BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No. 501 of 2015
Date of Instt. 23.11.2015
Date of Decision: 16.05.2017
Mr. Kulwant Singh aged about 38 years S/o Sh. Jahlman Singh, Utam Mohalla, Nawanshahar District S.B.S Nagar.
..........Complainant
Versus
Tata AIG General Insurance Company Ltd. 3rd Floor, Shanti Tower, SCO No.37, Puda Complex, Opp. Tehsil Complex, Jalandhar City, Jalandhar through its Branch Manager.
.........Opposite party
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh. Parminder Sharma (Member)
Present: Sh. Parshotam Sharma, Adv Counsel for complainant.
Sh. AK Arora, Adv & Sh. Nitish Arora, Adv counsel for OP.
Order
Karnail Singh (President)
1. This complaint presented by the complainant, wherein alleged that he obtained insurance policy of Tata AIG General Insurance Company, having policy No.0140130839 and the same is in force and valid till 30.09.2015. The complainant is an owner of the vehicle bearing No.PB-32-E-3838 and the same is insured with the above said company and moreover the D.T.O Nawanshahar had described the class of the above said vehicle is L.C.V. (Light Commercial Vehicle) and is not a H.G.V. The brief facts of the above noted vehicle was met with an accident and the same was got repaired by the complainant from Gupta Motor Gallery, Lamba Pind, Bye-Pass, Jalandhar and spend Rs.1,67,104/-. After that the complainant made a representation regarding the claim but the same was declined by the insurance company and the copy of the alleged decline is attached, the said letter issued by the insurance company on 10.01.2015. As per the letter the complainant again approached to the insurance company and give one more representation on 29.01.2015, but till today they have given no reply to the said representation.
2. That insurance denied the claim on the ground that “The vehicle was surveyed on 07.11.2014 at M/s Gupta Motor Garage, Jalandhar by Mr. Sanjiv Khanna IRDA authorized and independent surveyor. As per surveyor report and claim form submitted by you, the driver of the vehicle at the time of accident was Mr. Bishan Dass S/o Sh. Jandhu Ram vide driving license No.PB-0620090076886 who is not holding the driving license for HGV vehicle.”
3. The complainant is an owner of the vehicle No.PBN-32-E-3838 and the same is insured with the above noted company, and moreover the DTO Nawanshahar has described the class of the above noted vehicle as L.C.V (Light Commercial Vehicle) and is not a H.G.V. So, keeping in view the R.C issued by the DTO Nawanshahar that the above noted vehicle is a L.C.V not H.G.V. So, the driving license of Mr. Bishan Dass S/o Jandhu Ram is correct and valid for this case and hence the complainant is entitled for aggregate amount of Rs.2,67,104/- along with interest @ 9.75% per annum up to date and further prayed that the complaint may be accepted and OP be directed to pay a sum of Rs.1,67,104/- alongwith compensation to the tune of Rs.1,00,000/- for negligence and deficiency in consumer service alongwith interest @ 9.75% for negligence and deficiency in consumer service.
4. Notice of the complaint was given to the opposite party who filed a reply and contested the same by taking preliminary objections that the driver of the vehicle at the time of alleged accident was not having a valid and effective license to drive insured vehicle and that being so the claim of the complainant has rightly been repudiated by the company under the terms and conditions of policy of insurance issued to the complainant. Thus there is no deficiency of service or unfair trade practice on the part of the OP, thus the complaint is liable to be dismissed. It is further averred that immediately on the receipt of information for the loss caused to the vehicle in question in the alleged accident, an independent IRDA licensed surveyor Sh. Sanjiv Khanna was appointed to inspect the vehicle and assess the loss. He inspected the vehicle and submitted his survey report dated 17.12.2014 with the OP assessing loss to the tune of Rs.11,5476.87/-. As per surveyor report and claim form submitted by the complainant, Mr. Bishan Dass S/o Sh. Jandhu Ram was driving the insured vehicle at the time of accident vide driving license No.PB06-200900776886. As per the same, Mr. Bishan Dass was eligible to drive LMV and LMV(GV) only. However, in the instant matter, the gross vehicle weight of insured vehicle is 12990 KGs, which falls within the definition of Heavy Goods Vehicle as provided under Section 2(16) of the Motor Vehicle Act, though it has been wrongly mentioned as LCV in the RC. Since, the vehicle is a HGV, the driver must have driving license to drive Heavy Goods. On merits it is admitted that the complainant is owner of the vehicle and he has obtained the insurance policy from the OP but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.
5. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith documents Ex.C-1 to Ex.C-10 and then closed the evidence.
6. Similarly counsel for the OP tendered into evidence two affidavits Ex.OA and Ex.OB alongwith some documents Ex.O-1 to Ex.O-6 and then closed the evidence.
7. We have heard the learned counsel for the respective party and also scanned the case file very minutely with the able assistance of both the counsel for the parties.
8. Precisely, the simple case of the complainant is that he is the owner of the vehicle PB-32-E-3838 and the said vehicle was got insured with the OP company who issued the insurance policy bearing No.0140130839 which is valid till 30.09.2015 but unfortunately the said vehicle was met with an accident and he got repaired the same from Gupta Motor Gallery, Lamba Pind, Bye-Pass, Jalandhar and spend Rs.1,67,104/- from his own pocket and thereafter he submitted a claim to the OP but the said claim of the complainant was repudiated on false and flimsy ground and as such the complainant is entitled to recover the said amount from the OP with interest as well as compensation.
9. The claim of the complainant was repudiated by the OP simply on the ground that the driver of the vehicle namely Bishan Dass S/o Sh. Jandhu Ram was not having effective and valid driving license at the time of driving the vehicle and accordingly on the basis of the Surveyor report, the claim of the complainant was repudiated vide letter dated 10.01.2015, copy of the same is available on the file Ex.C-5.
10. We have analyzed the above submissions of respective party and find that the vehicle in question is make Tata Motors Ltd and having horse power 3785 CC and gross vehicle weight is 12990 KGs as mentioned on the photostat copy of the RC which is placed on the file by OP, because the exhibited copy of RC by both the party having only one page but this complete photostat copy of the RC is available on the file and if we assess the case of the complainant from the weight of the vehicle which is 12990 KG then apparently as per Section 2(16) the vehicle comes under the category of heavy goods vehicle. We like to reproduce Section 2(16) as under “Heavy Goods Vehicle” means any goods carries the gross vehicle weight of which form a Tractor or a Road Roller the unloaded weight of either or which exceeds 1200 KG. Admittedly as per registration certificate the weight of the vehicle in question is 12990KG, means it is a heavy vehicle not L.C.V as mentioned on the RC, if so then the driver is required to has valid and effective driving license means heavy driving license but admittedly the license of the driver Bishan Dass proved on the file Ex.C-1 is LMV not HMV. So, it is not an effective and valid license if so then the complainant is not entitled for the relief claimed. In view of the terms and condition of the policy which is very much incorporated in insurance policy Ex.C1 under the heading of Driving Clause and further in support of above observation, we like to refer a pronouncement of Hon'ble State Commission, Chhatisgarh cited in 2009(4) C.P.R 133 Kamal Associates Vs. Oriental Insurance Co. Ltd.
11. Apart from above, we also find there is an other legal aspect which required a detailed discussion. For that purpose, we like to refer para No.3 of the complaint wherein the complainant himself mentioned that the type of vehicle is L.C.V (Light Commercial Vehicle) means it is a commercial vehicle and used for commercial purpose and if the complainant himself driving the said vehicle then question may be different and moreover the complainant has to take a plea in the complaint as given in Section 2(D) Explanation of Consumer Protection Act i.e. “ The Vehicle is used by him exclusively for the purpose of earning his livelihood by means of self employment” but this plea has not been taken by the complainant. Moreover, the complainant has admittedly engaged a driver Bishan Dass whose driving license placed on the file by complainant himself. So, it means the complainant is using the vehicle for commercial purpose if so then the complaint of the complainant before Consumer Forum is not maintainable.
12. In the light of above detailed discussion, we do not find any merits in this complaint. Therefore, the same is dismissed. Complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
16.05.2017 Member President
