Haryana

Ambala

CC/31/2019

Santokh Singh - Complainant(s)

Versus

NIC - Opp.Party(s)

Hazara Singh

04 Mar 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.: 31 of 2019.

                                                          Date of Institution           :  31.01.2019.

                                                          Date of decision    :  04.03.2020.

 

Santokh Singh son of Hazara Singh, resident of H.No.49, Village Seoli, Tehsil Dera Bassi, District SAS Nagar (Mohali).

                                                                                      ……. Complainant.

                                                     Versus

 

1.       National Insurance Company Ltd. (A Govt. of India undertaking) registered         office 3 Middle Street, Post Box No.9229, Kolkata-700071.

2.       National Insurance Company Ltd. ( A Govt. of India Undertaking) serving office-Ambala Division-106, Railway Road, Ambala Cantt. (Haryana) 133001.

 

               ..…. Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.          

                            

Present:       Shri Hazara Singh, Advocate, counsel for the complainant.

Shri Mohinder Bindal, Advocate, counsel for OPs.        

 

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 Parties (hereinafter referred to as ‘OPs’):-

 

Brief facts of the case are that the complainant is owner of the vehicle TATA Xenon bearing registration No.PB-65X-178, Model 2015. The said vehicle  was duly insured with the OPs vide policy No.55270031146360097615, for the period from 12.09.2014 to 11.09.2015. On 10.08.2015, at about 10 P.M., it met with an accident and struck in the divider, Saharanpur Jail, Chungi Road, Haridwar. At that time the vehicle was being driven by Vijay Kumar son of Shyam Lal, resident of village/P.O. Khetparali, Tehsil & District Panchkula., who was having valid driving licence. The matter was reported to the police. The vehicle got badly damaged in the said accident. Complainant approached the OPs several times to get the claim amount and also served a legal notice dated 08.04.2016, upon them, but of no avail. Complainant had earlier filed a complaint bearing No.301 of 20.05.2016, before the DCDRF, SAS Nagar (Mohali), which was dismissed vide order dated 19.07.2018, on the ground of jurisdiction and liberty was given to the complainant to approach the appropriate Forum. Accordingly he filed the present complaint before this Hon’ble Forum.

2.                 Upon notice, OPs No.1 & 2 appeared through counsel and filed written version, raising preliminary objections regarding maintainability, not come with clean hands before this Forum, suppression of true and material facts, barred by limitation, no cause of action. On merits, it is stated that the said Insurance Policy was issued for the period from 12.9.2014 to 11.09.2015, subject to terms and conditions and the insured was legally and strictly bound to abide and follow the same without any lapse or failure. The claim lodged by the complainant was entertained immediately and an independent IRDA licensed and approved surveyor Shri Vikas Kohli, Surveyors & Loss Assessor was immediately deputed to assess the loss. The said surveyor visited the premises of workshop M/s Metro Motors, Mohra, Ambala and had detailed discussion with the mechanic and the complainant and in due process submitted his detailed report dated 19.09.2015. The said surveyor assessed the actual and legal loss to the tune of Rs.63,196/- on repair basis subject to terms and conditions of the insurance policy and approval by the competent authority. He submitted all the necessary documents including the driving licence no.41239/SPT of driver Vijay Kumar allegedly issued on 30.03.2009, from Manipur, with the OPs. The said driving license was got verified through investigator W. Romabai Devi, who visited the Licensing Authority, Senapati, Manipur and after verification, the said DL found fake, as DL No. 41239/SPT was registered in the name Mr. Walter Tirkey of Tamenglong, Manipur on 09.07.2009 and not in the name of Vijay Kumar on 30.03.2009 as alleged. In this regard, concerned licensing authority had given a report to the investigator. After scrutinizing and elaborating the whole facts, situation, record and the evidence, the OPs had rightly repudiated the claim as per terms of the policy on the ground of fake driving license and also due to non-payment of the requisite entry tax for Uttar Pradesh, where alleged accident took place. The complainant was finally informed about the repudiation of his claim vide letter dated 03.08.2016, and was also apprised about the fact of his claim after giving him sufficient opportunities to explain about the issues regarding DL and UP entry tax (permit). The Hon’ble DCDRF, Mohali, had given liberty to the complainant to approach the appropriate Forum without giving him any benefit/extension of the period spent before it. The claim of the complainant has rightly been repudiated, therefore the present complaint may be dismissed with costs. 

