BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 134 of 2017
Date of Institution : 12.6.2017
Date of Decision : 22.2.2018.
Ajit Singh son of Shri Ram Singh, resident of village Moriwala, Tehsil and Distt. Sirsa.
……Complainant.
Versus.
- The Manager, The New India Assurance Co. Limited, Ambala.
- M/s Garg Motors, Hisar Road, Sirsa through its Manager/ Authorized person/ Incharge.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. Inderjeet Singh, Advocate for the complainant.
Sh. Kapil Sharma, Advocate for opposite party No.1.
Sh. A.K. Gupta, Advocate for opposite party No.2.
ORDER
The case of the complainant in brief is that complainant purchased a vehicle Auto rickshaw/ Alfa passenger Diesel BSII G 435 A III bearing engine No.21282 and chassis No.24873 bearing registration No.HR-57A/7025 against an amount of Rs.1,75,000/- out of which a sum of Rs.50,000/- has been paid in cash as advance by the complainant and the remaining amount has been got financed by the complainant from the Finance company run by Mahindra and Mahindra Ltd. That the complainant also got insured the said vehicle from op no.1 and the insurance papers were got filled by op no.2 being the dealing agency of op no.1 at their own level and thus M/s Garg Motors is also having the legal liability qua the said insurance of the vehicle of the complainant. It is further averred that vehicle of the complainant met with an accident on 9.10.2015 when the complainant started from Bus stand, Sirsa towards village Moriwala on his auto rickshaw alongwith passengers namely Manjit son of Sh. Balwant Singh, Bhajan Kaur wife of Manjit Singh, Kashmiro Bai wife of Lakhbir Singh, residents of village Kalanwali. The auto rickshaw was being driven by the complainant on his correct left side of the road and at a very moderate speed and the passengers were sitting behind side. At about 12.00 O’clock when they reached near Mahaluxmi Paper Mill, then a swift car came from the opposite side which was being driven by its driver at a very high speed and in a rash and negligent manner and the driver of the Car overtaken vehicle going ahead of them and on seeing the negligent driving by its driver, the complainant took the auto rickshaw down from the road but inspite of it the driver of the car hit the car into the auto rickshaw of the complainant and complainant as well as other passengers sustained serious and grievous injuries on their person and the auto rickshaw of the complainant has also been badly damaged. That thereafter the complainant informed the op no.1 about the accident and bad damages to the auto rickshaw in the said accident and thereafter the complainant approached M/s Garg Motors and as per their asking the damaged auto rickshaw was taken at the agency of M/s Garg Motors where also the op no.1 was conveyed by op no.2 of their own and the authorized surveyor of op no.2 (wrongly mentioned as op no.2 and it should be op no.1) paid visit at the agency of M/s Garg Motors and clicked the photographs of the damaged auto rickshaw. The said auto rickshaw is still lying at the workshop of op no.2. It is further averred that op no.1 has also collected all the relevant papers from the complainant with an assurance that very soon the claim of the damaged vehicle would be given to the complainant. The damages to the vehicle has been assessed by Shri Harish Sethi, Surveyor of the op company who has assessed the loss as of Rs.1,50,750/- and this fact has been duly conveyed to the op company and as such the complainant has claimed genuine claim of Rs.1,75,000/- as the price of the damaged vehicle because the vehicle of complainant has gone in total loss. It is further averred that op no.1 inspite of supply of the driving licence and other connected papers whatsoever demanded by the ops have delayed the disbursement of claim and in furtherance of their malafide, they issued the correspondence regarding demand of driving licence of the complainant which has also been supplied by the complainant again vide correspondence dated 6.3.2017 but inspite of supplying all the documents and the fact that complainant is legally entitled for the disbursement of claim of damaged auto rickshaw, the op no.1 failed to disburse the claim to the complainant till today despite his several requests and legal notice dated 18.4.2017. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections that complaint is neither maintainable nor sustainable either in the eyes of law or on true facts of the case as earlier complaint filed by complainant has already been dismissed as withdrawn. Hence, second complaint does not lie in the present form. Other preliminary objections regarding estoppal, suppression of material facts; violation of terms and conditions of insurance policy, jurisdiction, cause of action and non joinder and mis joinder have also been taken. It is submitted that intimation regarding the accidental loss of three wheeler No. HR-57A/7025 was received by insurance company and accordingly Shri Harish Sethi, Surveyor and Loss Assessor was appointed who conducted the survey in presence of complainant/ insured. On 10.10.2016, Sh. Harish Sethi, Surveyor submitted his final report to the company assessing loss of the three wheeler worth Rs.1,50,750/- on net of salvage basis. But insured has violated the terms and conditions of the insurance policy, which rendered him to be disentitled to get any claim from the answering op. It is further averred that the alleged driver/ insured Ajit Singh of three wheeler was not holding a valid and effective driving licence at the time of alleged accident. The driving licence of Ajit Singh is valid for motor cycle, MLV-NT Car and LMV- Tractor whereas insured vehicle is a transport vehicle which is registered and insured as a transport vehicle for which transport licence is required and as such Ajit Singh was driving the vehicle in contravention of the Motor Vehicles Act also and as such the answering op has rightly repudiated the claim of insured on 5.4.2017. It is further averred that insured was not having a valid route permit pertaining to the alleged three wheeler at the time of alleged accident in question which is also a violation of terms and conditions of the insurance policy and as such answering op is not liable to pay any compensation to the complainant. With these averments, dismissal of complaint has been prayed for.
