Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-117/2017
Sh. Chandeshwar Yadav,
A-203, Indra Kalyan VIhar,
Block-A, Okhla Phase-I,
District South,
Delhi-110020 ...Complainant
Versus
OP1: M/s National Insurance Company Lmt.
Head Office: 3, Middle Town Street,
Post Box No. Nariman Point,
Kolkatta-700071
Divisional Office:
9,302 NN Mall, Near M2K Cinema,
Sector-3, Rohini,
Delhi-110085
OP2: The Manager Claims Hub,
National Insurance Company Limited,
2E/25, 3rd floor, Jhandewallan Extension,
New Delhi. ...Opposite Party
Date of filing: 22.04.2017
Order Reserved on: 12.12.2022
Date of Order: 02.01.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1. (Introduction to case of parties) : The complaint was filed u/s 12 of the Consumer Protection Act 1986 by making allegations of deficiency in services against the Opposite Party/Insurer as complainant/insured’s claim in respect of accidental damaged insured vehicle was declined and repudiated. The complainant seeks to clear bills of repairing of accidental damaged insured vehicle no. DL-1LV-1690, which was raised by OP's authorized Service Center apart from payment of compensation of Rs.6,50,000/- for damages suffered by the complainant , being @ Rs.50,000/- per month from March 2016 till March 2017. The complainant also claims damages of Rs.1,00,000/- towards mental tension and agony besides from cost of litigation of Rs.33,000/-. The claim has been opposed by the Opposite Party, on various grounds that the driver Rakesh Kumar of impugned vehicle, was not possessing valid/genuine license, when he was driving at the time of accident. As per the terms of insurance policy and provisions of the Motor Vehicle Act, a person holding valid and effective license may drive the vehicle. The claim was rightly declined.
2.1 (case of complainant ) : Briefly, in November 2014, the complainant had purchased Eicher truck bearing registration no. DL-1LV-1690 (briefly vehicle or subject vehicle) to earn his livelihood, the vehicle was got insured from the OP/National Insurance Company Limited vide insurance policy no. 360400/31/15/6300009063, effective from 18.11.2015 to 17.11.2016 against payment of insurance premium (now Exh. C1). The said vehicle/truck met with an accident on 26.12.2015, it was damaged badly and an FIR no. 449 dated 26.12.2015 was registered u/ss. 279/304A IPC in P.S. Dudu, Distict, Jaipur Rural (copy of FIR is Exh. C4). The OP was informed of the accident of insured vehicle. the instruction were received from the OP and accordingly vehicle was brought to Delhi for its repair at its authorized Service and Repair Center. vehicle was surrendered to authorized Service and Repair Center M/s Shri Motors, Netaji Subhash Vihar, Tikri Kalan, New Delhi-41. On 21.01.2016, a surveyor was appointed and there were instructions to surrender the same The vehicle was surrendered for its repairs and OP had to make total payment of repairs of the damaged vehicle.
2.2: The vehicle was fully repaired by the said service center on 29.02.2016 and Vat bill raised was of Rs.4,70,430/- for repairs (now Exh. C5) for repairing the vehicle and the complainant had been requesting the OP for making payment of outstanding bills towards the repair of damaged insured vehicle to the authorized Service Center so that the complainant may get released and take back his vehicle, in order to carry on earning his livelihood but the OP paid no heed for such genuine and bona-fide request. The complainant had also furnished his claim vide serial no. 49172 with the OP in respect of damages and cost of repairs, there were also reminders of 08.11.2016 and 16.11.2016 (now Exh. C7 and C8) but no response was given by the OP. The complainant has been suffering losses of Rs.50,000/- per month for loss of earning and he is also not in a position to repay monthly loan installment of Rs.22,047/- to the financer, apart from deprived of his livelihood for him and his family’s survival. It is deficiency in services for want of release of the claim amount in respect of the damaged insured vehicle. The complainant suffered his livelihood and other consequences of non-payment of EMI. He claims Rs.50,000/- per month from March 2016. Lastly, a legal notice dated 03.01.2017 (now Exh. C9 along-with postal receipt Exh. C10 and A/D Card Exh. C11) was sent to the Insurer but no reply and action. That is why the complaint was filed.
