Punjab

Ludhiana

CC/14/521

Shashi Kumar - Complainant(s)

Versus

National Ins.Co.Ltd - Opp.Party(s)

29 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

       C.C. No: 521 of 25.07.2014

                                                                      Date of Decision:29.05.2015

Shashi Kumar aged about 41 years son of Sh.Mahavir Singh son of Sh.Bahadur Ram, village Bodi Wala Pitha, Tehsil and District Fazilka.

……Complainant

                                                    Versus          

1.National Insurance Company Limited, through its Manager, Bansal Complex, Near Dholewal Chowk, G.T.Road, Ludhiana, Punjab.

2.Regional Manager, National Company Limited, Regional Office 1, SCO No.332-334, Sector-34A, Chandigarh-160022.

3.National Insurance Company Limited, through its General Manager, 3 Middleton Street, Post Box No.9229, Kolkata-700071.

                                                                             ……...Opposite Parties

        Complaint under section 12 of the Consumer Protection Act,1986.        

Quorum:     Sh.R.L.Ahuja, President.                 

                   Ms.Babita, Member.               

                 

Present:       Sh.Ankur Ghai, Adv. for complainant.

Sh.D.R.Rampal, Adv. for Ops.

ORDER

R.L.AHUJA, PRESIDENT

 

1.                Present complaint under Section 12 of the Consumer Protection Act, 1986 (herein-after in short to be described as ‘Act’) has been filed by Sh.Shashi Kumar (hereinafter in short to be referred as ‘complainant’) against National Insurance Company Limited and others(herein-after in short to be described as ‘Op’)- directing them to pay Rs.2,26,100/- qua the cost incurred on the repair of the vehicle alongwith Rs.1 lakh as compensation and Rs.10,000/- for the charges of transport and Rs.15000/- as legal expenses alongwith interest @12% p.a. on the abovesaid amount to the complainant.

2.                In brief, the case of the complainant is that the complainant is owner of vehicle Car Vento 1.6 CR (MT) High Line, Engine No.157718 having Chassis No.048610 and having registration No.PB-22-D-5599 which was insured with OP2 vide policy cover Note No.GG31-401301571816 on payment of premium of Rs.24,770/- against the term of the insurance w.e.f.25.4.2013 to 24.4.2014. There exists relationship of consumer and services provider between the parties. On 6.11.2013 at about 9:15 PM, the complainant alongwith Raman Nain son of Tara Chand r/o Bodi Wala Pitha, Tehsil Fazilka were coming from Abohar in the car. Raman Nain was driving the car. When they were about to cross the Gang Canal (situated at Fazilka Abohar Road) i.e. when they were at some distance from the Gang Canal, suddenly a wanderer cow came in front of the car and in order to save the cattle, damage occurred to the vehicle. On 7.11.2013, the intimation was sent to the OP, the OP1 appointed Harsh Laroiya Surveyor, who was directed to bring the car at the showroom of Volkswagen, Lally Motors, India Pvt. Ltd, Ludhiana. At the instructions of the OP2 and above-mentioned surveyor, the vehicle was brought by hired truck owner to the concerned showroom. The truck owner charged Rs.10,000/- as charges. As per the instructions of the OPs, the vehicle was got repaired from the showroom against the cost of Rs.2,26,100/-. Photographs of the damaged vehicle and other documents were provided to the OP2 through OP1. The Ops assured that the amounts spent by the complainant would be reimbursed by cheque and sent to his residence. As there was no fault of anyone, no FIR/DDR was got lodged. On 13.1.2014, the complainant received a letter dated 15.12.2013 through registered post of the surveyor on behalf of Ops, vide which, the claim of the complainant was rejected on the ground that license of driver Mr.Raman Nain son of Shri Tara Chand has been found fake. The said fact is totally claimed to be wrong and incorrect. The license of Raman Nain is genuine duly issued by driving licence authority Khadoor Sahib. The concerned entry exists in the register of Driving License Authority, Khadoor Sahib and there are signatures of the concerned authority upon the driving license. Also the Ops had wrongly mentioned the car registration number as PB-22-B-5599 in place of PB-22-D-5599 in the policy. The concerned surveyor regarding the vehicle in question has assessed the net loss to the tune of Rs.1,33,500/- which is wrong as proper bills and performa invoice of Lally Motors Pvt. Ltd. were provided to the OP totaling upto Rs.2,26,100/-. The Ops failed to acknowledge that there was no negligence on the part of the complainant by handing over the vehicle to Mr.Raman Nain. The complainant had take due and reasonable care in allowing the driver to drive the vehicle. Due to the act and conduct of the Ops, the complainant has to suffer both mentally as well as financially. Hence, this complaint.

