Haryana

Ambala

CC/181/2018

Mohit Kumar - Complainant(s)

Versus

NIA - Opp.Party(s)

17 Dec 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:  181 of 2018.

                                                          Date of Institution  :   06.06.2018.

                                                          Date of decision     :   17.12.2019.

 

Mohit Kumar aged 35 years s/o Shri Anil Kumar, r/o 1596/6, Old Anaj Mandi, Ambala City.

                                                                                       ……. Complainant.

                                                Versus

 

The New India Assurance Company Ltd., Civil Lines, Arya Chowk, above OBC Bank, Ambala City through its Branch Manager.

               ..…. Opposite Party.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri P.S. Sharma, Advocate, counsel for complainant.

Shri Nikhlesh Bhagi, Advocate, counsel for OP.  

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To release the claim amount of Rs.2,76,576/- alongwith interest @18 p.a. from the date of lodging of the claim till its payment.
2. To pay Rs.50,000/- as compensation on account of mental agony & physical harassment suffered by him.
3. To pay Rs.20,000/- as litigation expenses.
382.  

Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that complainant is the owner of TATA 1109 having registration No.HR37-C-3984, chassis No.416441KSZ742086 and Engine No.497TC93KSZ8A0280. The said vehicle was insured with the OP vide policy No.35350231170100002311 w.e.f. 12.05.2017 to 11.05.2018 for sum assured of Rs.5,30,000/-. The said vehicle was being plied by Shri Shiv Kumar s/o Shri Bal Kishan, r/o VPO Fatehgarh Tehsil Naraingarh, Distt. Ambala i.e. driver of the complainant, who was driving the vehicle since long efficiently and effectively and there was no complaint regarding his driving efficiency. On 23.07.2017 at about 08:00 AM, when the vehicle was going towards Barwala (Panchkula) being driven by Shiv Kumar, a stray animal suddenly came on the road, due to which, a truck coming from opposite side hit the vehicle in question at the time of passing over and the vehicle dashed into the tree. After that accident, a claim was lodged with the OP and Shri Shamsher Chand, Surveyor & Loss Assessor was deputed by it, who submitted the spot survey report. Thereafter, Shri Ravi Kumar Gupta, another Surveyor & Loss Assessor was deputed by the OP, who submitted his report on 21.09.2017 of the loss occurred and estimated costs. Vide letter dated 13.12.2017, the OP repudiated his claim, on the ground that the driving license of the driver Shiv Kumar was fake. The complainant had checked his driving license and had also verified from his previous employer. Immediately, on receipt of repudiation letter, he contacted the OP and apprized it that the DL of Shiv Kumar was renewed from Ambala and at the time of engaging Shiv Kumar, the driving test was taken and his driving skills were checked and there is no fault on his part and requested the OP to release the claim amount, but it flatly refused.  The said act of the OP amounts to deficiency in service. Hence, the present complaint.

2.                Upon notice, OP appeared through counsel and filed written version and raised preliminary objections regarding maintainability; bad for non-joinder; mis-joinder of necessary parties; jurisdiction; estoppel and cause of action. On merits, it is stated that the insured vehicle was a truck i.e. goods heavy transport vehicle owned by M/s Om Traders and at the time of alleged accident on 23.07.2017, the said truck was driven by Shiv Kumar who having no valid license to drive the insured vehicle and the owner had violated the terms and conditions of the insurance policy. The original driving license issued by RTA, Alwar vide No.S-24762/85 dated 29.11.85 was found fake. Mere renewal of the aforesaid license of RTA, Ambala does not validate it and can be treated as fake. It had rightly repudiated the claim of the complainant. The complaint filed against it may be dismissed with costs.

3.                The ld. counsel for the complainant tendered affidavit of complainants as Annexure CX alongwith documents as Annexure C-1 to C-23 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP tendered affidavits of Shri K.K. Sachdeva, Sr. D.M., Ravi Kumar Gupta, (Insurance Surveyor) and R.P. Kakkar, Investigator General Insurance Claims as Annexure OPW1/A to OPW3/A respectively alongwith the documents Annexure OP1 to Annexure OP19 and closed the evidence on behalf of OP.

