued.

            From the perusal of this report, it is also clearly evident that no driving license was issued by the RTO Agra in favour of driver Pawan Kumar. Although, the complainant has placd on file verification report Annexure C-8 for the period from 08.02.2005 to07.02.2008 and NOC (Annexure C-8/A) in support of his case but the Licensing Clerk who appeared as RW1 has specifically stated hat when no driving license bearing No. 22770/AG was issued by the RTO Agra, therefore, there is no question of issuance of documents Annexure C-8 and C-8/A. Meaning thereby, that these documents were also not issued by the Licensing Authority, Agra and the complainant cannot get any benefits from these documents. Even, when the OPs Insurance Company has taken a specific plea that driver of the complainant was not holding a valid driving license i.e. driving license of the driver was fake then onus was shifted on the complainant to prove the same but the complainant has totally failed to discharge the onus shifted upon him. The case law referred by the counsel for the complainant is not disputed but not helpful in the present case whereas the case law referred by the counsel for the OPs are applicable to the facts of the present case.

11.                   Resultantly, in the circumstances noted above, we are of the considered view that the claim of the complainant has been rightly repudiated by the OPs Insurance Company vide its letter dated 01.01.2011 (Annexure R-4) and the complainant is not entitled to get any relief. Hence, the present complaint is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 30.11.2016.                    

                                                                                                (ASHOK KUMAR GARG)

                                    (S.C.SHARMA)                                    PRESIDENT   

                                     MEMBER