Haryana

Karnal

86/2014

Suresh Kumar S/o Jai Singh - Complainant(s)

Versus

Iffco Tokio General Insurance Company Limited - Opp.Party(s)

Naresh Kumar

08 Sep 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No. 86 of 2014

                                                             Date of instt. 31.03.2014

                                                               Date of decision:08.09.2016

 

Suresh Kumar son of Shri Jai Singh, resident of village Seedpur, Tehsil Nilokheri, District Karnal

                                                                         ……..Complainant.

                                                Versus

Iffco-Tokio General Insurance Company Limited, SCO no.19-20, Part 1, Sector 12, Karnal through its Branch Manager.

                                                                                 …………Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Shri Narender Chaudhary Advocate for complainant.

                    Shri A.K.Vohra Advocate for opposite party.

                                     

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act, 1986, on the averments that he got insured his Harvester Combine bearing registration no.HR05-AF-4366 Model 2011 with the opposite party, vide cover note no.73443687 valid from 16.09.2012 to 15.09.2013. On the intervening night of 25/26.03.2013 at about 2.00 A.M., the Harvester Combine met with an accident, as a result of which the same was totally damaged. First Information Report no.148 dated 26.03.2013 was got registered regarding the said accident. Intimation was given to the opposite party, who appointed surveyor for spot survey. Surveyor reported that the case was of total loss and the harvester combine was beyond repairs. Claim was lodged with the opposite party and the same was made as “No Claim”, vide letter dated 22.11.2003, on the grounds that the driving licence no.S55709-01 in the name of Subhash was found to be fake on verification and seating capacity of the vehicle as per registration certificate was “one”, but as per First Information Report 5 passengers were sitting at the time of accident. It has further been submitted that the  Driving Licence bearing no.S55709-01 was never submitted to the opposite party, rather Driving Licence no.31075/TV/T/2012 issued on 19.03.2010 by District Transport Officer, Tuensang, Nagaland was submitted to the surveyor as well as the opposite party and the said Driving Licence was valid and effective on the date of accident. It has further been pleaded that the opposite party had charged additional sum of Rs.150+250 as insurance premium for license carrying capacity of 1+5 passengers and that fact was mentioned even in the cover note. In this way, making his claim as No Claim amounted to deficiency in service on the part of the opposite party,  which caused him mental pain, agony and harassment apart from financial loss.

2.                Notice of the complaint was given to opposite party, who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complainant has no locus standi to file the compliant; that the complainant has not approached this Forum with clean hands; that the complaint is not legally maintainable and that the complicated questions of law and facts are involved, which cannot be decided by this forum in summary proceedings.

                   On merits, the factum of accident, damage to the Harvester Combine in the said accident and assessment of loss by the surveyor have not been disputed. It has been submitted that the Driving Licence no. S55709-01 in the name of Subhash son of Teka Ram was verified from the office of Sub Divisional Magistrate Solan and the same was found to be fake. The registered seating capacity of the vehicle as per Registration Certificate was one, but as per First Information Report 5 passengers were seated at the time of accident. Thus, there was violation of terms and conditions of insurance policy and relevant provisions of the Motor Vehicles Act, 1988. Therefore, the claim was rightly repudiated, vide letter dated 22.11.2013 and there was no deficiency in service on the part of the opposite party. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex. C2 to C7 have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of Mahesh Kalra Surveyor Ex.O1, affidavit of Pallavi Roy Ex.O2 and document Ex.O3 has been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The Combine Harvester of the complainant bearing registration no. HR05-AF-4366 was insured with the opposite party and the same met with an accident on the intervening night 25/26.03.2013 during subsistence of the insurance policy and was badly damaged in the said accident. Loss was assessed by the surveyor appointed by the opposite party. Thereafter, the complainant lodged claim, but the same was repudiated, vide letter dated 22.11.2013 on two grounds viz:- the driving licence of Subhash son of Teka Ram was found to be fake on verification and as per First Information Report 5 persons were sitting on the Harvester Combine at the time of accident, whereas according to the Registration Certificate the seating capacity was of one person only.

7.                Learned counsel for the opposite party vehemently argued that the claim form was submitted by the complainant and in the same the name of the driver was mentioned as Subhash son of Teka Ram having driving licence no. S55709-01 issued by Licensing Authority Solan. The said driving licence was got verified from Licensing Authority-cum-Sub Divisional Magistrate Solan. As per the report no such driving licence was issued in favour of Subhash son of Teka Ram. The complainant never produced any other driving licence of Subhash while the claim was being processed. It has further been contended that as the driving licence mentioned in the claim form was found to be fake, the claim of the complainant was rightly repudiated.

