Order by:
Smt.Priti Malhotra, President.
1. This complaint has been received by transfer vide order dated 15.11.2023 of Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh from District Consumer Commission, Fazilka to this District Consumer Commission, Moga.
2. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that complainant is owner of a Truck (Trailo LPS 4018) bearing registration no.PB-29-N-9226. The said truck was insured with opposite party vide policy no.401703311810000361for the period 24.6.2018 to 23.6.2019 and value of the vehicle was assessed to the tune of Rs.14,00,000/-. On 11.3.2019, the said truck was loaded with rice from KG Industries Jalalabad and same was going to be delivered at Kandla (Gujrat). On fateful day on 12.3.2019 when the trolla of the complainant reached in the area of Floudi, District Jodhpur, Rajasthan, the truck trolla of the complainant suddenly met with an accident with unidentified vehicle and the truck of the complainant caught fire and entire body of the truck with rice got totally burnt, also the driver and helper of the truck got burnt and died in the cabin. It is further stated in the complaint that the entire document original driving licence, Aadhar Card and copy of original RC and other documents also got burnt in the accident. That after this accident, the complainant immediately informed to the opposite party regarding accident of the truck. Upon which the surveyor of the opposite party visited the spot and inspected the entire burnt body of the truck and gave his opinion that the said truck is not repairable and total loss of the truck was calculated by M/s Sushil Auto Parts, Malout Road Abohar, on 28.3.2019 for an amount of Rs.28,82,243/-, the estimate of fitting was calculated by M/s Angrej Bus/Truck Workshop FF Road Jalalabad to the tune of Rs.97,000/- and the fitting charges was calculated in estimate to the tune of Rs.61000/-. The complainant also paid Rs.20,000/- to the Kumar Crain Services, but despite that the Opposite Party has not paid any claim amount. Alleged that on 27.09.2019 a settlement has been effected between complainant and Opposite Party and as per settlement the opposite party agreed to get salvage on account of loss of burnt truck with themselves for the value of Rs.3,15,000/- approximately and agreed to pay Rs.10,83,500/- as insurance damages to the complainant, but even then the opposite party did pay any amount to the complainant till date. Alleged further that as the said truck was hypothecated by HDB Finance Company and after the accident the complainant was compelled to pay the loan amount to the HDB company from his pocket. The complainant also served a legal notice to the opposite party on 23.12.2019, but to no effect. Alleged further that an FIR No.101, Dated 13.3.2019, P.S.Phalodi has been registered at Rajasthan. Stated further that the driving licence of the driver, identity card, registration certificate and other valuable documents related to the travelling also got burnt in the accident, but despite that the complainant provided each and every document to the opposite party, but all in vain. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Rs.28,82,243/- as estimated damages of the truck;
b) Rs.82,000/- fitting charges.
c) Rs.15,000/- Cabin Fitting charges
d) Rs.20,000/- Crain Toe Charges
e) Rs.9,00,000/- as monthly income loss from 12.03.2019 to 12.09.2020
f) Rs.1,00,000/- as damages and mental harassment.
g) Rs.50,000/-0 as litigation expenses.
h) Interest @ 12 % p.a. from the date of accident on the awarded amount.
2. Opposite Party appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present complaint pertains to claim on account of accident dated 12/03/2019 as per pleading of the complaint in the present complaint which is governed by provisions of old Consumer Protection Act, 1986 as the New Consumer Protection Act came into force and effect from 20/07/2020 which is clearly apparent from the Gazette Notification. So, the case of the complainant is governed by the provisions of old Consumer Protection Act, 1986. As per provisions of the Consumer Protection Act, 1986, the place, residence or business of the complainant is not a determining factor for the purpose of invoking territorial jurisdiction. And none the conditions specified in section 11(2) are fulfilled in the present case. So, the District Commission at Ferozepur has no territorial jurisdiction to entertain, try and decide the present complaint and the present complaint pertaining to the accident dated 12/03/2019 can be tried before the District Commission at Sri Muktsar Sahib from where the insurance policy in question was issued or before the District Commission at Jodhpur (Rajasthan) within whose territorial jurisdiction, the alleged accident of the vehicle of the complainant took place. No cause of action or part of cause of action arisen within the territorial jurisdiction Commission at Ferozepur. The complainant pleads in para no.3 of the complaint that the alleged accident occurred at Floudi, District Jodhpur (Rajasthan) and even the FIR No.101 dated 13/03/2019 placed on record by the complainant has also been registered at PS that falls within Phalodi, District Jodhpur (Rajasthan). So, no cause of action or part of cause of action has arisen within the territorial jurisdiction of District Commission at Ferozepur.
