Haryana

Yamunanagar

CC/509/2011

Balbir Singh S/o Banarsi das - Complainant(s)

Versus

National Insurance Co. - Opp.Party(s)

S.C.Jindal

23 Nov 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 509 of 2011.

                                                                                                Date of institution: 19.05.2011

                                                                                                Date of decision: 23.11.2016.

      Balbir Singh aged about 47 years son of Sh. Banarsi Dass resident of village Hatlana, Tehsil Nissing, District Karnal. 

                                                                                                           

                                                                                                                    …Complainant.

                                    Versus

 

1. National Insurance Company Branch Office New Fountain Chowk, Yamuna Nagar through Branch Manager.
2. National Insurance Company Regd. Office 3, Middleton Street, Kolkata, through its General Manager. 

                                                                                                         

                                                                                                       …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                          SH. S.C.SHARMA, MEMBER.

 

Present: Sh.  S.C.Jindal, Advocate, counsel for complainant.

              Sh. Karnesh Sharma, Advocate, counsel for respondents

 

ORDER

 

1.                     Complainant  Balbir Singh has filed the present complaint under section 12 of the Consumer Protection 1986

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant is a registered owner of car bearing registration No. HR-05-X-2824    (Annexure C-2)  which was duly insured with the respondents (hereinafter referred as OPs) vide policy cover note bearing No. 4142100(Annexure C-1) valid w.e.f. 07.05.2008 to 06.05.2009 for a sum of Rs. 2,52,790/-. On 12.04.2009, one Kuljeet son of Janeswar Singh took the car of the complainant and at about 10.30 A.M. said Kuljeet Singh informed the complainant that due to sudden coming of buffalo on the road the said car was struck against a Safeda tree and was damaged. Thereafter, on the next day i.e. on 13.04.2009, the complainant arranged a canter and took the damaged car to M/s Sonu Motor Auto Gas, Buria Chowk, Jagadhri for repair of the said car. OP No.1 was informed about the accident and the complainant applied for the insurance claim with the OPs as per insurance policy. Thereafter, the surveyor of the OP Company conducted spot survey and the complainant provided full cooperation and documents demanded by the surveyor from time to time. However, the insurance company vide their letter No. 420402/793 dated 03.05.2010 repudiated the claim of the complainant on false and flimsy grounds. Feeling aggrieved, the complainant served a registered legal notice dated 05.06.2010 upon the OPs and requested to withdraw the false, wrong and illegal repudiation letter. The OPs Insurance Company duly received the said notice but OP Insurance Company neither replied the same nor complied with it. Lastly, prayed for directing the OPs to withdraw the repudiation letter dated 03.05.2010 and to decide the claim of the complainant according to insurance policy in letter and spirit and further to pay claim amount alongwith compensation as well as litigation expenses. Hence this complaint.

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections that the complaint is not maintainable; this Forum has got no territorial jurisdiction to try, entertain and decide the present complaint; the claim of the complainant has been repudiated on legal and valid grounds i.e. (i) “The date of accident as reported by the complainant is 12.04.2009 but intimation was given to the OPs on 17.04.2009 in violation of terms and conditions of the insurance policy (ii)The complainant did not report the matter to the police as a result of which no DDR or FIR was registered, (iii) No spot survey was arranged by the complainant and thereby the complainant deprived the insurance company to have first hand information, (iv)The driver Kuljeet was not holding a valid and effective driving license to drive the car on the date of alleged accident, (v)   The signatures on claim intimation letter differs from signatures on other relevant documents, (vi) That on the date of alleged accident the complainant has no insurable interest in the car in question which the complainant had already sold to one Gulshan”. The present complaint is bad for non joinder and mis joinder of necessary parties; the complainant has not come to this Forum with clean hands. The true facts are that the complainant Balbir Singh had purchased an insurance policy from the OPs and insured his car vide insurance policy No. 4142100 which was valid w.e.f. 07.05.2008 to 06.05.2009. The OPs received the intimation on 17.04.2009 and after receiving the intimation the OPs immediately registered the claim of complainant and deputed Mr. R.S. Arora Automobile Engineer, Valuer, Surveyor and Loss Assessor for final survey of loss caused to the said vehicle. The said surveyor submitted his survey report dated 25.11.2009 and assessed the loss of Rs. 1,67,290/-. Mr. A.S. Vaish Senior Field Officer was deputed for the fact finding of the said accident and who came to the conclusion that the car was being driven by Gajinder & Chhotu at the time of accident and the car was purchased by Gulshan from Balbir Singh. The OPs also got verified the driving license of Kuljeet which was handed over to the Investigator by Mr. Sanjay Kumar Rawal who had submitted his report dated 19.05.2009 alongwith report obtained from the Licensing Authority, Narnaul in which it has been revealed that Kuljeet Singh was only possessing driving license to drive scooter/motorcycle and he was not having driving license to drive car. Mr. A.S.Vaish, Investigator had also obtained a written statement of Kuljeet and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.  

