BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT.

Complaint No. : 153

Date of Institution : 28.5.2010

Date of Decision : 8.11.2010

Mithu Singh aged about 65 years son of S. Mahla Ram resident of Village & Post Office Baja Khana, Tehsil Jaitu District Faridkot.

...Complainant Versus

1. The Oriental Insurance Co. Ltd., A-25/27, Asaf Ali Road, New Delhi-110002.

2. The Oriental Insurance Co. Ltd., Branch Office at Baja Road, Jaitu through its Branch Manager.

...Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh. Ashok Kumar President

Dr. H.L. Mittal Member

Present: Sh. Iqbal Kaushal counsel for the complainant.

Sh. D.C. Goyal counsel for the opposite parties.

ORDER

Complainant has filed the present complaint against the opposite parties due to deficiency of service and trade mal practice and on account of failure of the opposite parties to make payment of the insurance claim against his vehicle No. HR-38-G-8990 against insurance policy No. 233207/31/2010/232 and for directing the opposite parties to pay Rs. 65,000/- as insurance claim and to pay Rs. 20,000/- on account of harassment, mental agony and litigation expenses of Rs. 10,000/-.

2. Briefly stated, the case of the complainant is that he is the registered owner of vehicle No. HR-38-G-8990 and he got insured the said vehicle with the company of the opposite parties through the opposite party No. 2 vide insurance policy as mentioned above and valid from 25.5.2009 to 25.5.2010. The said vehicle had been involved in an accident within the validity period of the said insurance policy and the complainant got surveyed the said vehicle and the loss caused to it and also applied for the grant of claim against the said policy vide claim No. 233207/31/2010/000054 and since the day of applying of the said claim, complainant has been requesting the opposite parties many a times to make the payment of the claim but without any result and now through letter dated 3.3.2010 the complainant has been informed that his claim has been repudiated. The repudiation of the claim of the complainant is against the law and rules of the policy as at the time of accident the driver of the insured vehicle namely Nirmal Singh was holding a valid driving license and he was also entitled to drive the said vehicle as per his driving license issued by the competent authority. The complainant made so many requests to the opposite parties to make the payment of the insurance claim but the opposite parties have neglected the request of the complainant. The complainant also sent a registered notice to the opposite parties on 15.3.2010 but without any result, which amounts to deficiency in service and unfair trade practice. Complainant is also entitled for compensation of Rs. 20,000/- with litigation expenses of Rs. 10,000/-. Hence this complaint.

3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 31.5.2010 complaint was admitted and notice was ordered to be issued to the opposite parties.

4. In response to the notice, the opposite parties filed written statement taking preliminary objections that the driver Nirmal Singh who was allegedly driving the vehicle at the time of alleged accident was not holding valid and effective driving license for driving Medium Transport vehicle and as such the claim of the complainant was rightly rejected by the opposite parties. The driver Nirmal Singh was holding driving license for scooter and light transport vehicle only whereas vehicle which was being driving by him at the time of alleged accident was Medium Transport Vehicle. On merits, it was alleged among other things that the claim of the complainant was rightly repudiated by the respondents as Nirmal Singh driver of the vehicle was not authorized to drive the Medium Transport Vehicle which was being driven by him at the time of accident. It is denied if the claim of the complainant was illegally rejected by the respondents. The complainant has committed breach of terms and conditions of the policy. So, there is no deficiency or unfair trade practice on the part of opposite parties. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, legal notice Ex.C-2, receipts Ex.C-3 and Ex.C-4, repudiation letter Ex.C-5, copy of policy Ex.C-6, temporary permit Ex.C-7, permit Ex.C-8, copy of driving license Ex.C-9, copy of RC Ex.C-10, original verification of driving license of Nirmal Singh Ex.C-11, affidavit of Nirmal Singh Ex.C-12 and closed his evidence.

6. In order to rebut the evidence of the complainant the opposite parties tendered in evidence affidavit of Satinder Pal Singh Ex.R-1 and evidence of the opposite parties was closed by order of this Forum vide order dated 13.10.2010.

