Jammu and Kashmir

Jammu

CC/525/2017

VINOD KASHKARI - Complainant(s)

Versus

NEW INDIA ASSURANCE - Opp.Party(s)

AJAZ CHOUDHARY

04 Aug 2018

ORDER

        DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

      (Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                360/DFJ         

 Date of  Institution      03-12-2015

 Date of Decision          30-06-2018

 

Mr.Vinod Kashkari

 H.R.Manager of M/S Sunpharma

Laboratories Ltd.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Complainant

                 V/S

The New India Assurance Company Ltd.

1215.12^th Floor,Naurang House,

21 Kasturba Gandhi Nagar,New Delhi-110001.

Having its Branch Office at Shalamar Road,Jammu.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Opposite party

CORAM

                  Khalil Choudhary              (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chauhan                                        Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Ajaz Choudhary,Advocate for complainant, present.

Mr.Jugal Kishore,Advocate for OP,present.

 

                         

                                                                ORDER.

 

                      Facts relevant for the disposal of complaint on hand are that complainant being registered owner of vehicle(Maruti Suzuki EECO 7 STR) bearing registration No.JK21A-8951,got same insured with  OP under Policy No.31260031140102021553 valid from 14-10-2014 to 14-10-2015(Annexure-A). According to complainant, unfortunately the insured vehicle met with accident,on,07-11-2014 at about 9.00 PM under the jurisdiction of Police Station,Bari Brahamana(Samba)and the said vehicle inspected by the team on spot and the said vehicle was declared as total damaged. According to complainant, the team has recommended total loss claim amounting to Rs.7.00 lacs,in this regard an estimate was also furnished to the said team, who inspected the vehicle, copy of FIR is annexed as Annexure-B. Allegation of complainant is that despite he completed all the requisite formalities, but OP despite receipt of documents, including accidental job estimate and copy of insurance policy did not settle the claim, despite repeated requests. Constrained by the act of OP,complainant served legal notice dated 17-09-2015,but did not yield any fruitful result,therefore,for the act of deficiency in service on the part of OP,complainant approached this Forum, seeking indemnification of loss to the tune of Rs.7.00 lacs and in addition, prays for compensation to the tune of Rs.2.20 lacs.

                          On the other hand,OP filed written version and while admitting the insurance of vehicle in question and accident during currency of insurance policy went on to submit that claim of complainant is not admissible under the Policy terms and conditions as the driver Mr.Babu Ram who was driving the insured vehicle at the time of accident was not holding a valid and effective driving licence.The driving licence held by the driver Babu Ram was a fake and forged one and the insured vehicle therefore, was being driven in violation of the provisions of M.V.Act and terms and conditions of Insurance Policy at the time of accident. The OP further submitted that as per record M/S Sun Pharma Laboratories Ltd.is the registered owner of vehicle bearing registration No.JK21A-8951. The OP further submitted that a claim was lodged by the insured M/S Sun Pharma Laboratories Ltd.in respect of the damage caused to the insured vehicle in an accident on,17-11-2014,the OP Company immediately deputed M/S Datt Sons an IRDA Approved Surveyor and Loss Assessor for assessing the loss caused to the vehicle. The surveyor after inspecting the vehicle and collecting the necessary documents, submitted his assessment report dated 08-06-2015 to OP Company wherein net loss of Rs.1,74,058/-was assessed after inspecting the damaged vehicle at the workshop of M/S Jamkash Vehicleades Pvt.Ltd.Chowadi,Jammu and after taking into account the estimates submitted by the insured.                                   

                        Complainant adduced evidence by way of duly sworn evidence affidavit and affidavit of   Rajesh Bhat.Complainant has placed on record copy of certificate cum policy schedule, copy of FIR, copy of Legal Notice, copy of certificate of registration and copy of Driving Licence.

               On the other hand OP adduced evidence by way of duly sworn evidence affidavits of K.L.Datta of M/S Datt-Sons, Surveyor, Loss Assessor and Valuer and Kapil Dev Sharma, Divisional Manager, New India Assurance Company Ltd.OP has placed on record copy of surveyor report and copy of letter.

                  We have perused case file and heard L/Cs appearing for the parties at length.

                        To be brief, grievance of complainant is that his vehicle bearing registration No.JK21A-8951, met with accident on,07-11-2014 and the said vehicle was totally damaged. According to complainant, he completed all the formalities and also provided, accidental job estimate and copy of insurance policy, but OP failed to settle the claim.

                 On the other hand,OP while admitting the factum of insurance of vehicle and its accident during currency of insurance policy went on to submit that the driver of insured vehicle,namely,Babu Ram at the time of accident was not holding a valid and effective driving licence and the same was fake and forged one

                          In order to substantiate his assertions, complainant relied upon copy of registration certificate of insured vehicle, copy of Insurance Policy valid from,15-10-2014 to 14-10-2015,wherein IDV is declared as Rs.2,73,344/-copy of FIR, copy of driving licence of Babu Ram being No.2586/MVD/ARTOU,issued by licencing authority. In addition, complainant filed his own evidence affidavit and affidavit of Rajesh Bhat.In the deposition of complainant it has come that at the time of accident, driver was holding valid and effective driving licence. The deposition of Rajesh Bhat and complainant also find support from the testimony of K.L.Datta.It is relevant to note that licencing clerk of ARTO Udhampur was also examined.

