BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 133 of 2020.
Date of Institution : 10.06.2020.
Date of Decision : 23.04.2024.
Varun Mehta, aged about 35 years son of Shri Vir Bhan Mehta, resident of House No.1, Shiv Villa, Savitri Enclave, Zirakpur, SAS Nagar, Mohali.
……Complainant.
Versus.
1. The New India Assurance Company Limited, Branch office situated at Opposite Raja House, Sirsa- 125055 through its Branch Manager.
2. The New India Assurance Company Limited, Branch Office situated at Opposite Raja House, Fazilka 152123 through its Branch Manager.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
SMT. SUKHDEEP KAUR……………………….MEMBER.
Present: Sh. Deepak Monga, Advocate for complainant.
Sh. Rakesh Bajaj, Advocate for opposite parties.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to OPs).
2. In brief, the case of complainant is that complainant is owner in possession of one Dumper bearing registration No. P:B-65AN/721 which was insured with the ops’ company vide insurance policy No. 360702/31/17/01/00001416 for the period 26.6.2017 to 25.06.2018 for the sum insured value of Rs.26,60,000/- as assessed by the ops. That on 10.10.2017 the above said vehicle of complainant was present at Air Force Station, Sirsa which was loaded with crasher and when the crasher was being unloaded from the vehicle then suddenly due to heavy weight, the vehicle turned turtle and suffered serious losses and damages. Its topper chassis, topper box, jack cylinder alongwith other parts were smashed totally. It is further averred that immediately the complainant informed the ops about the above said incident with the request to investigate and assess the loss of vehicle. The Surveyor of the company visited the spot and found the above said loss of vehicle and submitted his report dated 15.10.2017 and Surveyor allowed the complainant to get repaired the vehicle. That thereafter complainant got repaired his vehicle by spending huge amount of Rs.11,18,080/- and submitted his claim to the ops alongwith requisite documents but the ops through its officials have postponed the matter with one pretext or the other and ultimately vide letter dated 12.06.2019 the ops have repudiated the claim of complainant on the ground that fake driving licence of driver has been placed on record which is wrong and illegal because driving licencer of driver Dhira Singh is legal and valid. That even the said vehicle was not being driven by any one but it was dead stop at one place and when crasher was being unloaded, this incident occurred during unloading of crasher, so the question of any fake licence of driver submitted to the ops by complainant does not arise at all though licence of driver is legal and valid one. It is further averred that complainant approached and requested the ops on many occasions to admit his claim but all in vain and ultimately the ops have refused to do so and have caused deficiency in service and unnecessary harassment to the complainant. Hence, this complaint.
3. On notice, ops appeared and filed written statement raising certain preliminary objections regarding maintainability, locus standi, suppression of true and material facts, estoppal and that claim lodged by complainant with the ops has been repudiated vide letter dated 12.06.2019 in a legal and lawful manner on the ground that fake D/L No. PB-0620130094757 of the driver Satbir s/o Jagtar Singh as declared by the insured in the intimation letter and the claim form and that this Commission has no jurisdiction to entertain and try the present complaint.
4. On merits, it is submitted that on receipt of the information about the alleged incidence, the answering ops deputed Shri Ravi Aggarwal, Surveyor and Loss Assessor to inspect the accidental vehicle and to report who inspected the accidental vehicle and made his initial report dated 15.10.2017. It is also submitted that contents regarding surveyor allowing the complainant to repair the said vehicle are denied for want of knowledge. It is further submitted that final survey or the accidental vehicle was got conducted from Shri I.B. Mehta, Surveyor and Loss Assessor. However, before the Surveyor could submit his report, another vehicle of the same insured met with an accident which was also being driven by the same driver namely Satbir Singh. The driving licence of Satbir Singh was got verified by the answering ops from the concerned Licensing Authority and during the verification of the same, the driving licence of Satbir Singh was found to be fake. The final survey report was received by ops on 04.09.2018. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. In evidence, learned counsel for complainant has tendered affidavit of Sh. Harjinder Singh authorized person on behalf of complainant and documents Ex.C1 to Ex.C7.
6. On the other hand, ops have tendered affidavit of Sh. Jugal Kishore, Incharge as Ex. RW1/A and documents Ex.R1 to Ex.R4.
7. We have heard learned counsel for the parties and have gone through the case file.
8. From the policy schedule cum certificate of insurance Ex.C4, it is evident that complainant had purchased insurance policy from ops for his vehicle i.e. Dumper bearing registration No. P:B-65AN/721 for the period 26.06.2017 to 25.06.2018 and ops insured the said vehicle for insured declared value of Rs.26,60,000/-. The complainant vide claim intimation letter Ex.R1 lodged his claim with the ops as his said Dumper met with an accident while unloading the crasher near Air Force Station Sirsa as it turned turtle and received severe damages. Though complainant has averred that Dhira Singh driver of the Dumper was having valid and effective driving licence but in the said claim intimation letter Ex.R1, the name of the driver was mentioned as Satbir Singh. The ops have also repudiated the claim of complainant on the ground that driving licence of said Satbir Singh was found fake and in this regard ops have also placed on file verification report of driving lience of said Satbir Singh son of Jagtar Singh whereby concerned Licensing Authority verified that said DL is not issued by them. However, in this regard complainant alleges that vehicle in question was not in running condition and was dead stop when crasher was being unloaded from it and as such repudiation of claim of complainant on the ground of fake driving licence is not valid and is wrong and illegal. We also agree with the contention of complainant because firstly the vehicle was stopped at the time of incident as it was unloading crasher. Secondly it has been held by Hon’ble Supreme Court of India in several cases that when an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149 (2) (a) (ii). The insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/ insured was aware or had noticed that the licence was fake and still permitted that person to drive. Reliance in this regard can be placed on the observations of the Hon’ble Supreme Court in case titled as Rishi Pal Singh Versus New India Assurance Co. Ltd. & ors. CA No. 4919 of 2022 decided on 26.07.2022 in which it was also held that owner of the vehicle is expected to verify the driving skills and not run to the licensing authority to verify the genuineness of the driving licence before appointing a driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving licence issued to the driver. As such liberty given to the insurance company to recover the amount from the appellant was also set aside. In the present case, it is not proved on record by ops that owner was within knowledge that driver was not having valid lience and still he employed him as a driver on his vehicle and onus to prove this fact was upon the ops but ops have failed to do so and as such repudiation of claim of complainant is wrong and illegal. Since the Surveyor appointed by the ops found the main parts of the dumper as disalligned, displaced, bend, cut and damaged/ dented and broken as per report Ex.C3, therefore, we are of the considered view that complainant is entitled to repair cost to the tune of Rs.11,18,080/- as estimated in Ex.C7 and non payment of the same clearly amounts to deficiency in service on the part of ops. As such repudiation of the claim of complainant is hereby set aside.
9. In view of our above discussion, we allow the present complaint and direct the opposite parties to pay claim amount of Rs.11,18,080/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive the said amount of Rs.11,18,080/- from ops alongwith interest at the rate of @6% per annum from the date of this order till actual realization. We also direct the ops to further pay a sum of Rs.10,000/- as compensation for harassment and Rs.5000/- as litigation expenses to the complainant within above said stipulated period. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member President
Dt. 23.04.2024. District Consumer Disputes
Redressal Commission, Sirsa.
