Punjab

Ludhiana

CC/13/512

Luxmi Service Station (Regd) - Complainant(s)

Versus

New India Ass.Co.ltd. - Opp.Party(s)

29 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM LUDHIANA

                                                          C.C. No. 512 of 17.07.2013                                                                       Date of Order: 29.06.2015

M/s Luxmi Service Station (Regd.), Opposite Verka Milk Plant, Ferozepur Road, Ludhiana, through its Partner Sh.Ashok Sachdeva.

… Complainant

Versus

1.The New India Assurance Company Limited, Registered Office, The New India Assurance Building, 87, MG Road, Fort, Mumbai-400001 through its Manager.

2.The New India Assurance Company Limited, Branch Office Kamaldeep Mansion, G.T.Road, Phagwara, District Kapurthala through its Manager.

3.The India Assurance Co.Ltd., The Mall, Ludhiana through its Manager.

                                                                             … Opposite Parties.

       COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum

                   Sh. R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member

Present

                   Sh.Sunil Tiwari, Adv. for complainant.

                   Sh.V.K.Gupta, Adv. for Ops.

                   

ORDER

SAT PAUL GARG, MEMBER

 

1.           Present complaint under Section 12 of the Consumer Protection Act, 1986, has been filed by M/s Luxmi Service Station (Regd.), Opposite Verka Milk Plant, Ferozepur Road, Ludhiana, through its Partner Sh.Ashok Sachdeva (hereinafter in short to be described as ‘complainants’) against The New India Assurance Company Limited and others(hereinafter in short to be described as ‘Ops’) directing them to pay Rs.10,41,167/- on account of repair charges alongwith Rs.1 lakh on account of deficiency in service, unfair trade practice on the part of the Ops and interest @9% p.a. from the date of accident till the realization of the claim amount and litigation charges of Rs.25,000/- and other benefits to the complainant.
2.           Brief facts of the complaint are that complainant is running a fuel station for earning its livelihood and the complainant is using oil tanker bearing registration No.PB-08-AT-8624 for loading of petrol only for the purpose of earning its livelihood. The complainant has purchased a policy No.36100331110100001833 bearing customer ID No.2D102257843 which was valid from 15.7.2011 to 14.7.2012 from OP2 and had been paying the premium regularly against receipt. The policy was covering the complainant vehicle make Tata Model 1613 LPT bearing registration No.PB-08-AT-8624 which was being used as oil tanker and the necessary permission for the same was accorded by the relevant authority which was valid from 7.4.2010 to 31.3.2013. The driver who expired at the spot had also been accorded the relevant permission from the prescribed authority to drive the vehicle in question. Unfortunately, on fate would have it the aforesaid vehicle of the complainant met with an accident on 14.2.2012 causing the death of the driver at the spot. Accordingly, an FIR No.28 dated 14.2.2012 u/s 304-A, 279, 427, 337 and 338 IPC was got registered at P.S.Payal, District Ludhiana. The accident left the entire vehicle totally damaged. The complainant had to avail services of Ajit Singh Kuka and sons to lift the vehicle by Crane and take it to M/s Dada Motors for repair, who raised a bill of Rs.10,41,167/-. The complainant approached Ops with all the relevant papers and requested that they be paid the claim amount, but the request of the complainant seemed to have been falling on deaf ears and till date, Ops failed to pay any single penny to the complainant. Instead of releasing the claim amount to the complainant, the Op3 has been writing frivolous letter to the complainant through R.P.Bhasin & Co., Ludhiana, in order to supply the documents to their office again and again which have already been supplied to the OP3 and its surveyor. The complainant had also served a legal notice dated 26.10.2012 upon the Ops but with no result. The had complainant received a letter dated 26.12.2012 signed by Sh.Harparkash Singh Branch manager of OP2, wherein their surveyor had released the final survey report which had been received by the OP2 on 20.11.2012 and it was further stated that the file of the complainant was under process and after scrutinizing of the claim file of the OP2, they will inform the fate of the file to the complainant as soon as possible. However, the complainant has received a letter dated 16.4.2013 signed by Sh.Harparkash Singh, the Manager of OP2, whereby the claim of the complainant had been repudiated for the reasons that the driving license of Mohammad Jikarulla, the driver of the vehicle was not a valid license and on the ground that the complainant had not supplied the required documents to the Ops. The repudiation of the claim was filed in April, 2013, whereas, the accident took place in February, 2012 and the claim was also lodged with the Ops very promptly. The grounds of repudiation cited by the Ops is claimed to be a bundle of lies and against the terms of the policy by the complainant. The complainant had applied with the DTO, Ludhiana which is the issuing authority of the driving license, wherein, it has been verified that the driving license of Mohammad Jikarulla is valid and the endorsement has been made by the competent authority. The OP1 to OP3 are liable to pay Rs.10,41,167/- on account of the repair charges and Rs.1 lakh on account of mental agony suffering in service and Rs.25,000/- as legal fee. The complainant had moved a complaint before this District Forum which was withdrawn on 10.6.2013 due to technical reasons with the permission to file a fresh complaint. Hence, this complaint.