                        On the other hand,OP filed evidence affidavit of K.L.Datta of M/S Datt-Sons,Surveyor,Loss Assessor and Valuer who deposed in para No.4 & 5 of his affidavit that as per information furnished by the insured, the insured vehicle at the time of accident was driven by driver,Sh.Babu Ram S/O Daulat Ram and was allegedly holding D/L No.2586/MVD/ARTO/U dated 27-09-2003 issued by the ARTO,Udhampur.That copy of assessment report dated 08-06-2015 enclosed herewith is true and correct.                                   

                               At the same time, complainant took consistent stand that at the time of accident, insured vehicle was being driven by Babu Ram, who was holding driving licence No.2586/MVD/ARTOU, issued by ARTO Udhampur,which was also proved by the surveyor, duly examined by OP.

          Now question arises whether at the time of accident, driver of offending vehicle was not holding a valid and effective driving licence and as per the version of OP the driver of said vehicle possessed fake driving licence and drove the vehicle in violation of terms and conditions of Insurance Policy, but it has been revealed from the surveyor report which was conducted after the accident and it has been mentioned in the Driver’s Particulars, name of driver, Driving Licence No.,date of Issue and date of expiry and the surveyor presumed the licence is valid at the time of accident and at the time of inspection of vehicle. The complainant and his witness deposed that the driver of the vehicle was possessed a valid and effective driving licence at the time of accident. The Insurance Company also produced the clerk of the Office of ARTO Udhampur as its witness who rendered evidence to show that the said licence had not been issued from that office.

            Section 149(2) of the Act provides for the legal defences available to the insurer. The insurer can defend the action and may succeed in escaping liability to indemnify the owner of the insured vehicle. The complainant and his witness deposed in the evidence that the OP Company has inspected the vehicle and deputed authorized surveyor  of the company and at the time of inspection, the surveyor checked and verified the driving licence of the driver and the witness also stated in his evidence that the complainant has taken due care while handing over the vehicle to the driver and also checked the licence which appear to be genuine and the complainant engaged the driver after taking due care. If policy of insurance issued by the Insurance Company contains condition that the vehicle shall not be driven by a person who is not duly licensed,but as per surveyor report and evidence of witness supported that at the time of accident and at the time of inspection, driving licence is seems to be genuine and as such there is no breach on  the part of owner of vehicle.

                     Here we would like to refer to the  judgment passed by Honble High Court of Jammu and Kashmir at Jammu in CIMA No.02/2013 and CMA No.02/2013 in case titled Parmveer Singh V/S Ashwani Singh & Ors.wherein it has been held as:

        Motor Vehicles Act,1988.

       Section 149-Accident Claim-Liberty given to Insurance Company to recover award amount from owner-Challenge-Fake licence of driver-Not in knowledge of owner-Appellant in his capacity as the Insurance Company’s witness has deposed that the Driver was possessing a valid and effective driving licence bearing PSV endorsement-In cross-examination he reiterated that he had checked the license of the driver at the time of entrusting the vehicle to him-even though the driver of the offending vehicle/respondent No.5 possessed a driving licence,which was fake, there had been no breach on the part of the owner of the vehicle. He did not entrust the vehicle to the said driver knowing that his license was fake-Owner was not expected to hold an inquiry before engaging the driver as to whether or not his DL was fake-As the insurance Company had failed in proving the breach on the part of the Insured (owner),it cannot escape liability to indemnify the insurer-Question of recovering the award amount from the insured does not arise-Impugned judgment set aside-Petition disposed of.

                    Admittedly, as per surveyor report dated 08-06-2015, which is on record, loss was assessed on total loss basis by applying less excess clause to the tune of Rs.1000/-and net liability assessed to the tune of Rs.1,74,058/-,therefore, we hold that complainant is entitled to indemnity to the extent assessed by the surveyor ,which under the contract of insurance,OP was required to reimburse to complainant.

                  It is needful to recall the judgment of Hon’ble Supreme Court passed Oriental Insurance Company Ltd.V/S M/S Ozma Shipping Co.and Anr.2010 AIR SCW 514

Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.

                         Admittedly, surveyor was deputed by OP who assessed the loss. Surveyor report dated 08-06-2015 is on record, whereby total loss assessed by the surveyor to the tune of Rs.1,74,058/-and same has not been disputed by the complainant, hence loss assessed by the surveyor is only available reasonable basis and documentary, evidence for the loss suffered by the complainant.

                            Therefore in view of the aforesaid discussion and after pursuing the record of the case, complaint filed by the complainant is accordingly allowed and we direct the OP.to pay Rs.1,74,058/-alongwith interest @ 7% p.a.,w.e.f.08-08-2015,(i.e. two months after surveyor report), till its realization. The complainant is also entitled to Rs.5000/-as compensation for causing mental agony and harassment and litigation charges of Rs.5000/-.This order shall be complied with by OP within one month from date of receipt of this order. Copy of this order be provided to the parties free of charge. Complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                     Khalil Choudhary

                                                                (Distt.& Sessions Judge)

                                                                        President

Announced                                            District Consumer Forum

30-06-2018                                                     Jammu.

Agreed by                                                                

 

Ms.Vijay Angral          

  Member                                                                                              

 

Mr.Ghulam Sarwar Chauhan

Member