Haryana

Ambala

CC/22/2012

PARAMJIT SINGH - Complainant(s)

Versus

OIC - Opp.Party(s)

UDAI SINGH CHUHAN

28 Nov 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

           Complaint Case No.    : 22 of 2012

Date of Institution       : 18.01.2012

            Date of Decision         : 07.12.2016

Paramjit Singh son of Sh. Davinder Singh R/o VPO- Ghail Khurd, District Ambala.                                                                                               

……Complainant.

Versus

 

The Oriental  Insurance Co. Ltd. through its Branch Manager, Ground Floor, LIC Building, NMSC, Ambala City.

                                                            ……Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act

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

                        SH. PUSHPENDER KUMAR, MEMBER.                       

Present:          Sh. U.S. Chauhan, Adv. for complainant.

                        Sh. R.K. Jindal, Adv. for Op.

ORDER.

                        In nutshell, brief facts of the complaint are that complainant is owner of Tractor-Trolley  bearing regn. No.HR01Y-6834 and the same was insured with OP insurance company vide policy no.820771 dated  27.01.2011 for the period from 28.01.2011 to 27.02.2012.  It has been submitted that   the said tractor met with an accident on 03.08.2011 and the complainant informed the Op  for the said accident  and loss. The OP appointed  surveyor to  assess  the loss  and as per the advice of surveyor the tractor-trolley  was got repaired by complainant  and spare parts  to the tune of Rs.84897/- were purchased  from M/s Nagpal Tractor Company, Ambala City and the complainant submitted  all the original bills and documents with the OP but vide letter dated 25.10.2011, Op informed the complainant to repudiate his claim on the ground that driving licnese of the driver at the time of accident was not valid for tractor, however, the complainant has submitted that the driving licnece  of complainant was valid for driving the HTV (Heavy Transport Vehicle) valid upto 22.05.2012.  As such, the complainant has submnitte that  the act and conduct  of OP amounts to deficiency in service. Hence, the present complaint seeking relief as per prayer  clause.

2.                     Upon notice, Op appeared through counsel raised preliminary  objections qua maintainability of complaint, mis-joinder & non-joinder of necessary parties and supersession of material facts. Further it has been submitted that  the tractor in question not met with any accident  nor the vehicle suffered any loss. However, the OP has urged that  at the time of alleged accident,  driver of the tractor was not having a valid driving licnece and the said tractor was being plied for commercial purposes and not for agriculture purposes for which they have taken the insurance policy and thus  the complainant has violated terms & conditions of the policy. As such, the answering OP is not liable to pay any compensation and rightly repudiated the claim of complainant vide letter dated 25.10.2011 and prayed for dismissal of complaint with costs.

3.                     To prove his version, complainant tendered affidavit of complainant as Annexure C-1 alongwith documents as Annexures C-2 to C-7 and closed the evidence whereas on the other hand, counsel for Op tendered affidavit Annexure RX alongwith documents as Annexure R-1 to R-5 and closed the evidence on 21.04.2014.

4.                     We have heard learned counsel for the parties and gone through the case file very carefully. Case of complainant is that  the tractor in question alongwith trolley  owned by complainant met with an accident on  03.08.2011 and he intimated  the accident to the OP insurance company and submitted the bills qua purchase of spare parts and labour charges but the Op repudiated  his claim vide letter dated 25.10.2011 on the ground that  driver of the vehicle was  not having a valid licence to driver the vehicle whereas the contention of complainant is that he was having a valid licnece to driver HTV upto 22.05.2012 and thus the OP has wrongly and illegally repudiated the claim of complainant.  

                        On the other hand,  arguments of OP is that no accident  as  narrated by complainant ever occurred  and the driver of the tractor was not having a valid licnece to driver the tractor and also the vehicle was being plied for commercial use.  As such, they rightly repudiated the claim of complainant. Counsel for OP to substantiate their case has placed on record case law laid down by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Suresh Baban Gadekar Vs. ICICI Bank and Ors. 2013 (2) CPR 448(NC)  and Hon’ble Supreme Court of India in case  Oriental Insurance Co. Ltd. Vs. Zaharulnisha & Ors. 2008(2)-684.

5.                     After hearing learned counsel for the parties, the main questions arises before the Forum are:-

(i)        whether the claim of complainant has rightly been repudiated by OP on the ground that The driving licnece of the driver at the time of accident was not valid for Tractor.

(ii)       whether the tractor was being used for commercial purposes?

