DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 423 of 14-09-2010

Decided on : 25-03-2010

Raj Karan aged about 34 years S/o Babu Singh R/o VPO Maiserkhana, District Bathinda.

.... Complainant

Versus

1. IFFCO TOKIO General Insurance Co. Ltd., IInd Floor, Opposite Nirankari Bhawan, Guru Kashi Marg, G.T. Road, Bathinda, through its Branch Manager.

2. IFFCO TOKIO GENERAL INSURANCE CO. LTD., Plot No. 2B-C, Sector 28-A, Madhya Marg, Chandigarh through its Branch Manager

3. Raj Paul Singhal, Surveyor cum Loss Assessor of IFFCO TOKIO GENERAL INSURANCE CO. LTD., R/o Namdev Marg (40 Feet Road) Corner G.T. Road, Bathinda.

.... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Naresh Garg, counsel for the complainant

For the Opposite parties : Sh. Varun Gupta, counsel for the opposite party Nos. 1 & 2.

Opposite party No. 3 already exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. This complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). The Mahindra Tractor registration No. PB-40-4479 of the complainant was comprehensively insured for the IDV of Rs. 1,50,000/- with the opposite parties vide Cover Note No. 39334131 w.e.f. 07-07-2009 to 06-07-2010. The opposite parties issued only above said cover note and never issued any policy to the complainant. On 16-03-2010, the said vehicle of the complainant met with an accident in the revenue limits of P.P. Bahinwal, District Mansa when it was being driven by Sukhwinder Singh and in this regard, the DDR No. 21/16-03-2010 was lodged with the P.P Behniwal. The complainant gave intimation to the opposite parties and they appointed spot surveyor from Mansa who visited the spot and took necessary photographs and papers etc., Thereafter the opposite parties deputed final surveyor Mr. Raj Paul Singhal, opposite party No. 3. Under the instructions of the opposite parties, the vehicle was shifted with the repairer at M/s. Gurcharan Mechanical Workshop, Maur Mandi District Bathinda and the complainant spent Rs. 85,000/- on the repair of the vehicle. The repair was carried out under the supervision of opposite party No. 3 and all the necessary documents i.e. photocopy of the registration certificate, driving licence, DDR, Insurance cover note etc., were already supplied to the opposite parties. At the time of final survey, the opposite party No. 3 obtained signatures of the complainant on Blank Claim Form, different five- six blank papers, blank full and final voucher, blank consent form and gave assurance that full claim amount would be paid. Instead of paying the claim amount of Rs. 85,000/-, the opposite party Nos. 1 & 2 vide letter dated 25-06-2010 repudiated the claim of the complainant on false, flimsy and unlawful grounds that Sukhwinder Singh was not holding the licence for tractor. The complainant alleged that his claim was repudiated by the opposite parties against law. The complainant has put reliance on law settled by the Hon'ble Punjab & Haryana High court in 2010(1) RCR Civil 934 in case titled New India Assurance Co. Ltd., Vs. Mahendra Singh wherein it has been held that driver holding licence for car/jeep. He caused an accident while driving tractor for which he had no valid licence – Insurance Company liable, as mechanism of driving car, jeep and tractor is same. As per Clause 10 of Guidelines of GIC/TAC (Now IRDA), if there is any breach of condition of the policy, although there is no breach of condition of policy/insurance, upto 75% of the claim amount as non-standard claim is to be paid. The driving skill is not reason or contributed to the accident in this case and in this regard, the complainant has taken support of various authorities. Due to non-payment of the claim amount of Rs. 85,000/- on account of loss to the vehicle, the complainant has been suffering heavy damages. Hence, this complaint seeking directions of this Forum to the opposite parties to pay the total loss amount of Rs. 85,000/- with interest alongwith cost and compensation. Besides this, the opposite party No. 3 be also held liable for special cost for non-supply of survey report under the rules of IRDA as the opposite party No. 3 did not supply the survey report till date to the complainant.

2. The opposite party Nos. 1 & 2 filed written reply and pleaded that Cover Note was issued for the IDV of Rs. 1,50,000/-. The Insurance policy was issued to the complainant alongwith all terms and conditions. Moreover, on the overleaf of the Cover Note itself, it is mentioned that it is mandatory for any person including the insured to hold an effective driving licence while driving the insured vehicle. As per terms and conditions of the policy, in case of any loss to the vehicle, the depreciation clause would be applicable as provided under the Indian Motor Tariff. It has been denied that intimation with regard to accident was given or the surveyor was deputed or the said surveyor visited the spot or took photographs. It has been pleaded that Mr. Raj Paul Singhal, was appointed as surveyor to assess the loss. The complainant himself took the vehicle to Gurcharan Mechanical Workshop, Maur Mandi, District Bathinda. It has also been denied that the repair was carried out under the supervision of opposite party No. 3 ;the complainant spent Rs. 85,000/- on the repair of the tractor and the signature of the complainant were obtained by opposite party No. 3 on any blank document. The opposite party Nos. 1 & 2 have further pleaded that a copy of survey report made by opposite party No. 3 was sent to the complainant. The opposite parties processed the claim and found that Sukhwinder Singh, who was driving the tractor at the time of accident, was not holding a licence for plying the tractor and hence, the claim of the complainant was repudiated and intimation in this regard was given to the complainant vide letter dated 25-06-2010. It has clearly been mentioned on the Cover Note itself that the person driving the vehicle should hold valid driving licence at the time of any mishap. The legislature at the time of framing the Motor Vehicles Act has clearly laid down classification of the vehicles, for which separate category of licence is required which has been provided under Section 4 of the Motor Vehicle Act and hence, the claim has been rightly repudiated by the opposite parties.