Averred further that the complainant earlier also filed a similar complaint on the same cause of action with the same title and parties bearing CC Number CC/390/2020 titled as Sukhbir Singh vs The Branch Manager, National Insurance Co Ltd. In the said complaint, the evidence of the complainant was closed vide order dated 25/08/2021 because the complainant already availed 7 opportunities for leading complainant evidence on 07/04/2021, 23/04/2021, 11/05/2021, 02/06/2021, 08/07/2021, 28/07/2021 and 16/08/2021 but failed to adduce any evidence after taking 7 adjournments and finally the evidence was closed vide order dated 25/08/2021. Thereafter, an application for reviewing the order dated 25/08/2021 and allowing Applicant/Complainant to lead evidence was moved by the complainant, which was replied by the answering opposite party. Thereafter, the complainant knowing well that said order closing the evidence of the complainant by order cannot be reviewed so, he withdraw the said previous complaint vide order dated 14/10/2021 and now filed the present complaint to fill the lacuna which is not permissible and is an abuse of process of law. The present complaint pertains to claim of damages on account of accident of the truck owned by the complainant which caught fire and suffered damages in the accident. The said truck was being driven by Jeet Singh S/O Sh.Atma Singh at the time of accident.
Averred further that letter dated 28/05/2019 was written to the complainant making demand of driving licence of deceased driver Jeet Singh S/O Sh.Atma Singh along with photo ID of driver and other documents. Letters/Reminders dated 24/06/2019 and 08/07/2019 were again issued to the complainant to submit the driving license of deceased driver Jeet Singh and other documents but to no effect. Again final letter dated 23/07/2019 was written to the complainant making demand of the same and finally on 22.08.2019, the complainant submitted driving licence of Jeet Singh bearing number PB0420131561450 along with Adhaar Card of driver bearing 335073998679 and some other documents. The said licence was got verified and investigated from Sh.D.S. Sandhu, Surveyor and Investigator who vide his report dated 22.02.2020 has given his opinion that the said DL issued by RTA, Faridkot did not seem to be genuine. Accordingly, letter dated 26/02/2020 was issued to the complainant. Again letter/reminder dated 06.03.2020 was issued in this regard but the complainant did not respond. Hence, the said endorsement dated 08.08.2019 in Driving license of Jeet Singh is after the date of death of Jeet Singh and the said driving licence is not genuine. Averred further that The opposite party vide letter dated 24/07/2020 asked the complainant for the following information/documents required to proceed further with processing of claim:
1. Reason for non submission of copy of driving licence details and other till documents to spot final surveyor and 22/08/2019 while the date of accident is 12/03/2019. Surveyor
2. Fire Brigade report
Again letters dated 13/08/2020, 01/10/2020 and final notice letter dated 28/10/2020 were issued to the complainant for compliance of above mention requirements, but he failed to submit the same despite repeated letters and reminders. As such, the claim of the complainant was closed as "No Claim" vide letter dated 01/01/2021 due to non submission and non compliance of documents. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. In order to prove his case, the complainant has placed on record his affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C25.
4. On the other hand, Opposite Party has placed on record copies of documents Ex.R1 to Ex.R19 and affidavit of Sh.Iqbal Singh, Branch Manager, National Insurance Co. Ltd. Ex.R20.