2.3: It is appropriate place to mention here that in the affidavit of evidence, another reminder dated 27.10.2016 (now Exh. C6) has been referred, which was part of the documents filed with the complaint. However, in the paragraph 13 of affidavit of evidence claim @ Rs.50,000/- per month (w.e.f January 2016 till November 2017) was made without any explanation as a deviation from claim period the month of March 2016 to March 2017 as mentioned in paragraph 11 of the complaint. The complainant had filed photocopy of driving license (of driver Rakesh Kumar) with the list of document, without its narration in the body of complaint (which was endorsed in affidavit as Exh. C2). Later-on, because of objections of OP, the complainant filed 'original driving licence verification report' obtained from RTA Agra, which has also been mentioned in his affidavit of evidence (now Exh. C3). To say, the development took place during the pending of complaint was also mentioned in the affidavit.
3.1 (case of OP) : The OP had filed its reply, by dividing its written statement in two parts viz. 'preliminary objections' and 'reply on merits'. In the preliminary objections, the complaint has been opposed that it is not maintainable being abuse of process of law, complainant came before the consumer commission without clean hands and he is guilty of concealing the material facts. The driver namely Rakesh Kumar (wrongly spelled as Rajesh Kumar in written statement), who was driving the vehicle at the material time of accident was not possessing valid/genuine driving licence. The OP had appointed an Insurance Investigator Sh. Kanwar Singh to verify the driving licence, it was verified from the licencing Authority at Agra on 31.10.2016 and 08.11.2016 in respect of DL no. 23933/AG/07 but the record could not be traced out. Then information was sought under RTI on 09.11.2016, which information was provided later-on as “licence dated 12/06/2007 Shri Rakesh Kumar ke naam vidhimanya nahi hai” [लाइसेंस दिनांक १२.६.२००७ श्री राकेश कुमार के नाम विधिमान्य नहीं है]. Further, the OP refers case law that insurance company cannot be fastened with liability in the absence of valid licence or in the absence of valid licence, the claim can be justifiably repudiated.
3.2: In reply on merits, there is reply to composite paragraphs by reiterating the contentions raised in preliminary objections vis-a-vis the complainant has to prove his averments strictly. There is no specific denial in respect of FIR registered after accident, bringing the vehicle at authorized Service Center in Delhi and repair of damaged vehicle, the insurance policy in favor of insured as well as the period of insurance policy. The complaint has been opposed on the basis of preliminary objections.
4.1 (Evidence) : The complainant filed his affidavit of evidence, it is on the lines of complaint supplementing with further documents of verification report dated 13.11.2017 and it has been incorporated in paragraph no. 11 of the affidavit to emphasize and demonstrate that the driving licence in favor of Rakesh Kumar was a valid licence even for plying HTV vehicle and it was valid upto 20.02.2016, to counter the plea of OP about the status of driving licence.
4.2: On the other side, Sh. Raghunath Pawar, Administrative Officer (legal) of National Insurance Co. filed his affidavit of evidence by referring the insurance policy, surveyor report, investigator report, RTI dated 09.11.2016, RTI dated 18.12.2016 and 25.02.2016 and replies of RTI dated 08.05.2017 and 19.04.2017 in respect of driving licence. In the evidence, the paragraphs of preliminary objections of written statement have also been reproduced.
5. (Submission of Parties) : Both the sides have filed their written arguments. On 12.12.2022, oral submission were heard on behalf of complainant and the matter was reserved for order while keeping an opportunity alive and open for the OP to make oral submissions, if any, within a week, however no oral submissions were advanced on behalf of OP. Therefore, the material on record will be considered to appreciate the rival contentions.
6.1 (Findings) : The contentions of both the sides are considered, analyzed and assessed, keeping in view the juxtaposition claims, as on the one side the complainant is making claims on the basis of various documentary record as well as oral plea on some other factors of income and earnings. But on the other side, OP has contends that it is duty of the complainant to establish his case but complaint had failed in discharging his burden. The complainant's claim is also opposed that driving licence of driver was not valid [vidhimanya nahi hey -विधिमान्य नहीं है).
