Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 68/25.03.2019
Akshay Bajaj s/o Sri Raj Kumar Bajaj
r/o House No. B-735 Weaver’s Colony,
Ashok Vihar, Phase-4, New Delhi-110052 …Complainant
Versus
The National Insurance Co. Ltd.
1st Floor 2 E/9 Jhandewalan Extension,
New Delhi-110055 ...Opposite Party
Date of filing 25.03.2019
Date of Order: 21.11.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh, President
1.1. (Introduction to case of parties) –The complainant has grievances of deficiency of services and unfair trade practice that he got insured his cab bearing registration no. DL 1ZA 2117, Model-Honda Amaz (hereinafter referred as 'the vehicle') being used to earn his livelihood and he got insured it with the OP/National Insurance Co. Ltd. vide policy no, 34010031183300004070 w.e.f. 25.04.2018 to 24.04.2019 (hereinafter referred as 'the policy'). The vehicle met with an accident but OP failed to reimburse the valid claim of damages of Rs. 7,70,029/- estimated by authorised service centre of OP; that is why the complaint for reimbursement of amount of Rs. 7,70,029/-, compensation of Rs. 5,00,000/-, litigation cost of Rs. 30,000/- and for other reliefs.
1.2. The OP/National Insurance Company opposed the complaint that neither there is any cause of action nor deficiency of services but the complaint suffers from suppression of materials facts. The claim was declined properly by letter dated 11.04.2019 since the vehicle was being driven by Mr. Firoz, at the time of accident and he had LMV driving licence but the insured vehicle is commercial vehicle. The complaint deserves dismissal.
1.3 The complainant had also impleaded M/s Sugoi Motors Pvt. Ltd.(as OP2) in the original complaint, it was served with the notice on complaint and it had also filed the reply that it is not a necessary party since it was a service station. Then by order dated 19.07.2019 on complainant’s application, the name of M/s Sugoi Motors Pvt. Ltd. was deleted. The complaint remained just against present OP/National Insurance Co. Ltd.
2.1. (Case of complainant) –The complainant got his vehicle insured from the OP by paying insurance premium against IDV Rs.4,58,850/- and policy was w.e.f. to 24.04.2019. The complainant is a consumer. The complainant earns his livelihood by use of the vehicle being the only source of income.
2.2. On 25.11.2018, the vehicle met with an accident and it was badly damaged. The complainant informed the OP and lodged claim no. HNCL070811203061 and also provided all information to the surveyor at the time of survey. M/s Surgoi Motors Pvt. Ltd. is authorized service centre of OP, it estimated cost of parts and repairs for Rs. 7,70,029/-, this estimate was also sent to OP in December 2018. The OP failed to remit the amount to service centre for repairs despite repeated calls and reminders. The complainant also sought detail, from the OP, for want of settlement of his claim but there was no response. Finally, on 04.02.2019 the complainant sent registered post legal notice dated 01.02.2019 but there was no response by the OP.
The use of vehicle was the only source to earn his livelihood and complainant was not able to get repaired the vehicle and he has also completed all the formalities but amount was not cleared/remitted to the service station. It has result into mental agony, harassment and inconvenience to the complainant, which is deficiency of services and adopting of unfair trade practice by the OP. The present Consumer Fora/Commission has jurisdiction as OP has business/branch is located within the area of this Commission besides arising of cause of action. The complaint is within the period of limitation too.
2.3 The complaint is accompanied with copy of insurance policy, copy of R/C, renewal of authorization certificate issued by Burari Taxi Unit, Transport Department, certificate of fitness, re-estimate issued by Surgoi Motors Pvt. Ltd., claim information and legal notice dated 01.02.2019 with postal receipt of 04.02.2019
3.1 (Case of OP)-The complaint is opposed by the OP that the present Consumer Forum/Commission has no jurisdiction for want of cause of action within the jurisdiction of this District Commission (Central District). There is also suppression of material facts by the complainant, which does not entitle him for any claim [the OP relies upon M/s Prestige Lights Ltd. Vs. State Bank of India (appeal (civil) 3827/2007].
