DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA

Complaint No. CC/15/101 of 15/05/2015

Decided on 24/09/2015

Davinder Kishor Batish son of late Sh. Satya Nand Batish Resident of H. No.B-35/147, Buxi Ganda Singh Street, Sirhindi Bazar, Patiala. ….Complainant.

Versus

Oriental Insurance Company Limited, Divisional Office at Sai Market, Lower Mall, Patiala through its Divisional Manager.

….Opposite party.

Complaint under Sections 11 to 14 of the

Consumer Protection Act.

QUORUM

Sh. D. R. Arora, President

Smt. Sonia Bansal, Member

Present:

For Complainant : Sh. Jatinder Verma Advocate

For Opposite party : Sh. B. L. Bhardwaj Advocate

ORDER

D. R. ARORA, PRESIDENT:

1. The complainant had got his vehicle make Toyota Innova car bearing registration no.PB-11-BG-0550 insured with the OP vide policy no.2335500/31/2015/683 for the period 31/5/2014 to 31/5/2015.

2. On 27/10/2014, the complainant had been coming from Dehradun in the said car and when he reached at the crossing of Do Sarka road that suddenly a Roze ( wild animal, a hybrid between cow and horse) came on the road and hit against the car of the complainant, as a result of which front side of the car and other part of the car were damaged.

3. The complainant intimated about the accident to the OP on 28/10/2014 and also made a telephonic call to Mr. Dhingra, the concerned officer of OP. The complainant also handed over the driving licence of Mr. Munish Kumar, the driver, along with the insurance policy, certificate of registration of the car to Mrs. Rama Khosla, the employee of the OP at Sai Market Branch, Patiala.

4. The complainant parked his car in the Emm Pee Motors Ltd., Pioneer Toyota, Focal Point, Patiala for repair, where also he handed over the aforesaid documents to the surveyor of the OP who also took the photographs of the car. The complainant paid a sum of Rs.1,50,062/- to the aforesaid workshop for getting the car repaired on 14/11/2014 vide invoice no. Tax14-12740. The complainant handed over the said bill to the OP. Complainant received letter dt. 19/12/2014 from the OP vide which it was informed that the vehicle was being driven by Rajinder Singh son of Mann Singh and not by Munish Kumar son of Ajit Kumar Malhotra. The complainant gave the reply to the said letter. Thereafter complainant received letters dt.13/12/2014 and 16/01/2015 from the OP. Vide letter dt. 30/01/2015 the OP repudiated the claim of the complainant on the ground that as per the report of the investigator the vehicle was being driven by Rajinder Singh son of Mann Singh and he had the driving licence meant for Motor Cycle with gear and Motor car whereas the vehicle is registered as LMV and therefore, he was not holding a valid driving licence. The complainant informed the OP that Rajinder Singh never remain employed with him. The weight of the car make Toyota Innova is 1585 Kgs and as per the Motor vehicles Act the vehicle falls under the category of Motor Car and therefore, the licence issued by the Licencing authority for Motor cycle with gear and motor car also covered the category of LMV.

5. It is alleged by the complainant that repudiation of the claim made by the OP amounts to deficiency in service which resulted into harassment. Accordingly the complainant brought this complaint against the Ops u/s 12 of the Consumer Protection Act 1986 ( for short the Act) for a direction to the OP to pay him the amount of Rs. 1,50,062/- the amount of the claim with interest from the date of the accident and further to pay Rs.50,000/- by way of compensation.

6. On notice, OP appeared and filed the written version. The OP has not denied the complainant having got insured his vehicle with it as per the particulars furnished by him. It is averred by the OP that an intimation regarding the vehicle in question having met with an accident was made by the complainant accompanied by Rajinder Singh the driver to Sh. S. K. Gautam, the Development Officer and the details of the facts as narrated by the complainant and Rajinder Singh driver were noted by the Development Officer and the writing in this regard was signed by the complainant. The self attested copy of the driving licence of Rajinder Singh along with other documents was handed over by the complainant and Rajinder Singh to the OP for further action in the matter. Sh. Anil Mehta was appointed as surveyor and loss assessor who assessed the loss in a sum of Rs.99,128/- ( Rs.1,01,128/- - Rs.2000/- of the Salvage) but no compensation is payable by the OP since Rajinder Singh was not holding a valid driving licence so as to drive the vehicle. The vehicle was insured with OP for having a seating capacity of 7 +1 and the same falls under the category of LMV under the Motor Vehicle Act and also as recorded in the certificate of registration.

