DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 88 of 15.3.2017
Decided on: 26.3.2018
Jarnail Singh S/o Sh.Bahadur Singh R/o H.No.129, Village Bagrian, Tehsil Malerkotla, District Sangrur.
…………...Complainant
Versus
- ICICI Lombard General Insurance Company Limited, First Floor, SCO-11, Chhoti Baradari, Mall Road, Patiala, through its Branch Manager.
- ICICI Lombard General Insurance Company Limited, 4th Floor, Interface-II, Office No.401-402, New Linking Road, Malad(W) Mumbai 400064, through its Manager.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Pardeep Kumar,Advocate,counsel for complainant.
Sh.Amit Gupta,Advocate,counsel for opposite parties.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh.Jarnail Singh, complainant has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.) .
2. The brief facts of the complaint are that the complainant being the owner of vehicle namely Ashoka Leyland LCV-Dost-LS-BS-III, bearing registration No.PB-13-AL-2756 got the same insured with the OPs vide cashless policy/cover note No.GR11159375, for the period from 13.12.2013 to 12.12.2014. On 3.12.2014, due to sudden accident of the said vehicle, front cabin, dash board, radiator, engine and outer chassis were damaged. On 4.12.2014, he informed OP no.1 about the accident of the said vehicle. On the asking of one Mr. Onkar Singh, CSM of Op no.1, the complainant submitted all the requisite documents to him at the spot. DDR No.23 dated 9.12.2014 was also lodged by the complainant. He submitted the original copy of the DDR with OP no.1 where said Sh. Mr.Onkar Singh, assured the complainant that the claim would be processed soon and told the complainant for getting the vehicle repaired. But till today no heed was paid to the requests made by the complainant time and again to the OPs. His vehicle is lying wrecked since 3.12.2014 at the workshop of Yashoda Automatives. Finding no alternative, the complainant got served a legal notice dated 21.3.2015 upon the OPs but to no effect. There is thus deficiency of service on the part of the OPs which caused mental agony and physical harassment to the complainant. Hence this complaint with a prayer for giving directions to the OPs to pay Rs.5,00,000/- as claim of the vehicle,Rs.1,00,000/- as compensation for causing mental agony and physical harassment and Rs.15,000/-as costs of litigation expenses.
3. On being put to notice, OPs appeared through counsel and filed the written version taking preliminary objection that the complaint is barred by limitation and is liable to the dismissed. On merits, it is admitted that the complainant obtained insurance policy No.3003/85805158/00/800, for the period from 13.12.2013 to 12.12.2014, covering the vehicle bearing engine No.59043 and chassis no.35995P, subject to the terms and conditions of the policy. It is stated upon receiving the intimation on 5.12.2014, with regard to the vehicle met with an accident on 3.12.2014, Sh. Jatin Arora, Surveyor and loss assessor was appointed to assess the loss. The said surveyor submitted his report on 4.2.2015. It is stated the complainant while submitting the claim form with the insurance company, has disclosed the name of driver as Jarnail Singh with the D.L. No.98915 which was to expire on 12.11.2019.Sh.A.P.Singh, Investigator was also deputed to investigate the claim of the complainant, who in his report has stated that on the date of accident, the vehicle was driven by the complainant himself without any driving licence. Even otherwise also, the vehicle was registered as Light Goods Vehicle (LGV) and was insured under Goods Carrying Package Policy but the driver Jarnail Singh(complainant) was not having any valid and effective driving licence to drive the insured vehicle on the date of accident. After scrutinizing the case of the complainant, the OPs repudiated the same vide letter dated 4.3.2015. There is no deficiency of service on the part of the OPs .After denying all other averments made in the complaint, it was prayed to dismiss the complaint.
4. On being called to do so, the ld.counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Esxs.C1 to C9 and closed the evidence of the complainant.
The ld. counsel for the OPs has tendered in evidence Ex.OPA affidavit of Sh.Aditya Sharma alongwith documents Exs.OP1 to OP5 and closed evidence of OPs.
5. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
6. At the outset, the ld. counsel for the OPs has argued that the present complaint is liable to be dismissed on the ground of limitation only because cause of action accrued to the complainant on 4.3.2015 when the OPs repudiated the claim of the complainant. As per Section 24-A of the Act, the complainant could have filed a complaint within two years from 4.3.2015, but the present complaint has been filed by the complainant on 15.3.2017 i.e. after a delay of 12 days that too without filing any application for condoation of delay. On the contrary, the ld. counsel for the complainant has submitted that the complainant never ever received the repudiation letter dated 4.3.2015. Even otherwise also, the said letter could not have reached at the hands of the complainant on the same date as the transaction takes some time for the delivery of the ‘dak’. As such there is no delay in filing the present complaint. Even for the arguments sake, if we believe that there is some delay, then it may be nominal delay of 2-3 days and can be condoned on oral prayer. By arguing on this point, the ld. counsel for the complainant has placed reliance upon the case titled as Anusayabai and others Vs. Union of India and another 1003(1)ACJ 528…… wherein it has been held by the Hon’ble Bombay High Court, that if there was no regular written application for condonation of delay that fact by itself cannot come in the way of condoning the delay in case circumstances so warrant. There is no bar to consider even oral prayer made for condonation of delay. It may be stated here that it is a settled principle of law that every lis should normally be decided on merits, than by resorting to hyper technicalities – when hyper technicalities and the substantial justice are pitted against each other then the later shall prevail over the former. The procedure is ultimately meant to advance the cause thereof than to thwart the same. In view of the law laid down by the Hon’ble Bombay High Court and the observations made by us, we hereby condone the nominal delay of few days, on the oral request of the ld. counsel for the complainant.
7. Let us come to the merits of the case, the OPs repudiated the claim of the complainant on the ground that driving licence of Mr.Jarnail Singh was not valid at the time of loss as is evident from the letter dated 4.3.2015,Ex.OP5. From the bare perusal of para Nos.3to5 of the written version, on merits, it is evident that the ops have stated that the vehicle in question was registered as Light Goods Vehicle (LGV) and was insured under Goods Carrying package policy but the driver Jarnail Singh, complainant was not having valid and effective driving licence to drive the insured vehicle on the date of accident. The driving licence of Jarnail Singh was valid only for non transport or light motor vehicle. As such the claim lodged by the complainant was not payable. From the copy of certificate of registration ,Ex.C4, it is evident that the gross weight of the vehicle in question has been mentioned as 2500 and un leaden weight has been mentioned as 1250. From the copy of driving licence, Ex.C1, it is evident that the same was issued on 13.11.2014, in the name of Jarnail Singh. Under the column vehicle class , LMV, MCWG and Tractor has been mentioned. Further under the columns Valid Till (Transport ) and Valid till (Non transport), validity date has been mentioned as 12.11.2019. Now the question which arises for consideration is that as to whether said Sh.Jarnail Singh was competent to drive a goods vehicle or not?
In the case of Mukund Dewangan Vs. Oriental Insurance Company Limited IV 2017 CPJ 13 (SC) , the Hon’ble Supreme court has held that ‘Light Motor Vehicle’ as defined in section 2(21) of the Motor Vehicle Act,1988, would include a transport vehicle as per the weight prescribed in Section 2(21) read with Section 2(15) and 2(48) .Such transport vehicles are not excluded from the definition of light motor vehicle by virtue of the Amendment Act No.54/1994- Transport Vehicle and omnibus gross vehicle weight of either of which does not exceed 7500 kg. No separate endorsement on the licence is required to drive transport vehicle of Light Motor Vehicle class…” In view of the law laid down in the case referred above, the OPs were not justified in repudiating the claim of the complainant and are liable to indemnify the complainant for the loss suffered by him .
The next question which arises for consideration is what should be the amount of indemnification?
From the copy of the surveyor report, dated 4.2.2015, Ex.OP3 under the column Summary of Assessement and Final Assessment, it is evident that the surveyor has assessed the loss to the tune of Rs.75,500/-. It may be stated the report of the surveyor being an important document cannot be brushed aside without any compelling evidence to the contrary. Thus, the OPs are liable indemnify the complainant to the tune of Rs.75,500- alongwith interest. The OPs are also liable to compensate the complainant for the mental agony and physical harassment caused to him alongwith costs of litigation .
8. In view of the aforesaid discussion, we allow the complaint and direct the OPs in the following manner:
- To pay Rs. Rs.75,500/- alongwith interest @ 7% per annum from the date of repudiation of the claim i.e. 4.3.2015, till its realization;
- To pay Rs.10,000/-as compensation for causing mental agony and physical harassment to the complainant;
- To pay Rs.5000/-as litigation expenses
The OPs are further directed to comply the aforesaid directions within a period of 45 days from the date of the receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:-26.3.2018
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
