Haryana

Yamunanagar

CC/799/2011

Raj Pal S/o Chura Ram - Complainant(s)

Versus

National Insurance Company Ltd. - Opp.Party(s)

Mohit Kumar

06 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                         Complaint No. 799 of 2011.

                                                                                         Date of institution: 28.07.2011.

                                                                                         Date of decision:06.06.2016.

Raj Pal  aged about 42 years son of Shri Chura Ram, resident of village Khurdi, Post Office, Nagal, District Yamuna Nagar.  

                                                                                                                                                              …Complainant.

                                    Versus

 

The National Insurance Company Ltd. near Fountain Chowk, Jagadhri Road, Yamuna Nagar through its Branch Manager.                                                                                                                                                                                                                                                                                                                                                                        …Opposite party.

 

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

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

 

Present:  Sh. Mohit Kumar, Advocate, counsel for complainant.  

               Sh. V.K.Sharma, Advocate, counsel for OP.               

             

ORDER

 

1.                     Complainant Raj Pal has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent ( hereinafter referred as OP) be directed to pay a sum of Rs. 42246/- on account of repair of the car and also to pay compensation as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant is registered owner of vehicle TATA Ace Magic bearing registration No. HR-58A(T) 1563 which was comprehensively insured with the OP Insurance Company vide its insurance policy bearing No. 420402/31/09/6300002643 valid w.e.f. 24.12.2009 to 23.12.2010 for a sum insured of Rs. 2,68,850/-. On 28.09.2010, the vehicle in question of the complainant met with an accident in the area of police station Jathalana due to which vehicle in question was badly damaged. On the same day a claim was lodged with the OP Insurance Company and a surveyor was deputed who visited the spot and took photographs of the damaged vehicle in question and asked to the complainant to get the vehicle repaired. As per instructions of the surveyor the complainant got the vehicle repaired from Pasco Motors Dosarka Ambala and spent Rs. 42246/- on its repair, purchase of parts etc. All the documents were submitted with the OP Insurance Company. However, OP Insurance Company vide letter dated 24.01.2011 rejected the claim of the complainant on the ground that driving license of the complainant was not valid for LTV, which is violation of terms and conditions of insurance policy. The genuine claim of the complainant has been wrongly repudiated by the OP Insurance Company against the factual position because the perusal of the driving license bearing No. 32613/A/90 clearly shows that it was also issued for driving of LTV and HTV vehicle. Hence, there is as deficiency in service and unfair trade practice on the part of OP Insurance Company. Hence, this complaint.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no deficiency in service or cause of action against the OP Insurance Company; claim of the complainant is not payable on the grounds of violation of terms and conditions of the insurance policy; as such the claim has been rightly repudiated by the OP Insurance Company; complainant has not come to this Forum with clean hands and has suppressed the true and material facts from this Forum. The true facts are that the DL of the person who was driving the vehicle in question at the time of accident was not having valid and effective driving license and on merit it has been admitted that the vehicle in question was insured with the OP Insurance Company and on receipt of intimation of the accident, the Op. Insurance Company immediately appointed the Surveyor and Loss Assessor to assess the loss. The Surveyor & Los Assessor submitted his report (Annexure R-2) assessing the loss to the tune of Rs. 19711/- subject to terms and conditions of the insurance policy. On verification of the driving license bearing No. 32613/A/90 (Annexure R-3) from the concerned Licensing Authority-Cum-R.T.A. Yamuna Nagar it was found that the said driving license was valid for Auto Rikshaw and HMV and not for LTV (carrying of passengers) report of authority as Annexure R-4. Thus the said driving license was not valid and effective driving license at the time of accident. Further, it has been stated that as per the RC of the vehicle bearing No. HR-58A(T) 1563, the vehicle in question is LTV (Passenger). Lastly prayed that as the driver was not holding an effective driving license to drive passenger carrying Light Transport Vehicle, which is violation of the terms and conditions of Insurance Policy, hence, the claim of the complainant has been rightly repudiated and there is no deficiency in service on the part of OP Insurance Company and complaint is liable to be dismissed.

 4.                    As the complainant failed to lead any evidence, hence his evidence was closed by court order on 12.12.2014. However, at the time of filing of complaint, complainant filed his affidavit and documents such as Photo copy of Insurance Policy as Annexure-1, Photo copy of repudiation letter as Annexure-2, Photo copy of retail invoice of Pasco Motors as Annexure-3 with the complaint in support of his complaint.

5.                     On the other hand, counsel for the OP tendered into evidence affidavit of Sh. Samain Singh, Administrative Officer, NIC as Annexure RW/A and affidavit of Sandeep Kumar, Automobile Engineer, Surveyor & Loss Assessor as Annexure RW/B and documents such as Photo copy of Insurance policy as Annexure R-1, Photo copy of Surveyor report as Annexure R-2, Photo copy of driving license as Annexure R-3, Photo copy of verification of driving license as Annexure R-4, Photo copy of repudiation letter as Annexure R-5 and closed the evidence on behalf of OP.

