The present complaint filed U/s 12 of the Consumer Protection Act' 1986 (for short, 'the Act') by the complainant Jawahar Singh prays for the necessary directions to the opposite parties to make the payment of Rs.6,39,230/- i.e. the actual amount of loss caused to insured vehicle alongwith interest @ 12% P.A. w.e.f. the date of making the claim till its realization and also to pay compensation  amounting to Rs.1,00,000/- for the losses caused by opposite parties to him alongwith Rs.22,000/- as litigation expenses, in the interest of justice.

2.      The case of the complainant in brief is that he is lawful owner of vehicle/tanker bearing registration no.PB-06M2826 TATA Motors LPT 2518/48 BS 3 697 TCIC COWL. He got financed the same vehicle from opposite party no.2 and the opposite party no.1 is the sister insurance company of the opposite party no.2. He obtained insurance policy no.0003/31/14/719932 dated 07.03.2014 for the period w.e.f. 07.03.2014 to midnight of 06.03.2015 from the opposite parties and accordingly the opposite parties issued the insurance cover note and he paid the premium of Rs.32,760/- for the said purpose to the opposite party no.2 at Gurdaspur. The total insured value of the vehicle is Rs.13,54,444/-. Thus he is consumer of the opposite parties. His vehicle met with an accident on 06.06.2014 within the area and territory of District Muzzafar Nagar, while going from Punjab to Hazipur Bihar and consequently the driver of his Tanker/vehicle died on the way to the hospital and his vehicle got badly damaged. The matter was reported to the Police Station and no action was taken there upon as there was no negligence on the part of any person. He submitted the claim with the opposite party within the stipulated period and completed all the formalities as per the instructions and directions of opposite party and submitted all the necessary papers and documents. He has further pleaded that the authorized surveyor of the company was deputed to assess the loss but the said surveyor who was having no knowledge to settle the claim of the commercial vehicle harassed him. All the required documents were furnished to him despite the fact that he never asked for any document. He has assessed the loss suffered by him pertaining to the above mentioned vehicle but he gave the estimate at his own to the opposite parties without any basis. His vehicle was repaired by spending the amount of Rs.6,39,230/- and the details of the payment for the purchase of the spare parts and repair of the vehicle to the tune of Rs.6,39,230/- is duly issued by him to the opposite parties in respect of the vehicle in dispute and he submitted the claim with the bills and invoices of the amount incurred on the repair of the vehicle.  Opposite parties have rejected his just and legal claim  vide repudiation letter dated 16.09.2014 issued to him in an illegal, unlawful, highhanded and unwarranted manner on the ground that the driver was not holding the effective driving licence at the time of accident which is not sustainable in any  circumstances whatsoever. Hence this complaint.

 3.        Upon notice, the opposite party no.1 appeared and filed its written reply through its counsel taking the preliminary objections that the complainant has no cause of action to file the present complaint and there is no deficiency in service on the part of insurance company. On merits, it was submitted that the driver was not holding valid and affective driving license as per the central motor vehicle rules at the time of accident, as such the claim has been rightly repudiated vide letter dated 16.9.2014 due to breach of the terms and conditions of the policy. It was further submitted that the vehicle has been duly surveyed by the surveyor and he also submitted his survey report. The liability if any is only as per Survey report, but as already stated the claim has been repudiated due to breach of the terms and conditions of the policy. It was next submitted that the vehicle of the complainant was insured with opposite parties for a period from 7.3.2014 to 6.3.2015. The alleged accident took place on 6.6.2014. There is a contract between the parties and the insurance company has to indemnify the complainant in case of loss, but it is only as per terms and conditions of the policy. There exists driver clause in the said policy, according to which the driver must hold valid and affective driving license at the time of alleged accident. In the present case the claim has been filed and the driving license was not effective and valid driving license, due to which the claim of the complainant has been repudiated vide letter dated 16.9.2014. Both the parties bound with the terms of the policy. There is breach of the material terms and conditions of the policy and the insurance company has rightly repudiated the claim of the complainant. So, there is no deficiency in service on the part of the opposite parties. All other averments made in the complaint have been vehemently denied and lastly, the complaint has been prayed to be dismissed with costs.