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of Insurance cover note as Annexure C-1, Photo copy of registration certificate as Annexure C-2, Photo copy of driving license as Annexure C-3, Photo copy of claim repudiation letter dated 03.05.2010 as Annexure C-4, Photo copy of Registered AD legal notice as Annexure C-5, Photo copy of postal receipt as Annexure C-6, Photo copy of Acknowledgement as Annexure C-7, Photo copy of repair bill as Annexure C-8, Photo copy of investigation on OD Claim as Annexure C-9, Photo copy of driving license register as Annexure C-10 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs tendered into evidence affidavit of Sh. Sanjay Kumar Rawal as Annexure RA, Affidavit of A.S.Vaish, Senior Filed Officer, as Annexure RB, Affidavit of Parveen Arora, Administrative Officer as Annexure RC, Affidavit of Sh. R.S.Arora as Annexure RD and photo copies of documents such as copy of claim repudiation letter as Annexure R-1, Photo copy of Insurance policy as Annexure R-2, Photo copy of claim intimation format as Annexure R-3, Photo copy of surveyor report as Annexure R-4, Photo copy of claim form as Annexure R-5, Photo copy of report of A.S.Vaish as Annexure R-6, Photo copy of driving license as Annexure R-7, Photo copy of letter dated 19.05.2009 for verification report of DL as Annexure R-8, Photo copy of verification report of DL as Annexure R-9, Photo copy of statement of Kuljeet Singh driver as Annexure R-10, Photo copy of statement of Mahipal son of Sh. Laxmi Chand as Annexure R-11, Photo copy of letter dated 20.07.2009 written by A.S.Vaish for completion of formalities as Annexure R-12, Photo copy of verification report of DL as Annexure R-13,, Photo copy of letter dated 28.05.2009 as Annexure R-14, Photo copy of letter dated 13.11.2009 for completion of formalities as Annexure R-15 and closed the evidence on behalf of OPs.

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

 7.                    It is admitted fact that the complainant is registered owner of car bearing registration No. HR-05-X-2824, which was insured with the OPs Insurance Company vide policy cover note bearing No. 4142100 valid from 07.05.2008 to 06.05.2009 for a sum of Rs. 2,52,790/- and met with an accident on 12.04.2009 during the currency of insurance policy. It is further not disputed that surveyor and loss assessor was deputed and Rs. 1,67,290/- 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-4.

8.                     The main question involved in the complaint is whether the driver Sh. Kuljeet of the vehicle in question was having valid and effective driving license at the time of accident or not? 

9.                     Learned counsel for the complainant argued that the complainant has spent huge amount on the repair of his car but the OPs Insurance Company has wrongly and illegally repudiated the claim of the complainant just on the ground that driver Kuljeet was having driving license only for motorcycle and scooter whereas he was driving the car in question. Learned counsel for the complainant draw our attention towards the copy of DL Annexure C-3 and argued that a tick mark has also been marked on the column of A, B, C, E, F, G and H. Hence the driver of the complainant Kuljeet was duly authorized to drive the car. Learned counsel for the complainant further argued that OPs Insurance Company cannot repudiate the claim of the complainant on the technical ground also. In support of his contention learned counsel for the complainant referred the case law titled as Oriental Insurance Company Ltd. Versus Dalbir Singh and others, 1998 ACJ page 1418 Punjab & Haryana High Court, Chandigarh and also referred the case law titled as National Insurance Company Ltd. Versus Avtar Singh, First Appeal No. 162 of 2014 decided on 13.3.2014 and referred the case law titled as M/s Sarvalaxmi Marines Rep. by Prop. Smt. Angoti Suseela Versus M/s Oriental Insurance Company Ltd. & Another, 2007(3) CPR page 1 (N.C.) wherein it has been held that is there any provision under Insurance Act for appointing an investigator after surveyor? No.

10.                   Learned counsel for the complainant further argued that the OPs Insurance Company cannot deny the claim of the complainant on false ground that they were intimated after 5 days whereas the IRDA has clearly mentioned in the instructions that the insurer cannot reject the claims amount for delay in intimation and referred the case law titled as The Manager, New India Assurance Co. Ltd. Versus Yadram 2014(2) CLT page 386 passed by our Hon’ble State Commission, Haryana, Panchkula wherein it has been held that in the case of theft of vehicle, breach of condition is not germans- The delay of 15 days is not significant in such a case.

11.                   Lastly, prayed that OPs Insurance company be directed to pay the amount of repair of car in question.

