Haryana

Panchkula

CC/315/2020

SHAKTI PARSHAD. - Complainant(s)

Versus

M/S ORIENTAL INSUARNCE COMPANY LTD. - Opp.Party(s)

SUNIDH KASHYAP

28 Jan 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                      

Consumer Complaint No	:	315 of 2020
Date of Institution	:	13.10.2020
Date of Decision	:	28.01.2022

 

 

Shakti Parshad aged 45 years son of Sh. Dayal Chand, resident of House No. 4, Village Kajiyana, Post office Pinjore, Tehsil Kalka, Distt. Panchkula.

 

                                                                           ….Complainant

Versus

1.     M/s Oriental Insurance Company Ltd. through its Branch Manager Service Centre SCO No. 109-111, Sector 17-B, Chandigarh.

2.     M/s Oriental Insurance Company Ltd. through its Branch Manager, near Bus Stand, Pinjore, Tehsil Kalka, Distt. Panchkula.                                                                                  ….Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019 (AS AMENDED UPTO DATE).

 

Before:              Sh.Satpal, President.

Dr. Pawan Kumar Saini, Member.

 

For the Parties:   Shri Sunidh Kashyap, Advocate, Counsel for the Complainant.

                        Shri Krishna Kant, Advocate, Counsel for the OPs No. 1   and 2.

 

ORDER

(Dr. Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that the complainant is a owner of Tata 407 bearing No. HR-68B-2663, Engine No. 497SP67NVY642739 having a total weight of 4450 k.g. which is less than 7500 k.g. The Complainant was having a valid driving licence for driving of light motor vehicle, Non Transport from 26/04/2010 to 04/10/2026 and transport vehicle from 31/12/2013 to 30/12/2016 and from 10/10/2018 to 19/10/2021. The Complainant has taken the National Carrier permit for the vehicle number HR-68-B-2663 valid from 03/07/2015 to 02/07/2020. The Complainant has also taken the fitness certificate from the State Transport Department valid from 02/07/2017 to 29/06/2018. The token tax had been paid by the Complainant to the State Government from 03/07/2015 to 31/03/2018 and the said vehicle of the complainant was insured with the opposite parties vide policy number 231304/31/2018/3016 valid from 04/07/2017 till 03/07/2018. The said vehicle of the complainant had met with an accident on 31/12/2017 and an FIR bearing no. 1 dated 01/01/2018, under section 279, 304-A of IPC, Police station Parwanoo was registered in this regard. The vehicle fell down about 500 meters in the ditch and the said vehicle of the complainant got totally damaged and same is still at the place of accident and it is not possible to tow it out from the said place. The complainant lodged a total loss claim on 04/01/2018 with the office of the opposite parties along with all the requisite documents. He also annexed the repair bill/estimate dated 17/09/2018 issued by the Pasco Motor Chandigarh of Rs. 11,53,091/- and requested the opposite parties to make the payment of the total loss but he did not receive any information about the claim and, therefore, he issued a letter dated 25/09/2018 to the Branch Manager, Pinjore and to the Manager, Claim Hub, Branch Chandigarh and requested them to give the claim of total loss applied by him. It is further submitted that the complainant also informed the opposite parties that they have appointed the surveyor Shri S.K. Sharma for the survey of the spot as the vehicle had fallen 500 meters down in the ditch (Khai) and it was very difficult to bring out the said vehicle. He further stated that he got the estimate of loss caused to the vehicle of the complainant.

