Punjab

Faridkot

CC/17/372

M/S Shiv Agro Industries - Complainant(s)

Versus

New India Assurance Company - Opp.Party(s)

Bakhtor Singh Sandhu

02 Jan 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

CC No.              :    372 of 2017

Date of Institution:    20.11.2017

Date of Decision :       2.01.2018

M/s Shiv Agro Industries Kot Kapura Road, Faridkot Prop. Arun Bansal son of Sh Raj Kumar Bansal.

...Complainant

Versus

The New India Assurance Company, Mall Godown Road, Near Old IOC Depot Kotkapura.                                                                        .....OPs

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh. Ajit Aggarwal, President,

                Smt. Param Pal Kaur, Member.

 

Present: Sh  Bakhtaur Singh, Ld Counsel for complainant,

              Sh Yash Pal Bansal, Ld Counsel for OP.

ORDER

(Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim for his damaged canter and for further directing OP to pay Rs.1,00,000/- as compensation for harassment, inconvenience, mental agony besides litigation expenses of Rs.22,000/-.

2                                Briefly stated, the case of the complainant is that canter of complainant bearing Registration No PB-04 M-9796 was fully

CC No. 372 of 2017

insured with OP vide Insurance Policy No. 36070131150100019101 for the period from 2.03.2016 to 1.03.2017. It is submitted that on 30.06.2016, canter of complainant was damaged in an accident caused by negligence and rash driving of Trolla driver Sukhwinder Singh. At that time, canter of complainant was being driven by Kailash Kumar son of Devi Dayal who also received multiple injuries and his leg was amputated in that accident. FIR was got registered against Sukhwinder Singh Trolla driver. Kailash Kumar has been granted compensation by Hon’ble District Judge/MACT, Faridkot and held liable Sukhwinder Singh driver, owner and Insurance Company of the trolla. Complainant also informed OP regarding this damage. OP appointed Surveyor who conducted spot survey. Complainant submitted all the motor vehicle documents including Driving License bearing no.66768/NW/TV/09 of Kailash Kumar driver to Surveyor, but instead of mentioning this number in his report, he mentioned the license no.PB-0420100019069. Thereafter, OP appointed a final Surveyor Sh Ashok Kumar to assess the final loss of the canter. Quotation bill for the repair was also supplied to Surveyor and on his direction complainant got repaired his canter and spent Rs.2,15,000/- on repairs, but instead of mentioning aforementioned driving license of Kailash Kumar, he took the driving license number given in the report of earlier Surveyor. Driver Kailash Kumar filed claim petition titled as Kailash Kumar Vs Sukhwinder Singh for his injuries before MACT, Faridkot against the driver owner and Insurance Company of Ghora Trolla and also on complainant and answering OP. The said claim was withdrawn by Kailash Kumar against complainant

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and OP, but claim was passed by the court against driver, Insurance Company and owner of Trolla. Driving License no.66768/NW/TV/09 of Kailash Kumar was got verified by OP from Nagaland. Thereafter, complainant received a letter dated 14.07.2017 vide which OP repudiated the claim of complainant on the ground that at the time of said accident, Kailash Kumar driver of canter was not holding the effective and valid driving license. Complainant again requested OP to reconsider the repudiation and make payment of lawful claim of complainant, but OP being very adamant informed complainant vide letter dated 20.09.2017 that claim of complainant is not payable. It is further submitted that law is very much clear on this point that even if the driver holds two driving licenses; one fake and one genuine, the genuine be considered. Despite repeated requests by complainant, OP have not make payment of his genuine insurance claim and this action of OP in repudiating the claim of complainant amounts to deficiency in service and trade mal practice on their part. Complainant has prayed for accepting the present complaint alongwith compensation and litigation expenses besides main relief. Hence, the  present complaint.

