Haryana

Yamunanagar

CC/561/2011

Dharam Pal S/o Shadi Ram - Complainant(s)

Versus

M/s IFFCO TOKIO General Insurance Company Ltd. - Opp.Party(s)

S.S.Saini

27 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                              Complaint No. 562 of 2011

                                                                             Date of institution: 30.05.2011

                                                                             Date of decision: 27.05.2016.

1^st Complaint for loss Dated 12-09-2010

Dharam Pal aged about 45 years son of Shri Shadi Ram, resident of village Tatka, Sub Tehsil Babain, District Kurukshetra.                           

                                                         ..…Complainant.

                                                     Versus

1. IFFCO TOKIO General Insurance Company Ltd. IFFCO TOKIO House, 3^rd Floor, 34, Nehru Place, New Delhi- 110019, through its Managing Director/ Chair-person.
2. Sachin Lamba S/o Sh Sham Sunder Lamba, Authorized agent of M/s IFFCO TOKIO General Insurance Company Limited, resident of House No. 71, Ward No.4, Mohalla Khari Kuee, Sadhaura,Sub Teh. Sadhoura, Distt Yamuna Nagar.

                                                                                                                                  ..…Respondents                                     

  2^nd Complaint for loss Dated 19.11.2010  

                                                                               Complaint No. 561 of 2011.

                                                                              Date of institution: 30.05.2011

                                                                              Date of decision:27.05.2016..

Dharam Pal aged about 45 years son of Shri Shadi Ram, resident of village Tatka, Sub Tehsil Babain, District Kurukshetra.                      

                                                                                                                                 …Complainant.

                                    Versus

1. IFFCO TOKIO General Insurance Company Ltd. IFFCO TOKIO House, 3^rd Floor, 34, Nehru Place, New Delhi- 110019, through its M.D/ Chair-person.
2. Sachin Lamba son of Shri Sham Sunder Lamba, authorized agent of M/s IFFCO TOKIO General Insurance Company Limited,R/o of H. No. 71, Ward No.4, Mohalla Khari Kuee, Sadhaura,Sub Tehsil Sadhoura, District Yamuna Nagar.

                                                                                                                                 …Respondents   

         

Before:             SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. S.S.Saini, Advocate, counsel for complainant.  

                 Sh. Rajiv Gupta, Advocate, counsel for respondent No.1.

                 Respondent No.2 already ex-parte vide order dated 16.08.2011.                 

 

The present complaint has been filed under section 12 of the Consumer Protection Act. 1986,

 

ORDER

 

1                      We are deciding two (2) complaints CC no.561/2011 and CC no.562/2011, vide this common judgment, filed by the same complainant against the same parties on account of two times damages i.e.1^st time on 12-09-2010 and 2^nd time on 19-11-2010  to the same vehicle i.e. Eicher Cantre bearing registration no. HR65-1016 as the facts and law points involved in both the complaints are the same,

2                      Brief facts, as alleged, in both the complaints are as under:  

3                      On 12.09.2010 (1^st time), the driver namely Sh. Kulwant Singh while driving the vehicle/Canter Eicher bearing registration no. HR65-1016 was returning from Shahabad Markanda to Sadhaura after unloading the goods at Shahabad Markanda and when reached near Adhoya, District Ambala suddenly an animal came in front of the vehicle of complainant and driver could not control the truck, due to which the said truck struck against a tree standing on the bank of the road, due to which the front portion of vehicle i.e. Cabin was damaged completely and the complainant paid an amount of Rs. 53413/- on account of repair of vehicle in question. The complainant filed claim No. 31845335 with OPs and also submitted the repair bills with the OP no.1 Insurance Co. Ltd.  Mr. Pee Kay & Company surveyor and Loss assessor was deputed by op no.1 Insurance Co. to conduct the survey and assessed the loss, who submitted his report (Annexure R-2)  assessing the loss to the tune of Rs.22500/- after deducting depreciation etc.

