Haryana

Yamunanagar

CC/874/2011

Sumer Chand s/o Sh.Lachhman Dass, - Complainant(s)

Versus

OIC Ltd. - Opp.Party(s)

Virender Kashyap

31 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 874 of 2011.

                                                                                             Date of institution: 16.8.2011

                                                                                             Date of decision: 31.7.2015.

Sumer Chand son of Shri Lachhman Dass resident of Village Antawa, P.O. Bhangera, District Yamuna Nagar.   

                                                                                                                                               …Complainant.

                                                              Versus

 

The Oriental Insurance Company Limited, Opp. Madhu Hotel, Jagadhri Road, Yamuna Nagar through its authorized signatory/ Branch Manager.                                                                                                                              

                                                                                                                                               …Opposite party.

 

Before:            SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Virender Kashyap, Advocate, counsel for complainant.   

               Sh. Parmod Gupta, Advocate, counsel for OP.                

             

 

ORDER

 

1.                     Complainant Sh. Sumer Chand has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent ( hereinafter referred as OP) be directed to make the payment of Rs. 45802/-  on account of repair of Mahindera Pick Up bearing No. HR-37B-1030 which met with a roadside accident on 24.2.2011.

2.                     Brief facts of the complaint as alleged by the complainant are that he is the registered owner of Mohindra Pick Up bearing registration No. HR-37B-1030, which was insured with the OP vide insurance policy (Annexure R-1) bearing No. 261700/31/2011/11111 valid from 30.4.2010 to 29.4.2011for Rs. 1,30,000/- and a premium of Rs. 7945/- was paid in this regard to the OP. Hence there is a relationship of consumer and supplier between the complainant and OP. It has been further alleged that on 24.2.2011, he was going from Jagadhri to his village Antawa then suddenly a cow came in front of his pick up and when he tried to save the cow, his vehicle mahindera pick up met with an accident near ITI, Yamuna Nagar.  The complainant informed the matter to the police on which a DDR No. 14(A) dated 24.2.2011 was recorded and complainant also informed the OP in this regard and completed all the formalities.  The OP deputed surveyor, who visited the spot and asked him to take the vehicle to authorized service station. The complainant took his vehicle to the authorized service station at Tip Top Motors, Near Mohindra Petrol Pump, Jagadhri Road, Yamuna Nagar. On the assurance of OP and surveyor,  he got repaired his vehicle and spent a sum of Rs. 45802/- beside this he suffered loss of huge amount as the vehicle remained in the workshop about 15 days. Thereafter, complainant approached the OP several times for releasing his claim amount but they kept on putting off the matter with one pretext or the other. Hence, there is a great deficiency on the part of OP.

3.                     Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as complaint not maintainable, complicated question of law and fact is involved and on merit it has been mentioned that the complainant was not holding a valid and effective driving license on the date of accident because the vehicle bearing No. HR-37B-1030 is a commercial goods vehicle whereas the driver-cum-owner was holding a license to drive scooter, motorcycle, motor car, Jeep, Tractor and Auto Riksha and as such complainant cannot drive a pick up van for which a separate license is required for commercial goods vehicle. It is submitted that an intimation of accident was received in the office of OP on 24.2.2011 and immediately Sh. Sumit Goel was deputed to conduct the spot survey who submitted his report on 28.2.2011 after visiting the site of accident and noted down the damages at spot. It has been further alleged that after the spot survey Sh. Anand Associates a licensed valuer Surveyor & Loss Assessor was appointed for final survey who surveyed the said vehicle at M/s Kamboj Motor Chandpur, Yamuna Nagar on 28.2.2011 and gave his fact finding report and assessing the loss to the extent of Rs. 10,978/- subject to the terms and conditions of the policy and as such to say the amount of Rs. 45,802/- was spent is not correct. It has been further alleged that the assessed amount was not released as per survey report because the complainant was not holding a valid and effective driving license to drive mahindera pick up at the time of accident as the complainant was required LTV/LMV driving license for driving the commercial goods vehicle i.e. vehicle in question. Lastly prayed that as the DL was not valid, hence, there is no deficiency on the part of opposite party, hence, the complaint of the complainant is liable to be dismissed.

4.                     To prove his case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX & CY  and documents such as Photo copy of DDR No. 14(A) dated 24.2.2011 as Annexure C-1, Photo copy of Insurance policy as Annexure C-2, Photo copy of registration certificate as Annexure as C-3, Photo copy of driving license as Annexure C-4, Photo copies of bills of Tip Top Motors as Annexure C-5 & C-6, Photo copy of bills of Kamboj Motors as Annexure C-7 and closed the evidence on behalf of complainant.  