6.                     We have heard the counsel 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 OP reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                      It is not disputed that the vehicle TATA ACE Magic bearing No. HR-58A(T) 1563 was not insured with the Op Insurance Company vide policy No. 420402/31/09/6300002643 w.e.f. 24.12.2009 to 23.12.2010. It is also not disputed that the abovesaid vehicle was not met with an accident and badly damaged. The only plea of the OP Insurance Company is that driver Mam Chand who was driving the vehicle in question at the time of accident was not having valid and effective driving license to drive the vehicle in question at the time of accident as the driver was having only license to drive the Auto Riksha and HMV whereas the class of vehicle in question was LTV (Light Transport Vehicle), so, the claim of the complainant has been rightly repudiated vide its letter dated 24.1.2011. Learned counsel for the OP draw our attention towards the photo copy of driving license Annexure R-3 and photo copy of report of Licensing Authority cum RTA Yamuna Nagar Annexure R-4. Learned counsel for the OP Insurance Company referred the case law titled as New India Assurance Co. Ltd. Versus Roshanben Rahemansha Fakir & Another, 2008(3) RCR (Civil) page 267 Supreme Court, New India Assurance Co. Ltd. Versus Prabhu Lal, 2008 ACJ page 627 Supreme Court and Oriental Insurance Company Versus Angad Kol & others, AIR 2009 Supreme Court 2151 wherein it has been held that Motor Vehicle Act (59 of 1988) Ss. 2(10), 2(14), 2(21), 10.14- Driving license- There is distinction between “ light motor vehicle” and “transport vehicle”- A transport vehicle may be light transport vehicle- But for purpose of driving same, a distinct license is required to be obtained.

8.                      On the other hand, learned counsel for the complainant hotly argued that genuine claim of the complainant has been wrongly repudiated by the Op Insurance Company on the flimsy ground and draw our attention towards the copy of driving license Annexure R-3 and argued that from the perusal of driving license it is clearly evident that driver Mam Chand was authorized to drive Light Motor Vehicle (LMV) and Heavy Transport Vehicle/ HMV. He was also authorized to drive for Auto Rikshaw and the license in question was renewed by the Licensing Authority from time to time and it was lastly renewed vide serial No. 1156/RTA/YNR w.e.f. 20.5.2010 to 14.9.2012 and further argued that at the time of renewal class of vehicle has not been mentioned by the Licensing Authority Yamuna Nagar. Learned counsel for the complainant further argued that License in question was issued by the Licensing Authority, Alwar (Rajasthan) on 19.11.1990 for LMV/HMV only, which is clearly evident from the surveyor report Annexure R-2 and driving license (Annexure R-3) as the surveyor has mentioned these particulars in his report under the head driver particulars at serial No.5 but the Op Insurance Company has not filed any report from the Licensing Authority, Alwar in support of their version that the driver Mam Chand was not holding a valid driving license. Mere filing the report of renewal entry issued by the Licensing Authority, Yamuna Nagar is not sufficient to hold that driving license was not valid to drive the vehicle in question and referred the case law 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.

 9.                    Learned counsel for the complainant further referred the case law titled as Harsewak 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.

10.                   After hearing both the parties at length, we are of the considered view that the claim of the complainant has been wrongly repudiated by the OP Insurance Company. From the perusal of surveyor report Annexure R-2 and photo copy of driving license Annexure R-3, it is evident that driving license bearing No. 32613/A/90 was issued by Licensing Authority Alwar on 19.11.1990 for LMV/HMV but no report from Licensing Authority Alwar has been placed on file by the Op Insurance Company and in the absence of any report from the Licensing Authority issuing office, i.e. ( L.A. Alwar) it cannot be presumed that the license in question was not meant for LMV/HMV. Even neither any Licensing Clerk has been examined by the OP Insurance Company nor any affidavit on behalf of Licensing Authority has been filed to prove the photo copy of renewal report (Annexure R-4). Furthermore, it is not disputed that the driver was holding a driving license for HMV, so, a driver who can drive H.M.V then it cannot be presumed that he could not drive the other class of vehicle i.e. four wheeler etc. The law cited by the counsel for the OP Insurance Company is not disputed but not applicable to the facts of the present case whereas the law cited by the counsel for the complainant titled as Harsewak Singh Versus Smt. Jajo Devi & Oriental Insurance Co. Ltd. Vs. Biro Devi & Others (supra) are applicable to the facts of the present case. Hence complainant is entitled to get relief on this account.

11.                   Now the next question remains, as to what extent the complainant is entitled to get damages. The arguments advanced by the counsel for the complainant that complainant has spent Rs. 42246/- on account of damage to the vehicle 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, loss has been assessed by the surveyor and loss assessor to the tune of Rs. 19,711 on net loss basis vide his report (Annexure R-2) 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.

12.                   In the circumstances noted above, we are of the considered view that the OP Insurance Company has wrongly repudiated the claim of the complainant on the ground of invalid driving license whereas the complainant was having valid and effective driving license at the time of accident. Hence, the complainant is entitled for relief.

13.                   Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs. 19,711/-, as assessed by the Surveyor & Loss Assessor, to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization and further to pay a sum of Rs. 1000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within 30 days from the date of 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. File be consigned to the record room after due compliance.

Announced in open court.06.06.2016.           

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                             

                                    (S.C.SHARMA )

                                     MEMBER.