7. We have heard learned counsel for parties and have very carefully gone through the affidavits & documents on the file.

8. The main contention raised by the learned counsel for the complainant in the present case is that the claim of the complainant was repudiated by the opposite parties on frivolous grounds that Nirmal Singh his son was not holding a valid driving license at the relevant time. In his view, a person having license for driving a light motor vehicle can drive medium goods vehicle as well.

9. Learned counsel for the opposite parties however countered the aforesaid contentions on the ground that as per policy document Ex.C-6 the vehicle insured was having 9000 as GVW. It was Tata 709 Ex Turbo truck while Nirmal Singh driver of the vehicle in question had LTV license only as is evident from attested copy of license Ex.C-9. In his view, category of heavy vehicle and light motor vehicle are different and separate license for the purpose are required for driving each of such vehicle. Therefore, the action of the opposite parties in repudiating the claim of the complainant vide registered letter dated 3.3.2010 Ex.C-5 cannot be legally called in question. In support reliance has been placed upon rulings of Hon'ble Apex Court in Oriental Insurance Co. Ltd. Versus Zaharulnish and others 2008 (2) RCR (Civil)-913 and National Insurance Company Ltd. Versus Kaushalaya Devi & Ors. 2008 (4) RCR (Civil)-902.

10. We have keenly considered the rival contentions in the light of evidence on record. There is no denial of the fact that light motor vehicle and Medium goods vehicle have been defined under separate clauses (21) and (23) of Sub Section (1) of Section 2 of the Motor Vehicle Act but by the mere fact of giving separate definition qua them would not make the license for driving LTV to be unfit and invalid for driving Medium goods vehicle. Otherwise also, it is noticed that registration certificate Ex.C-10 available on the file the insured vehicle has been classified as LTV inspite of gross vehicle weight being given as 9000 Kgs. Similar is the position of the insured vehicle in the route permit Ex.C-7. Therefore, contention of the learned counsel for the opposite parties is untenable. Rulings relied upon by him too are not helpful to the opposite parties. In Zaharulnisha case supra driver was holding license for driving heavy motor vehicle. However, he had caused accident by rash and negligent driving of scooter. It was in that situation Hon'ble Apex Court has held that the driver of the scooter had a vehicle within meaning of Section 10 (2) of the Motor Vehicle Act, so insurer is not liable. In Kaushalaya Devi case supra driver had license to drive light transport vehicle but he was allowed by the owner to drive a heavy goods vehicle without checking and verifying his license. It was held by the Hon'ble Apex Court that insurance company was not liable instead owner is liable. In the present case complainant was having LTV license and the vehicle insured has also been described in the registration certificate as LTV inspite of the fact that it has gross vehicle weight as 9000 Kgs. In National Insurance company Ltd. Versus Jagan Nath and others 2002 (1) ACJ-687 (All.) (DN). It was alleged that the driver of the vehicle in question had a license to drive light motor vehicle but the vehicle in question was heavy motor vehicle. The Tribunal had considered this aspect and found the vehicle in question was TATA-407 and as such light motor vehicle. It was found by the Hon'ble High Court of Allahabad that there is no illegality in the findings recorded by the Tribunal.

11. In view of our above observations and findings we have found that the complainant is entitled to Rs. 65,000/- on account of damage to the vehicle in question and further entitled to Rs. 5,000/- on account of compensation and litigation expenses. Accordingly, the complaint filed by Mithu Singh is partly accepted and the opposite parties are directed to pay the amount of Rs. 70,000/- to the complainant within the period of one month from the date of the receipt of the copy of this order, failing which the opposite parties shall pay the above mentioned amount of Rs. 70,000/- alongwith interest at the rate of 9% per annum from the date of the decision of this complaint till realization of the amount. In case no compliance is made out of this order, complainant shall be entitled to proceed under the provisions of Sections 25 and 27 of the Consumer Protection Act. Copies of the order be sent to the parties free of costs. File be consigned to the record room.

Announced in open Forum:

Dated: 8.11.2010

Member President (Dr. H.L. Mittal) (Ashok Kumar)