7. It is further the plea taken up by the OP that complainant subsequently tried to substitute the driver Rajinder Singh with one Munish Kumar fraudulently who was holding a licence for LMV when he came to know that licence of Rajinder Singh was not valid for Toyota Innova as per the report of the investigator as also the statement made by Rajinder Singh before Sh. S. K. Gautam. It has been established that Rajinder Singh was the driver of the vehicle at the time of the accident who also remained present at the site as would appear from the four snaps taken at the spot, in which he is shown loading the vehicle in the recovery van. The complainant tried to influence Sh. S. K. Gautam, development officer with regard to the substitution of the driver and he refused to oblige him. The claim of the complainant was repudiated by the OP vide letter dt. 30/01/2015 having stated, “Sh. Rajinder Singh son of Sh. Mann Singh who was driving the above stated vehicle at the material time of accident was having D/L no. OLA PB-11 No.10004/4/1997 valid from 02/06/1997 to 25/01/2017 issued by DTO Patiala to drive M/C with gear and Motor Car only whereas the above stated vehicle is registered as LMV so he was not having a valid and effective driving licence to drive LMV.....”. After denouncing the other allegations of the complaint, going against the OP, it was prayed to dismiss the complaint.

8. In support of his case, the complainant tendered in evidence Ex.CA his sworn affidavit, Ex.CB sworn affidavit of Sh. Munish Kumar along with documents Ex.C-1 to Ex.C-21 and his counsel closed the evidence. On the other hand, counsel for the OP tendered in evidence Ex.OPA the sworn affidavit of Sh. A. S. Dhingra, Sr. Divn. Manager of the OP, Ex.OPB affidavit of Sh. H. S. Bedi, Investigator Bee Vee Investigation Agency, Ex.OPC affidavit of Sh. S. K. Gautam, Development officer of OIC Ltd., Ex.OPD affidavit of Sh. Anil Mehta, Surveyor and loss assessor along with documents Ex.OP-1 to Ex.OP-9 and closed the evidence.

9. The complainant filed the written arguments. We have gone through the same, heard the ld. counsel for the parties and gone through the evidence placed on record.

10. Ex.OP-1 is the letter dt. 30/01/2015 written by the OP to the complainant on the subject: Accident of Toyoto Innova No.PB 11 BG 0550 Policy no.233500/31/2015/683 Claim no.233500/31/2015/ 000092, written in continuation of letters dt. 30/12/2014 and 16/1/2015 and informed the complainant that his claim was repudiated on the following grounds:

“1) INVALID DRIVING LICENCE

Sh. Rajinder Singh s/o Sh. Mann Singh who was driving the above stated vehicle at the material time of accident was having D/L no.OLA PB-11 No.10004/4/1997 valid from 02/06/1997 to 25/01/2017 issued by DTP Patiala to drive M/ Cycle with Gear and Motor Car only whereas the above stated vehicle is registered as LMV so he was not having a valid and effective driving License to drive LMV.

2) MISREPRESENTATION

Later on you had submitted D/L of Sh. Munish Kumar s/o Sh. Ajit Kumar along with your letter dated 28/11/2014 stating therein that he was behind the wheels at the time of accident and subsequently submitted an affidavit dated 26/12/2014 to this affect also

Further it is informed that you in your written statement given to the investigator had stated that you never knew Sh. Rajinder Singh whereas Sh. Rajinder Singh in his written statement given to the investigator had admitted that he was driving the said vehicle at the time of accident.

In view of the above it is proved that you have misrepresented the material facts in your statement as well as your affidavit to obtain undue benefit under the policy.”

