BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
Complaint No.: 199/2017
Presented on: 01.09.2017
Gurdas, Son of Shri Sagar Dass,
Resident of Village Dakolar, Post Office Shingla,
Tehsil Rampur Bushahr, District Shimla, H.P.
....Complainant
Versus
Shriram General Insurance Company Limited,
E-8, EPIP, RIICO, Industrial Area, Sitapura,
Jaipur, Rajasthan-302022, India.
Coram :
Dr. Baldev Singh, President.
Ms. Yogita Dutta, Member.
Mr. Jagdev Singh Raitka, Member.
For the Complainant: Mr. Raj Kumar Negi, Advocate.
For the Opposite Party: Mr. Jagdish Thakur, Advocate.
O R D E R:
Present complaint has been filed by Shri Gurdas (hereinafter referred to as the complainant) under Section 12 of the Consumer Protection Act 1986 (hereinafter referred to as the Act) against Shriram General Insurance Company Limited (hereinafter referred to as the OP) on account of deficiency in service and unfair trade practice, seeking relief therein that the OP be directed to pay Rs.4,83,818/- alongwith interest, to pay Rs.20,000/- as compensation, to pay Rs.11,000/- as costs of litigation, to pay Rs.1,000/- per day as daily loss etc.
2. The case of the complainant in brief is that the complainant is owner of vehicle Mahindra and Mahindra Bolero Pick Up bearing registration No.HP-06A-5569, which he had purchased for a sum of Rs.6,00,581/- on 04.07.2014 from Snow View Automobiles Private Limited, Authorized Dealer, Mahindra & Mahindra Limited, Head Office, Opposite Government Printing Press, N.H.-22, Ghora Chowki, Shimla, H.P. It is stated that the vehicle was earlier financed from Punjab National Bank, Rampur Bushahr, District Shimla, H.P. and thereafter, the same has been financed from Shriram Finance Company Limited, Kachighati, Shimla, H.P. It is stated that the aforesaid vehicle owned by the complainant met with an accident at Dakolar near State Bank of India on 08.01.2016 and FIR was also lodged at Police Station Rampur Bushahr, District Shimla, H.P. It is stated that at the time of accident, the vehicle was insured with the opposite party and the policy was valid from 11.09.2015 to 10.09.2016. It is stated that at the time of the accident, insurance value of the vehicle was Rs.4,83,818/. It is stated that about the accident, opposite party was duly informed on same very day and thereafter, the opposite party has deputed a surveyor namely Shri Nitin Sood for spot survey and to assess the loss and surveyor conducted the survey and assessed the loss caused to the vehicle as total loss. It is stated that survey report has not been supplied to the complainant by the surveyor of the opposite party. It is stated that surveyor of the company Shri Nitin Sood asked the complainant to submit all the necessary documents/information with respect to the accident of the vehicles and same were submitted to the surveyor Shri Nitin Sood in the month of February, 2016 itself. It is stated that the surveyor of the company also asked the complainant to prepare the estimate of repair of the accidental vehicle from some workshop and the complainant prepared the estimate of repair from Bittam Garages, situated at Village and Post Office Khaneri, Tehsil Rampur, District Shimla, H.P., for a sum of Rs.6,26,186/-. It is stated that thereafter complainant requested the official of the opposite party several times telephonically to pay the assessed amount, but the opposite party every time gave false assurance to settle the matter, but nothing has been done till date. It is stated that the vehicle in question was purchased by the complainant for earning his livelihood and had deployed his son namely Shri Kuldeep as a driver. It is stated that the driver was having valid and effective driving licence at the time of accident. It is stated that despite completing all the formalities and submitting all the documents pertaining to the vehicle, the opposite party did not settle the genuine claim of the complainant. It is stated that in addition to the amount of loss suffered on account of damage to the vehicle, the opposite party is liable to pay a sum of Rs.1,000/- per day to the complainant after two months from the date of accident. It is stated that the aforesaid acts on the part of the opposite party clearly amount to deficiency in service and unfair trade practice. It is prayed that the complaint may be allowed.