3. Opposite party no.2 in its separate written statement while taking certain preliminary objections regarding non joinder and mis joinder of necessary parties, cause of action, jurisdiction and estoppal etc. submitted that complainant approached the answering op for the repair of the vehicle and the answering op has conveyed regarding the damage of the vehicle to the insurance company at the instance of complainant and accordingly the surveyor of op no.1 clicked the photographs of the damage vehicle in workshop. The matter is between the insurance company and the complainant and the answering op has no concern with the survey or claim of the vehicle. It is further submitted that damaged vehicle is still lying with the answering op and till date company has not deposited any document or any amount regarding the repair of the said vehicle.
4. The complainant produced his affidavit Ex.C1, copy of policy schedule cum certificate of insurance Ex.C2, copy of letter dated 23.12.2016 Ex.C3, copy of application dated 6.3.2017 Ex.C4, copy of repudiation letter dated 5.4.2017 Ex.C6, copy of FIR Ex.C7, copy of driving licence Ex.C8, copy of legal notice Ex.C9, copy of certificate of registration Ex.C10, delivery challan Ex.C11, copy of form 21 Ex.C21, copy of tax invoice Ex.C13 and certified copy of award dated 16.11.2017 Ex.C14. On the other hand, op no.1 produced affidavit of Sh. Karan Singh Chaudhary, Senior Divisional Manager Ex.R1, policy schedule cum certificate of insurance Ex.R2, insurance policy Ex.R3, copy of claim form Ex.R4, copy of FIR Ex.R5, copy of DL Ex.R6, copy of RC Ex.R7 and copy of motor survey report Ex.R8 and copy of repudiation letter dated 5.4.2017 Ex.R9. OP no.2 produced affidavit of Sh. Basant Garg Ex.RW2/A.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. Learned counsel for complainant has strongly contended that it is proved case of the complainant that the complainant is the owner of vehicle bearing registration No.HR-57A/7025 and the same was insured with the opposite party no.1. The auto rickshaw of the complainant met with an accident on 9.10.2015 when he was going on from Bus Stand, Sirsa towards village Moriwala on his auto rickshaw. Due intimation was given to op no.1 and claim was lodged alongwith all the requisite documents. The Surveyor was appointed by op no.1 who submitted his detailed report and recommended the loss on total loss basis but however, op no.1 arbitrarily and illegally withheld the claim of the complainant and did not release the amount of loss which was recommended by the surveyor despite repeated requests of the complainant. It has also been contended that claim of the complainant has been declined by op no.1 on the ground that complainant was not holding a licence to drive three wheeler auto rickshaw and which allegedly amounts to violation of the terms and conditions of the insurance policy. Prior to this complaint, the complainant had also filed a petition before the MACT, Sirsa titled as Ajit Singh Versus Yashpal @ Jassu etc. which was allowed vide award dated 16.11.2017 which is Ex.C14 in which the same New India Assurance Company as impleaded as respondent no.3. Non payment of the claim by op no.1 amounts to deficiency in service. Learned counsel for complainant has also relied upon judgments of the Hon’ble Punjab and Haryana High Court in case titled as ICICI Lombard General Insurance Company Limited Vs. Rampal and others, FAO No.1719 of 2011 (O&M) decided on 15.12.2017 and in case titled as UIIC Ltd. vs. Dharmpal and others, FAO No.2673-2015 decided on 4.12.2017.
7. On the other hand, learned counsel for opposite party no.1 has strongly contended that it is a proved case on record that after accident, claim was lodged by complainant and surveyor was appointed who submitted his survey report but claim of complainant was not payable as complainant was not holding a valid licence to drive three wheeler auto rickshaw. He was holding a licence for motor cycle, LMV-NT Car and LMV- Tractor but however the vehicle in question is a transport vehicle which complainant was not authorized to drive, as such he violated the terms and conditions of the insurance policy and is not entitled to any claim. The op no.1 has rightly repudiated the claim of the complainant. Learned counsel for op no.1 has also relied upon judgments of the Hon’ble Punjab and Haryana High Court in cases titled as OIC Vs. Suman and others, FAO No.3688 of 2010 (O&M) decided on 17.5.2016 and Cholamandalam MS General Insurance Co. Ltd. Vs. Pushap Kumar and others, FAO No.1220 of 2013 (O&M) decided on 28.1.2016.
8. We have considered the rival contentions of the parties and have gone through the record and judgments relied upon by learned counsel for the parties.