3. Despite service of notice, none appeared on behalf of opposite party no. 3 and as such, exparte proceedings were taken against him.

4. Parties have led their evidence in support of their respective pleadings.

5. Arguments heard and written submissions submitted by the parties perused.

6. It is the admitted fact of the parties that Mahindra tractor in question was insured with opposite party Nos. 1 & 2 vide Cover Note No. 39334131 w.e.f. 7-7-2009 to 6-7-2010 for the IDV of Rs. 1,50,000/-. The said tractor met with an accident 16-03-2010. The complainant gave intimation to the opposite party Nos. 1 & 2 and final surveyor Sh. Raj Paul Singhal, was deputed to assess the loss.

7. The learned counsel for the complainant has strongly argued that the authorized signatory Sh. Rajeev Chodhwary of opposite party Nos. 1 & 2 have strongly denied in para No. 2 at page No. 2 in Ex. R-1 “ That no such intimation with regard to alleged accident was ever given and that Spot Surveyor was not deputed by the replying opposite parties and the surveyor neither visited the spot nor took photographs.” The learned counsel for the complainant submitted that the complainant has spent Rs. 85,000/- on the repair of the vehicle. The total repairs were carried out under the supervision of opposite party No. 3. The opposite parties instead of paying the claim amount of Rs. 85,000/-, repudiated the claim vide letter dated 25-06-2010 on the grounds that Sukhwinder Singh, who was driving the tractor at the time of accident, was not holding the licence for the tractor.

   On the other hand, the submission of the learned counsel for opposite party Nos. 1 & 2 is that it is mandatory for any person including the insured to hold an effective driving licence while driving the insured vehicle. The opposite parties while processing the claim found that Sukhwinder Singh, who was driving the tractor at the time of accident, was not holding a licence for plying the tractor and accordingly, the claim of the complainant was repudiated.

8. The opposite party Nos. 1 & 2 vide their letter dated 25-06-2010 Ex. C-6 have repudiated the claim of the complainant. The relevant portion of the said letter reads as under :-

   “.....The subject tractor was being driven by Mr. Sukhwinder Singh at the time of accident.

   Mr. Sukhwinder Singh holds a licence (licence No. 16092) to drive Motorcycle, Scooter, Car Jeep only and not for the Tractor.

   In this regard your kind attention is invited to general exception No. 3)b) of the policy which states that the company shall not be liable for any accidental loss/damages while the vehicle insured s being driven by any person other than a driver as stated in the driver clause.

   The driver clause is given in the schedule of the policy which defines the driver as any person including insured provided that the person holds an effective driving licence at the time of accident.

   You may observe from the above that Mr. Sukhwinder Singh was not holding a valid driving licence to drive the Tractor and hence the claim falls under exception of the policy.

   In view of the above the claim is not tenable under the policy and we are therefore closing this file as 'No Claim'.”

9. The opposite party Nos. 1 & 2 have repudiated the claim of the complainant on the ground that Sukhwinder Singh who was driving the vehicle in question at the time of accident was not having valid licence to drive the tractor as he was authorised to drive Motorcycle, Scooter, Car Jeep only. In this regard the support can be sought from the law laid down by the Hon'ble Punjab and Haryana High Court in the case 2010(1) RCR (Civil) 932 titled The New India Assurance Company Limited Vs. Mahender Singh and others wherein it has been held :-

   “Motor Vehicles Act, 1988, Sections 2(9), 2(10), 3, 149(2), (a)(ii) and 173 – Motor accident – Driving licence for different vehicle – Liability of insurer- Driver was driving a tractor for which he had no driving licence – He was holding licence to drive car, jeep and motor cycle only – Tractor met with an accident – Insurance Company liable – contention of Insurance Company that driver was not holding licence to drive tractor – Not tenable – Held.

   If driving method and mechanism of vehicle which a person drives is same as that of vehicle for which he was holding a valid driving licence – Validity of such licence for driving former vehicle will not be challenged.

   “ .......Where a person was issued licence to drive motorcycle scooter, jeep and car – Held he is competent to drive tractor also which has same mechanism as that car or jeep – 2005(1) RCR (Civil) 485 relied.”

   Thus, in view of the aforesaid precedent laid down by the Hon'ble Punjab and Haryana High Court, the repudiation of claim by the opposite party Nos. 1 & 2 on the ground that Sukhwinder Singh was not holding valid driving licence at the time of accident is not valid and accordingly, it is set aside.