                The complainant again wrote a letter dated 03/10/2018 in which it was informed to the opposite parties that the spot had been surveyed by Shri S.K.Sharma who had already charged Rs. 3500/- as fees from him and taken the photograph of the damaged vehicle. Upon this the opposite parties issued a letter dated 19/11/2018 to the complainant and put some queries to him. The complainant replied the said queries vide his letter dated 24/12/2018 and thereafter, the opposite parties also appointed Shri S.K.Sharma, Surveyor for inspection of the site who charged Rs.3500/- from the complainant as fee and visited the site on the directions of the opposite parties and took the photographs and submitted the surveyor report to the office of the opposite parties who on its behalf might have appointed the surveyor for survey of the said accident. The complainant came to know that the opposite parties had rejected the claim of the complainant vide letter dated 31/10/2019 but the complainant received the said letter later on. The complainant was having a valid insurance policy and as per the terms of the said policy, the opposite parties are jointly and severally liable to compensate the complainant on account of total loss of vehicle of the Complainant. Despite several repeated requests, the opposite parties are intentionally not releasing the said amount. The complainant had sent a legal notice dated 22/09/2020 posted on 23/09/2020 to the opposite parties with the direction to release Rs. 11,53,091/- on account of total loss of insured vehicle Tata 407 bearing no. HR-68-B-2663 along with miscellaneous expenses incurred by the complainant within a period of 15 days from the date of receipt of the legal notice and the said legal notice was duly served upon the opposite parties but they instead of releasing the claim amount had sent the reply to the legal notice through its counsel on false and frivolous grounds vide reply dated 05/10/2020 and flatly refused to pass the claim of the complainant. Due to the act and conduct of opposite parties, the complainant has suffered a great deal of financial loss, mental agony, harassment and torture for which the opposite parties are liable to compensate the complainant. Hence, the present Complaint.

2.             Upon notice, OPs appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable due to non-joinder of the necessary party. On merits, it is stated that the complainant was holding a driving licence number RJ1220100053882 which was valid for non transport vehicle from 26/04/2010 to 04/10/2026 and for transport vehicle from 31/12/2013 to 30/12/2016 & 10/10/2018 to 09/10/2021 showing that the complainant was not holding a valid and effective driving licence on 31/12/2017 i.e. on the date of the accident. The OPs issued the insurance policy no. 231304/31/2018/3016 for vehicle bearing registration number HR-68-B-2663 valid from 04/07/2017 to 03/07/2018. It is submitted that an FIR No. 1 dated 01/01/2018 was lodged at P.S. Parwanoo, District Solan regarding the alleged accident. The complainant has submitted the copies of documents and the estimate dated 17/09/2018 to the opposite parties on 26/09/2018, on the receipt of which the surveyor was appointed on 03/10/2018 and the survey was conducted on 17/10/2018. The complainant submitted the repair estimates dated 17/09/2018 prepared by Pasco Motors Chandigarh for Rs. 11,53,091/-. It is submitted that the insurance policy number 231304/31/2018/3016 for vehicle in question was issued for an insured declared value (IDV) of Rs. 4,00,000/- only; hence, the complainant cannot claim beyond the IDV and within the scope of the policy terms and conditions.

                It is further submitted that the complainant intimated the OPs regarding the alleged accident on 26/09/2018 and submitted the claim documents and repair estimate dated 17/09/2018 on the receipt of which the OPs deputed an IRDA licensed surveyor Shri Girish Sharma on 03/10/2018 to conduct the survey; thereafter, the survey was conducted and the final survey report dated 12/11/2018 was submitted by the surveyor. The complainant approached Shri Sutinder Kumar Sharma on 10/01/2018 through its representative Shri Suresh Kumar and requested the surveyor to conduct the spot survey on which the surveyor informed him that without receiving instructions from the insurance company, the survey cannot be conducted but on the persistence of the Complainant, the surveyor went to the site of accident to inspect the damaged vehicle and clicked the photographs and thereafter asked the complainant to write the statement and to provide all the documents so that spot survey report could be prepared but instead of providing the documents and statement to the surveyor, the Complainant informed the surveyor not to make any report as documents were not available with him. Thereafter, the complainant approached the surveyor on 08/04/2019 and submitted the photocopies of documents and the spot survey report was prepared by the surveyor on 09/04/2019. The OPs repudiated the claim of the complainant vide letter dated 31/10/2019 as per the policy terms and conditions and the provisions of MV Act. It is submitted that the OPs are not liable to pay the claim of the Complainant as the same was dealt with as per the policy terms and conditions and it was found to be inadmissible on the ground of ineffective and invalid DL and the same was rightly repudiated vide letter dated 31/10/2019. The OPs sent the reply to the legal notice through its counsel Shri Ashwani Talwar vide letter dated 05/10/2020 wherein it was stated that the complainant was holding a valid licence of light motor vehicle but at the time of accident he was not holding a valid and effective driving licence to drive commercial vehicle whereas the complainant was required to hold a commercial driving licence for driving Tata 407 having a weight of about 4500 k.g., but the complainant was having a commercial driving licence from 31/12/2013 to 30/12/2016 and 10/10/2018 to 09/10/2021 which shows that the complainant got the necessary endorsement for transport vehicle for the aforesaid period but for the period from 31/12/2016 to 09/10/2018, he failed to get the necessary endorsement for transport vehicle and during this period, the alleged accident took place on 31/12/2017 when the complainant did not possess a valid and effective driving licence to drive the transport vehicle which was a valid ground for repudiating the claim of the complainant. It is also submitted that a claim petition bearing number MACP/1123/2018 was decided by the Hon’ble MACT Panchkula in favour of the claimants vide judgment dated 02/07/2019, though said judgment has not attained finality.  It is submitted that the conduct of OPs has not caused any financial loss, mental agony, harassment, torture to the complainant and, therefore, the Complainant is not entitled for any compensation from the opposite parties and also there is no deficiency in service on the part of opposite parties.

