Haryana

Ambala

CC/40/2018

Rajinder Kumar Pandey - Complainant(s)

Versus

NIA - Opp.Party(s)

05 Nov 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

 

                                                          Complaint case no.        :  40 of 2018

                                                          Date of Institution         :  25.01.2018

                                                          Date of decision   :  05.11.2018

 

 

Rajinder Kumar Pandey aged 44 years  s/o Sh. Mohan Lal Pandey resident of H.No.243-B, Railway Colony, Ambala Cantt.

……. Complainant.

Vs.

 

 

The New India Assurance Company Ltd. 172-C, Laxmi Niwas, Rai Market Ambala Cantt-133001

 

 ….….Opposite Party.

 

 

Before:        Sh. D.N. Arora, President.

Sh. Pushpender Kumar, Member.

                   Dr. Sushma Garg, Member.

 

 

Present:       Sh. Vinod Chaudhary, counsel for the complainant.

                   Sh. Mohinder Bindal, counsel for Ops.

 

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant has been running a truck No.HR-37-D-7286 bearing policy no.35350031160100000144, valid from 06.05.2016 to 05.05.2017 by way of self employment to earn his livelihood to maintain his family. On 07.03.2017 the aforesaid truck was met with an accident at that time his son Gopal Pandey was driving the said truck. He was having a valid and effective driving license valid for transport vehicle from 05.05.2015 to 21.03.2020, however validity of MC without gear is from 29.12.2012 to 21.03.2022. The surveyor has assessed a loss for a sum of Rs. 409129/- which was paid by the complainant to the authorized dealer vide receipt no.1026 dated 09.07.2017 and obtained his truck after getting it repaired. The claim of the aforesaid vehicle was pending before the OP and they have not paid the same till date. The complainant has visited office of OP time and again and also requested for payment of the aforesaid amount but of no use and till dated he is being harassed on the part of OP. The complainant has also sent a representation dated 04.09.2017 through registered AD post which was duly received by themselves but till date neither they have replied that representation nor paid claim amount. The complainant has served a legal notice dated 09.10.2017. Thus, the complainant has suffered huge mental tension, harassment and agony besides monetary loss on account of the deficiency in services and negligent act of the Ops. Hence, the present complaint.  

2.                Upon notice, OP appeared through counsel and tendered written statement raising preliminary objections qua complaint is not maintainable, cause of action and suppressed the material facts. On merits, OP stated that complainant himself who is responsible for the non-payment of this present claim in question. As a matter of fact one accident claim was reported by the complainant to the OP alleged to have occurred on 07.03.2017 bear Sahnewal Police Station, Ludhiana while the insured truck was being driven by his own son Sh. Gopal Pandey. On receiving the intimation of loss and without going into other aspects of the claim about maintainability etc. one surveyor namely Sh. R.S.Kohli was immediately deputed to assess the loss. The said surveyor visited the workshop M/S Modern Automobiles, Ambala City where the said vehicle was already parked for repair by the complainant of its own. After detailed discussion with him as well as the mechanic etc. of the said workshop and evaluating each and every fact of the case, the said surveyor submitted his detailed survey report dated 02.06.2017 whereby he assessed the loss to the tune of Rs. 294776 subject to approval of competent authority as per terms and conditions of the insurance policy. The complainant also submitted a claim form with all the required information, documents. The driving license of said Gopal driver allegedly issued by licensing authority Bishanupur, Manipur was perused by the office of the Op which was established fake as per the provisions of the Motor Vehicle Act.  The driving license of his driver Gopal Pandey no. MN-0520120013870 dated 29.12.2012 allegedly issued on smart card shown to be valid for MCWG, LMV & Transport upto 12.03.2020 for transport & upto 21.03.2022 for Non Transport issued by LA cum DTO Bishanpur, Manipur. In the said driving license, the date of birth of the license holder Gopal has been shown as 25.01.1995 and the date of issue of the driving license in question is shown as 29.12.2012. Meaning thereby it shows that the said driving license holder Gopal Pandey was 17 years & 11 months old on the alleged date of the issuance of said driving license. They further stated that the insured was again caught playing mischief by submitting one another DL issued by DTO Ukhrol District, Manipur wherein the date of birth of Gopal Pandey  was shown much younger with date 25.11.1996. Keeping in view all these facts and circumstances the reported claim in question was repudiated by the competent authority  and the complainant was duly informed about the fate of his claim vide letter dated 31.10.2017. There is no deficiency in service and negligency on the part of OP and prayed for dismissal of the present complaint.

3.               To prove his version complainant tendered his affidavit as Annexure C-A with documents as annexure C-1 to C-13 and close his evidence. On the other hand, Counsel for the OP tendered affidavits as Annexure RW-1/X & Annexure RW-1/Y alongwith documents Annexure   R-1 to R-8 and close their evidence.