3.                Upon notice of the complaint, OPs was duly served and appeared through their counsel Sh.D.R.Rampal, Advocate and filed their written reply, in which, it has been submitted in the preliminary objections that complaint is not maintainable in the present form as the same is false and frivolous one. The complaint is bad for non-joinder and mis-joinder of necessary parties as the OP2 is not a necessary party. The complainant has not come to this District Forum with clean hands and he has suppressed the material facts qua the facts that the complainant has violated the terms and conditions of the insurance policy. Raman Nain driver was not possessing valid and effective driving license and alleged driving license of driver Raman Nain was forged fabricated document and Sh.Subhash Chander Vij surveyor also gave verification report dated 5.12.2013 stating that said driving license is false and fabricated document. The claim of the complainant was duly scrutinized by competent authority of answering Ops and was treated as ‘No Claim’ and no claim/repudiation letter dated 24.1.2014 was duly posted to the complainant closing his file. The complainant is stopped by his act and conduct from filing the present complaint. The present complaint is barred by principle of res-judicata. The earlier complaint filed by complainant was dismissed vide order dated 21.5.2014 by Hon’ble DCDRF, Ferozepur and no permission was granted by said Consumer Forum. The intricate question of law and facts are involved in this case and this case cannot be summarily decided by this Hon’ble Forum and the facts of the case require elaborate evidence and only Civil Court is competent to decide the present case after providing due opportunities to the parties to lead their evidence. On merits, it is submitted that the parties are governed by terms and conditions of the insurance policy and to follow the provisions of Motor Vehicle Act. Further, it is submitted that the intimation was given to the answering Ops on 13.11.2013 and not on 7.11.2013 as alleged by the complainant. Further, it is submitted that the complainant had not given immediate intimation to the answering OPs with regard to the alleged accident/damage to the car in question. The complainant did not get the spot survey conducted at the spot after alleged accident. After receiving the intimation on 13.11.2013, the answering Ops deputed Er.Harsh Kumar Laroiya for survey and assessing the loss, who did the survey on 13.11.2013 at the premises of M/s Lally Motors Pvt. Ltd, Ludhiana and on subsequent dates and gave his motor survey report final dated 10.1.2014. The surveyor also pointed out that driving license of driver Raman Nain is found fake and complainant has not managed the spot survey and also not lodged DDR/Police report with regard to the said accident. However, the surveyor assessed the loss for the purpose of assessing the loss at Rs.1,33,500/- and submitted the report without prejudiced to the rights of the answering Ops. The said surveyor also posted one registered letter dated 15.12.2013 to the complainant informing him that driving licence of Raman Nain had been found fake. Mr.Subhash Chander Vij was deputed for verification of the alleged driving license of driver Raman Nain and said investigator thoroughly checked the record from Licensing Authority, Khadoor Sahib and found that alleged driving license of Raman Nain is fake document and he also approached concerned SDM and requested for its verification. The said surveyor submitted verification report dated 5.12.2013 of driving license of Raman Nain. From the photocopy of alleged driving license placed on the record the same is looking to be false and forged document. On receipt of survey report and verification report of alleged driving license of Raman Nain, the competent authority of answering Ops minutely scrutinized the claim of the complainant and found that the complainant has violated the terms and conditions of the insurance policy and alleged driving license of driver Raman Nain is fake document and claim was treated as ‘No Claim’ and no claim/repudiation letter dated 24.1.2014 was duly posted to the complainant. Due services have been rendered by the answering Ops and there is no deficiency in service on the part of the answering Ops. The complainant filed one complaint No.81 dated 12.2.2014 before the Hon’ble DCDRF, Ferozepur and the same was dismissed by Hon’ble DCDRF, Ferozepur vide order dated 21.5.2014 for want of territorial jurisdiction. NO permission was granted to the complainant to file the second complaint on the same cause of action. Hence, second complaint is not maintainable. At the end, denying all other allegations of the complaint, answering OPs prayed for the dismissal of the complaint.