9. It is undisputed fact between the parties that complainant is owner of the vehicle in question i.e. three wheeler bearing registration No.HR-57-A/7025 which was insured with the opposite party no.1 for the period 24.12.2014 to 23.12.2015. The vehicle met with an accident on 9.10.2015 and same was damaged, as a result of which due intimation was given to op no.1 and claim was lodged alongwith requisite documents which was processed and a surveyor was appointed who inspected the vehicle thoroughly and submitted his detailed report Ex.R8. He recommended total loss basis settlement at Rs.1,66,250/- less salvage value of damaged vehicle without RC of Rs.15,000/-, less policy clause of Rs.500/- and liability on net of salvage basis to the tune of Rs.1,50,750/-, but however op no.1 vide its letter Ex.R9 has repudiated the claim of the complainant on the ground that complainant’s licence no.HR-2419960103379 dated 17.12.1996 valid up to 31.12.2025 has been found to be valid to drive only non transport vehicles i.e. MCWG, LMV-NT car, MLV tractor only whereas the insured vehicle in question no.HR57A-7025 is a transport vehicle, thus he was driving the insured vehicle at the time of alleged loss without a valid and effective driving licence in violation of terms and conditions of the insurance policy and in contravention of the Motor Vehicle Act.
10. The perusal of the evidence of the complainant reveals that complainant has furnished his affidavit Ex.C1 in which he has deposed and reiterated all the averments made in the complaint. He has also placed on record documents Ex.C2 to Ex.C14 as mentioned above. The perusal of the copy of the award dated 16.11.2017 passed by MACT, Sirsa in case titled as Ajit Singh Vs. Yashpal @ Jassu etc. in which New India Assurance Company through its Branch Manager was also impleaded as a party reveals that this award was passed in favour of present complainant qua the injuries suffered by him in the said accident. No doubt, claim of the complainant was repudiated on the ground that complainant was not holding a valid and effective driving licence to drive transport vehicle but repudiation of the claim by op no.1 appears to be arbitrary and illegal. The copy of registration certificate of the vehicle in question Ex.C10 reveals that in the column of class of vehicle three wheeler has been mentioned and in the type of body auto rickshaw (Pass) has been mentioned and similarly in the copy of policy schedule Ex.C2 in the column of type of commercial vehicle it has been mentioned as passenger carrying three wheeler. The perusal of the form 21, copy of which is Ex.C12 reveals that it finds mentions class of vehicle as LMV. So, there remains no doubt qua this fact that vehicle is covered under the definition of light motor vehicle.
11. During the course of arguments, learned counsel for op no.1 has strongly contended that though the complainant was holding a licence to drive the vehicle LMV but he was not allowed to drive the vehicle LMV transport vehicle as per endorsement mentioned in the driving licence of the complainant. The perusal of the copy of driving licence of complainant Ex.C8 reveals that complainant was authorized to drive the vehicle M.C with gear, LMV-NT car, LMV-Tractor only. As per provisions of Section 2 (21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms. As per copy of registration certificate of vehicle in question, the laden weight of this three wheeler is 800 Kgs. which is quite less than 7500 Kgs., meaning thereby that this vehicle falls under the coverage of light motor vehicle. Further more, we find force from the recent law laid down by the Hon’ble Supreme Court of India in case titled as Mukand Dewegan Vs. Oriental Insurance Co. Limited, 2016(4) SCC 298 wherein it has been held as under:-
“46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles.
It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of “light motor vehicle” in section 2(21) and the provisions of vehicles’ and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2) (e) of the Act ‘Transport Vehicle’ would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10 (2) (e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
- ‘ Light motor vehicle’ as defined in section 2 (21) of the Act 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 the light motor vehicle by virtue of Amendment Act.64/1994.
- 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. A license issued under section 10(2) (d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
12. In the above judgment, the Hon’ble Supreme Court has categorically laid down that if driver is holding licence for light motor vehicle, no endorsement is required for driving transport vehicle of the same category and this view of the Hon’ble Supreme Court has also been followed by the Hon’ble Punjab and Haryana High Court in case titled as ICICI Lombard General Insurance Company Limited Vs. Rampal and others, FAO No.1719 of 2011 (O&M) decided on 15.12.2017 and in case titled as United India Insurance Company Ltd. Vs. Dharmpal and Ors. FAO- 2673-2015 decided on 4.12.2017.
13. So, it appears that opposite party no.1 has arbitrarily and illegally repudiated the claim of the complainant though they were under legal obligation to reimburse and pay loss of the complainant as per report of the surveyor. The judgments relied upon by learned counsel for op no.1 are of no help to the case of op no.1 as these judgments were pronounced in year 2016 but thereafter the above said law has been laid down by the Hon’ble Supreme Court and Hon’ble Punjab and Haryana High Court in number of cases.
14. In view of the above, we allow this complaint qua op no.1 and direct the opposite party no.1 to settle and pay the claim of the complainant on the basis of survey report as per terms and conditions of the insurance policy within 30 days from the receipt of copy of this order. We also direct the op no.1 to pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant. However, no liability of op no.2 of any kind is made out and as such complaint qua op no.2 stands dismissed. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:22.02.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