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

5.                It is admitted fact that the complainant had purchased a policy bearing no.35350031160100000144 of truck No. HR-37-D-7286 which was valid from 06.05.2016 to 05.05.2017 and total insured value of the vehicle as per policy is Rs. 11,50,000/- (Annexure C-1). It is not disputed that the vehicle in question met with an accident on 07.03.2017 within currency period of the policy. It is proved on the file that son of the complainant was driving the vehicle in question at the time of accident i.e. Gopal Pandey. After accident the complainant informed to the OP and Company has appointed his surveyor who has assessed the loss Rs. 2,94,776/- after deducting the less policy clause as well as the salvage amount Rs. 13500/- as per Annexure R-6. The claim of the complainant was repudiated by the OP on the ground that driving license of the driver  namely Gopal Pandey who was driving the vehicle at the time of accident was found invalid and void Abnitio which was issued by the Licensing Authority, Government of Manipur against the provisions and in  contravention of the Motor Vehicle Act. Repudiation letter is very relevant to decide the case in hand. So, relevant Para of the letter is as under:-

“As per Section 4 of the Motor Vehicle Act, it is mandatory provision that no driving license can be issued/granted to a person under the age of 18 years and the driving of a vehicle by such a person with such a license is an offence, it is so even where such a  license has been granted by Authority  in ignorance. Thus if a driving license has been issued in contravention of the provisions of the Motor Vehicle Act, it has no value in the eyes of law as it amounts to void abnitio. Since the driving license no. MN0520120013870 of his son Gopal Pandey is allegedly shown to be issued on 29.12.2012 whereupon his date of birth is mentioned as 25.01.1195 meaning thereby that he was 17 years 11 months i.e. less than 18 years on the date of alleged issuance of said DL which is against the mandatory provision hence was issued in violation and in contravention of the mandatory provisions of the MV Act thus void abnitio having no value in the eyes of law legally, the fake driving license will always remain fake irrespective of its genuine renewals. Renewal of a fake driving license cannot transform its fake character and cannot cure its inherent fatality. Hence, the said driver was not having a valid and effective driving license at the time of accident and loss and he was driving the said vehicle in violation of terms and conditions of the insurance policy and in contravention of the Motor Vehicle Act also.

You are also liable for playing mischief by submitting  one another DL no.201851/UKL issued by DTOUkhrol District, Manipur wherein the date of birth of  your son Mr. Gopal Pandey is shown much less as 25.11.201996. Although, this second driving license is having no value in the eyes of law, but with no seal of licensing authority etc. is apparently appearing to be a fake DL for which you can be prosecuted as per law”. 

On the other hand counsel for the complainant has argued that the OP has illegally repudiated the claim. Although, as per the endorsement on the license is that  the driver of the vehicle was authorized to drive the motor cycle with gear which was issued 29.12.2012 and it is mentioned on the driving, license the driver was also authorized to drive the transport vehicle on 05.05.2015 at the time of the accident he was  not minor and  the license in question is valid one.

6.                As per Section 4 of the Motor Vehicle Act prohibited driving of the transport vehicle in public place unless he attains the age of 18 years. Admittedly, the accident took place on 07.03.2017 as such if date of birth mentioned in the driving license of driver of the vehicle namely Gopal Pandey is presumed to the correct even then he has completed more than 21 years of his age at the time of the accident.  As such provision of Section of the 4 is not applicable. Admittedly, the license in question Annexure R-5 is neither revoked not cancelled by the licensing authority. If there is any irregularities in issue in the license on the part of the Licensing Authority it will not affect the right of the beneficiaries after completion of the 18 years of the age, if cause of action is arises after completion of 18 years of the age of the driver. As such factual and legal position the contention of the OP is not sustainable and repudiation letter Annexure R-1 on the ground that DL of the driver is against the provision of the Section 4 is liable to be quashed and objection taken by the Op in this regard is overruled. The counsel for the OP is relying  upon the judgment AIR 1954 Vindhya Pradesh Page 17 is not helpful to the OP and same is not applicable on the present case.

7.                          It is admitted facts insured truck met with an accident and complainant has informed the Op for assessing the loss and insurance company has deputed the surveyor and surveyor has assessed the loss Rs. 2,94,776/- + Rs. 13,500/-(salvage) as per Annexure R-6 (surveyor report) after considering the estimate given by the complainant and also assessed the loss as per IRDA instructions. Although, complainant has claimed the amount Rs. 4,09,129/- alleging that surveyor has not assessed the loss accurately, but perusal of the surveyor report, the surveyor has assessed the loss Rs. 2,94,776/-+13500(salvage). It is settled proposition of law that surveyor is the best person to assess the loss. His report cannot brushed aside unless there is cogent and convincing evidence. In the instant case also, no credible evidence has been produced on the basis of which surveyor report cannot be  dis-believed.

8.                          Keeping in view that the above  facts and circumstances of the case it is held that the insurance company has wrongly withheld the claim of the complainant on the ground that the driver of the vehicle was not having valid license at the time of the accident, therefore, the present complaint  deserves acceptance, Accordingly, we allow the present complaint against OP with cost which is assessed as Rs. 5,000/- The OP is further directed to comply  with the following direction within thirty days of the receipt of the order:-

1. To pay a sum of Rs. 3,07,776/- (Rs.2,94,776+ 13,500(Salvage value) as assessed by surveyor in his report Annexure R-6) to the complainant   alongwith  with simple interest @ 9% per annum from the date of filing of complaint till actual realization after keeping  the salvage  by the OP. The complainant is directed to complete all the formalities accrue after receiving the salvage by the insurance company.

                            

Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room

Announced on :05.11.2018

                         

           

 

(Pushpender Kumar)     (Dr. Sushma Garg)              (D.N. Arora)

    Member                             Member                              President