4.                Both the parties have adduced their evidence in the shape of affidavits and documents.

5.                We have heard the learned counsel for the parties and have also perused the record on the file very carefully.

6.                Perusal of the record reveals that it is an undisputed fact between the parties that the complainant is owner of the vehicle in question i.e Car Vento 1.6 CR (MT) High Line bearing registration No.PB-22-D-5599 which was insured with the OP2 vide cover Note No.GG31-401301571816 which was valid w.e.f.25.4.2013 to 24.4.2014 on payment of premium. Further, it is a proved fact on record that the vehicle in question met with an accident on 6.11.2013 and due intimation was given to the OP1 and the claim was lodged with them, who had appointed Er.Harsh Laroiya surveyor, who had thoroughly inspected the vehicle and submitted his report dated 10.1.2014 Ex.C4(Ex.R3). Further, the vehicle was got repaired from the repairer i.e.Lally Motors Pvt. Ltd.Ludhiana at the costs of Rs.2,26,100/- as per the allegations of the complainant. Further, it is admitted fact on record that Sh.Subhash Chander Vij was deputed by the OP1 for verification of the driving license of driver Raman Nain, who after his investigation, submitted his report dated 5.12.2013 Ex.R26. However, the claim of the complainant was not paid and the same was repudiated vide letter dated 24.01.2014 Ex.C7(Ex.R27) by OP3 on the ground that driving license of the driver is not valid at the time of accident and they received the report of surveyor Er.Harsh Kumar Laroiya, vide which, he had reported that in this case, driving license of the driver found fake.

7.                Perusal of the evidence of the complainant reveals that the complainant in order to prove his case has furnished his affidavit Ex.CA, in which, he has deposed interms of the pleadings taken in the complaint and further, he has placed on record documents Ex.C1 copy of certificate of registration of the vehicle in question, Ex.C2 copy of insurance policy in question issued by OP2, Ex.C3 copy of driving license of driver Raman Nain bearing driving license No.9067/Khadoor Sahib dated 8.9.1998 which was valid from 8.9.1998 to 12.7.2029 and further, he has placed on record documents Ex.C4 copy of Motor Suvey Report Final dated 10.1.2014 of Er.Harsh Kumar Laroiya, Ex.C5 and Ex.C6 copies of invoices issued by Lally Motors India Pvt. Ltd. qua the repair of the vehicle in question, Ex.C7 copy of repudiation letter dated 24.1.2014, vide which, the claim file of the complainant closed as ‘No Claim’ by the OP3 and Ex.C8 copy of order dated 21.5.2014 passed by DCDRF, Ferozepur in complaint NO.81 of 2014 which was filed by the complainant against the OP1 and OP2.

8.                Perusal of the evidence of the Ops reveals that Ops have furnished affidavit Ex.RA of Sh.A.S.Grover, its Sr.Divisional Manager in support of their pleadings taken in the written reply and tendered into evidence documents Ex.R1 to Ex.R27 and further, tendered into evidence affidavit Ex.RB of Er.Harsh Kumar Laroiya, who was deputed in order to conduct the survey and assess the loss suffered by the car No.PB-22-D-5599, who has deposed qua the report dated 10.1.2014 submitted by him and also intimated that driving license of driver Raman Nain was found to be fake and proved certain documents Ex.R1 to Ex.R23.