3.             The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-23 in evidence and closed the evidence by making a separate statement. On the other hand, the Ld. Counsel for the OPs No.1 & 2 has tendered affidavit Annexure R-A alongwith documents Annexure R-1 to R-6 in their defence and closed the evidence.

4.             We have heard the Learned Counsels for both the parties and gone through the record minutely and carefully.

5.             The incident of occurrence of accident of the vehicle No. HR-68-B-2663 having gross weight below 7500 K.g., at the time of accident on 31.12.2017 during the validity period of insurance policy(Annexure C-10) with effect from 04.07.2017 to 03.07.2018 is not disputed. It is also not disputed that the Complainant i.e. Shri Shakti Parshad while driving the said accidental vehicle was holding a driving license(Annexure C-3 & C-4), which was valid w.e.f. 26.04.2010 to 04.10.2026 to drive a light motor vehicle. The said DL was valid to drive a transport vehicle from 10.10.2018 to 09.10.2021. The opposite party has repudiated the accidental claim vide repudiation letter dated 31.10.2019 (Annexure C-19/R-5). The relevant part of said repudiation letter is as under:-

                   “At the time of accident you were driving the vehicle. As per the copy of DL submitted by you to the final surveyor, your DL is valid for LMV Transport upto 09/10/2021. We get the DL verified from the concerned authorities and as per report, your DL for Transport was valid from 31/12/2013 to 30/12/2016 & then valid from 10/10/2018 to 09/10/2021 which clearly indicates that your DL for Transport was not valid on the date of accident i.e. 31/12/2017”.

                The only question, that falls for consideration, before the Commission, is, whether the Complainant i.e. Shri Shakti Parshad was holding a valid and effective driving license, while driving the vehicle i.e. Tata 407(registered number HR-68-B-2663 having gross weight below 7500 K.g.,  at the time of accident on 31.12.2017.

                 The issue involved in the present case came up for discussion before the Hon’ble Apex Court in the case titled as “Mukund Dewangan Vs. Oriental Insurance 5 of 17 Company Ltd., 2017(4) RCR (Civil) 111”/“Mukund Dewangan Vs. Oriental Insurance Company Ltd., reported in (2017) 14 SCC 663”. The conclusions in the said case as summarized by the Hon’ble Apex Court are as follows:-

“60. Thus, we answer the questions which are referred to us thus:

60.1. “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 Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.

60.2. 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 roadroller, “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 roadroller, 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 licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.

60.3. The effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of Section 10(2) which contained “medium goods vehicle” in Section 10(2)(e), “medium passenger motor vehicle” in Section 10(2) (f), “heavy goods vehicle” in Section 10(2) (g) and “heavy passenger motor vehicle” in Section 10(2)(h) with expression “transport vehicle” as substituted in Section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section 10(2) (d) and Section 2(41) of the Act i.e. light motor vehicle.

60.4. The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.”

                The gross weight of the accidental vehicle in question was below 7500 k.g. and thus, the driving license of the Complainant at the time of accident was valid as per the law laid down by the Hon’ble Apex Court in case (supra). However, the Ld. Counsel for the OPs strongly argued that the said judgment delivered by the Hon’ble Apex Court has not attained finality as the same is pending for re-consideration by a larger bench as per order dated 03.05.2018 passed by the Hon’ble Apex Court in Civil Appeal No. 841/2018 titled as “M/S. Bajaj Alliance General Insurance Co.Ltd. Vs. Rambha Devi and others” with various other SLPs(Annexure R-6).