10. The final surveyor Sh. Raj Pal Singhal vide his survey report Ex. C-7 has assessed the loss to the tune of Rs. 24,000/- as against the estimate of Rs. 62,026/- for parts and Rs. 12,000/- for labour charges etc., As per surveyor he has allowed the rates of parts as per market rate and applied depreciation keeping in view the model of the vehicle. However he has not allowed Rear Axle Rim Rs. 3323/-, Gear Oil Rs. 5600/-, Rear Fender Rs. 5500/-, Both Head Light Rs. 800/- and Front Wheel Rim Rs. 1800/-. He has not given the cogent and convincing reason for disallowing the aforesaid parts. In this view of the matter, the support can be sought from the precedent laid down by the Hon'ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in the case 2007(1) CPJ 236 titled Oriental Insurance Company Limited Vs. Ramesh Singh wherein it has been held :-

    “......Surveyor who is expert in branch of assessing damages, required to given reasons, howsoever brief as to on what basis and for what reasons claim of complainant not justified – In such absence, Surveyor's report cannot be accepted.

    The Hon'ble Supreme Court in Civil Appeal No. 3253 of 2002 in the case titled New India Assurance Company Limited Vs. Pradeep Kumar has observed in para No. 15 that “

    “.....but surveyor's report is not the last and final word. It is not the sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.”

11. While deciding the similar matter came up before Hon'ble H.P. State Consumer Disputes Redressal Commission,. Shimla, in Appeal No. 430 of 2007 in the case Mehar Chand Vs. The oriental Insurance Co. decided on 18-05-2009 has relied upon the law laid down by Hon'ble National Commission, New Delhi, in Revision Petition No. 477 of 2009, National Insurance Co. Ltd., Vs. Dr. Dharam Pal Sharma decided on 27-02-2009, wherein it has been held :-

    “Examination of the report of the surveyor shows that he has allowed compensation for some of the components which had been damaged but refused compensation for certain other parts. No reasons have been recorded by the surveyor for not awarding the compensation for some of the parts which had been damaged. Surveyor has not given any reasons for assessing the loss at Rs. 55,848.30p from the estimated cost of Rs. 1,07,321.50p. On ad-hoc basis he has reduced the loss.”

12. Thus, keeping in view the facts, circumstances and the evidence placed on file by the parties, the complainant is entitled to the following claim amount as he has not placed any bill on file to show that he has paid the labour charges as claimed by him. However, the parts are being allowed to him as the surveyor has mentioned those parts in his report but has not given details that why has has not allowed those parts. Thus, in our view, the complainant is entitled for the claim amount after depreciation as per G-9 as detailed below :-

1.Transmission case26500/-Dep.40%Rs. 15,900/- Less amt.allowed by Syr.

2. Rear Axle Rim 3323/- Dep. 40% 1,994- Not allowed by surveyor

3. Air filter 2867/- Dep.40% 1,434/- As allowed by surveyor

4. Spindle 2579/- Dep.40% 1,547/- - do -

5. Rear Axle 7554/- Dep.40% 4,532/- - do -

6. Gear Oil 5600/- 5,600/- Not allowed by surveyor

7. Rear Fender 5500/- Dep. 50% 2,750/- - do -

8. Both Head Light 800/- Dep. 30% 560/- - do -

9. Front Wheel Rim 800/- Dep.40% 1,080/- Repair allowed by syr.

10. Radiator 6500/- Dep. 40% 3,900/- Less amt allowed by syr.

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39,297/-

Add : Labour and towing Charges etc 7,000/- As allowed by syr.

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46,297/-

Less : Salvage value 913/-

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45,384/-

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13. The complainant has submitted that Sh. Rajeev Chodhwary, authorised signatory of opposite party Nos. 1 & 2 has stated vide Ex. R-1 that the complainant has taken the tractor in question to the workshop himself and the spot surveyor was not deputed by the opposite parties and that the surveyor neither visited the spot nor took the photographs whereas a perusal of record reveals that the spot survey report is placed on file vide Ex. C-9. Therefore, Sh. Rajeev Chodhwary has given wrong affidavit i.e. Ex. R-1. Thus, keeping in view the sanctity and to avoid such false and frivolous affidavits, this Forum directs aforesaid Sh. Rajeev Chowdhwary to deposit Rs. 10,000/- in his official capacity, in the Legal Aid Fund Account of this Forum, within 30 days from the date of receipt of copy of this order.

14. In view of what has been discussed above, this complaint is accepted against opposite party Nos. 1 & 2 with compensation and cost of Rs. 5,000/- and dismissed qua opposite party No. 3 . The opposite party nos. 1 & 2 are directed to pay Rs. 45,384/- to the complainant being claim amount on account of loss suffered by him due to accident of the vehicle in question.

15. The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non compliance of order within the prescribed period, the aforesaid amount of Rs. 45,384/- would carry interest @9% P.A from the date of repudiation of claim i.e. 25-06-2010 till realisation. Copy of this order be sent to the parties concerned free of cost and the file be consigned.

Pronounced

25-03-2011

(Vikramjit Kaur Soni) Presidet

(Dr. Phulinder Preet)

Member

(Amarjeet Paul)

Member