9.                Perusal of the record further reveals that Ops in order to prove the genuineness of the driving license of driver Raman Nain has examined RW2 of Sh.Sunil Kumar, Clerk in the office of Sub Divisional Magistrate-cum-Licensing Authority, Khadoor Sahib, District Tarantaran, in which, he has deposed that he has brought the summoned register. He has seen the entry bearing Sr.No.9067 and the photocopy of the same is Ex.RW2/A. No date under Sr.No.9067 is mentioned with regard to issuance of said driving license in the name of Raman Nain. Even the photograph of Raman Nain is not pasted on the record. He has seen the photocopy of driving license of Raman Nain and same is already exhibited as C3. He cannot tell the name of the officials who signed the original thereof Ex.C3. The register brought by him is loose one and no entry in this register is signed by Licensing Authority at any time. There is no endorsement in the start of the register by any official to start this register and there is also no entry/endorsement at the last ending this register. One Subhash Viz surveyor/investigator was deputed by National Insurance Company Limited had visited their office for verification of driving license Ex.C3. He has also deposed that he joined the office of SDM-cum-Licensing Authority in September, 2013 and no entry in this register is in his hand. He cannot tell the name of the person who prepared this register and made the entries in this register. While facing the cross-examination, he has deposed that the entries were not made in his presence. He has neither gone through the report of surveyor appointed by the insurance company and he cannot tell the same is correct or not. Further, this witness has produced the copies of entries of the driving license register which find mentioned the entry at Sr.No.9067 of driving license in the name of Raman Nain s/o Tara Chand r/o v.Bodi Wala Pitha, Tehsil Fazilka, Scooter/car/Tractor only which was valid w.e.f.7.9.1998 to 12.7.2029.

10.              During the course of arguments, learned counsel for the Ops has strongly contended that the register produced by the aforesaid witness was not duly maintained and same does not bear the endorsement of any officials and entry of the same could not relied upon. However, it is undisputed fact that this witness was summoned by the Ops itself and this witness appeared as witness of Ops and during the examination of this witness, Ops had not got declared this witness as hostile witness and no leading questions have been put to this witness by the learned counsel for the Ops that he has not brought this register from his official record or the official record of SDM/Licensing Authority. Once, Ops have relied upon the testimony of this witness, the evidence of this witness is to be lead as whole. This witness has never deposed that driving license NO.9067 was not issued by the Licensing Authority, Khadoor Sahib and the same is forged and fake. Difference of date of issuance of license entered in the register as well as in the License appears to be only a clerical mistake. Non pasting of photograph on driving license only appears to be irregularity of the officials of the Licensing Authority. However, it cannot be presumed that license bearing No.9067 was not issued by the Licensing Authority, Khadoor Sahib. So, it is proved that Ops have failed to prove that driving license of Raman Nain is forged and fabricated document. So, it appears that Ops have arbitrarily and illegally repudiated the claim of the complainant which clearly amounts to deficiency in service on their part.

11.              Hence, in view of the above discussion, by allowing the present complaint, we hereby direct the Ops to re-open the claim file of the complainant and thereafter, to settle and pay the claim of the complainant on the basis of the surveyor report Ex.C4(Ex.R3), failing which, Ops shall be liable to pay interest @9% p.a. from the date of lodging of claim till its realization. Further, Ops are burdened with Rs.10,000/-(Ten thousand only) as compensation and Rs.2000/-(Two thousand only) as litigation costs to the complainant. Order be complied within 30 days from the date of receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record room.

                   (Babita)                          (R.L.Ahuja)

                              Member                        President.  

Announced in Open Forum

Dated:29.05.2015

Gurpreet Sharma.