Punjab

Ludhiana

CC/15/604

Sheetala Parshad - Complainant(s)

Versus

ICICI Lombard Gen.Ins.Co.Ltd - Opp.Party(s)

Nitin Sood Adv.

27 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 604 of 07.10.2015

Date of Decision          :   27.09.2016

 

Sheetla Parshad aged 40 years son of Shri Jokhu Lal, resident of House No.314, Second Floor, Street No.8, Dashmesh Nagar, Ludhiana.

….. Complainant

Versus 

1.ICICI Lombard General Insurance Company Limited, Head Office:ICICI Lombard House, 414, Veer Savarkar Marg, Near Sidhi Vinayak Temple, Prabhadevi, Mumbai through its Managing Director.

2.ICICI Lombard General Insurance Company Limited, Feroze Gandhi Market, Ludhiana through its Manager.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.P.S.Rajput, Advocate

For OPs                         :       Sh.Rajeev Abhi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, the owner of Tata Ace vehicle bearing registration No.PB-10-ES-3049 got the same insured from Ops vide policy No.3003/TM-00248101/00/000 dated 12.08.2014 for the period from 12.8.2014 to 11.8.2015(wrongly mentioned in the complaint as 11.8.2014) on payment of premium of Rs.21,780/- for covering all kinds of risks. On the early morning of 01.04.2015, the brother of the complainant namely Nanu Verma was driving the abovesaid vehicle while coming to Ludhiana from Chandigarh. Ramesh Yadav son of Ram Pati and three other persons were also occupying the said vehicle at the time of accident. Complainant along with Satnam Singh was following the aforesaid vehicle in the car No.PB-10-AV-1160 of UNO make. One Trala/Truck bearing registration No.HR-38-E-4451 was going ahead of the insured vehicle at about 1:30 A.M. near ITI, Samrala and the driver of the said Trala/Truck all of a sudden applied brakes, resulting in striking of the insured vehicle against back of the Trala/Truck. All occupants of the vehicle including Nanu sustained injuries, but Ramesh Yadav succumbed to the injuries at the spot itself. Insured vehicle was badly damaged. FIR No.68 dated 01.04.2015 was lodged at P.S.Samrala, District Ludhiana, qua the offences u/ss 279, 337, 427 and 304-A IPC. The insured vehicle was got repaired from Dada Motors Pvt. Ltd by paying the amount of Rs.1,93,393/- by the complainant. Claim was lodged with Ops, but instead of reimbursing the amount, the Ops repudiated the claim vide letter dated 28.6.2015 on false and flimsy grounds. After receipt of that letter, the complainant visited the office of OP2 many times with the request to the officials to reimburse the claim amount, but they did not pay any heed to the genuine request of the complainant. By pleading deficiency in service and adoption of unfair trade practice on the part of Ops, complainant filed compliant with the directions to Ops to reimburse the claim amount of Rs.1,93,393/-and pay compensation for mental harassment and agony of Rs.50,000/- as well as litigation expenses of Rs.11,000/-.

2.                In joint written statement filed by Ops, it is pleaded interalia as if complaint barred under Section 26 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’); complaint is not maintainable because after the registration, entertaining and processing of the claim put forth by the complainant, the same was duly repudiated after obtaining the report dated 22.4.2015 of the appointed surveyor and loss assessor namely Sh.Gurmit Singh Bhurji. Besides, it is claimed that the complainant is not a consumer within the meaning of the Act and as complicated question of law and facts requiring elaborate evidence are involved, so matter liable to be referred to Civil             court of competent jurisdiction. It is also claimed that the complainant is estopped by his act and conduct from filing the present complaint. Admittedly, the vehicle in question was insured with Ops, but parties bound by the terms and conditions of the insurance policy cover note. As per those terms and conditions, the insured vehicle can be driven by a person holding a valid and effective driving license at the time of accident and who is not disqualified from holding or obtaining of said driving license. However, a person holding an effective learners license may also drive the vehicle. Moreover, the appointed independent surveyor and loss assessor namely Sh.Gurmit Singh Burji had personally inspected the vehicle, took the photographs and thereafter, submitted the report, assessing the loss at Rs.1,71,093/-. The vehicle in question was driven at the time of accident allegedly by Sh.Nanu Verma, who was not holding a valid and effective driving license at the time of accident. Moreover, the vehicle in question was a commercial vehicle, being registered as LGV i.e. Light Goods Vehicle. Complainant obtained Goods Carriage Package Policy from the Ops, but Sh.Nanu Verma was not holding license to drive the vehicle in question. Besides, Sh.Ramesh Yadav was holding a license, which authorized him to drive motor cycle/car only. After the receipt of surveyor report along with documents and scrutinizing the same, the claim was duly repudiated vide letter dated 28.6.2015 on the ground that the driving license of the driver was not valid. So, it is claimed that repudiation of the claim was legal and justified, owing to which, there is no deficiency in service on the part of Ops. Each and every other averment of the complaint denied.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CW1/A along with documents Ex.C1 to Ex.C6 and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Ms.Meenu Sharma, Manager Legal of Ops along with affidavit Ex.RB of Sh.Gurmit Singh Burji (the appointed surveyor and loss assessor) along with documents Ex.R1 to Ex.R19; Ex.R19A and Ex.R19B and thereafter, closed the evidence.