4.        Upon notice, the opposite party no.2 appeared and filed its written reply through its counsel taking the preliminary objections that the complaint is not maintainable against the opposite party no.2; the jurisdiction of the Ld.Forum is barred to the complainant as the complainant is using the vehicle in question for commercial purpose and earning profits only; the jurisdiction of this Ld.Forum is barred to the complainant against the opposite party no.2 as there is an arbitration agreement between the complainant and the opposite party no.2 to arise all the disputes, issues, rights and liabilities before the Arbitrator only and the complainant has not come to the Ld.Forum with clean hands and has filed this false and frivolous complaint against the opposite party no.2 with an ulterior motive to delay the payment of the due loan instalment as such the complainant is liable to pay the exemplary costs for this illegal act. On merits, it was admitted that the complainant has purchased vehicle no.PB-06-M-2826 and got it hypothecated from the opposite party no.2.  The opposite party no.1 is a separate incorporated company and has no concern with opposite party no.1. The complainant has been running the vehicle in dispute for the commercial purpose and earning profits only. As such, he is not the consumer of the opposite party no.2. All other averments made in the complaint have been vehemently denied and lastly, the complaint has been prayed to be dismissed with costs.

5.        Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1, alongwith other documents Ex.C2 to Ex.C25 and closed the evidence. 

6.          Counsel for the opposite party no.1 tendered into evidence affidavit of Rajendra Sharma, authorized signatory Ex.OP-1/1, alongwith other documents Ex.OP1/2 to Ex.OP1/9 and closed the evidence.

7.         Sh.Satish Kumar Retainer Advocate of opposite party no.2 tendered into evidence his own affidavit Ex.OP-2/1, alongwith other documents Ex.OP-2/2 and Ex.OP-2/3 and closed the evidence.

8.        We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted at the complainant’s accident claim repudiation (Ex.C3/Ex.OP1/4 of 16.09.2014) by the OP1 insurers alleging the serious breach of the Policy’s Driver Clause besides violation of the Motor Vehicles Act. The OP insurer’s above observation is based on the fact that the related Driving License Ex.OP1/2 (of the driver dying in the accident, itself) was not carrying the requisite driving eligibility ‘endorsement’ for the ‘hazardous’ goods whereas the insured vehicle (Tanker Truck) was loaded with industrial alcohol (hazardous material) at the time of accident. The complainant has simply filed one certificate of the deceased driver of having taken some training but there is no endorsement of the same on the driving license which as per the version of OP was mandatorily required to be done. In the absence of such endorsement of Hazardous goods on the driving license the driving license cannot be treated as a valid one rather the same is breach of terms and conditions of the insurance policy. That for the driver carrying hazardous goods in the vehicle he must possess qualification for driving the vehicle having hazardous goods and in the present case before us we find that there is no endorsement on the Driving license. We also find that the complainant has since failed to produce any cogent evidence to support his case and in its absence these shall amount to ‘bald’ statements, only. Even the D.L. produced on the file clearly shows that there is no such endorsement. As per Rule 9 of Central Motor Vehicle Amendment Rules 1993, it provides separate course and qualification which the driver has to complete before getting driving license for carrying hazardous goods. Further in citation titled as United India Insurance Co.Ltd. Vs. Maharashtra State Consumer Redressal Commission, it has been held that without such endorsement, the driver was not having such valid and effective license and as such not entitled for any compensation. Further Section 14 (2) of Motor Vehicle Act 1988, clearly provides that driving license for hazardous goods is effective for a period of 1 year only and renewal thereof, shall be subject to the condition that the driver undergoes one day refresher course of prescribed syllabus. So, the above provision also shows that the endorsement regarding hazardous goods is very much material and relevant. So, it is the breach of the terms and conditions of the policy and the driver was not having valid and effective driving license. As such the claim has rightly been repudiated. The present claim case is a own damage claim case and in ‘own damage claim’ both the parties are bound by the terms and conditions of the policy and the liability of the company is as per terms and conditions only. There is breach of material term and condition regarding endorsement of Hazardous Goods on the driving license. Thus, the OP insurers’ impugned repudiation of the insurance claim does not entail any illegality under the applicable law and need not be set-aside. We do not find any merit in the complaint and as such the same is hereby dismissed.

9.     Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to records.

              (Naveen Puri)

                                                                                   President   

Announced:                                                        (Jagdeep Kaur)       

July,28 2016                                                              Member

*MK*