12.                   On the other hand, learned counsel for the OPs Insurance Company Sh. Karnesh Sharma hotly argued at length that the claim of the complainant has been rightly repudiated as the driving license of Sh. Kuljeet driver, who was driving the car in question at the time of accident, was not valid as he was only authorized to drive motorcycle and scooter and draw our attention towards the report of Licensing Authority Narnaul ( Annexure R-9) and report of Investigator (Annexure R-8). Learned counsel for the OPs further draw our attention towards the copy of driving license (Annexure C-3/R-7) and argued that the false tick mark has been made on the driving license either by the complainant or driver Kuljeet just to save the skin whereas the driving license of the driver of complainant was meant for only motorcycle and scooter. In support of his contention, learned counsel for the OPs also draw our attention towards the cross examination of the Licensing Clerk Sh. Gyanender Kumar Licensing Clerk, Narnaul recorded on 15.04.2014 and argued that Licensing Clerk of Licensing Authority Narnaul has specifically admitted in his cross examination that the driving license bearing No. 11429 dated 08.07.1994 was issued in the name of Kuljeet Singh son of Janeshwar and it was issued only for scooter and motorcycle. Meaning thereby, that the driver of the complainant was not having a valid and effective driving license at the time of alleged accident which constitute the violations of the terms and conditions of the Insurance policy. Lastly prayed for dismissal of complaint and referred the case law titled as National Insurance Company Limited Versus Aman Rana, IV(2013) CPJ page 125 wherein it has been held that Consumer Protection Act-1986- Sections 2(1)((g), 15- Insurance- Accidents of vehicle- Invalid driving licence- Surveyor appointed- Claim repudiated- Alleged deficiency in service- District Forum allowed complaint- Hence appeal- Once driving licence of driver is not valid and effective to drive vehicle, Insurance Company is well within its right to repudiate claim- Driving licence issued for scooter only and renewal record is not available- It cannot be presumed that driving licence valid to drive car also- Repudiation justified- Impugned order set aside.

                        Learned counsel for the OPs further referred the case law titled as Oriental Insurance Company Ltd. Vs. Rajnesh Tandaon, 2014(2) CLT page 272 (National Commission) wherein it has been held that Driving License- Held- Once certificate of verification of D/L issued by Licensing Authority placed on record by insurance company- No need to produce affidavit of L/A in evidence- It is incumbent upon complainant to rebut the verification report.

13.                   Learned counsel for the OPs further argued that even otherwise also complainant has neither lodged any FIR of DDR in respect of alleged accident nor he intimated in time to the OPs Insurance Company immediately and no opportunity for spot survey was given to the OPs Insurance Company and referred the case law titled as Bachan Singh vs. OIC ltd. 2014(3) CLT page 103(NC), in which it has been held that “ Consumer Protection Act1986, Section 2(1)(g)- Insurance Claim- Theft of insured truck- Delay in intimation to insurance company and also delay in lodging the FIR- Held-That the complaint is liable to be dismissed on the ground of the late registration of FIR and late intimation to the insurance company and also referred the case law titled as New India Assurance Company Ltd. vs. Trilochan Jane, First Appeal No. 321 of 2005 decided on 9.12.2009.

14.                   After hearing both the parties, we are of the considered view that there is no deficiency in service on the part of Ops as from the perusal of statement of Licensing Clerk, Narnaul recorded on 15.04.2014 as well as report of Licensing Authority, Narnaul (Annexure R-9 and C-10), it is clearly evident that driver Kuljeet Singh was having a driving license for scooter and motorcycle only valid from 08.07.1994 to 05.12.2014. We have also perused the copy of driving licence (Annexure C-3) wherein also no further endorsement to drive any other class of vehicle has been made. The Licensing Clerk, Narnaul has specifically admitted in his chief that the driving license bearing No. 11429 dated 08.07.1994 was issued only for scooter and motorcycle and there is cutting on the entry of car jeep but there is no signature of any Licensing Authority. When the OPs Insurance Company has taken a specific plea that the driver of the complainant was not having driving license to drive the car in question then onus was shifted on the complainant to prove the same but the complainant has totally failed to prove that the driver was having valid and effective driving license to drive the car also. Further, as per version of the complainant himself accident took place on 12.04.2009 at 10 A.M. but the claim was lodged with the OPs Insurance Company on 17.04.2009 after the expiry of 5 days and no DDR or FIR was lodged by the complainant. Even, the OPs Insurance Company was also not provided opportunity to inspect the vehicle on spot which violates the terms and conditions of the insurance policy in question on the part of complainant. The case law referred by the counsel for the complainant is not disputed but not helpful in the present case whereas the law referred by the counsel for the OPs titled as National Insurance Company Versus Aman Rana (supra) is fully applicable to the facts of the present case.

15.                   Resultantly, we are of the considered view that the claim of the complainant has been rightly repudiated by the OPs Insurance Company vide its letter dated 03.05.2010 (Annexure R-1) and the complainant is not entitled for any relief. Hence, the present complaint is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 23.11.2016.                    

                                                                                                (ASHOK KUMAR GARG)

                                                                                                PRESIDENT

 

                                                                                                (S.C.SHARMA  )

                                                                                                 MEMBER