3.2. The complainant was issued the subject policy and there was information of an accident, therefore, a surveyor was appointed. It is discovered that at the time of accident the insured vehicle was driven by Mr. Firoz, he was having exclusive LMV driving licence but the insured vehicle was a commercial vehicle. The complainant was sent letter dated 11.04.2019 to explain that the driver of vehicle not having proper D/L at the time of accident, which is clear violation of policy terms and conditions but complainant failed to reply the letter for the best reasons known to him. The claim was refused/ repudiated for violation of the policy terms and conditions.
3.3 The OP also denies all other averments of the complaint that the complainant was visiting or making telephone calls to the OP or seeking explanation about the clearing of the claim. The complainant is trying to make a fortune out of nothing by making false and misleading allegations. There is no cause of action arising within the jurisdiction present Forum/Commission. The complaint is liable to be dismissed.
3.4. The reply is supported with power of attorney in favour of Sh. Raghunath Pawar, authorized signatory of OP, who authored the reply, policy cover note, copy of driving licence of Firoz (LMV-NT), Sh. Ajay Girdhar/surveyor’s report dated 15.01.2019, letter dated 11.04.2019 declining the claim, terms and conditions of the policy.
4. (Replication of complainant) –The complainant filed his detailed rejoinder to the written statement of OP and its allegations are opposed in strong words as well as explaining the situations.
The complaint filed is in the present District Consumer Forum has jurisdiction to try and decide it. The case law being relied upon by the OP has no application to the features of the present case. There is no suppression of any material fact.
It is settled in Kulwant Kaur & Ors. Vs. Oriental Insurance Company Ltd. [(2015) 2 SCC 186, wherein decision in S, Iyapan V. United India Insurance Co. (2013) 7 SCC 62 was referred] that when driver is holding a licence to drive a motor vehicle, he can drive commercial vehicle of that category. There is also letter dated 16.04.2018 issued by Joint Secretary (T), Ministry of Road Transport and Highways, Govt. of India addressed to Principal Secretary and in the letter the settled legal position was reiterated as “in Mukund Dewangan Vs. Oriental Insurance Co. Ltd. & Anr. CA. No. 5826/2011 (decided by Hon’ble Supreme Court of India) the requirement under the Motor Vehicles Act, 1988 to obtain the transport licence would arise in case of medium/heavy goods and passenger vehicle only. No other vehicle will require any separate endorsement, even if they are used for commercial purposes. The exemption from the requirement to obtain the endorsement for commercial vehicles would apply to - (i) Motor cycle without gear; (ii) Motor cycle with gear and (iii) Light motor vehicle (goods/passenger)”. The replication is accompanied with copy of letter dated 16.04.2018 and copy of citation Mukund Dewangan Vs. Oriental Insurance Co. Ltd. case (supra). The complaint is reiterate as correct.
5.1. (Evidence)-Complainant Sh. Akshay Bajaj led his detailed affidavit of evidence on the lines of complaint supplemented with documentary record relied upon ( in para 13 of the complaint, he has mentioned that an FIR was lodged, however, no copy of FIR was filed nor it was so referred in the complaint).
5.2. OP/National Insurance Co. Ltd. led evidence by filing affidavit of Sh. Raghunath Pawar, it is also on the pattern of written statement supplemented with the documentary record filed with the written statement.
6.1 (Final hearing)-The complainant and the OP filed their respective written arguments, the same are replica of their evidence and contentions expressed in their respective case, coupled with the case law already referred.
6.2. The parties were also given opportunity to make oral submissions, therefore, Sh. Ramesh Yadav, Advocate and Sh. Jitendra Mehta, Advocate Advocate for OP made the oral submissions.
6.3 The rival contentions are not being repeated here, as the same are being considered and analyzed for deciding the issues.