 

                        Perusal of documents DDR dated 03.08.2011 and application of complainant moved to P.S. Mullana (Annexure C-5 & C-6) qua the accident in question reveals that the accident had happened on 03.08.2011 with the tractor while it was going to Yamunanagar  from his village Ghel laden with wooden logs from his fields. The OP to controvert the said factum has not placed on record any document which could reveal that the vehicle not met with any accident on the alleged day. 

                        Perusal of copy of driving licnece (Annexure C-3) reveals that  the complainant was having license to drive vehicles LTV Transport, Motor Cycle, Car, Jeep and HTV and  thus counsel for complainant has argued that complainant was fully authorized to drive tractor also.  The OP against this contentions has placed on record document Annexure R-2 which is verification of driving license of complainant  from Licensing Authority (MV) Panchkula which says that  the license of complainant was  not valid to drive tractor.  To substantiate his version, counsel for complainant has placed reliance on case law delivered by Hon’ble Punjab  &  Haryana High Court titled as Sudha & Ors. Vs. Dalip Singh & Ors 2013(4) Law Herald  (P&H) 3227 wherein it has been held that Motor Vehicles Act, 1988 Ss. 166, 147 & 2 (21)-Accident-License-Light Motor Vehicle-It includes tractor also-Driver was holding license for light motor vehicle-Approach of the Tribunal was erroneous in holding that the driver was not holding a valid driving license to drive the tractor. Further it has been clarified that Section 2(21) of the Motor Vehicles Act defines ‘light motor vehicle’ as under:-

                        “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 un-laden weight of any of which, does not exceed 7500 Kilograms.”  Registration Certificate (Annexure C-2) shows that  complainant is owner of the tractor  which was having unladen weight of 1910 Kgs.   Hon’ble High Court has held as under:-

                                    18.Section 2(21) of the Motor Vehicles Act defines:

“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 un-laden weight of any of which, does not exceed 7500 Kilograms.” 

19. A reading of the definition of ‘light motor vehicles’ shows that it includes a tractor also. It is not disputed that the driver of the tractor was holding a license to drive light motor vehicle. 

 

                        The case law submitted by counsel for Op cited supra  titled  Oriental Insurance Co.  Ltd. Vs. Zaharulnisha & Ors. are not applicable to the facts of the present case and thus are not helpful to the OP.

                        In view of the above discussion, we are of the view that the  accident had occurred on 03.08.2011 and complainant was having a valid driving license in terms of law laid down in case Sudha & Ors Vs. Dali Singh & Ors (supra), so the OP has wrongly repudiated the claim of complainant on the ground that driver/complainant was  not having any valid driving license to drive tractor.

            Version of the Op that the complainant was driving the tractor for commercial  purposes, the burden to prove this version is upon the OP but they failed to prove the same on the other hand, complainant also placed the copy of DDR and also give statement to the police that he had loaded the wooden logs in the tractor from his own fields. Hence, the complainant was not using the tractor  for commercial purpose.  As such, the case law submitted by counsel for OP title Suresh Baban Gadekar Vs.ICICI Bank and Ors.  (supra) are  also not applicable to the case in hand.                       After deciding the above two issues, now question arise as to what amount, the complainant is entitled for. Complainant to prove  this fact  has placed on record, purchase bill of the  spare parts  to the tune of Rs.84897/- for the damaged tractor  vide annexure C-7. On the other hand, Surveyor of the OP  has placed on record  his report (Annexure R-5) whereby he has assessed the loss of the vehicle to the tune of Rs.66,554/- after deducting  the less excess clause Rs.2000/- and less salvage Rs.3266/- on the written request of the complainant (Annexure R-4). The complainant is ready to receive the loss after deducting 25% of the total loss as well as Rs.6500/- less as labour charges. Thus the surveyor has assessed the loss to the tune of Rs.49916/- but the OP wrongly withheld the abovesaid amount which tantamount to deficiency in service as well as unfair trade practice on the part of OP. Hence, we are of the considered view that the complainant is entitled to Rs.49916/- with interest and costs.  Accordingly, we allow the present complaint and direct the OP to comply with the following direction within thirty days of the receipt of copy of the order:-

1. To pay a sum of Rs.49916/- to the complainant alongwith with simple interest @ 12% per annum from the date of filing of complaint till actual realisation.
2. Also to pay a sum of Rs.3000/- as compensation for harassment and mental agony.

                        Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

                                                                                                             Sd/-

Announced on :07.12.2016                                                            (D.N. ARORA)

                                                                                                  PRESIDENT.

 

                                                                                                Sd/-

                                                                             (PUSHPENDER KUMAR)

                                                                                                    MEMBER.