3. After admission of complaint, notice was issued to the OP. The complaint so filed has been opposed by the OP by filing reply wherein it is stated that the complainant is not a consumer as the complainant has purchased the vehicle in question for commercial purpose. It is stated that the vehicle in question was insured for a sum of Rs.4,83,818/- on IDV basis and the insurance was effective from 11.09.2015 to 10.09.2016. It is stated that driver Shri Kuldeep who was driving the vehicle at the time of the accident was not having valid and effective driving licence and till the date of filing of the complaint the complainant had not supplied the copy of the driving licence of the driver Sh. Kuldeep, repairer bills, estimate, running record of vehicle and load challan etc. and it is only with the present complaint the complainant has annexed the copy of the driving licence and estimate of repair. It is stated that vide letter dated 21.04.2016 the OP requested the complainant to supply the same but the complainant had not supplied the same. It is stated that on receipt of intimation on 14.01.2016, the opposite party appointed Sh. Nitin Sood surveyor and loss assessor to conduct the survey of the vehicle, who conducted the same on 15.01.2016 at place Dokolar, Rampur Bushahr, Shimla. It is stated that accident in question took place on 08.01.2016, however intimation was given on 14.01.2016. It is stated that the complainant submitted the claim form, copy of RC and FIR with the surveyor, which were submitted to the opposite party by the surveyor and thereafter the surveyor submitted the survey report and recommended a sum of Rs.1,23,150/- on repair basis subject to the terms and conditions of the insurance policy. It is stated that the opposite party after receiving the copy of the driving licence with the notice of the compliant, sent the copy of driving licence to its branch Guwahati, Assam, to depute some investigator and the branch office at Guwahati appointed Sh. S. Dhaneshwar Sharma, as investigator to verify the driving licence bearing driving licence No. 206087/BPR from the office of DTO/RTO Bishnupur, Manipur and information was supplied to him by the concerned DTO vide report dated 28.11.2017. It is stated that driver licence was found fake as the licence bearing No. 206087/BPR is not issued by the office of DTO/RTO Bishnupur, Manipur, till date. It is stated that the vehicle in question is hypothecated with Shri Ram Transport Finance Company Limited and the financer has not been made as party and the financer has first right over the insured amount. On merits, it is stated that the ex-showroom price of the vehicle in question was Rs.5,67,051/-. It is denied that surveyor has assessed the loss on total loss basis and the survey report was not supplied to the complainant. It is stated that the same was never asked by the complainant. It is stated that till date the complainant had not submitted the estimate of repair with surveyor and has only annexed estimate of repair alongwith driving licence of driver with the present compliant. It is stated that the surveyor had no option then to submit the report on the basis of physical inspection of the vehicle. It is denied that vehicle in question was registered as light goods vehicle. It is stated that there is neither any deficiency in the service nor any unfair trade practice on the part of the OP and prayed that the complaint may be dismissed.
4. Rejoinder was filed on behalf of the complainant and the allegations as contained in the complaint were reasserted after refuting those of reply filed by OP contrary to the complaint.
5. The parties adduced evidence in support of their contentions. On behalf of the complainant affidavits of complainant and Ajay Thakur were tendered in evidence. Complainant has also filed documents in support of his contentions. On behalf of OP affidavits of Amandeep Sharma, S. Dhaneshwar Sharma, Nitin Sood were tendered in evidence. OP has also filed documents in support of its contentions.
6. We have heard learned counsels for the parties and have also gone through the entire record, carefully.
7. In this case the simple question for determination is that whether the repudiation of claim by the OP on the ground that the driver of vehicle, in question, was not holding valid and effective driving licence to drive the vehicle at the time accident, is justified or not. This is not in dispute that the vehicle met with an accident regarding which FIR was lodged. It is also not in dispute that the OP on receiving the intimation deputed surveyor for spot inspection and assessment of loss caused to the vehicle in question. It is also not in dispute that the vehicle was duly insured with the OP. The claim was not settled by the OP on the ground that driving licence No. 206087/BPR of the driver on investigation was found fake, as the licence bearing No. 206087/BPR was not issued by the office of DTO/RTO Bishnupur, Manipur. However, on the other hand, the case of the complainant is that the vehicle in question was purchased by the complainant for earning his livelihood and had deployed his son namely Shri Kuldeep as a driver and he was having valid and effective driving licence at the time of accident. In support of his case, the complainant has produced in evidence his own affidavit and affidavit of Shri Ajay Thakur. He also filed DL of driver as Annexure C-5 with the complaint alongwith other documents. Similarly, the OPs produced in evidence affidavits of Amandeep Sharma, S. Dhaneshwar Sharma, Nitin Sood and documents Annexure OP-1 to Annexure OP-9. Ld. Counsel for the complainant has argued that the complainant has been able to prove his case against the OP and the complaint may be allowed in the interest of justice. As against this, the Ld. Counsel for the OP has submitted that the complainant has not been able to prove the case against the OP and the complaint may be dismissed in the interest of justice. As mentioned above, the simple controversy in this case is whether the driver was holding valid and effective driving licence at the time of accident or not. In this regard, the pleaded case of the complainant is that vehicle in question was purchased by the complainant for earning his livelihood and had deployed his son namely Shri Kuldeep as a driver and he was having valid and effective driving licence at the time of accident. On the other hand, the OP has produced on record the letter dated 29.11.2017 sent by investigator mentioning therein that the DL of the driver was not issued from DTO Bishnupur till date. If we gone through the copy of DL, Annexure C-5, then on the face of it, it appears to be genuine. Further the complainant has specifically stated in the complaint that the driver is having a valid and effective driving licence. In this regard, the settled position of law as held by the Hon’ble Supreme Court of India in case titled Pepsu RTC Versus National Insurance Company Limited, (2013) 10 SCC 217, is very much clear and relevant para is reproduced below.
