Haryana

Yamunanagar

CC/1061/2010

Shiv Kumar S/o Nathi Ram - Complainant(s)

Versus

Reliance General Insurance Co .Ltd. - Opp.Party(s)

Amrit Pal singh

14 Oct 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 1061 of 2010.

                                                                                      Date of institution: 08.11.2010                                                                                                                                                                         Date of decision: 14.10.2016

 

Shiv Kumar son of Shri Nathi Ram, aged about 38 years, resident of House No.28A, New Jain Nagar Colony, opposite Hotel Sapphire, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

                                       …Complainant.

                                    Versus

 

1. Reliance General Insurance Company Ltd. SCO No. 145-146, 2^nd Floor, Madhya Marg, Sector-9, Chandigarh through its Manager.
2. Kuldhir Rana, Agent of Reliance General Insurance Co. Ltd. Kamani Chowk, Yamuna Nagar.
3. ICICI Bank Ltd. BVI-1269/5, Near J.K. Residency, Gobindpuri Road, Yamuna Nagar.    

                                                                                                                                        …Respondents.

 

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

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

 

Present:           Sh. Amrit Pal Singh, Advocate for complainant.

                        Sh. Rajiv Gupta, Advocate for OP No.1 and 2.           

                        Sh. K.K. Gupta, Advocate for OP No. 3.

ORDER

 

1                      The present complaint has been filed under section 12 of the Consumer Protection Act. 1986, praying therein that respondent no.1  & 2 (hereinafter referred as OP Insurance Co.) be directed to pay the claim of amount of Rs.5,85,000/-  along with interest on account of damage to the car of the complainant and also to pay compensation as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant is registered owner of vehicle make Toyota Enova bearing Registration No.HR 02Q-2564 which was insured with the OP no.1 Insurance Company through op no.2 agent, vide its Cover Note bearing No.108000992651 dated 07.02.2009 which was valid for the period from 07.02.2009 to 06.02.2010 for a sum insured of Rs.5,85,000/-. On 04.07.2009 when the complainant was coming back from Amarnath, the said vehicle of the complainant met with an accident at District Samba (J & K) with a Tractor Trolley and due to which the same was totally damaged.  The complainant immediately informed the matter to the police, upon which a case bearing FIR No.157/2009 under sections 279, 337 IPC was registered in the Police Station Samba. The complainant also intimated the matter to the OP no.1 Insurance Company upon which the Surveyor of the Company came at the Spot, assessed the total loss and asked the complainant to take the vehicle to Yamuna Nagar. Accordingly, the complainant after getting his vehicle Touchen, took the same to the Yamuna Nagar and then to authorized service station of the OPs Insurance Company at Globe Toyota, Karnal. As per direction of the Surveyor as well as rule and regulations, the complainant lodged his claim with the OP no.1 Insurance Company for the total damage of his vehicle and completed all the necessary formalities and supplied all the necessary documents to the Insurance Company. Thereafter the complainant has visited so many times to the office of OP no.1 Insurance Company but the OP Insurance Company has wrongly and illegally repudiated the claim of the complainant vide its letter dated 26.09.2009 on the ground that driver of the car Sh. Sukhbir Singh was not holding a valid Driving License as the Driving License of the Driver was fake license. The act of the OP Insurance Company is totally illegal and against the natural justice which constitute the deficiency in service. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed their written statement separately. OP No.1 and 2 filed their written statement jointly taking some preliminary objections such as, this forum has no territorial jurisdiction; complaint is not maintainable; there is no negligence or deficiency in services on the part of the OP Insurance Company; complainant has got no locus standi to file the present complaint; complainant has not come to this Forum with clean hands and the true facts of this case are that complainant gave an intimation to the OPs Insurance Company that his Inova Car bearing Registration No.HR02-Q-2564 has met with an accident on 04.07.2009. On receipt of the said intimation, the OP Insurance Company deputed an independent Surveyor M/s Chawla Associates to survey and assess the loss on account of damage of vehicle, if any. The Surveyor and loss assessor conducted the survey of the vehicle in question at Globe Toyota Karnal and submitted his report (Annexure R-1) and assessed the net loss on cash basis to the tune of Rs.1, 75,000/- subject to the terms and conditions of the Insurance policy. It has been further stated that even the complainant has given his consent letter dated 19.08.2009 to accept the same amount of Rs.1, 75,000/- on cash loss basis.