7.1.1. (Findings)- The rival contentions are considered, keeping in view the material on record in the form of pleading and evidence besides other the case law presented and statutory provisions of the Consumer Protection Act, 1986. The OP has taken an objection that the present District Consumer Forum/ Commission lacks the territorial jurisdiction for want of cause of action arisen in its jurisdiction, which is opposed by the complainant on the basis of first narration in the complaint and record.
7.1.2. The answer of this objection is in the complaint itself. The paragraph no. 14 clearly spells out that OP1 operates its business activities from its office/ branch at Jahandewalan Extension, New Delhi. The OP in its reply to para 14 of complaint mentions that it is matter of record. Further, as per Section 11 (2)(a) of the Consumer Protection Act, 1986, the complaint may be filed on the basis of where the opposite party actually or voluntarily resides or carries on business or has a branch office. The OP1 does not dispute its business/ branch office at Jhandewalan Extension, New Delhi. It clearly makes out the territorial jurisdiction of present District Commission/ Forum (Central District) since this Commission has territorial jurisdiction on this area.
7.2.1. The OP has another vehemently challenged issue that the complaint is without cause of action since the complainant was issued notice dated 11.04.2019 and the complainant failed to give any explanation about the driving license of Mr. Firoz as it was LMV-NT at the time of accident but the vehicle was commercial in nature being driven by him for want of valid licence to drive commercial vehicle. On the other side, the complainant has been visiting and contacting the OP to settle the claim but it was not settled, legal notice was also sent and then complaint was filed.
7.2.2. In order to ascertain answer of this issue, it needs a look at the relevant facts, features and dates to trace chronology of events taken place. The date of accident of vehicle is 25.11.2018 and claim was lodged with the OP after the accident. Legal notice dated 01.02.2019 was posted on 04.02.2019 to the OP while giving 7 days time to respond the claim of complainant since there was no response of his previous visits, telephonic call and other request. Thence, the complaint was filed on 25.03.2019 and the first next date of hearing was 10.05.2019.
Moreover, as per the written statement of OP, the surveyor had furnished his report on 15.01.2019. Therefore, the OP’s letter dated 11.04.2019 was subsequent to filing of the complaint on 25.03.2019. There is no substance in the plea of OP that the complainant failed to respond OP’s letter dated 11.04.2019 to settle the claim. Whereas the complainant had already filed his complaint prior to OP’s letter dated 11.04.2019. In fact, the OP had received legal notice dated 01.02.2019, the OP was already having surveyor report dated 15.01.2019 but it kept silent and all of a sudden letter dated 11.04.2019 was issued. This is OP who was not answering the complainant despite having surveyor's report dated 15.1.2019, it kept mum, why? The letter could be issued earlier? The OP could reply the legal notice dated 1.2.2019? But OP is blaming the complainant. Therefore, there was existing cause of action for filing the complaint and it is not without cause of action. This contention is disposed off.
7.3. The other core issues of consumer dispute is 'whether or not there is violation of terms and conditions of policy'? "Whether or not the complainant is entitled for the claim and relief claimed?". After taking into account stock of all evidence and circumstances, the following conclusions are drawn:-
(i) The surveyor Sh. Ajay Girdhar in his detailed report dated 15.01.2019 recommends damages of Rs. 4,08,350/- after analysis of all the circumstances that as compared to IDV of Rs. 4,58,850/- the repairing cost was on higher side and it was not economical to get repaired the vehicle. There is another recommendation (on page 7 of the report) that the driver of the subject vehicle was having valid licence for motorcycle and LMV-NT, whereas the subject vehicle is for commercial use, it was also discussed by the surveyor with the DRO IV.
(ii) The OP in its letter dated 11.04.2019 took same plea that the driver Firoz was driving commercial vehicle by using driving license LMV only.