5.                     On the other hand, counsel for the OP tendered into evidence affidavit of Sh. R.S.Kalra, Divisional Manager, Oriental Insurance Company Ltd. Yamuna Nagar as Annexure RX and Affidavit of Sumit Goel, Independent, Surveyor & Loss Assessor and Paramjot Singh Anand prop.  of M/s Anand Associates, Surveyors & Loss Assessor as Annexure RY& RZ and documents such as Photo copy of Insurance policy as Annexure R-1, Photo copy of claim form as Annexure R-2, Photo copy of verification letter dated nil as Annexure R-3, Photo copy of survey report of Anand Associates as Annexure R-4, Photo copy of spot survey report of Er. Sumit Goyal as Annexure R-5 and closed the evidence on behalf of OP.

6.                     We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                     Admittedly, the complainant is registered owner of  Mahindera Pickup bearing registration No. HR-37B-1030 which was insured with the OP vide comprehensive policy bearing No. 261700/31/2011/1111 valid from 30.4.2010 to 29.4.2011 for a sum of Rs. 1,30,000/-(Annexure R-1). It is also admitted fact that Mahendra pick up in question met with an accident near ITI, Yamuna Nagar and complainant informed the matter to the police on which a DDR No. 14A dated 24.2.2011 was recorded and complainant also informed the OP in this regard and completed all the formalities. The OP deputed surveyor who visited the spot and prepared his report assessing the loss of Rs. 10978/- subject to terms and conditions of the insurance policy vide his report Annexure R-4.  It is also admitted fact that vehicle was loaded with the sugar bags at the time of alleged accident and driver Sumer Chand was having only driving license to drive motor cycle, scooter, car, jeep, tractor and endorsement for Auto Riksha only.

8.                     Learned counsel for the complainant argued that complainant has spent Rs. 45802/- approximately on the repair of Mahendra Pick Up in question but the OP company has assessed only Rs. 10978/- as per surveyor report Annexure R-4. Learned counsel for the complainant further argued that complainant who was driving the Mahendra Pick Up in question at the time of alleged accident was holding a valid and effective driving license to drive Mahendra Pick up as he was holding a driving license for scooter, car, jeep, tractor and endorsement of Auto Rikasha and this license was bearing No. 3657/96 dated 19.9.1996 valid from 6.8.2007 to 5.8.2010 and further it was renewed from 9.8.2010 to 5.8.2013 vide endorsement No. 57/DTO/YNR/07. Learned counsel for the complainant further argued that a license granted for scooter, motorcycle, car, jeep shall be considered to be driving license of “Light Motor Vehicle” as per definition of Light Motor Vehicle defined in Motor Vehicle Act. He further argued that the gross weight of the Mahindra Pick Up in question is only 1640 Kg. as per Annexure C-3 Registration Certificate and as per definition of Light Motor Vehicle means a transport vehicle or omnibus 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 6000 Kgs. (w.e.f. amendment 14.11.1994 instead of 7500 Kgs). Meaning thereby that the Mahindera Pick Up in question is fully covered under the definition of LMV and thus the persons holding license for LMV is fully competent to drive the Mahindera Pick Up in question. Lastly learned counsel for the complainant prayed that OP has wrongly repudiated the claim of the complainant and he is entitled to get the full claim on account of damages to the Mahindra Pick Up in question. In support of his claim, referred the case law titled as National Insurance Company Limited Vs. Sri Annappa Irappa Nesaria & Others, 2008(1) RCR (Civil) page 848 (S.C) wherein it has been held that a light goods carriage has not been defined in the Act-Light goods carriage would come within the definition of light motor vehicle- Driver possessing light motor vehicle license was authorized to drive a light goods carriage vehicle as well. Further referred the citation titled as Hardayan Singh vs. Chiranji Lal & Others 1(2003) ACC page 114 wherein it has been held that a license granted for scooter/motorcycle/car/jeep shall be considered to be driving license for Light Motor Vehicle and Tempo as per definition of Light Motor Vehicle.