3.                Upon notice of the complaint, OPs were duly served and appeared through their counsel and filed their written reply, in which, it is submitted in the preliminary objections that the complainant M/s Lakshmi Services Station (Regd,) is not a consumer as defined under the Consumer Protection Act because it is a business establishment running a business to earn huge profit and not to earn livelihood only. Therefore, after the amendment of the Consumer Protection Act, complainant does nto come within the definition of the word “consumer” so as to enable this Hon’ble Forum to try and decide the present complaint and the appropriate remedy of the complainant is to file Civil Court. On receipt of the information regarding the accident in question, the claim of the complainant was duly processed. Sh.Manish Chawla approved surveyor, loss assessor and valuer was deputed for spot survey. Thereafter, M/s R.P.Bhasin and Company, Surveyor/Assessors were deputed for final Motor Survey Report dated 20.11.2012 who concluded their report with following observations:-

“Under instructions from the Regional Office, The New India Assurance Co.Ltd., The Mall, Ludhiana, they were deputed to assess the loss of above mentioned vehicle said to be damaged. They called on the insured at the repairer’s workshop and inspected the vehicle which was found to be badly damaged from its front. Major assemblies like Front show, wooden cabin, chassis, front suspension, cooling system and electrical system were found damaged. Engine block and gear box system were also found under impact. The loss was discussed in detail with the repairer in the presence of the insured. The insured demanded the settlement of loss on Total Loss Basis. The insured was asked to furnish a few documents like registration certificate in original for verification, fitness, road tax receipt, route permit, driving license of the person who was driving the vehicle at the time of accident for verification, detail of load challan/G.R., claim form duly filled and signed, details of injuries sustained by driver/occupants if any and their medical records. Third party loss if any, towing receipt in original, technical details of tanker and quotation of new tanker which he furnished on 26.7.2012 after a number of communication exchanges. Till today, the insured has to submit load challan/weighment details. The underwriters were advised to call for the same and they were submitting their report as the matter was already over delayed from the insured’s side. After receiving all the documents, it was observed that the vehicle was a total loss but due to Sapurdari the insured was offered a settlement on Net of Salvage Basis as the vehicle was to be retained by the insured till further orders by the Hon’ble Court which had released the vehicle on Sapurdari. A number of meetings were held with the insured till 24.10.2012 but the insured did not agree for a settlement on Net of Salvage Basis and insisted for the settlement on Total Loss Basis. Inspite of their best efforts, the insured failed to understand that the salvage/wreck/damaged vehicle has to be retained by him and therefore, the value of salvage/wreck/damaged vehicle has to be deducted as per market value of the salvage/wreck/damaged vehicle. Now that the insured has not given his consent on Net of Salvage Basis insptie of a lot of perusal, they are submitting an Independent Report on all the modes of settlements i.e. repair basis, total loss basis and net of salvage basis. It may be noted that settlement on repair basis is ruled out as it is not economically viable to repair the vehicle. The insured was also of the same opinion. The loss may be settled on Total Loss Basis, if the vehicle is cleared from Sapurdari otherwise, the loss should be settled on Net of Salvage Basis.”