5. We have heard the ld. counsel for both the parties and also gone through the record.
6. Ld. counsel for the complainant contended that complainant is owner of a Truck (Trailo LPS 4018) bearing registration no.PB-29-N-9226. The said truck was insured with opposite party for the period 24.6.2018 to 23.6.2019. On 11.3.2019, the said truck met with an accident in the area of Floudi, District Jodhpur, Rajasthan and due to that accident, the truck of the complainant was caught fire and entire body of the truck got burnt and driver and helper of the truck also got burnt in the said truck. Submitted further that all the original documents i.e. driving licence, Aadhar Card and copy of original RC also got burnt in the said accident. Contended that the Opposite Party was duly informed about the accident and the Opposite Party appointed its surveyor, who visited the spot and inspected the accident and gave his opinion that the said truck is not repairable. Contended further that on 27.09.2019 a settlement has been effected between complainant and Opposite Party and as per settlement the opposite party agreed to pay Rs.10,83,500/- as insurance damages to the complainant on retaining the salvage for an amount of Rs.3,15,000/-, but despite that they did not pay any amount to the complainant.
7. On the other hand, the counsel of the Op. has raised objection qua the territorial jurisdiction, ld. counsel for the Opposite Party contended that the complainant lodged the claim on account of accident of the truck in question owned by the complainant which caught fire and get completely burnt in the accident. Submitted further that the said truck was being driven by Jeet Singh s/o Atma Singh at the time of accident and on receipt of claim, the Opposite Party issued a letter dated 28.05.2019 to complainant making demand of driving licence of deceased driver Jeet Singh along with photo ID of driver and other documents. Thereafter, letters/reminders dated 24.06.2019, 08.07.2019 and 23.07.2019 were again issued and finally on 22.08.2019, the complainant submitted driving licence of Jeet Singh bearing number PB0420131561450 along with Adhaar Card of driver bearing 335073998679 and some other documents. The said licence was got verified and investigated from Sh.D.S. Sandhu, Surveyor and Investigator who vide his report dated 22.02.2020 submitted that the said DL issued by RTA, Faridkot did not seem to be genuine. Accordingly a letter dated 26.02.2020 was issued to the complainant to the effect that the driving license of Mr.Jeet Singh s/o Atma Singh bearing no.Pb-0420131561450 submitted by complainant is having endorsement ALTR name in DL on dated 08.08.2019 i.e. after the date of death of Mr.Jeet Singh s/o Atma Singh and complainant was asked to clarify the same with evidences. Again letter/reminder dated 06.03.2020 was issued in this regard, but the complainant did not respond. Thereafter the Opposite Party vide letter dated 24.07.2020 asked the complainant for the information/documents required i.e. “Reason for non submission of copy of driving licence details and other documents to spot surveyor and final surveyor till 22.08.2019 while the date of accident is 12.03.2019. Surveyor and Fire Brigade report”. Again letters dated 13.08.2020, 01.10.2020 and final notice letter dated 28.10.2020 were issued to the complainant for compliance of above mention requirements, but he failed to submit the same. As such, the claim of the complainant was closed as "No Claim" vide letter dated 01.01.2021 due to non submission and non compliance of documents.
8. We have considered the rival contentions of ld. counsel for the parties and also gone through the record. There is no dispute qua the issuance of the policy in question in favour of the complainant by Opposite Party for the period 24.6.2018 to 23.6.2019 and also it is admitted that the said vehicle met with an accident on 12.03.2019 and got completely damaged and both the occupants i.e. driver and helper of the truck in question also got burnt and died.