11. Now it has to be seen whether as per the plea taken up by the complainant the vehicle no. PB-11-BG-0550 was being driven at the time of accident by its driver Mr. Munish Kumar as alleged by the complainant or by Rajinder Singh as per the plea taken up by the OP. The complainant has not stated in unequivocal terms in para no.2 of the complaint that the vehicle was being driven by Munish Kumar and rather it is averred by the complainant that on 27/10/2014, he had been coming from Dehradun after dropping her daughter and when he had reached at Do Sarka road that suddenly a Roze (wild animal, a hybrid between cow and horse) came on the road and hit against the car of the complainant. Nothing is explained by the complainant as to who was driving the vehicle. It is averred by the complainant in para no.3 of the complaint that he approached the office of the OP and handed over the driving licence of the driver Munish Kumar. Again it is not averred in para no.3 of the complaint of the complainant that at the time of the accident the vehicle was being driven by Munish Kumar. On the other hand it is the plea taken up by the OP that the intimation regarding the vehicle having met with an accident was given by the complainant accompanied by Rajinder Singh driver to Sh. S. K. Gautam, Development officer and the details of the facts as narrated by the complainant and Rajinder Singh were filled in by the said development officer in the intimation form, which was signed by the complainant. An attested copy of the driving licence of Rajinder Singh along with other documents was handed over by the complainant as well as Rajinder Singh to the OP. Ex.C-17 is the statement of Sh. S. K. Gautam working as development Officer with Oriental Insurance Company Ltd. Patiala and it is recorded in the same that in the after noon of 30/10/2014 Sh. Davinder Kishor Batish along with a sikh gentleman had come to his office and told that about 2-3 days back his Innova car no.0550 had met with an accident near Ambala. He took out the claim intimation letter and asked him to fill the column so that surveyor may be deputed. But he asked him to fill the claim form on his behalf and he signed the same. While filling the claim intimation letter, he asked about the name of the person driving and at this he introduced the person having come accompanied by him as Rajinder Singh and who gave the zerox copy of his driving licence and accordingly he filled in the particulars of the driving licence in the claim intimation letter. After reading all the columns Sh. Batish signed the same. On that day the insured handed over the estimate copy, Zerox copy of RC, copy of Insurance cover note and self attested copy of the driving licence of Rajinder Singh.

12. Ex.C-18 is the Motor Claim intimation slip which bears the signature of the complainant Davinder Kishore Batish and column no.8 and 9 meant for the purpose of driver's name and address record the name as Rajinder Singh. The said facts have been corroborated by Sh. S. K. Gautam in his sworn affidavit Ex.OPC. The investigation report Ex.OP4 by Sh. H. S. Bedi of Bee Vee Investigating agency also confirms the said fact. The OP has also produced in evidence Ex.OP-3 the copy of the driving licence of Rajinder Singh no. OLA-PB-11 10004/PB/1997 bearing the signatures of Rajinder Singh and the same is meant for M/ Cycle with gear and M/ Car. Therefore , in view of the aforesaid over whelming evidence lead by the OP, We have no reason to disbelieve the plea of the OP that at the time of the accident the vehicle was being driven by Rajinder Singh and not by Munish Kumar.

13. As observed earlier the driving licence Ex.OP-3 pertaining to Mr. Rajinder Singh was meant for M/cycle with gear and M/ Car. In the certificate of registration of the vehicle no. PB-11-BG-0550 (copy Ex.C-13) the class of the vehicle is given as LMV/JPG.

14. It is submitted by Sh. Jatinder Verma ld. Counsel for the complainant that as per the certificate of registration Ex.C-13, the unladen weight of the vehicle is noted as 1585 Kgs and the seating capacity has been recorded as seven. As per the definition of “Light Motor Vehicle” as provided u/s 2 (21) of the Motor Vehicles Act, it means a transport vehicle or Omni bus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed (7500) kilograms.

15. As per the definition of “Motor Car” as provided u/s 2 (26) of the Act it means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage. Therefore, it was submitted by Sh. Jatinder Verma ld. Counsel for the complainant that the weight of the vehicle being less than 7500 kgs no difference can be made between the motor car or light motor vehicle.

16. He also placed reliance on the citation First appeal no.582 of 2011 United India Insurance Company Ltd and Ors. Versus Preet Gaurav Singh decided on 11/02/2014 by the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, National Insurance Company Ltd. Versus Sanjay Kumar and others Vol.CLXI-(2011-1) PLR 447 of the Hon'ble Punjab and Haryana High Court and The New India Assurance Co. Ltd. Chandigarh versus Bhawani Devi @ Bhagvani Devi and Ors VOL.CLXXIII- (2014-1) PLR 552 of the Hon'ble Punjab and Haryana High Court.