9.                     On the other hand, counsel for the OP argued that the claim of the complainant has been rightly repudiated as the surveyor has specifically mentioned in his report EX. R-4 that the Mahindra Pick Up in question was loaded with the Sugar bags at the time of accident and driver Sumer Chand was holding driving license to drive scooter, motorcycle, car, jeep and endorsement with Auto Riksha only whereas license is to be required LTV or LMV to drive the transport vehicle/ Mahindra Pick Up in question and as such it was driven in utter violation of the terms and conditions of the insurance policy. Learned counsel for the OP further argued that surveyor has assessed only Rs. 10978/- as per his report Annexure R-4 and complainant is not entitled to get Rs. 45802/-. No contrary evidence has been filed by the complainant to controvert the report of the surveyor in this regard and lastly prayed that as the claim of the complainant has been rightly repudiated. Hence, there is no deficiency in service on the part of OP and complaint is liable to be dismissed. In support of his contention, learned counsel for the OPs referred the  case law titled as 2013 (2) CLT page 298 titled as Satpal Vs. O.I.C. ( N.C.) in which it has been held that license granted for scooter/motorcycle/car/jeep shall be considered to be driving license for light motor vehicle and cause of accident was due to fault of other truck driver-Appeal filed- State Commission accepted appeal on the ground that driver was holding a LMV driving license but he was driving a MTV vehicle i.e. goods carrier transport vehicle-There was no specific endorsement on his driving license to drive MTV vehicle, as required under section 3 of the M.V.Act 1988. Revision dismissed. Learned counsel for the OP further referred another citation titled as National Insurance Company Vs. Gurinder Pal Singh & Others, 2014(3) PLR page 431 wherein it has been held that driver had a license to drive a car and scooter but he was driving a public service vehicle carrying 15 passengers- Any public service vehicle which is a transport vehicle would require special endorsement under section 3 of the Motor Vehicle Act and also referred the case tiled as Sandeep Sharma Vs. Baljeet Kaur and others 2015(1) PLR page 500 wherein it has been held that the driver at the relevant time was holder of a license to drive a light motor vehicle only and did not possess license to drive a commercial vehicle- Evidently, there was breach of one of the conditions of contract of insurance.

10.                   First question is involved in the present complaint is that whether the complainant has spent a sum of Rs. 45802/- as alleged in the complaint on the repair of his vehicle or not?.  This contention of the complainant that he has spent Rs. 45802/- on repair of Mahinder Pick Up is not tenable to our mind as it is settled proposition of the law that credence should be given to the surveyor report and the complainant also failed to point out any discrepancy or ambiguity in the surveyor report. The complainant failed to file any report of expert surveyor to prove the amount of Rs. 45802/- whereas OP has filed Surveyor report Annexure R-4 from which it is clear that there was loss to the tune of Rs. 10,978/-.

11.                   Second question is involved in this complaint is that whether the driver/complainant was holding a valid and effective driving license at the time of alleged accident or not? From the perusal of driving license (Annexure C-4/R-3) it is clear that the complainant was having only driving license to drive Motorcycle, scooter, car, jeep and Auto Riksha.  The complainant Sumer Chand who was driving the vehicle was not authorized to drive Mahindra Pick Up which is a goods vehicle as per Registration Certificate placed on file (Annexure C-3). In “2002(1) CLT page 220 (N.C.) titled as United India Insurance Company Ltd. Vs. Jaya Rajender Kumar Nanda” it was observed that by no stretch or imagination it can be inferred that if one has a driving license for medium goods vehicle, it automatically entitles him to drive a Light Motor Vehicle. In the present case, the vehicle involved is Mahindera Pick Up which is transport vehicle for which LMV/LTV license is to be required but driver cum complainant was not holding a valid driving license for driving LMV or LTV as he was holding only driving license for scooter, motorcycle, car, jeep and tractor with endorsement of Auto Riksha. Hence, we are of the considered view that complainant was not holding a valid driving license at the time of alleged accident. However as per citation Nitin Khandelwal’s case 2008 (3) CPC page 559, S.C. wherein it has been held that “Even where violations of policy is found, Insurer should pay 75% of total amount on Non Standard Basis. So in view of the aforesaid discussion, we are of the considered view that there is a deficiency in service on the part of OP Company.

                        Resultantly, we partly allow the present complaint of the complainant and direct the OP company to pay 75% of the assessed amount of Rs. 10,978/- of the surveyor with interest at the rate of 9% per annum from the date of filing of complaint till its realization and also to pay a sum of Rs. 1000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within 30 days from the date of decision failing which the complainant shall be entitled to invoke the jurisdiction of this Forum as per law. The complaint is partly accepted accordingly in the above terms. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court: 31.7.2015.

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.