4.                We have heard the learned counsel for parties and have carefully gone through the case file.

5.                At the outset, the learned counsel for the OP has raised the objection that the present complaint is liable to be dismissed solely on the ground that the present complaint has been filed by Mr. Mohit Kumar, whereas the policy in question was in the name of M/s Om Traders. To this effect the learned counsel for the complainant argued that complainant is the proprietor of M/s Om Trading Company and he being the proprietor of M/s Om Traders got the vehicle in question insured with the OP and in the capacity of proprietor of M/s Om Traders, he has filed the present complaint. From the perusal of policy document Annexure C-2, it is evident that Mr. Mohit Kumar is the proprietor of M/s Om Traders, thus he being the proprietor of M/s Om Traders is entitled to file a complaint against the Insurance Company. No doubt complainant has not mentioned himself as proprietor of M/s Om Traders in the head note of the complaint, but merely on this technical ground and without going into the merits of the case, the complaint cannot be dismissed, thus this objection raised by the learned counsel for the OP is not tenable, hence rejected.

6.                On merits, the Ld. counsel for the complainant has argued that complainant is the owner of vehicle in question and he got it insured with the OP, for the period from 12.05.2017 to 11.05.2018 for an IDV of Rs.5,30,000/. To drive the said vehicle he hired a driver namely Shiv Kumar after verifying his driving licence and after taking driving test. On 23.07.2017, when the vehicle in question was being driven by said Shiv Kumar, it met with an accident and got damaged. He lodged the claim with the OP, but it repudiated the claim vide repudiation letter dated 13.12.2017. By repudiating the genuine claim of the complainant on the flimsy ground, the OP has committed deficiency in providing the service.

                   On the contrary, the ld. counsel for the OP has vehemently argued that in order to pay the claim amount the OP deputed a surveyor to assess the loss and an investigator to investigate the matter. On investigation, it was found that the initial Driving License having No.S-24762/85 dated 29.11.1985 of the driver Shiv Kumar issued by RTO, Alwar was found fake. The renewal of the fake licence cannot transform its fake character and cannot cure its inherent fatality. Therefore, as per terms & conditions of the policy, the complainant is not entitled to get any claim amount and the OP has rightly repudiated the claim. 

7.                 It may be stated here that the complainant being the proprietor of the M/s Om Traders employed a driver to ply the vehicle in question, whose license on verification was found to be fake. It is significant to mention here that similar question fell for consideration before the Hon’ble Supreme Court of India, in the case of Pepsu Road Transport Corporation Vs. National Insurance Company, 2014 (1) CLT, 1 (SC), wherein, the Hon’ble Supreme Court has held that even after it is proved that the licence possessed by the driver was fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned; when he hires a driver he has to check whether he has a valid driving license. Thereafter, he has to satisfy himself as to the competence of the driver. It satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of DL with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter, the insurance company requires the owner of the vehicle to have the license duly verified from the LA or if the attention of the owner of the vehicle is otherwise invited to the allegation that the DL issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the DL from the licensing authority. If despite such information with the owner that the license possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured would be at fault, and in such circumstances, the insurance company is not liable for the compensation. It is further held that mere absence, fake or invalid DL or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer against either the insured or the third party. To avoid its liability towards the insured, the insurer has to prove that insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by the duly licensed driver or one who was not disqualified to drive at the relevant time. It is further held that the insured is not at fault in having employed a person whose license proved to be fake by the insurance company before Tribunal. In view of the law laid by the Hon’ble Supreme Court in the case of Pepsu Road Transport Corporation Vs. National Insurance Company (supra), the insurance company cannot be said to be justified in repudiating the claim of the complainant on the basis of the fact that the earlier license of the driver was not valid. From the perusal of surveyor report (Annexure C-3), it is evident that the said surveyor has assessed the loss to the tune of Rs.99,789/-. In the case of United India Insurance Co. Ltd. Vs. Deen Dayal, II (2009) CPJ, 45 (NC), the Hon’ble National Commission has held that the surveyor’s report being important document cannot be brushed aside lightly without any material to contrary on record. Since in the present case, the report of the surveyor is well explained and detailed one, therefore, we are of the view that the OP is liable to indemnify the complainant for the loss as assessed by the surveyor to the tune of Rs. 99,789/- and not Rs.2,76,576/- ‘as claimed by the complainant. The OP is also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigations expenses. 

8.                In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP in the following manner:-

1. To pay Rs.99,789/- alongwith interest @ 7% per annum w.e.f. 13.12.2017 i.e. the date of the repudiation of claim, till its realization.
2. To pay Rs.5,000/- as compensation for mental agony and physical harassment suffered by the complainant.
3. To pay Rs.3,000/- as litigation expenses.

 

                   The OP is further directed to comply with the aforesaid directions within the period of 30 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum for the period of default. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :17.12.2019.

 

 

          (Vinod Kumar Sharma)        (Ruby Sharma)                   (Neena Sandhu)

              Member                             Member                            President