Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 698
Instituted on : 19.12.2019.
Decided on : 07.10.2024.
Pooja Rani age 25 years, w/o Late Sh. Vikas, R/o H.No.372, Village Channot Tehsil and District Hisar(HR).
………..Complainant.
Vs.
- Jag Mohan Motors, Hansi, Hisar(HR) through its Manager(issued Insurance Policy).
- Maruti Insurance Booking Pvt. Ltd.1, Nelson Mandela Road, Vasant Kunj, New Delhi-110070 through its Divisional Manager.
- National Insurance Company Divisional Office, Narain Complex, 2nd Floor, Civil Road Rohtak-124001.
- National Insurance Company Ltd. Div. No.10, Flat No.101-166, N-1, BMC House, Connaught Place, New Delhi-110001 through its Divisional Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
Present: Ms.Rajesh, Advocate for complainant.
Smt. LovinaSinghla, Advocate for opposite party No.1.
Sh. Gourav Arya, Advocate for opposite party No.2.
Sh.PuneetChahal, Advocate for opposite party No.3 & 4.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per the complainant are that she had insured her vehicle i.e. Car (Swift Desire-Maruti) bearing No.HR39D-8273 from the opposite party No.3 through policy no.35101031166138630964 for the period 22.07.2016 to 21.07.2017, through respondentno.1.The complainant paid Rs.19043/- in cash to respondent no.1 as premium against the insurance policy. On 24.03.2017 the vehicle of the complainant, which was being driven by her husband, met with an accident and badly damaged at Jhajjar and husband of the complainant was declared dead inGeneral Hospital, Jhajjar. A D.D.No.4 dated 24.03.2017 was got registered. The complainant had telephonically informed the insurance company after this accident. The respondent appointed the surveyor. The respondents have issued rejection letter and gave false reasons that the driver was having no valid driving license to drive commercial vehicle while the husband of the complainant has applied for heavy license vide receipt no.0010768 dated 19.09.2016 and form no.00119389 dated 16.09.2016 in the name of Vikash son of Partap Singh, earlier to the accident with the concerned authority but till today respondents have not settled the claim of the complainant. The car of the complainant is still lying with Aman Motors Azadgarh, Rothak as per the direction of respondent no.3 and complainanthave to pay parking charges. Complainant visited the office of opposite parties several times and submitted all the required documents for claim but till today, claim amount has not been paid to the complainant. There is deficiency in service on the part of opposite parties and opposite parties are liable to pay the genuine claim amount to the complainant. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay Rs.800000/- alongwith interest @ 18% p.a. from the date of damages, to make payment of Rs.3250/- on account of moving the vehicle by crane from the place of occurrence and also to pay compensation of Rs.200000/- on account of mental agony & harassment and Rs.22000/- as litigation expenses to the complainant.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party No.1 in its reply has submitted that the insurance of the vehicle is a matter of record and all the other contents of the complaint are related to respondent no.3 and respondent no.1 has no concern with the same. It is prayed that the complaint of the complaint may kindly be dismissed qua respondent no.1.
3. Opposite party No.2 in its reply has submitted in preliminary objections that the vehicle in question has been insured by the opposite party No.3 ‘National Insurance company Ltd.’ , hence they are answerable, if at all, to the complainant for the alleged insurance claim,if lawfully found due. Opposite party no.2 has no role to play in the present matter in dispute and the name of oppositeparty No.2 be deleted from the array of parties. On merits, it is submitted that there exists no privity of contract between the complainant and the opposite party as the opposite party No.2 neither insured the vehicle in question nor received any premium or consideration in its name. All the other contents of the complaint were stated to be wrong and denied and opposite party No.2 prayed for dismissal of complaint with costs.
