Haryana

Ambala

CC/124/2017

M/s Akhil Enterprises - Complainant(s)

Versus

OIC - Opp.Party(s)

Sarvjeet Singh

25 Jun 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

Consumer Complaint No	:	124 of 2017
Date of Institution	:	25.05.2017
Date of Decision	:	25.06.2018

 

M/s Akhil Enterprises Trilokpur Road, Kala Amb, Tehsil Nahan, District Sirmour, Himachal Pradesh through its Partner and authorized signatory Sh.Jai Pal S/o Sh.Faqir Chand, R/o H.No.1185, Suthran Gali, Near Town Hall, Jagadhri, District Yamuna Nagar.

.…Complainant

 

Versus

 

1.       The Oriental Insurance Company Ltd., Motor Claim Department, Service Centre Ludhana, Sona Complex, Near Fire Brigade, Miller Ganj, Ludhiana.

2.       The Oriental Insurance Company Ltd., through its Branch Manager, Ambala City.

                                                                            …. Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act

 

BEFORE:             SH.D.N.ARORA, PRESIDENT.

                             SH.PUSHPENDER KUMAR, MEMBER.

                  

For the Parties:     Mr.Saravjeet Singh, Adv., for the complainant.

                        Mr.Rajeev Sachdeva, Adv., for the OPs.

 

ORDER

(D.N.Arora)

 

                             Brief facts of the present complaint are that the complainant is a firm, who purchased a vehicle i.e. Mahindra Bolero SLX 2wd BS-II in the year 2011 having registration No.HP-18-B-3232 for the personal use of partner of the firm namely Sh.Jai Pal, who used the vehicle from his residence to business premises at Himachal Pradesh and the same was insured with the Op No.1 vide policy No.233900/31/2016/190 by paying premium of Rs.12,905/- valid from 11.05.2015 to 10.05.2016. The vehicle had never been used for any commercial purpose. On 18.02.2016, the said vehicle was being driven by driver Sh.Neeraj Kumar met with an accident at Ambala-Jagadhri Road. A general diary report No.016 was registered at Police Station, Mahesh Nagar, Ambala Cantt on 18.02.2016 at 12:28 pm. The complainant lodged the claim with the Op No.1 on the same day. During the process of claim, the OP No.1 informed the complainant vide letter dated 01.12.2016 that the claim lodged by the complainant was not tenable the abovesaid vehicle was registered as PSV Cab and the driving license of Neeraj Kumar was not valid to drive such vehicle. The OP No.1 gave an opportunity to the complainant to substantiate the claim and the complainant also substantiated its claim. After passing of some days, the complainant contacted the Op No.1 who told him that the claim lodged by the complainant stood repudiated by the OPs. This act and conduct of the Ops amounts to deficiency in service on their part.

2.                          Upon notice the Ops appeared and filed written statement by taking preliminary objection such as no jurisdiction, no cause of action, clean hands and concealed true facts. The Ops have denied that the vehicle was purchased in the year 2011 for the personal use by the partner of the firm namely Sh.Jai Pal who had to travel from his residence to business premises whereas the vehicle was registered as PSV Cab and the same was used for commercial purposes. The complainant purchased the policy from Ludhiana Branch and claim was also repudiated by Ludhiana Branch, therefore, this Forum has no jurisdiction. After scrutiny of the papers submitted by the investigator, the policy was issued subject to terms and conditions, the vehicle was registered as PSV Cab but driving license of Mr.Neeraj (driver of the vehicle) was not valid and effective driving licence, therefore, the Ops repudiated the claim of the complainant as per terms and conditions of the insurance policy and the same was intimated to the complainant. Thus, there is no deficiency in service on the part of Ops and prayed for dismissal of the present complaint with costs.

3.                          In order to prove the case, the counsel for the complainant has tendered the evidence by way of affidavit Annexure CX and documents Annexure C-1 to C-9 and closed the evidence. On the other hand, counsel for the Ops has tendered the evidence by way of affidavits Annexure R-A & R-B and documents Annexure R-1 to R-14 and closed the evidence.

4.                          We have heard learned counsel for the parties and perused the record carefully and minutely.

5.                          Admittedly, the complainant-firm insured its vehicle i.e. Mahindra Bolero SLX 2wd BS-II with the Op No.1 vide policy No.233900/31/2016/190 (Annexure C-1) by paying premium of Rs.12,905/- valid from 11.05.2015 to 10.05.2016. The vehicle of the complainant was registered as PSV Motor Cab whereas the partner of the firm namely Jai Pal used the vehicle to go from his residence to business premises at Himachal Pradesh. Unfortunately, the vehicle met with an accident on 18.02.2016 at Ambala-Jagadhri Road which was being driven by Sh.Neeraj Kumar. A general diary report No.016 was registered at Police Station, Mahesh Nagar, Ambala Cantt on 18.02.2016 at 12:28 pm (Annexure C-3) and information in this regard had been sent to the Op No.1 on the same day. The Op No.1 repudiated the claim of the complainant (Annexure C-7) on the ground that the driver namely Sh.Neeraj Kumar was not having valid driving licnece, therefore, the claim lodged by the complainant was not tenable.