3                                         The counsel for complainant was heard with regard to admission of the complaint and vide order dated 27.04.2017, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                    On receipt of the notice, OP filed written statement taking preliminary objections that complainant has violated

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the terms and conditions of the policy in question because as per terms and conditions of the Insurance Policy, the driver of the insured vehicle must have effective and valid driving license only then, he can drive the vehicle, Kailash Kumar driver of the insured vehicle was not holding effective and valid driving license at the time of alleged accident. therefore, claim of complainant is rightly repudiated and there is no deficiency in service on the part of answering OP. It is averred that at the time of said accident, Kailash Kumar was holding driving license bearing no.PB-0420100019069 issued by the Transport Authority, Faridkot and it was valid up to 3.02.2016. The said accident occurred on 30.06.2016 and now, complainant has been alleging that his driver was holding effective and valid driving license issued from Nagaland, but in fact at the time of accident, he was holding only driving license issued by Transport Authority, Faridkot which was submitted by complainant to OP alongwith other motor vehicle documents. Now, complainant cannot say that Kailash Kumar was also holding the driving license issued from Nagaland. Complainant never disclosed the driving license of Nagaland and moreover, law is very much clear that driver cannot possess two driving licenses at the same time. It is further averred that maximum liability if any, is not more than Rs.80,000/-, but even complainant is not entitled for the same as he has violated the terms and conditions of the policy in not having the effective and valid driving license. It is further averred that complaint involves complex question of law and requires lengthy evidence, which is not possible in the summary proceedings of this Forum and thus, present case, be referred to Civil

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Court for adjudication. Moreover, this Forum has no jurisdiction to hear and try the present complaint. Complainant has filed the present complaint on false and frivolous grounds and even complainant is not the consumer of answering OP. However, on the merits OP have denied all the allegations of complainant being wrong and incorrect and wrong and reiterated the same pleadings taken in preliminary objections. All the other allegations levelled by complainant are denied being wrong and incorrect and reiterated that there is no deficiency in service or unfair trade practice on the part of OP. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                           Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-8 and then, closed his evidence.

6                                     In order to rebut the evidence of the complainant, the ld Counsel for OP tendered in evidence affidavit of Deen Dyal Aggarwal as Ex OP-1 and documents Ex OP-2 to 14 and then, closed the evidence.

7                                    We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Written arguments submitted by ld counsel for OPs also perused.

 

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8                                            From the careful perusal of record and after going through evidence and documents produced on file by complainant as well as OPs, it is observed that case of complainant is that the canter of complainant was insured with OP and during the subsistence of policy it was got damaged during an accident that occurred on 30.06.2016 due to negligence and rash driving of Trolla driver Sukhwinder Singh. At that time, canter of complainant was being driven by Kailash Kumar, who also received multiple injuries and his leg was amputated in that accident. FIR was registered against Sukhwinder Singh Trolla driver.  Kailash Kumar has been granted compensation by Hon’ble District Judge/MACT, Faridkot and liable Sukhwinder Singh, owner and Insurance Company of the trolla. Complainant also informed OP regarding this damage. OP appointed Surveyor and complainant submitted all the motor vehicle documents including Driving License bearing no. 66768/ NW/TV/09 of Kailash Kumar driver toSurveyor, but instead of mentioning this number in his report, he mentioned the license no.PB-0420100019069. Thereafter, OP appointed a final Surveyor Sh Ashok Kumar to assess the final loss of the canter. Quotation bill for the repair was also supplied to Surveyor and on his direction complainant got repaired his canter and paid Rs.2,15,000/- on repairs, but instead of mentioning aforementioned driving license of Kailash Kumar, he took the driving license number given in the report of earlier Surveyor. Driver Kailash Kumar filed claim petition titled as Kailash Kumar Vs Sukhwinder Singh for his injuries before MACT, Faridkot against the driver owner and Insurance Company of Trolla and also on complainant

CC No. 372 of 2017

and answering OP. The said claim was withdrawn by Kailash Kumar against complainant and OP, but claim was passed by the court against driver, Insurance Company and owner of Trolla. Driving License no.66768/NW/TV/09 of Kailash Kumar was got verified by OP from Nagaland. Vide letter dated 14.07.2017, OP repudiated the claim of complainant on the ground that at the time of said accident, Kailash Kumar driver of canter was not holding the effective and valid driving license, which is against the rules and law is very much clear on this point that even if the driver holds two driving licenses; one fake and one genuine, the genuine be considered. Complainant again requested OP to reconsider the repudiation and make payment of his lawful claim, but OP further informed complainant vide letter dated 20.09.2017 that claim of complainant is not payable. Repeated requests of complainant to OP to make payment of his genuine insurance claim  bore no fruit and all this action of OP in repudiating the claim of complainant amounts to deficiency in service for which complainant has prayed for accepting the present complaint.  He has stressed on documents Ex C-1 to 11. Ex C-3 clearly proves the pleading of complainant that OP repudiated the claim of complainant vide letter dt 14.07.2017, Ex C-2 is letter dt 20.09.2017 issued by OP to complainant in response to his request to OP to reconsider his claim for processing. Ex C-4 is the copy of driving license issued by Transport Authority of Nagaland, which is valid upto 14.03.2018. Ex C-5 also states the similar story. On the other hand, stand taken by ld counsel for OP is that complainant has violated the terms and conditions of the Insurance Policy and is not entitled to receive the claim