5.                          Written arguments submitted by counsel for the Ops during the course of addressing oral arguments and not before that. Oral arguments of counsel for the parties heard and records gone through minutely. 

6.                 As per the claim put forth by the complainant through para no.2 of the complaint and also as per para no.2 of affidavit Ex.CW1/A of complainant and as per contents of FIR Ex.C6=Ex.R14 lodged by the complainant,                            the insured vehicle in question bearing registration No.PB-10-ES-3049              was driven by Nanu Verma, the brother of the complainant at the time of accident. However, no driving license and copy thereof or any other document produced on record to establish that the said Nanu Verma was holding a valid and effective driving license to drive the insured vehicle in question at the time of accident. This is despite the fact that through report to Police through FIR Ex.C6=Ex.R14, the claim intimation sheet Ex.R1, the copy of affidavit Ex.R12 submitted by the complainant at the time of lodging of claim, it is claimed that the vehicle in question was driven by Nanu Verma, the brother of the complainant. When the consistent claim of the complainant throughout is that the insured vehicle was driven by his brother namely Nanu Verma, then it is for the complainant to prove that  said  Nanu Verma was holding a valid and effective driving license at the time of accident. However, the produced oral or documentary evidence on record establishes that Nanu Verma was not holding any kind of driving license at the time of accident. Being so, contents of report Ex.R3 of Sh.Gurmit Singh Burji, the appointed surveyor is of not much help because this report prepared by       keeping in view the fact that Ramesh Yadav, the other occupant of the car was holding driving license enabling him to drive motor cycle/car only. As claim of the complainant through compliant as well as through lodged FIR and claim intimation sheet remained as if Nanu Verma was driving the insured vehicle at the time of accident and as such, we are to see as to whether Nanu Verma was holding a valid and effective driving license at the time of accident or not? In the absence of any documentary proof produced by the complainant qua holding of driving license by Nanu Verma, it has to be held that actually Nanu Verma was not holding a valid and effective driving license or  any kind of driving license at the time of accident.

7.                Ex.C1=Ex.R6 is the copy of registration certificate of insured vehicle issued by Motor Licensing Authorities, Ludhiana, whereas Ex.C2 and Ex.C3 are the copies of invoices, but Ex.C4=Ex.R16 is the copy of insurance policy cover note. Terms of Ex.C4=Ex.R16 provides a driver’s clauses to the effect that  insured vehicle must be driven by a person holding a valid and effective driving license at the time of accident and not disqualified from holding or obtaining such license. So,terms of Ex.C4=Ex.R16 provides that insurance company will be liable to pay the compensation amount only if the driver of the insured vehicle at the time of accident was holding a valid and effective driving license. As the complainant failed to prove that Nanu Verma, driver of the insured vehicle was holding any kind of driving license at the time of accident and as such, complainant failed to prove that the vehicle in question was driven by a driver holding a valid and effective driving license.

8.                Terms and conditions of the insurance policy in question provides that the vehicle insured should be driven by a driver holding driving license, but   if it is not proved, then the insurance company cannot be held liable because of fundamental breach of terms and conditions of the policy. In holding this view, we are fortified by law laid down in case of National Insurance Company Limited vs. Meena Aggarwal-IV(2009)CPJ-25(N.C.). So, repudiation of the claim is  quite legal and justified, particularly when the other occupant namely Ramesh Yadav even was not holding the driving license to drive the LGV i.e. Light Goods Vehicle, despite the fact that vehicle in question described as LGV in certificate of registration, copy of which is produced on record as Ex.C1=Ex.R6. Rather, Ramesh Yadav as per contents of Ex.R17 and Ex.R19A was holding the driving license to drive motor cycle/LML only. As per law laid down in case of National Insurance Co.Ltd. vs. Prithipati Sattiyya and others-IV(2011)CPJ-133(N.C.), in case, driver holds a license to drive a non-transport vehicle, but in case he drives the transport vehicle at the time of accident, then the insurance company cannot be held liable for the reimbursement of the loss caused to the vehicle in question. Ratio of this case is fully applicable to the facts of this in case, Ramesh Yadav alleged to be the driver.

9.                Contract of insurance binding on the parties. Nothing can be added or subtracted to the terms and conditions of the insurance policy. In holding this view, we are fortifies by law laid down in cases titled as Ind Swift Limited vs. New India Assurance Co.ltd and others-IV(2012)CPJ-148(N.C.); Usha Sharma and others vs. New India Assurance Co.Ltd and others-I(2012)CPJ-488(N.C.); United India Insurance co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.) and Deokar Exports Private Limited vs. New India Assurance co.Ltd-I(2009)CPJ-6(S.C.). As the terms of contract of insurance itself provides that vehicle should be driven by a driver holding a valid and effective driving license, but the complainant neither before this Forum and nor before the insurance authority submitted any proof that Nanu Verma was holding a valid and effective driving license at the time of accident in question and as such, repudiation of claim is as per the terms and conditions of the insurance policy. So, we do not find any illegality or arbitrariness in repudiation of the claim. So, there is no deficiency in service or adoption of unfair trade practice on the part of Ops.

10.              Therefore, as a sequel of the above discussion, the present complaint merits dismissal and the same is hereby dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules.

11.                        File be indexed and consigned to record room.

 

                      (Vinod Bala)                                (G.K.Dhir)

                       Member                                          President

Announced in Open Forum

Dated:27.09.2016

Gurpreet Sharma.