17. On the other hand, it was submitted by Sh. B. L. Bhardwaj, ld. Counsel for the OP that in the certificate of registration Ex.C-13 of the vehicle, the same is shown to be LMV/ JPG but the driving licence Ex.OP-3 of Rajinder Singh is meant for M/cycle with gear and M/ Car and not for LMV. He also placed reliance upon the citation first appeal no.1413 of 2002 M/s Oriental Insurance Company Ltd versus Dr. S. S. Malhi decided on 01/02/2008 of the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh.

18. We have considered the submissions. In the case of the citation first appeal no.1413 of 2002 M/s Oriental Insurance Company Ltd versus Dr. S. S. Malhi, Hon'ble State Commission discussed the definition of “Omnibus” as provided u/s 2 (29) of “Motor car” as provided u/s 2 (26) and “Motor cab” as provided u/s 2 (25) of the Motor Vehicles Act and observed that a vehicle which has the capacity of six passengers falls within the definition of 'Motor Cab' and which has the capacity of more than six passengers falls within the definition of 'Omnibus' and Omnibus is not a motor car as per the definition of 'Motor car' given u/s 2 (26) of the Act. It was observed by the Hon'ble State Commission that as per the certificate of registration of the vehicle TATA SAFARI no. PB-11-N-6514, the vehicle falls in the definition of Light Motor Vehicle and therefore, it requiried the driving licence for LMV u/s 10 (2) of the Motor Vehicles Act. However the DL possessed by its driver was only for car and scooter. He did not have any driving for LMV. Therefore, the driving licence held by him was valid for Tata Safari. Reliance was also placed upon the citation National Insurance Co. Ltd. v. Smt. Kusum Rai & Ors. JT 2006 (4) SC 9 in which Hon'ble Supreme Court held as under:-

“It has not been disputed before us that the vehicle was being used as taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed herein before, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The Appellant, therefore, could raise the said defence.”

The Hon'ble State Commission further observed in para no.12 and 13 as under:

“12. It means, therefore, that the person driving the vehicle should hold the driving licence valid for driving that category of vehicles. If he was driving TATA Safari which was light motor vehicle, Rachhpal Singh was supposed to have the driving licence for L.M.V. He admittedly didn't have the driving licence for L.M.V.

13. Even the Hon'ble National Commission in the judgment reported as “United India Insurance Co. Ltd. v. Jaya Rajendra Kumar Nanda” 2002 (1) CLT 220 was pleased to hold as under:

“The word 'Class' is amplified and categorized in Section 10 (2) of M. V. A. All these provisions read together in a homogenous manner leave no doubt in our mind that the driver must have a driving licence to drive a particular class (es) of vehicle and it is only in respect of these class (es) that the Driving Licence shall be deemed effective. It is admitted position that in the instant case the Driver Puran Singh's licence was valid for driving Medium Goods Vehicle and Autorickshaw whereas the Vehicle he was driving was an Ambassador Car as a Taxi. Legal position is that by no stretch of imagination it can be inferred that if one has a driving licence for medium goods vehicle, it automatically entitles him to drive a Light Motor Vehicle.””

19. As regards the citation National Insurance Company Ltd. Vs. Sanjay Kumar and others and The New India Assurance Co. Ltd. Vs. Bhawani Devi @ Bhagwani Devi and others (Supra), it is suffice to note that in the two citations the scope of Sec 10 (2) of Motor Vehicles has not been discussed as discussed in M/s Oriental Insurance Company Ltd. Vs. Dr. S. S. Malhi (Supra).

20. Thus it would appear that in our case driver Rajinder Singh was not holding a driving licence meant for driving LMV i.e. Vehicle no. PB-11-BG-0550 namely Toyota Innova and it would appear that he was not holding a valid driving licence as the same was meant for driving Motor Cycle with gear and Motor Car and therefore, the OP was justified in having repudiated the claim of the complainant vide repudiation letter dt. 30/01/2015. Resultantly we do not find any substance in the complaint and the same is hereby dismissed.

Pronounced

Dated: 24/09/2015.

Sonia Bansal D. R. Arora

Member President