However, tt is not disputed that FIR of accidence was registered immediately after accident on 26.12.2015 and in the said FIR name of driver Rakesh Kumar son of Mathilesh find mentioned. Thus, by reconciling the documentary evidence and other facts, it was driver Rakesh Kumar, who was driving the vehicle at the time of accident. There is also no dispute that the relationship of the complainant and of the OP is of insured and insurer, the IDV of vehicle was Rs.7,45,000/- as declared by the insured.
6.2: Since the OP has raised an issue with regard to breach of condition of insurance policy that in the absence of valid driving licence, there is no liability of insurer, the OP has relied upon the New India Assurance Co. Ltd. VS Birender Mishra (without mentioning citation) that insurer can be held liable only if driver holds valid driving licence to drive at the time of accident and also relied upon New India Assurance Co. Ltd. VS. Musharaf Alam- RP no. 2989/2007, dod of 2012 decided by Hon’ble NCDRC, that driver of vehicle did not have valid driving licence and it was clearly violation of terms of policy. It is opposed by the complainant. Therefore, the main disputed question is about the holding of licence or validity of the driving licence and it is to be determined first.
6.3: The driving licence [of Rakesh Kumar] filed with the complaint is Exh. C2. The certificate of validity of that driving licence obtained on 13.11.2017 is Exh. C3 along-with another copy of driving licence Exh. C2 filed with list of documents dated 24.11.2017 by the complainant. The other set of documents related with the driving licence are part of surveyor Engr. Mukesh Kumar Goel's report (particular page 36) & information obtained under RTI, (at page no.39 to 41 of that report). There is also record of application dated 13.09.2019 by the OP that it had applied for obtaining information under RTI accompanying with the photocopy of driving licence and request form for information.
The information under the RTI was provided by report/letter dated 19.04.2017. The information has been given in three parts, firstly, there is an entry of driving licence no. 23933/AG/07 dated 12.06.2007 in the name of Rakesh Kumar son of Sh. Maithlesh Singh, but the writings on first page of licence filed is different, prima-facie, from writing on the first page of licence on the record of RTA, Agra. Secondly, the fee of Rs.140/- dated 02.06.2007, corresponding aforementioned licence, was deposited in the cell vide receipt no. 679873 but it was not in the name of Rakesh Kumar and lastly licence cannot be issued without fees, therefore, driving licence no. 23933/AG/07 dated 12.06.2007 in the name of Rakesh Kumar was opined “licence dated 12/06/2007 Shri Rakesh Kumar ke naam vidhimanya nahi hai [लाइसेंस दिनांक 12/06/2007 श्री राकेश कुमार के नाम विधिमान्य नहीं है]”
6.4: Now, the situation emerged is that there is entry in the record of RTA of driving licence issued in the name of Rakesh Kumar son of
Shri Mathilesh Singh, however, name of Rakesh Kumar was not found/located in respect of fee amount deposited and the conclusion was drawn as if the driving licence is not valid. It is also relevant to mention that there were five pages viz. page 1 to 5 in driving licence and there was no other report or contrary report in respect of pages 2 to 5 of the driving licence.
In case, record of receipt or name on receipt is not located by RTA Agra, the applicant cannot be blamed or faulted for.
6.5: In the written statement as well as in the evidence, the OP has reproduced the expression “licence dated 12/06/2007 Shri Rakesh Kumar ke naam vidhimanya nahi hai [लाइसेंस दिनांक 12/06/2007 श्री राकेश कुमार के नाम विधिमान्य नहीं है]” and an expression is being given as if it is fabricated licence. The literal English meaning of ‘vidhimanya [विधिमान्य]’ is ‘valid’, ‘lawful’ and it does not mean “fake, imitation, forged, sham, bogus”. The information under RTI also suggests that it was prima facie observation that the writing on the first page of driving licence, prima facie appears to be different from the entry/writing on first page of driving licence in record of RTA Agra. It is neither a conclusive opinion nor scientific expert opinion but it certainly establishes that there is an entry in the record of RTA, Agra of driving licence in name Rakesh Kumar. There is no remarks given by RTA, Agra in respect of other page no.2 to 5 of the driving licence.
