Punjab

Rupnagar

CC/18/15

Kirpal Kaur - Complainant(s)

Versus

IFFCO TOKIO General Insurance - Opp.Party(s)

Sh. Karambir Singh Sidhu,Adv

20 Jul 2018

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                 Consumer Complaint No. :  15 of 12.03.2018

                                 Date of decision                     :     20.07.2018

 

Kirpal Kaur, wife of Sh. Narinder Singh, resident of Village Behlolpur, Tehsil & District Fatehgarh Sahib 

                                                                 ......Complainant

                                             Versus

     IFFCO TOKIO General Insurance Co. Ltd. Bhatha Sahib Gurdwara Chowk, SCO-C-861/862, Main Road, Roper, through its Branch Manager  

                                                                          ....Opposite Party

                         Complaint under Section 12 of the                                                      Consumer Protection Act, 1986

QUORUM

 

                        SH. KARNAIL SINGH AHHI, PRESIDENT

                        SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

 

Sh. Karambir Singh Sidhu, Adv. counsel for complainant 

 Sh. Amit Gupta, Adv. counsel for O.P. 

 

                                           ORDER

              SH. KARNAIL SINGH AHHI, PRESIDENT

 

1.         Complainant has filed the present complaint seeking directions to the opposite party to pay Rs.1,18,464/- as loss suffered by the complainant; to pay damages to the tune of Rs.80,000/- and also interest on both the said amounts @ 18% per annum from 06.10.2015 till realization. 

 2.   Brief facts made out from the complaint are that complainant being owner of her tractor mark Arjun 555 bearing registration No.PB-23-S-6553 got the same insured with the O.P. No.1 through its agent Balpreet Singh No.28000004 agent of IFCO TOKIO General Insurance Co. Ltd, shop No.51, New Grain Market B.K. Sirhind, Tehsil & District Fatehgarh Sahib vide insurance policy No.1-3 NABHOQP400 policy No.930000 dated 29.1.2015 valid up to 28.6.2016 midnight and paid premium of the same. The tractor in question met with accident on 06.10.2015 and in the said accident insured tractor badly damaged and about said accident FIR No.165 dated 07.10.2015 was got registered at PS Fatehgarh Sahib and the O.P  was duly informed about the said accident and damage of the said insured tractor. The OP (Insurance Company) deputed its surveyor who came to inspect the same and inspected the same and submitted damage report to the O.P. and asked the complainant to get repaired the same and submit her claim to the O.P. He got repaired the said tractor from M/s International Tractor and Automobiles, GT Road, Phillaur and an amount of Rs.1,18,464/- has been spent by her from her own pocket for getting the said tractor repaired.  Due to the damage of the said tractor, the complainant also suffered unliquidated damages, physical pain and also loss of earnings. On the asking of the O.P., the complainant submitted entire documents about damage, repair and other documents as required by the O.P. and the official of the O.P assured that they will make the payment of the same shortly. As per the assurance of the O.P., did not make the payment of the amount which was spent by the complainant for repair of the tractor in question and then complainant got sent legal notice dated 24.6.2016 and then instead of making payment of the same O.P. vide its letter dated 30.6.2016 wrongly and illegally repudiated the claim of the complainant. Hence, this complaint.  

 3.   On notice, O.P. appears through counsel and filed written reply taking preliminary objections; that the complainant has not come to the court with clean hands and is intentionally concealing the material facts; that there is not deficiency on the part of the O.P. as the complainant has purchased the insurance policy No.93000030 for Arjun Tractor with engine and chassis No.NNAJ03032 w.e.f. 29.6.2015 to 28.6.2016 strictly subject to the terms and conditions of the policy. That the complainant has intimated with regard to the damage to the insured tractor on 7.10.2015 and accordingly and insurance company has appointed Sh. KPS Oberoi, Surveyor and Loss Assessor to assess the loss. He has submitted his report dated 22.3.2016. The claimants have also submitted the DL No.PB-2320100038063 of Narinder Singh issued by Licensing Authority, Fatehgarh Sahib and the said DL is valid for LMV/LMV-GV, TRANS only. The said driving license was not valid for driving tractor in question at the time of accident. Thus, the claim lodged by the insured was falls under general exception No.3(b) of the Insurance Policy accordingly repudiated vide letter dated 30.06.2016.  The claim of the complainant was processed as per terms and conditions of the policy. On merits, it is stated that the complainant is not entitled to get the claim amount from O.P as the same was repudiated due to violation of the policy terms and conditions. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof. 