4                      On 19.11.2010 (2^nd time), the alleged driver namely Shakeel Mohammed (however as per Op no.1 previous driver Sh.Kulwant Singh was driving) was driving the vehicle in question and was going from Sadhaura towards Kala Amb and when he approached near Roza Peer, Sadhaura, unfortunately the steering of the said  canter become out of order and the canter of the complainant struck against an iron pole which was installed in the side for sign board and the driver also sustained injuries in this accident and he was sent to hospital by the peoples and in this accident the front portion of vehicle of complainant was damaged completely paid an amount of Rs.77944/- on account of repair of vehicle in question. The driver Shakeel Mohammed got lodged DDR No.1 dated 4.12.2010 (Annexure C-13) at P.S. Sadhaura and the police of P.S. Sadhaura has inspected the site and gave his report vide Rapat No.12 dated 04.12.2010(Annexure C-14). The complainant filed claim No. 31890106  with OPs and also submitted the repair bills with the OP no.1 Insurance Co. Ltd.  Mr. M.L.Garg surveyor and Loss assessor was deputed by op no.1 Insurance Co. to conduct the survey and assessed the loss, who submitted his report (Annexure R-2)  assessing the loss to the tune of Rs.32254/- after deducting depreciation etc.

5          .           Upon notice, OP No.1 appeared and filed its contested written statement in the cases mentioning therein that complaint is not maintainable, no negligence or deficiency in service on the part of OP No.1. It has been further mentioned that on receipt of intimation, the OP No.1 Insurance Company immediately deputed Mr. Pee Kay & Company Surveyor and Loss Assessor who submitted his report (Annexure R-2)  assessing the loss to the tune of Rs.22500/-. and Sh. M.L.Garg, Surveyor and Loss Assessorwho submitted his report (Annexure R-2)  assessing the loss to the tune of Rs.32254/- after deducting depreciation etc. vide  claim No. 31890106 and 31845335. The said surveyors after inspecting the alleged damages to the Canter in question submitted their reports (Annexure R-2 in both cases) ) to the OP No.1 Insurance Company including relevant documents and driving license No. 4115/5/91 of Sh. Kulwant Singh, the driver who was driving the said vehicle at the time of alleged accident. On receipt of said report of surveyor, the Op No.1 Insurance Company further processed the claim of complainant and it was found that the vehicle in question which is medium goods vehicle, was being driven by Sh. Kulwant Singh who was not holding a valid and effective driving license for Medium Goods Vehicle as he was holding a driving license to drive Light Transport Vehicle only( Annexure R-6), meaning thereby the insured Dharam Pal had handed over his vehicle to a person/driver who was not holding a valid and effective driving license, which amounts to violates the terms and conditions of the insurance policy (Annexure R-4) and the provisions of Motor Vehicle Act.

6                      OP no.1 insurance Co. Ltd vide its letter dated 06.04.2011 (Annexure C-15 in 2^nd Complaint) and vide its letter dated 30-12-2010 (Annexure R1/1 in 1^st complaint) has repudiated the claims of complainant on the same ground that the vehicle in question i.e. Eicher Canter bearing registration no. HR65-1016 was being driven by Sh. Kulwant Singh and he was not having valid driving license to drive Medium Goods Vehicle (MGV) rather the license of Kulwant Singh was authorized to drive LTV and not MGV which is reproduced here:-

“The subject MGV was being driven by Mr. Kulwant Singh at the time of accident. Mr. Kulwant Singh holds a license (license no.4115/5/91) to drive LTV only not the MGV”

 7                To prove the case, counsel for both the parties tendered into evidence affidavits of parties as well as surveyors reports and documents.  

8                      We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OPs reiterated the averments made in the reply and prayed for dismissal of complaint.

9                      It is admitted fact that the complainant is registered owner of Eicher Canter bearing registration No. HR-65/1016, which was insured with the OP No.1 Insurance Company vide comprehensive policy bearing No. 7329968 valid from 24.06.2010 to 23.06.2011 for a sum of Rs. 4,00,000/- (Annexure R-4). It is further not disputed that surveyor and loss assessor Mr. Pee Kay & Company and Sh. M.L.Garg was deputed and Rs 22500/- (Annexure R-2) in 1^st claim case and Rs. 32,254/-(Annexure R-2) in 2^ndclaim was assessed on “Net Loss on Repair Basis” after applying the relevant depreciation clause and subject to terms and conditions of the insurance policy in question as Annexure R-1/2.