4                      After receipt of the report of Surveyor, the claim was further proceeded and the Driving License submitted by the insured  to the OPs Insurance Company of Sukhwinder Singh son of Sh. Joginder Singh bearing No.13858/AG/07 dated 08.06.2007 was also got verified by the OP Insurance Company from the Licensing Authority, Agra through Shri. R.P. Rathore, Surveyor and loss Assessor of Agra. On verification of Driving License bearing No.13858/ag/07 from the Licensing Authority, Agra, it was reported by the L.A. Agra that there was no record of the said driving license in licensing authority. Meaning thereby that, no such Driving License was issued by the said authority. The surveyor Sh. R.P. Rathore submitted his report/letter dated 26.09.2009 to the OP Insurance Company on the basis of said report of the Surveyor, the Insurance Company has legally and justifiably repudiated the claim of the complainant vide letter dated 26.09.2009 being violation of terms and conditions of the Insurance Policy as driver was holding a fake license at the time of accident so the claim was not payable and on merit stands taken in the preliminary objections was reiterated. As such, there was no deficiency in service on the part of OP and prayed that complaint is liable to be dismissed.

5                      Upon notice, Op no.3 also appeared and filed its written statement separately taking some preliminary objects and on Merit it has been mentioned that complainant has availed the loan facilities of Rs.6,99000/- against vehicle Car in question bearing no. HR02Q - 2564 from the Op no.3 which was repayable in equal 60 monthly installments. The complainant has been defaulter to make the installments and as per account statement an amount of Rs. 8,38,974/- was outstanding as on 09.01.2013 against the complainant. It  has been further mentioned that if this forum comes to conclusion that the complainant is entitled for compensation then Op no. Bank has first right in the claim amount as the vehicle in question is hypothecated with the op no.3 Bank being financer.

6.                     To prove the case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and photocopy of Registration Certificate of Car bearing No. HR02Q-2564 as Annexure C-1, Photocopy of Insurance Policy as Annexure C-2, photocopy of FIR (Urdu Version) as Annexure C-3, Photo copy of letter to Shiv Kumar as Annexure C-4 and closed the evidence on behalf of complainant.

7.                     On the other hand, counsel for the OP No.1 and 2 examined Licensing Authority Clerk of RTO Office, Agra, RW and tendered into evidence affidavit of Sh. Rakesh Kumar, Zonal Head as Annexure RX and affidavit of Shri A.P. Chawla, Surveyor and Loss Assessor as Annexure RY, Affidavit of Shri R.P. Rathore, Surveyor and Loss Assessor as Annexure RZ and documents such as Bill cum Advanced Receipt as Annexure R-1, Photocopy of Driving License as Annexure R-2, Photocopy of RC of Car as Annexure R-3, Photocopy of verification report of DL as Annexure R-4, Photocopy of Repudiation letter dated 26.9.2009 as Annexure R-5, Photocopy of policy as Annexure R-6, Photocopy of verification of DL as Annexure R-7, Photocopy of consent letter as Annexure R-8, photocopy of motor claim form as Annexure R-9 and closed the evidence on behalf of OP No.1 and 2.

8.                     whereas, counsel for the OP No.3 has appeared and tendered the documents Letter from ICICI Bank as Annexure R1, Statement of ICICI Bank as Annexure RW3/2, Photocopy of ICICI Car Loan documents as Annexure R3/3 and closed the evidence on behalf of OP No.3.

9.                     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 No.1 to 3 reiterated the averments made in the replies and prayed for dismissal of complaint.

10.                    It is not disputed that the complainant was registered owner of vehicle Inova Car bearing Registration No.HR02-Q-2564 which was insured with the OP no. 1 &2 Insurance Company  vide its Cover Note bearing No.108000992651 dated 07.02.2009 valid for the period from 07.02.2009 to 06.02.2010 for a sum insured of Rs.5,85,000/-. It is further not disputed that the Surveyor and loss assessor conducted the survey of the vehicle in question at Globe Toyota Karnal and submitted his report (Annexure R-1) and assessed the net loss on cash basis to the tune of Rs.1,75,000/- subject to the terms and conditions  of the Insurance policy.  