On the basis of assessment of Net of Salvage Basis, the said M/s R.P.Bhasin & Company reported the loss on this basis to be of Rs.1,67,578/-. It was their recommendation for the consideration of the company subject to terms and conditions of the policy. Thereafter, the claim was remained pending for the settlement on the part of the company and letters dated 7.12.2012, 24.12.2012 and 21.1.2013 had been written to the complainant to produce certain documents i.e. certified copy of the R.C., driving license of the driver, proof of latest road tax deposited with the authority, final bills, cash memos and other documents detailed in these letters. As per the photocopy of the driving license of the driver, the driver was having a license to drive LMV from 20.7.2009 and the Transport Vehicle from 21.1.2010 with the endorsement therein and also tested and was passed for dangerous hazardous goods carriage issued by Licensing Authority, Ludhiana, but as per the verification report of Krish Associates, Ludhiana, the driver at the relevant time was only having license for Motor Cycle, LMV only from 22.1.2010 to 21.1.2013. The vehicle in question insured with the answering Ops was HTV and the driver at the relevant time was having a license for LMV only, though in the photocopy provided to the answering Ops by the complainant, driving license was valid for LMV, Transport Vehicle and dangerous and hazardous goods carriage. Since the driver was not having valid and effective driving license at the time of accident, claim is not payable. The answering Ops were also not provided with the relevant documents as asked for in the above stated letters. Answering Ops due to these reasons were yet in the process of issuing the repudiation letter, when the notice of the earlier complaint was received. During the pendency of the earlier filed complaint, the company had repudiated the claim and sent the Repudiation letter dated 16.4.2012 to the complainant for the reasons that the driving license of the driver Mohammad Jikarulla is not valid license to drive the vehicle in question and also because the complainant has not supplied the required documents to the company. Reply on facts, the fact qua genuineness of the bills of Ajit Singh Kuka & sons to lift the vehicle by Crane are denied. It is submitted that the bill raised by M/s Dada Motors is highly inflated and manipulated. The insured’s declared value of the vehicle at the time of taking the policy was Rs.5,05,750/-. Thus, raising of the alleged bill by M/s Dada Motors is totally inappropriate. The letters written by M/s R.P.Bhasin & Company to the complainant to supply the documents are genuine and logical and are not frivolous letters. Otherwise, similar pleas were taken as mentioned in the preliminary objections and at the end, denying any deficiency in service and all other allegations made by the complainant in the complaint against the answering OPs being wrong and incorrect, answering Ops made prayer for dismissal of the complaint with costs.

4.                Parties adduced their evidence by way of tendering affidavits and documents on record in support of their respective pleadings.

5.                We have heard the learned counsel for the complainant as well as learned counsel for the Ops after considering the preliminary objections, the complaint is considered to be maintainable.

6.                Ld. counsel for complainant has filed the written arguments, in which, he has reiterated all the contents of the complaint and further, it has been submitted that complainant had purchased a policy no.36100331110100001833 valid from 15.7.11 to 14.7.12 covering the vehicle make Tata Model 1613 LPT bearing registration no.PB-08-AT-8624. The vehicle met with an accident on 14.2.12 as another truck coming from wrong side rammed into the complainant’s vehicle from the front leaving the driver dead at the spot and the vehicle in a total loss condition. The driver was holding a valid license and the endorsement from the concerned department were marked on the license. The complainant acting diligently informed the insurance company on 14.2.12 regarding the accident vide letter dated 14.2.12 duly exhibited as Ex.C8 and also supplied to the insurance company all the relevant documents. The complainant also supplied all the list of documents to the insurance company and there was no response whatsoever. The complainant was then constrained to move a notice dated 26.10.12. The OPs repudiated the claim of the complainant, vide letter dated 16.4.13 citing the reasons that as per the report of Krishan Associates, the driving license of Mohd.Jakir Ulla was not valid and the endorsement was not granted by the appropriate authority. They had further stated that one Mr.Gurvinder Pal Singh had also confirmed that the driving license is valid only for Motor Cycle and LMV and the complainant’s vehicle was a heavy motor vehicle and that no endorsement regarding hazardous goods has been made thereon. The repudiation is bad in the eyes of law as the complainant had also obtained verification from the office of the DTO which is Ex.C22, which clearly shows that the license was valid for HMV Transport Goods and there was also an endorsement for driving vehicle carrying dangerous and hazardous goods till 21.01.13. The repudiation is liable to be set-aside on the following grounds mentioned in the documents relied upon by the OPs:-

a.In the report of Sh.Munish Chawla dated 7.3.12 it is clearly been stated in column no.5 that the driver was authorized to drive HMV vehicles. It has also been stated that the RC, Fitness, permit were checked and found in order. It also clearly states that the fitness certificate was also valid to 19.01.13.