4.    On being called upon to do so, the complainant has tendered her duly sworn affidavit Ex.C1 along with documents Ex.C2 to Ex.C10 and closed the evidence. The O.P. has tendered duly sworn affidavit of Sh. Rajiv Ranjan, General Manager, Iffco Tokio Ex.OP1 along with documents Ex.OP2 to Ex.OP11 and closed the evidenc.    

5.    We have heard the learned counsel for the parties and have gone through the record of the file, carefully.

6.    Complainant counsel Sh. Karambir Singh Sidhu, argued that tractor bearing registration No. PB-23-S-6553 owned by complainant Kirpal Kaur was insured for the valid period w.e.f. 29.1.2015 to 28.6.2016 midnight and deposited the premium, but unfortunately when on 06.10.2015 Narinder Singh, husband of the complainant was drive the tractor in question met with an accident with car. In the said accident, Narinder Singh died, FIR No.165 dated 07.10.2015 under Section 279, 304-A, IPC etc, at PS Fatehgarh Sahib was recorded. The tractor was badly damaged and it was got repaired with the prior information to the O.P. O.P. deputed the surveyor, who assess the loss and finally held that complainant is entitled to Rs.1,08,397/- i.e. the amount payable. After that claim was assessed by the O.P. and finally vide Ex.C2/OP10 the claim was repudiated on the ground that the driver/deceased Narinder Singh not having valid driving license to drive the tractor at the relevant time of occurrence. Learned counsel further prayed that tractor is not commercial vehicle and the Narinder Singh was having valid driving license, copy of which is Ex.C9, the O.P repudiated the claim on the flimsy ground. He also argued that earlier the complaint No.108 of 2016 titled as Kirpal Kaur Vs IFFCO Tokio was filed before the District Consumer Disputes Redressal Forum, Fatehgarh Sahib but because of territorial jurisdiction that complaint was decided against the complainant. However, liberty was granted to approach the appropriate forum. Lastly prayed to allow the complaint with costs.

7.    O.P. counsel Sh. Amit Gupta, by referring the documentary evidence as well as pleadings prayed that so far the occurrence, issuance of policy, valid period from 29.06.2015 to 28.6.2016, and registration of FIR as well as vehicle driven by Narinder Singh are admitted facts. However, the tractor was insured but at the relevant time i.e. dated 06.10.2015 Narinder Singh was not having valid driving license to drive the tractor in question. Lastly prayed to dismiss the complaint with the prayer that complainant remain fail in proving the deficiency in service and O.P has rightly repudiate the claim.

8.    So far the territorial jurisdiction as well as whether it is a consumer dispute are admitted facts and need not to go in detail. Issuance of the policy as well deposit of premium then appointment of surveyor are also admitted by the O.P. So it is a consumer dispute and this forum has the territorial jurisdiction.

9.    Coming to the controversial point, whether complainant remain successful in proving deficiency on the part of O.P. and also whether Narinder Singh was having valid driving license at the relevant time of occurrence. Complainant Kirpal Kaur is the registered owner of the vehicle bearing Registration No.PB-23-S-6553 and it was insured vide policy No.93000030 dated 29.6.2015 valid up to 28.6.2016. Accident occurred on 6.10.2015 and FIR No.165 dated 7.10.2015 was also got registered at PS Fatehgarh Sahib. Complainant informed the O.P. who deputed the surveyor namely KPS Oberoi, who assessed the loss then the complainant got repaired the tractor and finally the claim was lodged. Complainant on file has placed on file the repair bill Ex.C6 (containing three pages) and copy of FIR Ex.C7, whereas copy of policy Ex.C5/OP2. in evidence has placed on file report of surveyor Ex.OP4 which includes photographs of the tractor, repair calculation and finally the total repair charges and after deducting the less depreciation, less salvage etc, made clear that the total amount payable Rs.1,08,397/- With the assistance of both the counsel, this Forum gone through the repudiation letter Ex.C2/OP10 and in its concluding part mentioned that the insured vehicle which is commercial vehicle (tractor) was being driven by Mr. Narinder Singh at the relevant time of accident who hold and license No.PB2320100038063 to drive LMV/LMV-GV, TRANS and not for tractor. So with this conclusion has repudiated the claim.

