BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO-53/2019
Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy, Member (W).
Hemanta Kumar Nayak, aged about 33 years,
S/O- Judhistir Nayak,
R/O- At/P.O-Dhankauda,Baidarnuapali,
Dist-Sambalpur. …..Complainant
Vrs.
The Divisional Manager,
Oriental Insurance Co. Ltd.,
Office at V.S.S Marg, Sambalpur. ……O.P.
Counsels:-
- For the Complainant:- Sri. B.K.Shroff, Advocate & Associates.
- For the O.P :- Sri. B.K. Purohit, Advocate & Associates.
DATE OF HEARING : 08.03.2021, DATE OF ORDER : 12.04.2021
SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that, the Complainant is a owner of Bolero Plus 2WD STR AC PS BS4 bearing registration no- OD 15 H 4232 having Chassis No- MA1XE2GRKH5C12941 and engine No- GRH4C76296 make of Mahindra & Mahindra. The Bolero was duly insured with the O.P vide policy no-345600/31/2019/908 valid from 04/05/2018 to 05.05.2019. The Bolero was met with an accident on dtd11.04.2019 near Tangarpali, Sambalpur and got damaged. The Complainant informed the O.P and lodged Own Damage Claim vide No-340012/31/2020/030027. The Complainant has incurred expenditure for Rs. 10,250 towards minor repairing to bringing the vehicle to the garage by crane. Further expenditure of Rs. 38,425/- was incurred in order to restore the vehicle to its pre loss condition vide bill dtd. 12.04.2019 & 19.04.2019. A Surveyor was appointed by the O.P but the report was not yet obtained by the Complainant. But later on the Claim was repudiated by the O.P on the reason that the driving license submitted by the Complainant was authorised the driver to drive is valid for MCWG and LMV only not for Transport vehicle as verified from RTO. The Complainant has stated that the O.P has repudiated the claim on dtd. 25.02.2-19 before intimation of accident. A written objection was submitted by the Complainant against the repudiation of the claim to the O.P. There is no relation between the cause of accident and plying of vehicle with a valid driving license for MCWG and LMV of non compliance of condition. The prescribed GIC guidelines ensures payment of towards indemnification on non-standard basis. The O.P is liable to indemnify the insured for the loss suffered and here the O.P has violated the guidelines of the Company and this amounts to unfair trade practice thereby causing mental agony and pain for which the O.P is liable to be penalised.
As per the O.P the policy was issued subject to India Motor Tariff Endorsement No.36, 21, 22, 23, 40 along with Nil Depreciation Cover and IMT-6. As per the driver clause the insured vehicle can be permitted to be driven by a person holding a effective driving license at the time of accident failing which the claim will be repudiated by the Insurance company. After getting information the O.P engaged one IRDA license surveyor & loss assessor Er. Dhiren Das to the spot and to the garage and the net loss was assessed to Rs. 12,600/- after deducting depreciation, salvage and policy excess. Even the policy is a Nil Depreciation Policy ,the IMT-21 does not cover any taxi and passenger carrying vehicle and all the damages of the glass items and the plastic items of the vehicle are not covered. As per the documents submitted by the insured it is observed that the insured himself was driving the vehicle at the time of the accident and was holding a license to drive light motor vehicle non-transport till 23.11.2029. As the vehicle was a Transport vehicle hence the O.P repudiated the claim on dtd.16.05.2019 for violation of policy condition. Again as per the General Insurance Company was earlier prevailed for settlement of claim on non standard basis on violation of policy condition by the insured but now the GIC is an refinancing company of the Govt. of India and not the controlling authority of insurance companies. So the guidelines are not effective to the O.P and the Company is not entitled to give any compensation to Complainant.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
- Whether the O.Ps has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a new HMT Tractor and Trailer and got it insured with the O.P on payment premium as consideration amount. According to the Section -21 of the M.V act- "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a Motor Car or Tractor or Road-Roller the unladen weight of any of which, does not exceed to 7,500 kilograms. In the present case the unladen weight of the Tractor is 2100 kgs. Further the insurer alleged that the appellant had committed breach of the terms of the insurance policy and had violated the provisions of the Act by entrusting a "Transport Vehicle" to a person who did not hold a valid license and the O.P/insurer was, thus, not liable to indemnify Complainant appellant. Under the policy firstly light motor vehicle meant the gross weight of which did not exceed 7,500 kilograms and secondly against the column "driver" the policy stated: "Drivers clause:- Persons or classes of persons entitled to drive:- any person including the insured. Provided that a person driving holding an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that “if a person holding an effective Learner's License may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989." Now the vehicle in the present case weighed 1670 kilograms and the driver had the driving license to drive a Light Motor Vehicle. It is itself the case of the O.P Insurer that in the case of a light motor vehicle which is a non-transport vehicle, there was no statutory requirement to have specific authorisation on the license of the driver under Form 6 under the Rules. It has, therefore, to be held that Hemanta Kumar Naik was holding effective valid license on the date of accident to drive light motor vehicle. In the case of “Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., 1999 6 SCC 620, S. Iyyapan v. United India Insurance Co. Ltd. and Anr., 2013 7 SCC 62, Nagashetty v. United India Insurance Co. Ltd. & Ors., 2001 8 SCC 56”, the view taken by this Court was that when a driver is holding a license to drive 'light motor vehicle', he is competent to drive a 'transport vehicle' of that category without specific endorsement to drive the transport vehicle. The surveyor and loss assessor after final inspection has submitted a report assessing the loss to Rs.12,600/-, after deducting depreciation, salvage and amount towards policy excess. But it is seen that the Complainant has got the Bolero repaired from Krishna Motors who is not the Authorised Service station of Mahindra Vehicles (Bolero) and the bills issued are submitted with the petition. The judgment of Hon’ble Supreme Court reported in New India Assurance Company Limited vrs. Pardeep Kumar () is applicable to the facts of the present case, wherein it has been laid down that Surveyors report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. So from the above the O.P has committed deficiency in service as per the Consumer Protection Act-2019 and we order as under:-
ORDER
That the Complaint petition is allowed. The O.P is directed to pay minimum75% of the expenditure that already been incurred by the Complainant i.e Rs.36,500/-(75% of {10,250 +38,425} Rs. 48,675/-) to the Complainant towards the repairing charges of the accident Bolero OD 15 H 4232 along with interest @ of 5% p.a from the date of filing of this case dtd. 04.09.2019. Further the O.P is directed to pay an amount of Rs.10,000/-(Rupees Ten Thousand) by way of compensation to the Complainant for causing him mental, physical and financial loss and agony and Rs. 5,000/-(Rupees Five Thousand) as litigation costs. This amount shall be paid by the OP to the Complainant within a period of one month from the date of receipt of a certified copy of this order, failing which the OP shall pay interest @ 5% per annum on this amount from the date of order till its realisation."
Order pronounced in the open Court today i.e, on 12th day of April 2021 under my hand and seal of this Commission.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
-Sd/- -Sd/-
MEMBER(W) PRESIDENT
Dictated and Corrected
by me.
-Sd/-
PRESIDENT