b.In the final report of R.P.Bhasim dated 20.11.12 in column no.3 the surveyor also has stated that the license of the deceased was valid for LMV and HMV and even in the concluding para of report of Sh.R.P.Bhasim it has been stated that all the documents were received from the insured. The Ops have also taken an objection that the complainant is not a consumer as the tanker was being used for commercial purpose. Ld. counsel for complainant has also relied upon the judgments titled as Ashish Vishwakarma vs. National Insurance Co.Ltd. and others-2012(2)CPC-35(N.C.); Skindia Insurance Co.Ltd. vs. Kokilaben Chandravadan-1987 Mh.LJ 556(S.C.); National Insurance Company Ltd, SCO 332-334, Sector 34-A, Chandigarh through its Regional Manager vs. Balvir Kaur widow of Nirmal Singh and others-2014 AAC 1303(Punjab & Haryana High Court) and Harsolia Motors Vs National Insurance Co. Ltd-2005 (1) CPC 53 (N.C).

7.                 On the other hand, learned counsel for Ops has filed the written arguments, in which, he has reiterated all the contents of the written reply filed by the Ops and further, it has been submitted that the complainant M/s Lakshmi Service Station (Regd.) is not a consumer as defined under the Consumer Protection Act, because it is a business establishment running a business to earn huge profits and not to earn livelihood only. Further, it has been submitted that on receipt of the information regarding the accident in question, the claim of the complainant was duly processed. Sh.Manish Chawla approved Surveyor, Loss Assessor and Valuer was deputed for spot survey. Thereafter, M/s R.P. Bhasin & Company Surveyors/Assessors were deputed for final Motor Survey. The loss was discussed in detail with the repairer in the presence of the insured. The insured had demanded the settlement of loss on total loss basis. The insured was asked to furnish a few documents like Registration Certificate in original for verification, fitness, Road Tax Receipt, Route Permit, Driving License of the person who was driving the vehicle at the time of accident for verification, Detail of Load Challan/G.R., Claim form duly filled and signed, details of injuries sustained by driver/occupants if any and their medical records, Third party loss if any, towing receipt in original, Technical details of tanker and quotation of new tanker which he furnished on 26.7.12 after a number of communications exchanges. After receiving all the documents it was observed that the vehicle is a total loss, but due to Sapurdari the insured was offered a settlement on Net of Salvage Basis as the vehicle was to be retained by the insured till further orders by the Hon’ble Forum which had released the vehicle on Sapurdari. A number of meetings were held with the insured till 24.10.12, but the insured did not agree for a settlement on Nett of Salvage Basis. The insured insisted for a settlement on Total Loss Basis. Inspite of best efforts the insured failed to understand that the salvage/wreck/damaged vehicle has to be retained by him and therefore, the value of salvage/wreck/damaged vehicle has to be deducted as per marker value of the salvage/wreck/damaged vehicle. The insured has not given his consent on Nett of Salvage Basis inspite of a lot of perusal, they were submitting an independent Report on all the modes of settlements i.e. Repair Basis, Total Loss Basis and Nett of Salvage Basis. It may be noted that settlement on Repair Basis is ruled out as it is no economically viable to repair the vehicle. The insured is also of the same opinion. The loss may be settled on Total Loss basis, if the vehicle is cleared from Sapurdari otherwise the loss should be settled on Nett of Salvage Basis. On the basis of assessment of Nett of Salvage basis, the said M/s R.P.Bhasin & Co. reported the loss on this basis to be of Rs.1,67,578/-. It was their recommendation for the consideration of the Company subject to terms and conditions of the policy. The claim remained pending for settlement on the part of the Company and letters dated 7.12.12, 24.12.12, 21.01.13 had been written to the complainant to produce certain documents. The Ops were not provided with relevant documents as asked for in the above state letters. OPs due to these reasons were yet in the process of repudiation letter. During the pendency of the earlier filed complaint, the company has repudiated the claim and sent the repudiation letter dated 16.4.12 to the complainant for the reasons that the driving license of the driver Mohammad Jikarulla is not a valid license to drive the vehicle in question. The genuineness of the bills of Ajit Singh Kuka & Sons to lift the vehicle by Crane was also denied. Bill raised by M/s Dada Motors is highly inflated and manipulated. The insured’s declared value of the vehicle at the time of taking the policy is Rs.5,05,750/-. Thus raising of the alleged bill by M/s Dada Motors is totally inappropriate. The letters written by M/s R.P. Bhasin & Company to the complainant to supply the documents are genuine and logical and are not frivolous letters. There is no misconduct on the part of the Ops and the Ops are not liable to pay any amount to the complainant. Further, learned counsel for the Ops has relied upon judgments titled as United India Insurance Company Limited vs. Jitender Kumar-IV(2009)CPJ-168(Haryana State Commission); New India Assurance Co.Ltd. vs. Prabhu Lal-I(2008)CPJ-1(S.C.); United India Insurance Co.Ltd. vs. Arvind Kumar Rajak-III(2008)CPJ-191(N.C.) and National Insurance Company Ltd. vs. Harbhajan Lal-II(2010)CPJ-22(S.C.).