6.                          On the other hand, the Ops submitted that after scrutiny of the papers submitted by the investigator, the policy was issued subject to terms and conditions, the vehicle was registered as PSV Cab but driving license of Mr.Neeraj (driver of the vehicle) was not valid and effective driving licence, therefore, the Ops have rightly repudiated the claim of the complainant as per terms and conditions of the insurance policy. In support of their contention, the Ops relied upon the judgments titled as Oriental Insurance Co. Ltd. vs. Angad Kol & Ors. decided on 18.02.2009 passed by the Hon’ble Supreme Court, Vishal Bhushan and Anr. vs. ICICI Lombard General Insurance Co. Ltd. & Ors decided on  27.08.2013 passed by the Hon’ble State Commission, Shimla in F.A. No.160/2013, M/s Reliance General Insurance vs. M/s Time and Space Haulers decided on 14.03.2013 passed by Hon’ble State Commission, West Bengal in FA No.182/2012 and The National Insurance Company Ltd. vs. Neelkanth Dimri decided on 21.11.2014 passed by Hon’ble State Commission, Uttrakand Dehradun in F.A. No.162/2013

7.                          After hearing both the parties and perusing the documents reveals that the OPs in their written statement has taken the plea that this Forum has no territorial jurisdiction as the policy was purchased from Ludhiana Branch and the claim was also repudiated at Ludiana which is not acceptable as the accident took place at Ambala and general diary report of accident was also registered at Ambala, therefore, part cause of action arose at Ambala, thus this Forum has the jurisdiction to decide the present compliant.

8.                          The only issue involved in this case is whether the driver was holding a valid license to drive the vehicle involved in the accident or not. The license of the driver has been produced on record as Annexure C-5 which states that the driver Sh.Neeraj Kumar was having a driving license to drive the Scooter/Motorcycle, Car/Jeep. As per the registration certificate (Annexure C-4), it is clear that the vehicle was registered as PSV Motor Cab, unladen weight of the vehicle was 1670 kg and seating capacity of 7 person.

9.                Counsel for the Ops has also relied upon the definition of Section 2 sub clause 25 that “motorcab’ means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward” and also relied upon the Section 2 sub clause 35 that “public service vehicle’ means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage”.  The counsel for the Ops has vehemently argued that as per Annexure R-13 and R-14, it is very much proved that the complainant’s vehicle was used for carrying the passenger on hired basis so it cannot be fall as per the definition of 33 i.e. private service vehicle as alleged by the complainant in oral arguments and it defined Section 35 of the Motor Vehicle Act. Mr.Neeraj Kumar-deceased (driver) was required a class of the transport vehicle driving license define in Section 10 of M.V. Act, 1988 to drive the Public Service Vehicle. We have perused the documents (Annexure R-13 and R-14) which shows that the owner has hired the services of the driver by paying the amount of Rs.500/- or Rs.1000/- per route but it does not mean that the vehicle in question has been used for carrying the passenger. Mere appointment of the driver on the vehicle for driving the same, does not mean that the vehicle was for carrying the passenger on hire and reward basis. Only paying the hire charges to the driver does not show that the complainant’s vehicle was used for hired basis. There is no evidence on the file that the complainant’s vehicle was used for carrying the passenger. It is clear from the verification report that the vehicle in question was in the name of the firm and class of the vehicle shows PSV Motor Cab, unladen weight 1670 kg. On this point the reliance has been taken from case law titled as Jagdish Kumar Sood Vs. United India Insurance Company Ltd. and Ors. decided on 06.03.2018 in Civil Appeal No.240 of 2017 passed by the Hon’ble Supreme Court. The relevant part is as under:-

“4. The issue which arises before the Court is not res integra and is covered by a judgment of a three Judges of this Court in Mukund Dewangan v Oriental Insurance Company Limited in which it has been inter alia held as follows:

"60.1. "Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994." (Id at page 709)

"60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form." (Id at page 710)”

                             The abvoesaid judgment is squarely covered the case of the complainant. From the record, it is clear that the driving licence of Sh.Neeraj Kumar was a valid driving licence and he was able to drive the vehicle of the complainant-firm as the driver Sh.Neeraj Kumar was having a LMV driving license and the vehicle was registered as unladen weight of the vehicle was 1670 kg i.e. under weight of 7500 kg and there is no separate endorsement on the license is required to drive a transport vehicle of light motor vehicle class as per law settled by the Hon’ble Supreme Court in case titled Jagdish Kumar Sood Vs. United India Insurance Company Ltd. and Ors. (Supra). We are of the view that the Ops have wrongly repudiated the claim of the complainant on the ground that vehicle was registered as PSV Cab but DL of Sh.Neeraj Kumar was not valid to drive such vehicle.

9.                          Now we are coming on the point that whether complainant is entitled for the loss of the vehicle or not. Undisputedly, the vehicle of the complainant was insured with the Ops and IDV value is shown Rs.3,96,000/- (Annexure C-1) the same suffered loss during the currency of the policy in question. It is not disputed that the surveyor was deputed and after inspecting the vehicle in question he had assessed the loss on total loss basis and he assessed the loss to the tune of Rs.3,94,000/- (as per Annexure R-12) after deducting the less excess clause of Rs.2000/-. It is worthwhile to mention here that the insurers’ decision to reject a claim must be based on sound logic and valid grounds and the insurance companies are not supposed to earn profit in the shape of premium from the customers because it has legal responsibility to indemnify the loss if occurs during the currency year but in the present case the insurance company is trying to avoid the genuine claim of the complainant by levelling lame excuse. Therefore, the complainant is entitled for the amount assessed by the surveyor as Rs.3,94,000/- and the Ops wrongly withheld the abovesaid amount. Hence, the present complaint deserves to be accepted and the same is hereby allowed with cost which is assessed Rs.5000/-. The Ops are directed as under:-

(i)      To pay the amount of Rs.3,94,000/- as assessed by the Surveyor as per Annexure R-12 alongwith interest @ 9% per annum from  the date of filing of complaint till its realisation.

(ii)     To pay Rs.5000/- to the complainant towards compensation for mental agony, physical harassment and cost of litigation

10.              Let the order be complied with by the Ops within 30 days from the receipt of the copy of this order. A copy of this order be sent to the parties free of costs and file be consigned to record room after due compliance.

 

Announced on: 25.06.2018               Member                President