11.                   The only version of the complainant is that the complainant has spent huge amount on the repair of his car and all the bills have been submitted to the OP No.1 and 2 but the Insurance Company has illegally repudiated his claim vide letter dated 26.09.2009(annexure C-4) on false and flimsy grounds and the same is liable to be set-aside. Ld. Counsel for the complainant further argued that the onus to prove that driver Sukhbinder Singh was not holding valid driving license but the op no.1 & 2 insurance company has totally failed to prove the same. Ld. counsel for the complainant 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.

12.                   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.

13.                   Whereas on the hand, Ld. Counsel Sh. Rajiv Gupta of the OP insurance Company argued at length that the complainant was holding a fake driving license at the time of accident and draw our attention towards the statement of Rw1 Sh. Hariom Morya licensing clerk office of LA Agra where in this witness has stated that as per record no DL under serial no.13858/AG/07 was issued on 08.06.2007 and as per record, no DL under 13000 series was issued from RTO Agra in the year 2007.  On 08.06.2007 the D.L series started from 23789 and continued upto 23852. Ld Counsel for op Insurance Company also referred the DL verification report (Annexure R-4 and R-7) of investigator Sh. R.P. Rathore and issued by L.A Agra. Lastly prayed for dismissal of the complaint as  the OP Insurance Company has rightly repudiated the claim of the complainant being violation of terms and conditions of insurance policy in question (Annexure R-6).

14                    Learned counsel for the OP Insurance Company has referred the case law titled as New India Assurance Co. Ltd. Versus Suresh Chandra Aggarwal, 2009(3) CPC, Page No.12 and 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. (2008 CPC (2) 438 (SC) followed).

15.                   Learned counsel for the OP Insurance Co. further  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 Distirct 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.  

16.                   Learned counsel for the OP Insurance Co.  also further referred the case law titled as Prem Kumari & others. Versus prahlad Dev & ors, 2008(2) CPC Page 438 Supreme Court wherein it has been held that- Judgment delivered in Sawaran Singh’s cases 2008(1) CPC203 has no application in cases other than third party risk – where a person is not third party, insurer cannot be made liable automatically merely on the basis of observations made Sawarn Singh’s case – appeal disposed off with above directions.

17.                   Learned counsel for the OP Insurance Co.  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.

18.                   Lastly, Learned counsel for the OP Insurance 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.

19.                   After hearing the parties and going the facts of the present complaint and law referred above, we are of opinion that claim of the complainant has been rightly repudiated vide letter dated 26.09.2009 (Annexure R-5) by the op insurance company as from the perusal of verification report issued by RTO Office Agra (Annexure R-7) as well as report of Investigator Sh. RP Rathore (Annexure R-4) and further from the statement of RW1 Licensing Clerk, Shri Hari Om Moriya, RTO office, Agra recorded on 01.09.2016, it is duly evident that alleged Driving License No.13858 dated 08.06.2007 was not issued by the  Licensing Authority Agra in the name of driver Sukhwinder Singh. Even from the statement of Rw1 it is also clear that on 08.06.2007, the driving license series started from 23789 and continued upto 23852 in the year 2007 and no driving License under 13000 series was issued from RTO Agra in the year 2007.

20.                   So, keeping in view, the statement of Licensing Authority Clerk Agra as well as verification report as Annexure R-4 and R-7, we are of the considered view that driver of complainant namely Sukhwinder Singh was not having a valid driving license at the time of accident i.e. on 04^th July, 2009. Hence, the claim of the complainant has rightly been repudiated by the OP. Law cited by the counsel for the OP Insurance Co. is fully applicable to the facts of the present case whereas citations referred by the counsel for the complainant are not applicable to the facts of the present case as in that cases driver was having two driving license.  

21.                   Resultantly, there is no deficiency in service on the part of OPs and the claim of the complainant has been rightly repudiated  by the OPs  Insurance Company vide its repudiation letter dated 26.09.2009 as Annexure R-5. We find no merit in the present complaint quo all the OPs and the same is hereby dismissed with no order as to cost. 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:14.10.2016.

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT,

                                                                                    DCDRF, Yamuna Nagar.

                                                                                     

 

                                                                                    (S.C.SHARMA)

                                                                                     MEMBER.