Haryana

Yamunanagar

CC/1188/2010

Subhash Chand S/o Manohar Lal Sharma - Complainant(s)

Versus

OIC Ltd - Opp.Party(s)

Parmod Chauhan

28 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                            Complaint No. 1188  of 2010.

                                                                                            Date of institution: 15.12.2010

                                                                                            Date of decision: 22.03.2016.

Subhash Chand Sharma aged about 42 years son of Shri Manohar Lal Sharma, resident of village and P.O. Sandhir, Tehsil Nilokheri, District Karnal.   

                                                                                                           …Complainant.

                                    Versus

 

The Oriental Insurance Co. Ltd. Divisional Office: Opp. Madhu Hotel, Jagadhri Road, Yamuna Nagar, through its Divisional Manager.                                                                                                               …Respondent.

 

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

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

 

Present:  Sh. Parmod Chauhan, Advocate, counsel for complainant.   

               Sh. Parmod Gupta, Advocate, counsel for respondent.             

             

ORDER

 

1.                     Complainant Subhash 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. 2,50,000/- incurred on the repair of truck alongwith interest and further to pay Rs. 40,00/- as compensation for mental agony, harassment, economic loss as well as Rs. 10,000/- as litigation expenses.

2.                     Brief facts of the complaint, as alleged by the complainant, are that complainant is the registered owner of Truck TATA LPT 2515 bearing registration No. HR58-D/1822 (Annexure C-4) which was insured with the OP vide policy bearing No. 261700/31/2009/11300 valid from 30.01.2009 to 29.01.2010( Annexure C-1).  It has been further alleged that on  10.1.2010 the abovesaid truck met with an accident near Chhitroli, P.S. Bagru, Distt. Jaipur in which the truck of complainant was badly damaged. FIR No.14 dated 10.1.2010 under section 279, 337 IPC (Annexure C-2) was registered in P.S. Bagru Distt. Jaipur rural and intimation in this regard sent to the OP Insurance Company immediately and claim was lodged. The Op after receiving the claim, sent an official, who surveyed the truck and assessed the loss and said the complainant to get repair the vehicle and assured that the expenses of the repair will be borne by OP Insurance Company and payment of claim will be made to the complainant very soon. As per assurance of the surveyor, the complainant got repaired the truck and spent about Rs. 2,50,000/- on its repair(Annexure C-3). Thereafter, the complainant sent bill and other documents to the OP Insurance Company and requested to release the amount of repair, but the OP Insurance Company always put off the matter on one pretext or the other. Lastly the OP Insurance Company rejected the claim of complainant vide letter dated 26.8.2010 on false and flimsy grounds. As such, the OP Insurance Company has committed deficiency and negligence in service by not making the payment of claim, due to which the complainant has been suffering a lot of mental agony and harassment etc. Hence, this complaint. 

3.                     Upon notice, OP appeared and filed its written statement by taking some preliminary objection that the claimant Subhash Chand Sharma at the time of intimation given his driving license no. S/8654/86 alongwith its Photocopy allegedly issued from licensing authority cum DTO Kamroop (Gowahati) and the same was got verified from the said licensing authority, who gave in writing that the said license was never issued by their office and is fake one. It has further mentioned that it is a settled law that if the original driving license is fake then its renewal will not make the license valid and as such the claim was rightly repudiated and was informed to the claimant under registered cover on 26.08.2010 and as such the claim is not payable and the claim petition is liable to be dismissed and on merit it has been alleged that on receiving the intimation alongwith driving license, immediately Surveyor and Loss Assessor Sh. M.L. Mehta of M/s M.L.Mehta Co. was appointed who gave his fact finding report dated 16.3.2010 assessing the loss of Rs. 1,58,144.25 subject to terms and conditions of the policy and has clearly mentioned that the driver was holding a fake license  at the time of accident so the claim was not payable and repudiated legally and validly vide letter dated 26.8.2010. . As such, there is no deficiency in service on the part of OP and prayed that complaint is liable to be dismissed.

4.                     To prove the case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Insurance policy as Annexure C-1, Photo copy of FIR as Annexure C-2, Photo copy of estimate as Annexure C-3, Photo copy of registration certificate as Annexure C-4, Photo copy of Form No. 47 Authorization for Tourist/ National Permit as Annexure C-5, Photo copy of insurance policy valid from 18.2.2010 to 17.2.2011 as Annexure C-6, Photo copy of driving license 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 Co. Yamuna Nagar as Annexure RX, Affidavit of M/s M.L.Mehta & Co. an Independent Surveyor and Loss Assessor as Annexure RY and documents such as Photo copy of insurance policy valid from 30.01.2009 to 29.01.2010 as annexure R-1, Photo copy of surveyor report as Annexure R-2, Photo copy of driving license as Annexure R-3, Photo copy of verification report of license as Annexure R-4, Photo copy of verification of driving license No. 140/HMV/2000 as Annexure R-5, Photo copy of motor claim scrutiny form as Annexure R-6, Photo copy of verification of driving license No. S/8654/86 as Annexure R-7, Photo copy of claim repudiation letter dated 26.8.2010 as Annexure R-8 and closed  the evidence on behalf of OP.

