Ld. Advocate(s)
For Complainant: Makbul Rahaman
For OP/OPs :Raj Kumar Mondal
Date of filing of the case :27.05.2022
Date of Disposal of the case :16.05.2024
Final Order / Judgment dtd.16.05.2024
The pith of the substance of the case of the complainant is that the complainant Md. Nadim Answar had a vehicle bearing no.WB57D 4882 insured with OP No.1 Reliance General Insurance Company Limited vide policy no.718621823340000159, period of insurance from 01.11.2018 to 31.10.2019 midnight. The premium for the said insurance was Rs.67,071/-. The said vehicle of the complainant met with an accident on 09.01.2019. The complainant informed it to OP No.1 Reliance General Insurance Company Limited , Kolkata and thereafter, he informed it to the OP No.1 Reliance General Insurance Company Limited. Thereafter, the complainant sent his vehicle to Rakshit Enterprise , authorised service station at Hansadanga, Dhubulia, Nadia for repairing the said vehicle . Thereafter, OP No.1 repaired the said vehicle and gave a bill to the complainant for Rs.5,62,602/- which the complainant paid. Subsequently, the complainant submitted all the bills with relevant documents and filled up claim form to the OP No.1 through surveyor of the OP NO.1. Thereafter, the complainant requested to OP No.1 and OP No.2 (Rakshit Enterprise) for settlement of his claim as soon as possible but the OP No.1 did not settle the claim. On 30.05.2019 the OP No.1 sent a closure letter to the complainant and informed that “with reference to your letter dated 09.01.2019 towards loss to your vehicle under the said policy. We have evaluated the claim based on supporting documents submitted by your goodself. On scrutinising the driving license of Mr. Jiyarul Sk who was driving the vehicle at the time of the accident, whereas the vehicle was registering as commercial vehicle. It was confirmed that the licence had seized to be effective on 13.03.2019 for transport segment authority . As the licence was not permitted to drive heavy commercial vehicle at the time of accident it is a violation of rules . Thanking you and assuring you of our best services at all time.” The said letter is totally baseless because driving license of driver having license no.WB57D 20000115965 first issued on 16.03.2013 and thereafter applied for a renewal on 25.09.2018 and submitted the original licence and issued a new license. Thereafter, the said driver Jiyarul Sk again applied for renewal on 11.01.2019 and submitted the original license. The driving license of Jiyarul Sk contents licence no. and last endorsement that is 13.03.2019 which reflects that N.T validity is 31.12.2029 and T validity is 12.03.2022. At the time of the accident driving license of the driver was given in for processing for renewal and validity . Due to Covid-19 the Apex court ordered that in case where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining all persons shall have a limitation period of 90 days from 01.03.2022. In the event if the actual balance period of limitation on remaining , with effect from 01.03.2022 is greater than 90 days that longer period shall apply. The OP No.1 intentionally and cleverly repudiate the claim and sent a closure letter to the complainant. So, the present case is filed. The cause of action arose on 30.05.2019 and thereafter, day to day till the filing of this case. The complainant, therefore, prayed for an award for Rs.5,62,602/- towards actual claim, together with interest @ 12% p.a , Rs.1,00,000/- towards harassment and mental pain and agony and litigation cost.
Both the OPs contested the case by filing W/V denied each and every allegation of the complainant.
The positive defence case of OP No.1 is that the OP NO.2 issued one insurance policy to the complainant being no. 718621823340000159 for the period 01.11.2018 to 31.10.2019 in favour of Md. Nadim Anwar for the vehicle WB57D 4882. The complainant submitted a claim form stating that his insured vehicle met with an accident on 09.01.2019 and he repaired his vehicle and claim of Rs.5,62,602/-. Such claim is excessive , exorbitant baseless and malafide. It is not assessed as per norms of the assessment. Thereafter, OP NO.1 deputed one surveyor for inspection of damaged vehicle and assessment of loss. After inspection the surveyor assessed the loss and submitted report along with other documents after scrutiny it was found that the insured vehicle and at the time of the accident the driver was holding LMV license. So, the driver of the insured vehicle did not hold valid and proper driving license. The driver Jiyarul Sk is authorised to drive LMV and the said vehicle WB57D 4882 is heavy goods vehicle which is against the conditions of the policy. Due to such reason OP No.1 repudiated the claim of the complainant . As per the MV Act no person shall drive Motor Vehicle in public place unless he holds an effective valid driving license. As per the policy schedule under driver clause “any person including the insured provided that a person driving holds an effective driving license at the time and is not disqualified from holding or obtaining such license”. Under the above circumstances the OP No.1 is unable to process the claim due to breach of driver clause of the motor insurance policy and MV Act. So, the OP No.1 repudiated claim of the complainant. The OP No.1 claimed that the case is liable to be dismissed with cost.