8.                We have gone through the written arguments alongwith judgments placed on record by the learned counsel for the parties and have also gone through the record on the file very carefully.

9.                It is evident that the complainant had purchased the policy No.36100331110100001833 having customer ID No.2D102257843 from the OP2 for his vehicle i.e.Tata Model 1613 LPT bearing registration No.PB-08-AT-8624 and the said policy was valid w.e.f.15.7.2011 to 14.7.2011 on payment of premium and the aforesaid policy had covered the aforesaid vehicle of the complainant which met with an accident on 14.2.2012 as another truck coming from wrong side rammed into the complainant’s vehicle from the front. The driver had died at the spot. The complainant had intimated the insurance company on 14.2.2012 and supply the relevant documents to the Ops.

10.              Further, it is evident that earlier, the complainant had filed the complaint before this District Forum on 4.1.2013 which was withdrawn by the complainant on 10.6.2013 due to technical reasons with the permission to file a fresh complaint. However, perusal of the present complaint reveals that the complainant has failed to specific those technical reasons in the present complaint. Further, perusal of the repudiation letter dated 16.4.2013 Ex.C16 reveals that claim of the complainant was repudiated on the ground that the driving license of driver Mohd. Zikarulla, who was driving the vehicle in question at the time of accident was not a valid one and there was no endorsement made on the driving license to the effect that the driver could drive the heavy vehicle and also to the effect that he was authorized to carry the dangerous/hazardous goods as he was doing at the time of accident.

11.              To verify all the facts, the dealing Clerk of D.T.O.Office, Ludhiana namely Sh.Charanjit Singh was summoned as witness, who had stated on oath on 23.4.2015, in which, he had deposed that driving license bearing No.0119882 issued to the driver Jikrullah Ansari s/o Abrahim Ansari was for the authorization to drive Motor Cycle and LMV only and the same was valid upto 21.1.2013. There was no other endorsement made by the office of DTO authorizing him to drive the heavy transport vehicle or heavy good transport vehicle carrying dangerous/hazardous goods.

12.              So, it is abundantly clear that driver of the vehicle in question was plying the vehicle without having any valid driving license. However, the endorsement made on the driving license are found to be not genuine which are not proved by any record. Relying upon the judgment placed on record by the learned counsel for the Ops titled as United India Insurance Co.Ltd. vs. Arvind Kumar Rajak-III(2008)CPJ-191(N.C.), vide which, it was held by the Hon’ble National Commission that endorsement was required to be made on the driving license for the purpose of driving the transport vehicle. The citations quoted by the complainant relate to MACT Cases only.

13.              In view of these aspects, we hereby dismiss the complaint of the complainant being devoid of any merit, with no order as to costs. Copy of the order be made available to the parties free of costs. File be completed and consigned to the record room.

 

                             (Sat Paul Garg)                    (R.L.Ahuja)

                               Member                               President      

Announced in Open Forum

Dated:29.06.2015

Gurpreet Sharma.