9. The foremost objection raised by Opposite Party is qua the territorial jurisdiction stating that the complainant filed the present complaint at Ferozepur District Commission which has no territorial jurisdiction to entertain, try and decide the present complaint as the present complaint pertaining to the accident dated 12/03/2019 can be tried before the District Commission at Sri Muktsar Sahib from where the insurance policy in question was issued or before the District Commission at Jodhpur (Rajasthan) within whose territorial jurisdiction, the alleged accident of the vehicle of the complainant took place. Further claimed that no cause of action or part of cause of action arisen within the territorial jurisdiction of District Consumer Commission at Ferozepur. We do not agree with the aforesaid contention so raised by Opposite Party, as the complainant has filed his earlier complaint on 09.10.2020 under the Consumer Protection Act, 1986, but he withdraws the said complaint on technical ground and thereafter filed the fresh complaint on 20.12.2023 on the same cause of action under Consumer Protection Act, 2019, which permits the complainant to file the complaint in District Commission where he resides. Since the complainant is resident of Fazilka District and before the creation of new District i.e. Fazilka on 04.07.2022, the consumer complaints of Fazilka District were filed at Ferozepur District Commission. Thus the complainant rightly filed his complaint at Ferozepur District Commission, which has now been transferred to this District Commission for decision vide order dated 15.11.2023 of the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh.
10. The other contention raised by ld. counsel for the Opposite Party is that the complainant submitted driving licence of Driver Jeet Singh (who was driving the truck on the date of accident) bearing number PB0420131561450 and the said licence submitted was got verified and investigated from Sh.D.S. Sandhu, Surveyor and Investigator who vide his report dated 22.02.2020 submitted that the said DL issued by RTA, Faridkot did not seem to be genuine.
11. From the letter dated 06.03.2020 Ex.R-17 issued by the Opposite Party reveals that Opposite Party inclined to repudiate the claim of the complainant on the ground that the driving license of the driver of the complainant was not found genuine as per the investigator appointed by Opposite Party. The relevant extract of the same is reproduced as under:-
“With reference to our previous letter dated 26.02.2020 regarding above said claim of your Truck No.PB-29-N-9226. But till date we have not received any reply from you.
On going through the claim file the Driving License of Mr.Jeet Singh S/O S.Atma Singh, bearing no.PB0420131561450 submitted by you in having endorsement ALTR NAME in D.L. on dated 08.08.2019 i.e. after the date of death 12.03.2019 of Mr.Jeet Singh s/o Sh.Atma Singh as per Digital Signed copy of EXTRACT issued by the RTA, Faridkot.
In view of the above we are unable to find merit in your claim for settlement; hence necessitates repudiation.
12. It is gathered from the record that Opposite Party wrote letters to the complainant to clarify the objections raised, when he failed, then the Opposite Party declared the claim as ‘No Claim’ and closed the file claiming that complainant is not interested to persue his claim vide letter dated 01.01.2021. Such stand taken by the Opposite Party seems highly in-genuine. The relevant extract of letter dated 01.01.2021 is reproduced as under:-
“With reference to the above said, please refer to our office letters/mails dated 24.07.2020, 13.08.2020, 01.10.2020 and Final Notice letter dated 28.10.2020 compliance of certain requirements which is still awaited. We cannot kept pending the claim file for since a long time. Non-compliance of documents shows that you are not interested to pursue the claim. Hence sorry to inform you that your claim file has been closed as “No Claim”.
13. During the course of arguments the counsel for the complainant submitted that the complainant i.e. owner of the vehicle in question employed his driver i.e. Jeet Singh after viewing the driving license of Jeet Singh and was well competent to drive the vehicle and thus was plying the vehicle of the complainant since more than 1 year from the date of accident in question.
14. Now, the question for consideration is that whether it is justified on the part of the Opposite Party to declare the claim as ‘No Claim’ in view of the factual position involved in the present complaint. Also, if the license of driver hired by the complainant is found fake/invalid, the Opposite Party can take this plea for avoiding the claim or not?
15. It is not the contention of the Opposite Party-Insurance Company that the complainant was guilty of willful negligence while employing the driver who got burnt in the vehicle in question and whose DL is in question. The contention so raised by the Opposite Party that there was alteration in the name column of the driving license of the driver in question is not sustainable, as if the driving license of Mr.Jeet Singh s/o Atma Singh bearing no.Pb-0420131561450 was having endorsement ALTR name in DL, then what is the fault of the complainant and moreover, there is no document on record revealing that the said alteration was got done by the complainant. Hon’ble Supreme Court of India in case United India Insurance Company Vs. Lehru & ors. AIR 2003 SC 1292 has held that Insurance Company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licensed. It was further held that the willful breach of the conditions of the policy should be established.