OP No.2 contested the case denying the case of the complaint in their W/V. The positive defence case of OP No.2 is that the OP NO.2 is authorised services centre of TATA Motors and it also used to repair job and damaged vehicle at the cost of the vehicle owners. On 11.01.2019 Md. Nadim Anwar bought one vehicle bearing no. WB57D 4882 for its repairing as the same was heavily damaged due to road accident. OP No.2 repaired the vehicle thoroughly as per theinstruction of the complainant and gave one bill for Rs.5,72,097/- on 22.02.2019. The complainant agreed to pay the said amount from his own pocket . The OP No.2 finally demanded Rs.5,62,602/- after deducting Rs.9495/- from the total bill. On receiving the payment the OP No.2 handed over the vehicle to its owner. The OP No.2 has no knowledge as to whether the OP No.1 insurance company repudiated the claim of the complainant due to invalid driving license. The OP No.2 claimed that the complaint is not entitled to get any relief as the disputed vehicle is the commercial in nature . The OP No.2 claimed that case is liable to be dismissed against OP No.2.
The conflicting pleadings of the parties led this Commission to ascertain the following points.
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The OPs challenged the case as not maintainable on the ground that the said vehicle is a commercial vehicle and as such the complainant is not a consumer under the C.P. Act.
The Ld. Advocate for the complainant in course of argument submitted that the said vehicle is used for the personal purpose of the complainant. From the document it is found that the complainant proved annexure-1 which is certificate of Registration. As per the said document the said vehicle bearing no.WB57D 4882 is described as an individual vehicle. The ownership of the said vehicle is individual .
Ld. Advocate for the complainant argued that the complainant never used the said vehicle for commercial purpose.
There is no document within the four corners of the case record that the said vehicle is used as commercial vehicle or that any amount of hiring charge for commercial purpose has been collected. The OPs could not file any document of hiring charge by hiring out the said disputed vehicle.
It is fact that the said vehicle is a transport vehicle. But if the vehicle is used for earning livelihood of the owners then it cannot be treated as used for commercial purpose only.
Accordingly, the complainant is a consumer under the C.P Act.
So, point no.1 is answered in affirmative in favour of the complainant.
Point No.2&3.
Both the points are closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
The complainant in order to substantiate the case proved the following documents during the course of trial.
Annexure-1 is the certificate of registration of the disputed vehicle having registration date of 20.11.2018.
Annexure-2 is the Insurance Certificate for the disputed vehicle in the name of the complainant for the period 01.11.2018 to 31.10.2019.
Annexure-3 is the Tax Invoice in the name of the complainant issued by Rakshit Enterprise for repairing of the disputed vehicle for a total sum of Rs.5,72,097/- and another bill after registration of Rs.9495/- total amount of Rs.5,62,602/-.
Annexure-4 is the copy of driving license in the name of Jiyarul Sk driver of the disputed vehicle issued on 25.09.2018.
Annexure-5 is the another driving license issued in the name of driver Jiyarul Sk dated 11.01.2019.
Annexure-6 is the driving license issued on 13.03.2019 in the name of Jiyarul Sk valid upto 31.12.2029.
Annexure-7 is the letter issued by Reliance General Insurance to the complainant which is considered as the repudiation letter.
Annexure-8 is the order of Hon’ble Supreme Court in extending the driving license period due to Covid Pandemic extending for a further period of 90 days from 01.03.2022 where the limitation period is between 15.03.2020 to 28.02.2022.
So, after scrutiny of the documents it is found that the said driver Jiyarul Sk had continuity of the driving license which was extended from time to time.
Ld. Advocate for the OP No.1 argued that the said policy is for commercial vehicle.