“In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh’s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.”
8. In another decision in case titled NIC Versus Swaran Singh & Ors, (2004) 3 SCC 297, the Hon’ble Supreme Court held as under:
“110. (iii)…Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time.”
9. In the latest pronouncement of the Hon’ble Supreme Court in case titled Nirmala Kothari Versus United India Insurance Company Limited, Civil Appeal Nos.1999-2000 of 2020, decided on 04.03.2020, it is held that while hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy.
10. It is pleaded case of the complainant that he has engaged his son as driver in the vehicle in question and hence, it can be assumed that the complainant while hiring the services of his son as driver, must have satisfied himself about the driving skill of son and thereafter would have allowed him to drive the same. No owner, having knowledge that the person being hired by him is not so skilled in driving, would not hand over the vehicle to that person for driving and in the present case, it is the son of the complainant, whose services were hired by the complainant as driver and no father can put the life of his son to danger by handing over the vehicle to his son for driving, if the father is not satisfied with the driving skills of his son. Hence, in view of the foregoing discussion, reasons assigned therein and law laid down by the Hon’ble Supreme Court, we are of the considered opinion that the complainant has been able to prove his case against the OP that the OP has wrongly withheld the genuine claim of the complainant and we held that the OP is liable to compensate the complainant.
11. The further plea of the OP is that the intimation regarding accident was given late as the accident in question took place on 08.01.2016, however intimation was given on 14.01.2016. The Hon’ble Apex Court in case Gurinder Singh Versus Shriram General Insurance Company Limited & Anr. Civil Appeal No. 653 of 2020, decided on 24.01.2020, held that genuine claim of the complainant cannot be denied to him simply because of delay caused in making claim. In this case, there is delay of five days and the OP must have settled the claim of the complainant.
12. Now remains the question about the assessment of compensation. The vehicle was insured with the OP for a sum of Rs.4,83,818/- on IDV basis. The OP after receiving the intimation deputed the surveyor and he recommended a sum of Rs.1,23,150/- on repair basis subject to the terms and conditions of the insurance policy. It the case of the complainant that he on being asked by the surveyor to prepare the estimate of loss, got the same prepared from Bittam Garages, situated at Village and Post Office Khaneri, Tehsil Rampur, District Shimla, H.P. and estimated loss was assessed to the tune of Rs.6,26,186/-. The survey of vehicle in question was conducted by the surveyor on 15.01.2016, whereas Shri Ajay Thakur, who prepared the estimate of loss to the tune of Rs.6,26,186/- visited the spot on 10.07.2017. The affidavit of said Shri Ajay Thakur has been filed by the complainant. In the said affidavit on the one hand it is mentioned that on the day of inspection all the parts of the vehicle were safe and intact and vehicle was kept in proper and safe place, but on the other hand he has stated that on through inspection the vehicle was found totally damaged. The said Shri Ajay Thakur has inspected the vehicle after the lapse of about six months from the date of accident, whereas the surveyor of the OP has visited the spot on the very next date of receiving intimation by the OP. This entire scenario cast shadow of the estimate prepared by Shri Ajay Thakur and attaches more significance to the report of surveyor. It has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in United India Insurance Co. Ltd. vs. Deen Dayal, II (2009) CPJ 45 (NC) that Surveyor’s report being important document cannot be brushed aside lightly without any material contrary on record. The Hon’ble Apex Court in Venkateshwar Syndicate versus Oriental Insurance Company Ltd. & another, II (2010)CPJ 1 (SC) has held that reports of the surveyors have to be given due importance and there should be sufficient grounds to dis-agree with the assessment made by the surveyors. Similarly, in Khimji Bhai and sons vs. NIA, IV (2011) CPJ 458 (NC), the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that report of the surveyor cannot be ignored without giving cogent reasons. Further the Hon’ble Supreme Court of India has recently in Civil Appeal No. 9050 OF 2018 titled Khatema Fibres Ltd. Versus New India Assurance Company Ltd. & Anr., decided on 28.09.2021 has held that Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the report of surveyor to forensic examination of its anatomy, just as a civil court could do.
13. In view of the aforesaid binding precedents, the report of the surveyor has to be accepted and has to be taken into consideration for determining the amount of compensation liable to be paid to the complainant by the OP.
14. In view of the foregoing discussion and reasons assigned therein the complaint is ordered to be allowed partly and the OP is directed to pay Rs.1,23,150/- to the complainant alongwith interest @9% per annum from the date of filing of complaint till its payment. The OP is further directed to pay Rs.20,000/- to the complainant as compensation for mental agony and harassment and further sum of Rs.10,000/- as litigation costs. The OP is directed to comply this order within 45 days from the date of passing of the order. Copy of this order be supplied to the parties free of cost as per rule. The file after its due completion be consigned to the Record Room.
Announced on this the 6th day of December, 2022.
(Dr. Baldev Singh)
President
(Yogita Dutta) (Jagdev Singh Raitka)
*GUPTA* Member Member