The Hon’ble Supreme Court in abovesaid case had held that the owner of the vehicle when he hires a driver, he has to check the driving license and if it looks genuine on the fact of it then the owner is not expected to find out whether the license in fact has been issued by competent authority.
In National Insurance Company Ltd. Vs. Swaran Singh & ors. decided on 05.01.2024, the Hon’ble Supreme Court has held liable the Insurance Company to pay the claim even after it was found that the license was fake. The relevant para of the said judgement is reproduced 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 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 duly licensed driver or one who was not disqualified to drive at the relevant time.”
Further Hon’ble National Commission in its latest pronouncement titled Amar Singh Vs New India Assurance Co. Ltd. & 2 ors, decided on 07.12.2023 thoroughly dealt the similar issue as is involved in the present lis and while deciding the said appeal the Hon’ble National Commission had completely relied upon the Apex Court Decisions held in cases United India Insurance Company Vs. Lehru & ors. AIR 2003 SC 1292, National Insurance Company Ltd. Vs Swaran Singh, IFFCO Tokio General Insurance Co. Ltd. Versus Geeta Devi respectively.
16. Further the Opposite Party has placed on record copies of Newspaper cuttings (Ex.R4) showing the illegal working of District Transport Officer, Faridkot. So, if there is any alleged illegal activity going on in the District Transport, Office, Faridkot regarding the driving licences, then no justification lies with the complainant to clarify the queries raised by the Opposite Party qua genuineness of the DL of the driver submitted by the complainant.
17. In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally declared the claim of the complainant as ‘No Claim’. Thus, both the issues as has been mentioned in para 15 of this order goes in favour of the complainant and against the Opposite Party.
18. Vide instant complaint, the complainant claimed the amount of Rs.28,82,243/-as estimated damages of the truck; Rs.82,000/- fitting charges; Rs.15,000/- Cabin Fitting charges and Rs.20,000/- Crain Toe Charges. It is pertinent to mention that the insured declared value of the vehicle in question as per the policy document (Ex.C2) placed on record is Rs.14,00,000/- and the Opposite Party has rightly processed the claim in question in view of the ‘insured declared value’ of the vehicle in question. Opposite Party has placed on record the surveyor report assessing the loss/damage caused to the vehicle in question (Ex.R11).
19. Bare perusal of Motor (Interim) Survey Report of Rakesh K.Gupta placed on record vide Ex.R11 shows that the said surveyor has submitted the detailed report after considering each and every aspect of the case and assessed the net loss to the vehicle at Rs.10,83,500/- after deducting excess clause Rs.1500/- and salvage value of Rs.3,15,000/-. Moreover, vide Ex.R10, the complainant has given consent to the effect that he is ready to keep the vehicle in question in his custody in same condition alongwith all papers for an amount of Rs.3,15,000/- and further there is no denial/objection qua the said report of surveyor. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Not only this, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports cannot be brushed aside without any cogent reasons.”
20. Keeping in view the aforesaid facts and circumstances and relying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the present complaint deserves to be allowed in favour of the complainant.
21. In view of the discussion above, the instant complaint is partly allowed and the Opposite Party is directed to make the payment of Rs.10,83,500/- (Rupees Ten Lakhs Eighty Three Thousand Five Hundred only) with interest @ 9% p.a. from the date of assessment till realization to the complainant against his claim of insured vehicle in question, on the basis of report of surveyor. Further Opposite Party is directed to pay compository cost of Rs.20,000/- (Rupees Twenty Thousand only) as compensation and litigation expenses to the complainant. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Party within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party is further burdened with additional cost of Rs.50,000/- (Rupees Fifty Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