10                    Learned counsel for the complainant argued that the OP No.1 Insurance Company has wrongly repudiated the claim of complainant vide its letter dated 06-04-2010 and 30.12.2010 (Annexure R-1/1 and Annexure C-15 ) on the false ground that driver of the vehicle in question i.e. TATA Eicher bearing registration No.HR65-1016, Sh. Kulwant Singh was not having valid driving license to drive the Medium Goods Vehicle ( MGV) as he was only authorized to drive Light Transport Vehicle (LTV) at the time of accident and referred the case law titled as  New India Assurance Co. Ltd. Versus Bijayananda Mohanty (Since deceased) through LRs & Others, 2015(2) CPR page 397 (NC) and Further referred the case law titled as National Insurance Company Ltd. Versus Sri Annappa Irappa Nesaria & Others, 2008(1)RCR (Civil) page 848 (Supreme Court) and also further referred the case law titled asHarsewak Singh Versus Smt. Jajo Devi, 2013 (3) Law Herald ( P & H) 2366 wherein it has been held that Accident- License- Driver holding license for heavy transport vehicle but  was driving light motor vehicle- Held; Driving mechanism for driving a heavy transport vehicle shall be the same as light motor vehicle of another four-wheeler and therefore, the license was sufficient- Insurance Company held to be liable.

11                    On the other hand, counsel for the OP No.1 hotly argued that the claim of the complainant has been rightly repudiated vide its repudiation letters on the ground that driver Sh. Kulwant Singh who was driving the vehicle at the time of accident was having license No. 4115/5/91 to drive the LTV only (Annexure R-6) and not the MGV. Learned counsel for the OP Sh. Rajiv Gupta also draw our attention towards the definition of the light Motor Vehicle defined under section 2(21) which is reproduced here as under:

            “Light Motor Vehicle” Means a transport vehicle or Omni Bus the gross vehicle weight of either of which or a Motor Car or a Tractor or a Road Roller the unladed weight of any of which, does not exceed (7500 Kg.) and further referred the definition of Medium Goods Vehicle defined under section 2(23) which is reproduced here as under:

            “Medium Goods Vehicle” Means any goods carries other than a light motor vehicle or a heavy goods vehicle and lastly argued that as per the RC of the vehicle in question the gross weight of the vehicle in question is 9500 Kg.

           And argued that the vehicle in question was medium goods vehicle not the light motor vehicle so, the claim of the complainant has been rightly repudiated and referred the case law titled as National Insurance Co. Ltd. Versus Kaushalaya Devi & others, 2009(1) Apex Judgments 78 (S.C.)

12                    After hearing both the parties at length, we are of the considered view that claim of the complainant has been wrongly repudiated by the OP No.1 Insurance Company. From the perusal of copy of registration Certificate (RC) Annexure C-3, it is clearly evident that description of the vehicle has been mentioned as LCV i.e. Light Commercial Vehicle and the driver Sh. Kulwant Singh was having driving license bearing No. 4115/15/1991 to drive the LTV which is evident from his license Annexure C-9. When the Registering Authority has specifically mentioned the class of vehicle in the registration certificate itself as LCV then how the insurance company can treat the vehicle in question as medium goods vehicle itself. Further no clarification or verification report has been obtained from the Registration Authority to controvert the descriptions of the vehicle as mentioned in the RC Annexure C-3. Even from the perusal of copy of RC Annexure C-1, it is clearly evident that unladed weight of the vehicle in question was 3100 Kg and at the time of accident, the vehicle in question was empty.  Even in the Insurance Policy (Annexure R-1/C-1), Insurance Company itself has mentioned that make/class of vehicle is LCV, Class A, gross vehicle weight 7500 Kg.

13                    We have gone through the case titled as Oriental Insurance Co. Ltd. Vs. Biro Devi & Others, 2014(1) CLT page 231 (DEL.HC) wherein it has been held that Motor Vehicle Act,1988- Insurance Claim- Held- Insurance Company has failed to prove that insured was having knowledge that driving license of the driver of the offending vehicle was not for driving LMV (Commercial) and that he engaged him without due care and precaution- Insurance Company has also failed to prove that such breach of condition of driving license was so fundamental as found to have contributed to the cause of accident- Insurance Company has not produced any evidence to prove that the technical difference of not having driving license for LMV (Commercial) has contributed to his accident.