 6.                    We have heard the counsels for 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.                      It is admitted fact that the complainant is registered owner of truck bearing registration No. HR58-D/1822 which was insured with the OP vide policy bearing No. 261700/31/2009/11300  valid from 30.01.2009 to 29.01.2010 for a sum of Rs. 8,00,000/-. It is further not disputed that surveyor and loss assessor was deputed and Rs. 1,58,144.25 was assessed on “Net Loss on Repair Basis” after applying the relevant depreciation clause and subject to terms and conditions of the insurance policy in question as Annexure R-2.

8.                     The only plea of the OP is that the complainant was holding a fake driving license at the time of alleged accident. Hence, the OP has rightly repudiated the claim of the complainant being violation of terms and conditions of insurance policy Annexure C-1/ R-1. Learned counsel for the OP referred the case law titled as National Insurance Company Ltd. Versus Gurucharan Singh, 2010 ACJ page 2044 Supreme Court wherein it has been held that Forged license- liability of insurance company- Insured filed complaint under Consumer Protection Act, 1986 against Insurance Company and District Forum dismissed the complaint on the ground that driving license of the driver of vehicle was forged and as such there was no deficiency in service of insurance company- State Commission placing reliance on Swaran Singh’s case, 2004 ACJ page 1 (SC), reversed the order of District Forum- National Commission confirmed the order of State Commission- whether ratio of decision in Swaran Sigh’s case 2004 ACJ 1 (SC), is applicable in a dispute between the insured and insurance company arising out of own damage claim- Held No; decision is applicable to a case of third party; order of District Forum restored. (2007 AC 721 (SC) followed).

9.                     Further learned counsel for the OP referred the case law titled as Kuljeet Singh Versus Surinder Kaur and others, (2015-4) PLR page 273, wherein it has been held that Driving License- Driver of the offending vehicle belongs to a village in Malrerkotla District Sangrur- He produced the driving license issued by Regional Transport Authority, Mathura, it could be a prima facie reason to suspect that as to why the license of a far away place was produced with which driver had no connection- Recovery rights for the insurance company were rightly granted.   

10.                   Learned counsel for the OP further referred the case law titled as National Insurance Company ltd. Versus Gurucharan Singh, 2010 ACJ Page 2044 Supreme Court wherein it has been held that Forged License- Liability of insurance company- Insured filed complaint under Consumer Protection Act, 1986 against insurance company and District forum dismissed the complaint on the ground that driving license of the driver of vehicle was forged and as such there was no deficiency in service of Insurance Company- State Commission placing reliance on Swaran Singh’s case, 2004 ACJ 1 (SC), reversed the order of District Forum- National Commission confirmed the order of State Commission- Whether ratio of decision in Swaran Singh’s case 2004 ACJ 1 (SC) is applicable in a dispute between the insured and insurance company arising out of own damage claim- held: no; decision is applicable to a case of third party; order of District Forum restored.

11.                   Learned counsel for the OP further referred the case law titled as Oriental Insurance Company Ltd. Vs. Rajnesh Tandaon, 2014(2) CLT page 272 (National Commission) wherein it has been held that Driving License- Held- Once certificate of verification of D/L issued by Licensing Authority placed on record by insurance company- No need to produce affidavit of L/A in evidence- It is incumbent upon complainant to rebut the verification report.

12.                   Learned counsel for the OP referred the another case law titled as Mukesh Khosla Versus Smt. Amandeep kaur and others, 2015(1) PLR page 324 (P &H) wherein it has been held that- Where the license is found to be fake- the State is under obligation to file complaint or register an FIR- Where during the proceedings that the driver has more than one license, the Tribunal will take immediate notice of the same and recommend to the concerned police authorities to register FIR- After appointment/engaging of a driver, the owner shall seek information under the RTI Act/or any other provision available immediately regarding the genuineness of the driving license from the office of issuing authority within thirty days from the date of such appointment/engaged- directions issued.

 13.                  Learned counsel for the OP further referred the case law titled as Jitmani Bhagat Versus National Insurance Co. Ltd. & Another, 2012(3) CPC page 53 wherein it has been held that Renewal of fake license cannot make it valid if originally it was fake one- Repudiation of claim justified.

14.                   On the other hand, counsel for the complainant vehemently argued that the complainant has spent huge amount on the repair of his truck and all the bills have been submitted to the OP but the OP has illegally repudiated his claim on false and flimsy grounds and referred the case law titled as National Insurance Company Ltd. Versus Balraj and others, 2012(1) RCR (Civil) Punjab & Haryana High Court wherein it has been held that Motor Vehicles Act, 1988, Section 6- Driving License- Fake driving license- Validity two driving licenses- One license verified by Insurance Company not found to belong to the respondent-Respondent cannot be held to be holding two licenses. Motor Vehicle Act, 1988, Section 6- Driving Licenses- Validity- Two driving licenses- One driving license verified by the Insurance Company not belonging to respondent- Other license not got verified on the ground that respondent was having two driving license- Onus placed on the Insurance Company that driving license was fake was not discharged.

15.                   Learned counsel for the complainant further referred the case law titled as Ravi Dutt Versus Ravi and others, 2015(2) PLR page 112 wherein it has been held that Motor Vehicles Act, 1988 (59 of 1988) Section 149- Second driving license, alleged to have been validly issued, deserves to be brought on record for the purpose of verification by the insurance company and if it is found to be valid at the time when the accident took place, the insurance company would be liable to pay the compensation to indemnify the insured and the claimants would also get their share of compensation accordingly.

 

 

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.