Haryana

Ambala

CC/20/2021

Lal Chand Saini - Complainant(s)

Versus

The Divisional Manager National Insurance Co Ltd - Opp.Party(s)

A.S. Gulani

20 Dec 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	20 of 2021
Date of Institution	:	12.01.2021
Date of decision	:	20.12.2022

 

LAL CHAND SAINI Son of Sh. Mehma Ram Saini resident of Village & Post Office Dhankur, Tehsil & District Ambala.

          ……. Complainant.

                                                Versus

The Divisional Manager, National Insurance Co. Ltd., Divisional Office-106 Railway Road, Ambala Cantt.                                                                                  

 ….…. Opposite Party

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member.           

 

Present:       Shri A.S. Guliani, Advocate, counsel for the complainant.

                              Shri Dev Batra, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

a) To pay the amount of Rs.2,63,000/- i.e. insured amount of the car to the complainant along with interest @ 18% per annum from the date of accident till payment.

b) To pay Rs.50,000/- for mental torture and harassment for not making the payment in time.

c) To pay Rs. 22,000/- as cost of litigation.

                             Or

Grant any other relief which this Commission may deems fit.

2.             Brief facts of the case are that the complainant got his vehicle i.e. Indigo Car bearing No.HR01AF-0452 insured from the OP vide Policy No. 55270031196160056759, on making payment premium. On 21.09.2019 the above said vehicle of the complainant burnt at about 12.30 PM while the complainant along with his family was going to Mohindergarh- Narnaul for getting the Haryana Staff Selection Commission examination of his daughter to be held on 22.9.2019 at Mohindergarh. The above said incident occurred due to short circuit, for which DDR No. 33 dated 21.09.2019 was lodged in the Police Station, ISRANA and the OP was also informed on 23.9.2019. The said vehicle was driven by the daughter of the complainant who was having valid driving licence valid up to 22.1.2034 issued by Licencing Authority Ambala. Vide letter dated 8.6.2020, the claim filed by the complainant was repudiated by the OP on the ground that the name of the driver has been changed from the complainant to his daughter Pooja Saini because the complainant was not having valid driving licence. The complainant never intimated or informed the OP in the claim that the said vehicle was driven by him at the time of this incident on 21.9.2019. However if it is presumed that the vehicle was driven by the complainant (Not agreed) it is submitted that the complainant was also having valid driving licence No. HR- 5819940189218 valid from 1.1.1994 to 29.5.2029 and the said driving licence was issued by RTA Yamuna Nagar, as at that time, the complainant was serving in Excise & Taxation Department at Jagadhri. The complainant served the OP a legal notice under Registered A.D. cover through his counsel on 8.10.2020 with a request to pass his claim in respect of the his vehicle but to no avail . Hence this complaint.
3.           Upon notice, the OP appeared and filed written version and raised preliminary objections with regard to jurisdiction, estoppal, cause of action and maintainability etc.  On merits, it has been stated that from the documents supplied by complainant it transpired that it was only complainant, who alone was not only occupying the vehicle in question, but was also driving the said vehicle at the time of incident of fire on 21.09.2019. It is only after passing of approximately 20 days, the name of the driver has been attempted to be changed under some legal advice. The reason behind the same was that complainant was not having a valid & effective driving license at the time of fire incident i.e. on 21.09.2019.  It is totally incorrect on the part of complainant to allege that he was having Driving License No HR-5819940189218, valid from 01.01.1994 to 29.05.2029, issued by RTA Yamua Nagar. Infact as per verification from RTA Yamuna Nagar, Driving License No HR-5819940189218 of Lal Chand Saini was not valid & effective w.e.f. 07.11.2014 to 29.05.2019 (NT) & there after the same was renewed w.e.f 07.10.2019 to 29.05.2029 (NT). Hence, the complainant was not valid & effective on 21.09.2019. Infact Pooja Saini was not driving the said car at that time. She has been introduced at later stage, as driver under legal advice. The OP acted promptly on the receipt of incident on 21.09.2019. Immediately spot inspection by Sh Lokesh Kumar Anand, Surveyor/Loss Assessor was carried out on 21.09.2019 itself. Initial Spot Survey Report dated 03.12.2019 was submitted by the surveyor, who was detailed about the incident at the spot by friend of insured i.e. Sh. Manjeet. Further, Ametek Insurance Surveyors & Loss Assessors (P) Ltd was directed to conduct final survey & assess the final payable loss. Thereafter the vehicle was re-inspected, on seeing all aspects of estimates repair, it was recommended by the Surveyor that the assessed amount for insurers on Net of Salvage Loss basis without RC worked out to Rs.2,54,000/-. The Addendum Report dated 30.01.2020 by Ametek Insurance Surveyors & Loss Assessors (P) Ltd was submitted after going the contents & observations made in spot survey report dated 03.12.2019, showing Net of Salvage Loss basis without RC as Rs 2,54,000/-. However, this amount was payable subject to terms & conditions of policy and because the complainant was not holding valid and effective driving licence at the time of incident, his claim was repudiated by competent authority which was duly informed vide Regd Letter dated 08.06.2020. Legal notice dated 08.10.2020 was duly replied to the counsel of the complainant vide reply dated 30.11.2020. Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint with costs.
4.           Complainant tendered his affidavit as Annexure CW1/A alongwith documents as Annexure C-1 to C-15 & Mark 1 and closed the evidence of the complainant. Learned counsel for the OP tendered affidavit of Sonia Sharma, Deputy Manager, National Insurance Co Ltd., Divisional Office, Ambala Cantt. as Annexure OP-1/A alongwith documents Annexure OP-1/1 to OP-1/12 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for the parties and carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by repudiating the claim of the complainant on the bald ground that though the complainant was driving the vehicle at the time of incident of fire, yet, because he was not having valid licence, as such, later on, he replaced the name of driver of his daughter, only with a view to get claim, the OP is deficient in providing service.
7.           On the other hand, learned counsel for the OP submitted that though the complainant was driving the vehicle at the time of incident of fire, in which it was burnt totally, yet, because he was not having valid licence, as such, later on, he replaced the name of driver of his daughter, only with a view to get claim, as such, the claim of the complainant was righty repudiated by the OP. In support of his contention the learned counsel for the OP has placed reliance on the judgment dated 31.01.2020, passed by the Hon’ble National Commission in the case of Devendra Narayan Dubey Vs. National Insurance Company Limited.
8.           The facts with regard to issuance of insurance policy in question, Annexure C-3 in favour of the complainant; occurrence of incident of fire on 21.09.2019 due to short circuit in the vehicle; reporting of matter to the Fire Brigade vide report dated 33 dated 21.09.2019, Annexure C-5;  deputing of surveyors by the OP for spot survey and also for assessment of claim; and repudiation of  claim filed by the complainant vide letter dated 08.06.2020, Annexure OP-1/2 on the ground that it was the  complainant alone who was driving the said vehicle, but because he was not having valid and effective driving licence on 21.09.2019, as such, he replaced the name of driver as Pooja Saini, her daughter, which is breach of terms and conditions of the policy, as Pooja Saini was neither occupying the vehicle nor driving the same, are not in dispute. Under these circumstances, the moot question which falls for consideration is, as to whether, the claim of the complainant was rightly repudiated by the OP or not. It may be stated here that the document, which has been relied upon by the OP to repudiate the claim of the complainant is the letter dated 21.09.2019, Annexure OP-1/3, having been written by one Manjit, friend of the complainant, to the OP, where the name of driver has been mentioned as Lal Chand Saini i.e complainant. However, the OP sought clarification in that regard from the complainant vide letter dated 27.12.2019, Annexure C-11, the complainant vide letter dated 17.01.2020, Annexure C-12, informed the OP that he had already given affidavit dated 19.10.2019, Mark 1, to it, wherein, he has sworn that the vehicle in question at the relevant time was driven by his daughter, Pooja Saini and that there is no concealment of name of driver of the vehicle in question. Admittedly, the fire took place in the vehicle in question, due to short circuit, and even the Surveyor vide his report dated 03.01.2020, Annexure OP-1/10 has specifically opined that “The damages were fresh and coincided with the history of accident. In Jitendra Kumar vs. Ori­ental                          Insurance Co. Ltd. [(2003) 6 SCC 420]  in paras 9 and 10, it was observed by the Hon’ble Supreme  Court as under:

9. ... The question then is: Can the Insurance Company repudi­ate a claim made by the owner of the vehicle which is duly in­ sured with the Company, solely on the ground that the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? The answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commis­ sion, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where the driver of the vehicle had not contributed in any manner to the accident. Section 149 (2) (a) (ii) of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any man­ner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver.

10. ... It is the case of the parties that the fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion the Insurance Company could not have repudiated the claim of the appellant."

Similarly, in National Insurance Co. Ltd. v. Swaran Singh [2004(3). SCC 297, the Hon’ble Supreme Court has held as under:

"89. ... If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."

9.           Thus, in the present case also, even for the sake of arguments it is assumed that the complainant was driving the vehicle at the relevant time of fire, and not his daughter, and at the same time, he was not having any effective and valid licence, even then, it was not a valid reason with the OP to repudiate the claim of the complainant as the fire was caused solely because of short circuit in the vehicle, having no nexus with the driver not possessing valid licence.
10.           As far as reliance placed by the learned counsel for the OP on  Devendra Narayan Dubey Vs. National Insurance Co. Ltd. Decided by the Hon’ble National Commission on 31.01.2020 is concerned, it may be stated here that in this case, the claim of the complainant was repudiated because he was not having valid licence at the time the vehicle met with an accident. Whereas, on the other hand, the present case relates to repudiation of claim by the OP, which is related to occurrence of fire in vehicle due to short circuit and was not a case of accident. Thus reliance placed  on Devendra Narayan Dubey  is misplaced especially in the face of ratio of law laid down in Jitendra Kumar v. Ori­ ental Insurance Co. Ltd.  and National Insurance Co. Ltd. v. Swaran Singh cases (supra). In this view of the matter, we of the considered opinion that the claim of the complainant was wrongly repudiated by the OP, as such,  he is entitled for the claim amount, as settled by the surveyor vide his report dated 03.01.2020, Annexure OP-1/10 i.e. Rs.2,54,000/- on Net of Salvage Basis without RC, the vehicle being total loss.
11.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP in the following manner:-

1. To pay claim amount of Rs.2,54,000/- alongwith interest @4% p.a, w.e.f 08.06.2020 i.e. the date of repudiation of claim, till its realization.
2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.3,000/- as litigation expenses.  

 

                    The OP is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OP shall pay interest @ 6% per annum on the awarded amount besides litigation expenses, for the period of default. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 20.12.2022.

 

                             (Ruby Sharma)                                  (Neena Sandhu)

                             Member                                                      President