6.6: By taking into account stock all such record, features and circumstances, it is proved by the complainant that there was driving licence issued in the name of driver Rakesh Kumar, there is entry in the record of RTA Agra, the licence was valid licence and it was verified vide report dated 13.11.2017 that licence was issued for plying HTV, which was valid upto 20.02.2016. Simultaneously, the OP could not establish that the licence was not valid [विधिमान्य नहीं है] or it was fake or forged . With this determination of this issues, now the other contentions are to be assessed.
7.1: There is no dispute in respect of repairing of the damaged vehicle and raising of bills (Exh. C5) by OP's authorized service centre and the episode of accident had happened on 26.12.2015, within the currency period of insurance policy from 18.11.2015 to 17.11.2016, when truck driver Rakesh Kumar was driving the insured vehicle DL-1LV-1690, possessing valid licence upto 20.02.2016. The complainant has filed Vat bill Rs.4,70,430/- as the repair charges (Exh. C5). The surveyor in its report has considered the said bills in grand total but assessed the amount of Rs.2,97,073/- by considering the claim under separate heads of (i) metal parts, (ii) plastic parts and (iii) glass parts after provision of depreciation [i.e.10% on metal parts; 50% on plastic/rubber parts & 'nil' depreciation on glass parts], apart from labour charges of Rs.32,500/- against bill amount of Rs.86,000/-. The vehicle was of November 2014 Model.
The features of this case are distinguishable from the case law relied upon by the OP [as in New India Assurance Co. Ltd. VS Birender Mishra (its citation is RP no.3737/2008 dod 29.10.2014 by hon'ble NCDRC, in that case the driver was holding permanent driving licence for driving LMV (Non Transport) plus TSR (3 seats) and he was not holding driving licence to drive transport vehicle, but he was driving Tata Sumo Taxi, which was met with an accident at the time of driving, it was insured as commercial vehicle]. The other case law New India Assurance Co. Ltd. VS. Musharaf Alam- RP no. 2989/2007, dod of 2012, in which it was held that insurer can be held liable only if driver holds valid driving licence to drive at the time of accident & not otherwise, goes in favour of the complainant as at the time of accident the driver Rakesh Kumar was holding a valid driving licence authorized to drive the subject vehicle. The other preponderance of probabilities are also in favour of complainant and against the OP. Therefore, the complainant is held entitled for such amount of Rs.2,97,073/- plus Rs.32,500/- and to that extent the complaint is allowed.
7.2: With regard to other claim of Rs.50,000/- per month being loss of income, however, there is no proof of income by the complainant nor it could be proved that loss of income is covered by in the terms of insurance policy, therefore, the request for such amount is beyond the terms of policy and it is decided against the complainant.
7.3: So far damages on account of harassment, mental agony and inconvenience is considered, it is apparent on the face of record that insured vehicle was brought from the other State to Delhi, thence complainant had to prosecute his claim in the office of insurer, which was not allowed besides filing the complaint at later point of time vis-à-vis the OP had also to undergo exercise of obtaining proper record and information, inclusive of RTI through investigator, therefore, damages in the sum of Rs.20,000/- in favor of complainant and against the OP will meet both ends of justice.
7.4: The cost of litigation is quantified as Rs.5000/- in favor of complainant and against the OP.
7.5: Since the complainant has been deprived of the amount of compensation in lieu of damaged vehicle and he had to undergo all kind of inconvenience etc, thus, simple interest @ 6% p.a from the date of complaint till realization of amount is allowed in favor of complainant and against the OP.
8: In view of the detailed discussion and conclusion drawn in paragraph 6 and 7 above the complaint is allowed in favor of complainant and against the OP while directing the OP to pay Rs.3,49,573/- (i.e Rs.2,97,073+Rs.32,500+Rs.20,000) alongwith simple interest @ 6% p.a from the date of complaint till realization of the amount, apart from cost of Rs.5000/-. The OP shall pay the amount within 30 days from the date of receipt of copy of this order.
9: Copy of this sent/provided forthwith to the parties free of copy as per Regulations.
10: Announced on this 2nd day of January 2023 [ पौष 12, साका 1944].