8.                On the other hand, the learned counsel for the complainant laid emphasis on the contention that Subhash son of Teka Ram was having valid Driving Licence no.31075/TV/T/2012 new number of the said Driving Licence was allotted as NL-032010000229. The Driving Licence is valid from 19.03.2010 to 18.06.2015. The said Driving Licence was only produced before the surveyor and no Driving Licence bearing no. S55709-01 allegedly issued by Licensing Authority Solan was produced. However, the opposite party did not consider the genuine Driving Licence and wrongly and illegally repudiated the claim on the ground that the driver was not having valid and effective Driving Licence on the date of accident.

9.                In the claim form submitted by the complainant, the copy of which is lying on file, the name of the driver was mentioned as Subhash son of Teka Ram resident of 245, Ram Nagar Solan(HP) and the driving licence no. S55709-01 valid from 18.7.2010 to 18.7.2013 for driving LMV/HGV and HMV.  The copy of the said driving licence of Subhash is also lying on the file. The surveyor got verified the said driving licence from Sub Divisional Magistrate-cum-Registration and Licensing Authority Solan. It was reported by the said Licensing Authority that no such driving licence was issued. Thus, the Driving Licence of Subhash produced by the complainant alongwith claim form was found to be fake. During pendency of the complaint, the complainant moved an application for leading additional evidence for producing driving licence no. 31075/TV/T/2012 having new number as NL-032010000229 issued by District Transport Officer Tuensang, Nagaland valid from 19.6.2012 to 18.6.2015, but the said application was dismissed, vide order dated 15.3.2016. No appeal or revision was filed by the complainant against the said order and such the same attained finality. By producing the driving licence during pendency of the complaint, the complainant had infact disabled  the insurance company from getting the same verified while processing the claim. Even otherwise, no person can hold more than one Driving Licence at one time. Thus, there was violation of the condition of the insurance policy regarding driving of the vehicle by duly licensed driver.

10.              Now, we advert to deal with the another ground on which the claim of the complainant was repudiated by the opposite party that as per the Registration Certificate seating capacity was “1”, but as per First Information Report 5 persons were sitting on the vehicle at the time of accident. No doubt in the Registration Certificate the seating capacity was mentioned as 1, but the copy of the cover note indicates that opposite party had accepted premium for 1+5 passengers. Therefore, it does not lie in the mouth of opposite party to say that there was violation of the policy. Even if, for the sake of arguments it is accepted that more persons than authorized as per Registration Certificate were sitting on the vehicle at the time of accident, then also the same could at the must be violation of condition of the policy.

11.              In view of the aforediscussed facts and circumstances, even if, the pleas raised by the opposite party are accepted that the driver was not having valid Driving Licence at the time of accident and that more persons than authorized as per Registration Certificate were sitting on the vehicle at the time of accident, then also there was violation of the terms and conditions of the insurance policy. In such a situation, the opposite party could not repudiate the claim of the complainant in toto. In view of the law laid down by the  Hon’ble Supreme Court in Amalendu Shaoo Vs. Oriental Insurance Company Ltd. ii (2010) CPJ 9 (SC) the complainant was entitled to get 75% compensation on non-standard basis. In this context reference with advantage may also be made to the decision of the Hon’ble State Commission Haryana dated 16.02.2016 in first appeal no.580 of 2015 case titled as Cholamandalam MS General Insurance Company Limited Versus Raghunath Tanwar  wherein the Driving Licence produced by the complainant before the insurance company was found to be fake. The complainant produced the Driving Licence issued by Licensing Authority Nagaland. It was held that by producing licence during pendency of the complaint, the complainant disabled the insurance company from its verification, besides no person can hold more than one driving licence at one time. Thus, there was violation of terms and conditions of the insurance policy. However, without going into that controversy and treating it as violation of the policy the complainant is entitled to get compensation on non-standard basis in view of judgment of the Hon’ble Supreme Court in Amalendu Shaoo’ case (supra)  

12.              The opposite party has produced the copy of the report of the Surveyor Ex.O3, according to which the surveyor assessed the total loss as Rs.6,50,000/- and the insured was also keen to settle the claim for that amount on cash loss basis. The complainant is entitled to get 75% of the said amount of Rs.6,50,000/- on cash loss basis.

13.              As a sequel of aforesaid discussion, we accept the present complaint and direct the opposite party to make the payment of 75% of Rs.6,50,000/- to the complainant on cash loss basis with interest @ 9% per annum from the date of filing the complaint till its realization. We further direct the opposite party to pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The party concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 08.09.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member