                        Motor Vehicle Act, 1988-Insurance claim- Breach of terms of policy- Repudiation- On the ground that at the time of accident, driver had license for LMV whereas he was driving LMV commercial vehicle- Held- Insurance Company has failed to prove that the insured did not take reasonable care in the matter of fulfilling the condition of the insurance policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time- Even where the Insurance Company is able to prove breach on part of the insured regarding holding of a valid driving license, the insurer would not be allowed to avoid its liability towards insured unless the said breach of condition of the policy is so fundamental, as is found to have contributed to the cause of the accident.

14                    The same view has been also held in case titled as United India Insurance Company Ltd. Versus Prem Devi, Revision Petition No.172 of 2006 decided on 15.07.2009 by the Hon’ble National Commission, New Delhi in which it has been held that “ A  Mahindra Utility Vehicle weighing less than 6000 Kg. belonging to the complainant was insured with the petitioner-Insurance Company- the said vehicle met with an accident and was damaged- The claim repudiated by the insurance company on the ground that the drive of the vehicle did not have a license to drive a transport vehicle, but only to drive a light motor vehicle: Held that  in view of the judgment of the Hon’ble Supreme Court in Anappa’s case 2008 SCC (3) page 464, the driver of the vehicle, who had a license to drive light motor vehicle would be deemed to be authorized to drive Medium Goods Vehicle as well, the unladed weight of which was less than 6000Kg.

16                    In another case titled as A.R. Geethavs Vs. Oriental Insurance Company Ltd. 2001(3) CPJ 47: 2001(3) CPR 39: 2001(3) CLT (NC) 288 has held that driving License- Denial of insurance claim by the OP Insurance Company on the ground that the drive of the accidental vehicle at that was not holding license to drive maxicab which met with an accident was having the unladen weight of 1500 Kgs and a transport vehicle- The driver was having effective driving license within the meaning of Section 3 of the Motor Vehicles Act, 1988- Order of State Commission set aside and that of District Forum allowing the complaint restored.

17                    In the present cases also, from the perusal of the Registration Certificate of the vehicle in question (Annexure C-3)wherein brief descriptions of the vehicle has been mentioned as LCV (Light Commercial Vehicle) and further unladed of which has been shown as 3100 Kg beside this vehicle in question was empty at the time of both the accidents, we are of the considered view that the driver Sh. Kulwant Singh was having valid driving license at the time of accident. The law cited by the counsel for the OP No.1 is not disputed but not applicable to the facts of the present case whereas the law cited by the counsel for the complainant titled asHarsewak Singh Versus Smt. Jajo Devi, Anappa’s case 2008 SCC (3) page 464, A.R. Geethavs Vs. Oriental Insurance Company Ltd. (supra), United India Insurance Company Ltd. Versus Prem Devi (supra) and other discussed above, are applicable to the facts of the present case. Hence complainant is entitled to get relief on this account.

18                    Now the next question remains, as to what extent the complainant is entitled to get damages. Learned counsel for the complainant argued that complainant has spent Rs. 53413/- on account of damage to the vehicle for 1^st time and Rs. 77944/- on account of damages for 2^nd time is not tenable as no cogent evidence has been filed by the complainant to prove that he is entitled to get the same whereas on the other hand, losses have been assessed by the surveyors and loss assessors to the tune of Rs. 32,254/- and Rs 22500/- respectively on net loss basis vide their reports (Annexure R-2 in both cases) and it is settled proposition of the law held by the Hon’ble National Commission as well as State Commission in various cases that surveyor is the best technical person to assess the loss and credence should be given to the surveyor report in the absence of any discrepancy or ambiguity in the surveyor report.

19.                   After going through the above noted facts, we are of the considered view that the OP No.1 has wrongly repudiated the claim of the complainant vide letter dated 30.12.2010 (Annexure R1/1) and letter dated 06-04-2010 (Annexure   C-15) and the same are hereby quashed and the complainant is entitled for relief. Complaint qua OP No.2 is hereby dismissed as complainant failed to prove any deficiency in service against Op No.2. 

20.                   Resultantly, we partly allow the complaints of complainant and direct the OP No.1 to pay a sum of Rs. 32,254/- in CC No. 561 of 2011 and Rs 22500/- in CC No. 562 of 2011 i.e. total Rs 54754/- assessed by the surveyors to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaints till its realization and further to pay Rs.5000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. A copy of this order be also placed on file bearing CC no.561/2010 titled as Dharam Pal versus IFFCO TOKIO Gen. Ins. etc.  File be consigned to the record room after due compliance.

Announced in open court 27.05.2016.           

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.