3.                The ld. counsel for the complainant tendered affidavit of the complainant as Annexure-CA along with documents as Annexure C-B to C-J and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs tendered affidavits of Shri W. Romabai Devi, Inspector, resident of Keishamthong, Thangjam Leirak, Imphl Manipur, Shri Vikas Kohli, Surveyor and Loss Assessor having its office at #309, Model Town, Ambala City, District Ambala, Haryana, Shri I.S.C. Dass, Authorized Signatory, National Insurance Co. Ltd. Divisional Office, Ambala as Annexure OP-A to OP-C respectively alongwith documents Annexure OP-1 to OP-13 and closed the evidence on behalf of OPs.

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 OPs raised the objection that the present complaint filed by the complainant is barred by limitation. The claim was repudiated on 03.08.2016. Earlier, the complaint filed by the complainant before the Hon’ble DCDRF, Mohali, was dismissed vide order dated 19.07.2018, on the ground of territorial jurisdiction. Whereas, the complainant has filed the present complaint, before this Hon’ble Forum on 31.10.2019, i.e. after a delay of more than one year. To this effect the Ld. counsel for the complainant has contended that the order dated 19.07.2018, passed by the Hon’ble DCDRF, Mohali, was dispatched to the complainant on 01.01.2019, and after receiving the same the complainant has filed the present complaint. From the stamp affixed on the order dated 19.07.2018, of the Ld. DCDRF, Mohali, it is quite clear that free copy of the above said order was dispatched on 01.01.2019. The complainant has filed the present complaint on 31.01.2019, thus the objection raised by the Ld. counsel for the OPs that the complaint is barred by limitation is not tenable, hence rejected.

6.                Now, coming to the merits of the case, admittedly the vehicle of the complainant was duly insured with the OPs for the period from 12.09.2014 to 11.09.2015, vide policy document Annexure C-F. From the letter dated 03.08.2016, Annexure OP1, it is clear that the OPs refused to pay the claim amount on the ground that DL of the driver Vijay Kumar, who was driving the vehicle at the time of accident was found to be fake and also for non production of entry tax receipt issued by the Govt. of  U.P. The Ld. counsel for the complainant argued that the driver who was driving the car at the time of accident was having valid and effective driving licence and if subsequently the driving licence possessed by the driver was found to be fake, then the insurer cannot absolve of its liability to indemnify the insured. The Ld. counsel for the OPs argued that the driving licence possessed by the driver was found to be fake therefore as per the terms of the policy, insurer is not liable to reimburse the complainant/insured for the loss to the vehicle. It is not the case of the OPs that complainant was aware of this fact that the owner of the vehicle knew that driving licence of the driver was fake. It was not the duty of the owner of the vehicle to visit the office of DTO for determining the veracity of the driving licence held by the driver. In such a situation, the insurance claim cannot be denied to the complainant simply because the driving licence was found to be fake, subsequently that too during investigation conducted by insurer while settling insurance claim. In the case of Oriental Insurance Company Limited Versus Meena Variyal, IV 2007 ACC, 335 (SC), the Hon’ble Supreme Court has held that mere absence of or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defenses available to the insurer against either the insured or the third party. The insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned, but must also established breach on the part of the owner of the vehicle for which burden of proof would rest with the insurance company. Further in the case of Ram Chandra Singh Versus Rajaram, decided on 14.08.2018, the Hon’ble Supreme Court of India has held that it is well established that, if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Thus, in view of the law laid down by Hon’ble Supreme Court of India in the above noted cases, the OPs cannot be said to be justified to not to indemnify the complainant for the loss suffered by him. It may be stated here that non production entry tax receipt, cannot be said to be such a fundamental breach that the insured should, in all events, be denied indemnification. Thus, this ground of rejection of the claim is also not acceptable. In this view of the matter, we are of the considered opinion that the OPs are liable to indemnify the complainant for the loss suffered by him.                    

                   Now coming, to the quantum of indemnification. It may be stated here that from the surveyor report Ex.OP-12, it is evident that the surveyor has assessed the loss to the tune of Rs.63,196/-. 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 OPs are liable to indemnify the complainant to the tune of Rs.69,136/- as assessed by the surveyor. The OPs are also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigations expenses. 

7.                In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs to pay the amount of insurance of Rs.63,196/- to the complainant, alongwith interest @ 7% p.a. from the date of filing of the present complaint till its realization. OPs are also directed to pay Rs.2,000/- as litigation costs. The OPs are 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. 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: 04.03.2020.

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

           Member                                      Member                          President

                                                                                                 DCDRF, Ambala.