                The above contention raised by the Ld. Counsel for the OPs is not tenable in view of the fact that the law laid down by the Hon’ble Apex Court in Mukund Dewangan case (supra) has been relied upon by the Hon’ble High Court of Punjab and Haryana while deciding the FAO No. 6482 of 2016(O&M) titled as “Gian Singh Vs. Ashok and others” and FAO No. 6965 of 2016(O&M) titled as “Pushpa and others Vs. Ashok and others” vide its Judgment dated 25.04.2019. It is pertinent to mention here that the order of the Hon’ble High Court passed in case (supra) is of later date than the interim order dated 03.05.2018 passed by the Hon’ble Apex Court in SLP No. 841/2018 titled as “M/S. Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi and others” with various other SLPs(Annexure R-6).

                It is further pertinent to mention here that a person, namely, Shri Sanjeev Kumar had died in the said accident and the LRs of deceased late Shri Sanjeev Kumar filed a claim petition under section 166 of Motor Vehicle Act which has been disposed of by the Ld. Court of Shri Subhas Mehla, Motor Accident Claims Tribunal, Panchkula vide award dated 02.07.2019(Annexure C-23). As per said award, a specific issue no.3 regarding the validity of the DL of Shri Shakti Parshad(Complainant) was framed, which is as under:-

“Whether respondent No. 1(present Complainant) was not holding a valid and effective driving licence at the relevant time of alleged accident, if so to what its effect? OPR-2”

                The said issue as per Para No. 33 of the said award has been decided as under:-   

      “As the Tata-407 vehicle is owned and driven by respondent No. 1 Shakti Parshad and as per the extract of driving license Ex.R-12, he possessed a license to drive the LMV, MCMG, LMV-TR and Transport vehicles and the validity of non-transport vehicle is w.e.f. 26.04.2010 to 04.10.2026 and for transport vehicle, the license is valid w.e.f. 10.10.2018 to 09.10.2021. So, keeping in view of ratio laid down in Gian Singh’s case (supra), the insurance company cannot absolve from its liability to indemnify the insured on the ground that the driver was holding driving license to drive a light motor vehicle but was driving a transport vehicle”.

                From above, it is evident that the DL of the Complainant while driving the Vehicle No. HR-68-B-2663 at the time of accident has been found to be valid and effective and thus, we conclude that OPs No. 1 and 2 have committed error while repudiating the claim of the Complainant; hence, the Complainant is entitled to relief.

6.             Coming to the relief, we find that the surveyor vide his report Annexure R-3 has assessed the liability on repair basis as Rs. 7,49,478/- less salvage value Rs. 25,000/-, so net liability comes to Rs. 7,24,478/-, which may increase to Rs. 10,000/- to Rs. 20,000/- during repairs. The surveyor has further assessed the liability on total loss basis as Rs. 3,99,500/-. Liability on net of salvage basis has been found to the tune of Rs. 2,99,500/-. The Complainant has claimed a sum of Rs. 11,53,091/- on account of total loss of the insured vehicle or in the alternative, prayer has been made for the release of Rs. 4,00,000/- i.e. IDV of the vehicle to him. The prayer of the Complainant for the release of Rs. 11,53,091/- is not tenable as the IDV of the vehicle was Rs. 4,00,000/-.

 7.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs:-

1. To refund a sum of Rs. 2,99,500/- as assessed by surveyor on net of salvage basis alongwith interest at the rate of 9% from the date of filing of the present complaint till its realization subject to the submission of following documents by the complainant to the OPs:-

1. Letter of subrogation(on non-judicial stamp paper of Rs.100/- duly notarized.
2. Letter of indemnity.
3. Form No.29 & 30 of M.V. Act duly signed by the owner.
4. Form No.35/No Due Certificate duly signed from the financier if the vehicle was financed.
5. Discharge voucher, consent letter and cancel cheque duly signed by the owner/complainant if not already given to OPs.

2. To pay an amount of Rs.25,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as litigation charges.

 

8.             The OPs shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.  

Announced on:28.01.2022

 

 

 

                Dr. Pawan Kumar Saini                     Satpal       

                                  Member                           President

 

Note: Each and every page of this order has been duly signed by me.

 

                                Dr. Pawan Kumar Saini

Member