10.   Complainant counsel in support of his claim has relied upon law laid down by the Hon’ble Delhi High Court i.e. Accident & Compensation Cases 2014 titled as Rajinder Singh & Anrs Vs Santosh Devi & Ors decided on 31.7.2014.  In which the law laid down as under:-

             “Motor Vehicle Act, 1988- Section 149- Liability of Insurance Company- Validity of driving license- Tractor is not commercial vehicle and it is for agricultural purposes only- LMV/Tractor License is required to drive tractor and when trolley and other agricultural equipment attached, that also becomes part of tractor, that equipment cannot be considered separately- Tractor cannot be said to be commercial vehicle- Award of Tribunal set aside qua recovery rights against appellants.

  Complainant counsel further law laid down by the Hon’ble Gujrat High Court IV (2014) Accident & Compensation Cases, December 2014 titled as New India Assurance Company Ltd Vs Bhikhabhai Desaibhai Rathod & Ors decided on 6.5.2013, in which the law laid down as under:-

“Motor Vehicles Act, 1988- Section 149(2) (2) (ii), 2(21)- Liability of Insurance Company _ Driving Licesne- Validity – Weight of vehicle involved in accident was 5,990 Kg- Light Motor vehicle  means transport vehicle or omnibus, gross vehicle weight of either of which or motor car or tractor or road roller, the unladen weight of any of which does not excess 7500 Kg- Pursuant to amendment Act 54 of 1994 w.e.f. 14.11.1994, weight of 6000 Kg was enhanced to 7500 Kg- Driver of Mini Truck was hold valid driving license- Insurance Company liable to pay compensation.

11.   After appreciating the law referred above and after going through the pleadings, documents and order of repudiation Ex.C2/OP10 the Forum has come to the conclusion that OP repudiated the claim only on the ground that the tractor comes in the definition of commercial vehicle, whereas, both the Hon'ble High Courts have held that tractor is not commercial vehicle and its used for agricultural purposes only. Even, if any of the equipment attached with the tractor separately that does not mean vehicle has become commercial. Finally held it is a non commercial. Moreso, the tractor has been used by the owners (farmers) for the purpose of agricultural use. To rebut these authorities or to explain the tractor comes under the definition of commercial vehicle O.P. counsel remain unsuccessful in producing the law as well to show any of the relevant provision of the Motor Vehicle Act, 1988. So complainant remains successful in proving deficiency in service on the part of O.P. and complainant is entitled for the loss.

12.   Then complainant is held entitled for loss/damages then it is to be decided to what extent so far is entitled. Though complainant has placed on file Ex.C6 detail of expenses occurred at the time of repair but there is report of surveyor Ex.OP4 and he thoroughly checked the detail, loss of the vehicle and finally after deducting the less depreciation, less excess etc. concluded that the total amount payable Rs.1,08,397/-. To rebut this figure neither the complainant nor the O.P. counsel adduced any evidence. So complainant is held entitled Rs.1,08,397/-.

13.   In the light of above discussion, the complaint stand allowed with the direction to the O.P. to pay Rs.1,08,397/- along with interest @ 7.5% per annum w.e.f. 06.10.2015 till realization with cost of Rs.5000/-.  

14.   The O.P. is further directed to comply with the said order within the period of 30 days from the date of receipt of certified copy of this order.

15.   The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

                     ANNOUNCED                                                      (KARNAIL SINGH AHHI)

                     Dated .20.07.2018                            PRESIDENT
 

 

 

                                                          (SHAVINDER KAUR)

                                                                             MEMBER