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sought by him. It is stressed that it is mandatory under conditions of the Insurance Policy that the driver of the insured vehicle must have effective and valid driving license only then, he can drive the vehicle, but in present case, Kailash Kumar driver of the insured vehicle was not holding valid driving license at the time of  accident and therefore, OP have rightly repudiated the claim and there is no deficiency in service on their part. As per OPs, license held by Kailash Kumar was valid only up to 3.02.2016. Said accident occurred on 30.06.2016 and at that time he was not having valid license and he was holding only driving license issued by Transport Authority, Faridkot which was submitted by complainant to OP alongwith other motor vehicle documents. Complainant cannot say that Kailash Kumar was also holding the driving license issued from Nagaland. Complainant never disclosed the driving license of Nagaland to them and moreover, law is very much clear that a driver cannot possess two driving licenses at the same time. OP asserted that maximum liability if any, is not more than Rs.80,000/-, but even complainant is not entitled for the same as he has violated the terms and conditions of the policy in not having the effective and valid driving license. OP have denied all the allegations of complainant being wrong and prayed for dismissal of complaint.

9                                           It is observed that complainant immediately gave information to Police as well as Ops and submitted all the documents for processing the claim to them. The ld counsel for complainant argued that alongwith all the documents for processing the

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claim, he handed over the Driving License of driver Kailash Kumar bearing no.66768/NW/TV/09 issued by the Licensing Authority, Nagaland. Copy of it is Ex OP-4 which was valid upto 14.03.2018 which is duly verified by the OPs from the authorities and found it valid, but Surveyor wrongly mentioned the License No.PB 0420100019069 issued by Licensing Authority which expired prior to the accident and they repudiated the claim of complainant on the ground that driver Kailash Kumar had no valid license at the time of accident. Whereas the driver had a valid and effective Driving License at the time of accident. Even the OPs cannot take the plea that at that time, the driver had two driving licenses. Ld counsel for complainant brought before the Forum that OP Insurance Company cannot take the defence that driver cannot have two driving licenses and they cannot say that it is in violation of terms and conditions of the policy. On this, he put reliance on citation “The Punjab Law Reporter Vol CLXXIII-(2015-2) 112 titled as Ravi Dutt Vs Ravi and others” wherein Punjab and Haryana High Court held that Motor Vehicles Act, 1988 (59 of 1988) Section 149-Second driving license, alleged to have been validly issued, deserves to be brought on record for the purpose of verification by the Insurance company and if it is found to be valid at the time when the accident took place, the Insurance Company would be liable to pay the compensation to indemnify the insured and the claimants would get their share of compensation accordingly. Therefore, Insurance Company cannot repudiate the claim of complainant.

 

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10                                     From the above discussion and in the light of judgment given by Hon’ble Punjab and Haryana High Court in CR No.4767 of 2014 (supra), we are of considered opinion that Kailash Kumar was having effective and valid driving license at the time of said accident and now, OP cannot deny the payment of insurance claim of vehicle of complainant on the ground that there is violation of the terms and conditions of the policy. Act of OP in denying the payment of genuine claim amounts to deficiency in service and trade mal practice on their part. Complainant has produced sufficient and cogent evidence to his case. We are fully convinced with the arguments, evidence and case law produced by complainant. Hence, complaint in hand is hereby allowed. Ops are directed to pay Rs.87,698/- the loss on account of damage of vehicle as assessed and admitted by OP themselves vide their Survey Report Ex OP-9 alongwith interest at the rate of 9% per anum from the date of filing the complaint till final realization. Ops are further directed to pay Rs.5,000/- to complainant as litigation expenses. Compliance of this order be made within one month of receipt of the copy of the order failing which complainants shall be liable to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 2.01.2018         

                                       Member                        President

(Param Pal Kaur)           (Ajit Aggarwal)