4. Opposite party No.3 & 4 in their reply has submitted the opposite parties issued a private vehicle policy No.35101032266138630964 with period of insurance from 22.07.2016 to 21.07.2017 in the name of Mr. Vikash. It is submitted that the insured/owner of the vehicle, registered the vehicle as commercial and bearing no.HR-39D-8273. The complainant submitted the documents to the opposite parties and after perusal of the documents, the vehicle car bearing no.HR-39D-8273 used as taxi at the time of accident. The driver/insured was not having commercial license. In these circumstances, the opposite party was not liable under the policy terms and conditions in respect of the claim. The opposite party company repudiated the claim and intimated to insured vide letter dated 01.08.2019. All the other contents of the complaint were stated to be wrong and denied. There is no deficiency in service on the part of opposite party No.3 & 4 and dismissal of complaint has been sought.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C16 and closed his evidence on 14.12.2022. On the other hand, ld. counsel for the opposite party No.1 has tendered affidavit Ex.RW1/A and closed his evidence on 17.10.2023. Ld. Counsel for opposite party No.2 has tendered affidavit Ex.RW2/A, documents Ex.R2/1 to Ex.R2/2 and closed his evidence on 19.04.2023. Ld. counsel for the opposite party No.3 & 4 has tendered affidavit Ex.RW3/A, documents Ex.R3/1 to Ex.R3/7 and closed his evidence on 19.04.2023.
4. We have heard learned counsel for the parties and have gone through the material aspects of the case very carefully.
5. In the present case as per the insurance company the vehicle bearing registration no.HR-39D-8273 was registered as a commercial vehicle from the concerned registration authority whereas the insurance policy was issued for private car package policy and the same is placed on record as Ex.R3/1. No claim letter Ex.R3/2 dated 01.08.2019 was issued by the opposite party No.3 on the ground that the vehicle in question was being used as commercial vehicle whereas the same was insured as private vehicle and that the driver was not holding valid licence to drive taxi on the date of accident i.e. 24.03.2017. We have perused the documents placed on record by both the parties. As per survey report itself the driving license of the driver Vikash was valid from 10.02.2015 to 09.02.2035 and he was authorised to drive motorcycle with gear , LMV, NT-Car, LMV-Tractor. The class of vehicle(use) is mentioned as L.M.V. and the registered laden weight is 1505 kg. In this regard, we have placed reliance upon the judgment dated 03.07.2017 of Hon’ble Apex Court in MukundDewangan versus Oriental insurance company limited whereby Hon’ble Supreme Court has held as under:-
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. In the present case also, as per copy of R.C.Ex.C8 the gross weight of vehicle is 1505kgs, which is less than 7500kgs. Hence Vikash was authorised to drive the vehicle in question. Hence the wrong plea has been taken by the opposite party that driver was not holding effective driving licence at the time of accident. The other plea taken by the insurance company is that the vehicle was not insured as commercial vehicle. In this regard it is observed that asper instruction of Govt. of India and Transport department the vehicle cannot be released from the showroom without insurance and temporary registration. Initially the insurance was issued for private car package policy and thereafter the complainant converted the same as a commercial vehicle in the concerned registration authority. Thereafter the permit and fitness were also issued by the concerned department. But inadvertently the complainant could not convert the vehicle as commercial vehicle in the insurance policy. We have also perused the copy of DDR Ex.C14 as per which the deceased was going to drop two persons of his village to Gurgaon. But from this report it is not proved that he had taken some fare from the alleged persons and he was using the car as a commercial vehicle at the time of accident.No doubt the vehiclein question was insured with the opposite party as private vehicle, but for this reason the whole claim cannot be denied by the insurance company and the opposite party No.3 & 4 are liable to pay the claim on sub-standard basis. As per policy the IDV of vehicle is Rs.567600/- and as per survey report Ex.R3/6, the repair cost of vehicle is Rs.1061767/- and the net loss on salvage basis without RC is Rs.492100/-. Hence the opposite parties No.3 & 4 are liable to pay the 75% claim of Rs.492100/- i.e. Rs.369075/- on net of salvage basis without RC. As per copy of policy Ex.R3/1 and RC Ex.C8, the vehicle in question is hypothecastedwith Cholamandalam Investment and Finance Company Ltd.
6. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite partiesNo.3 & 4 to pay Rs.369075/-(Rupees three lac sixty nine thousand and seventy five only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 19.12.2019 till its realisation and also to pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses in favour of the financer i.e. Cholamandalam Investment and Finance Company Limited for settlement of loan account of the complainant and after settlement of loan account of complainant, if any amount remains as surplus, the same shall be paid to the complainant. The vehicle in question shall be retained by the complainant and complainant is at liberty to sell the same in scrap. Complainant is further directed not to ply the alleged vehicle on roadandto move an application to the Registration Authority for cancellation of R.C. within 15 days.
7. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
07.10.2024.
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Nagender Singh Kadian, President
………………………………..
TriptiPannu, Member.