OP No.1 asked the complainant to submit all the documents including the D.L of the driver . He submitted that the driver who was driving the disputed vehicle had no valid licence to drive the heavy vehicle . The said policy was issued for running commercial vehicle . The complainant has violated section of the M.V Act. A driver cannot drive a transport vehicle unless he has a effective driving license for heavy goods. Where the terms and conditions of the insurance policy has been violated in that case the complainant is not entitled to get the relief.
Ld. Advocate for the complainant drew attention of the Commission in regard annexure-6. As per annexure-6 the driver Jiyarul Sk seems to have obtained the driving license for the period 12.03.2022 to 31.12.2029. It is fact that as per the said driving licence it was issued for LMV but he was also given driving license for transport vehicle. The date of endorsement of the said driving licence is 13.03.2019. It means that there is a continuation of the previous driving license as per annexure-5 . Annexure-5 is the driving licence issued to the driver with a validity for 90 days which was applied on 11.01.2019. So, the date of expiry was 11.04.2019. But the annexure-6 driving license was issued prior to the date of expiry . The complainant further proved annexure-4 which is the previous driving licence .
In both the annexure-4 &5 it is found that in annexure-5 the licence was under the category LMV and HGV Transport means Heavy Goods Vehicle transport. In annexure-4 also the complainant was given license for G.V Transport means Goods Vehicle Transport. So, the defence plea that the driver had no valid license is not acceptable.
The complainant seems to have answered in cross-examination two questions of OP No.1 under question no.5 and 6 that the driver Jiyarul Sk was driving the vehicle at the time of alleged accident and he had proper driving license to drive the heavy commercial vehicle and had heavy commercial driving licence.
The complainant also answered in cross-examination that he had submitted heavy commercial driving license of the driver and categorically stated in the negative to the answer that the said repudiation of the claim was not proper and legal.
OP NO.2 claimed that they had nothing to do with the claim of the complainant in as much as they gave bill for their repairing work which the complainant had paid. But the complainant answered against the question of OP NO.2 that it is not correct that the OP No.2 has no function in refusing the claim of the complainant by the OP No.1.
The complainant in order to discard the defence case relied upon one decision of the Karnataka High Court passed in MFA No. 24979/2010 (MV) wherein it was held that where the driver of the offending vehicle that is good tempo no endorsement to drive the driving vehicle even they he had license to drive LMV non-transport vehicle. By relying upon the decision of the Hon’ble Supreme Court in (2016) 4 SCC 298 it was held that the driver who has obtained licence to drive LMV non-transport vehicle can also drive transport vehicle without an endorsement of the same category.
The said case law squarely applies here. Accordingly, the said case law relied.
The OPs could not discard the said case law of the Hon’ble Supreme Court by any other case law.
Regard being also had to the download copy of the driving licence of the complainant wherefrom it is found that the old licence of the driver bearing no.WB57 2000-0115965, initial issue date 17.05.2000 was replaced and the vehicle is described as transport . It also contents COV issue date of 17.05.2000.
The complainant also filed the order of the Hon’ble Supreme Court regarding moratorium of continuation of old license by giving extension period upto 01.03.2022 for the limitation which had expired during the period 15.03.2020 till 28.02.2022 in the miscellaneous order of Hon’ble Supreme Court vide order dated January 10th, 2022.
In the light of the aforesaid discussion and observation made hereinabove the Commission comes to the finding that the OPs have repudiated the claim of the complainant without sufficient and valid reasons . The said misdeeds on the part of the OPs have caused deficiency in service and unfair trade practice for which the complainant is entitled to get the relief as prayed for.
Point No.2&3 are accordingly answered in affirmative in favour of the complainant.
In the result complaint case succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/58/2022 be and the same is allowed on contest against OP No.1 and 2 with cost of Rs.5,000/- (Rupees five thousand). The complainant do get an award for a sum of Rs.5,62,602/- (Rupees five lakh sixty two thousand six hundred two) from the OP NO.1 together with interest @12% p.a from the date of accident that is 09.01.2019 upto the date of payment , Rs.25,000/- (Rupees twenty five thousand) towards compensation for harassment and mental pain and agony and Rs.5,000/- (Rupees five thousand) towards litigation cost. The OP No.1 is directed to pay Rs.5,92,602/- (Rupees five lakh ninety two thousand six hundred two) to the complainant within 30 days from the date of passing the final order failing which the entire award money shall carry an interest @ 8% p.a from the date of passing the final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(SHRI NIROD BARAN ROY CHOWDHURY)