(iii) Whereas there was notification/ letter dated 16.04.2018 (pursuant to precedent Mukund Dewangan (supra)) that requirement to obtain transport license would arise in case of medium/ heavy goods and passenger vehicle only. No other vehicle will require any separate endorsement even if they are used for commercial purposes. The exemption from requirement to obtain endorsement for commercial vehicle would apply to (a) motor cycle without gear, (b) motor cycle with gear and (c) light motor vehicle (goods/ passenger). To say, there was no need for separate endorsement for commercial vehicle in the driving license being used by the Firoz for the vehicle in question.
The surveyor in his report dated 15.01.2019 (at page 7), has recommended that driving license was valid for LMC-NT, which was also discussed by him with competent authority at DRO IV, however, the report does not mention about notification/ letter dated 16.04.2018 issued by the Ministry of Road, Transport and Highways as well as the ratio of law laid down in Mukund Dewangan case. The surveyor had not mentioned about notification/letter of 16.4.2018 and about precedent Mukund Dewangan but just dealt with provisions of Motor Vehicle Act with specific recommendation in his report at page 7.
(iv) The OP had issued repudiation letter dated 11.04.2019, after filing of the complaint, reiterating the same reason which was mentioned by the surveyor at page 7 of his report. The OP and its competent Authority had also failed to take cognizance in this case of notification/ letter dated 16.04.2018 issued by the Ministry of Road, Transport and Highways as well as the ratio of law laid down in Mukund Dewangan case, whereas being Insurer of vehicles, it ought to have dealt with it.
(v) In view of sub-clause (i) to (iv) above, it is crystal clear that there was no breach of any terms and conditions of the insurance policy by the complainant.
(vi) It is already discussed and concluded in para 7.2 above that there is cause of action existing for filing the complaint. Since there is no breach of terms and conditions of the policy, therefore, the cause of action is in favour of complainant and against the OP as OP had not responded the settlement of claim to the complainant despite legal notice dated 01.02.2019 and the subject letter dated 11.04.2019 was issued after two months and seven days of receipt of legal notice. OP is blaming the complainant for concealment of facts and not responding the letter dated 11.4.2019 of OP but the circumstances are adverse to the OP that even after receipt of surveyor's report dated 15.1.2019 and then complainant's legal notice, OP remained passive. The complainant was not supposed to reply the letter dated 11.04.2019 when the matter was seized in the complaint pending before the consumer Forum/Commission.
(vii) The complainant had lodged the claim and he has also proved furnishing to OP of re-estimates of repairs of damaged vehicle advised by authorised service centre of OP, which surveyor had also considered in his report dated 15.01.2019 and recommended claim of Rs.4,08,350/- (after considering maximum salvage value of Rs. 50,000/- by deducting it from IDV of Rs. 4,58,850/- and also reducing Rs. 500/- for excess clause).
(viii) The complainant claims amount of Rs. 7,70,029/- in respect of damages to the vehicle in accident on the basis of re-estimates by service centre, whereas the insurance contract was for IDV/sum insured of Rs. 4,58,580/- and claim cannot exceed the sum insured.
(ix) In view of the aforementioned conclusions in sub-clauses, the evidence and other circumstances, it proved claim of Rs. 4,08,350/- in favour of complainant and against OP.
7.4. The complainant claims compensation of Rs. 5,00,000/- but without elaborating as to how the amount of Rs. 5,00,000/- has been computed, there is no evidence of his monthly income or ITR etc., therefore, the compensation should be commensurate to the situation. Since the complainant was denied his valid claim, therefore, compensation of Rs. 20,000/- will meet both ends.
The complainant was constrained to file the complaint to seek reimbursement of his valid claim, therefore, cost of Rs. 15,000/- is quantified in his favour and against OP, it will meet both ends.
7.5. Accordingly, the complaint is allowed in favour of complainant and against the OP while directing the OP to pay amount of Rs. 4,08,350/- [being after reducing salvage of Rs.50,000/- and excess clause of Rs.500/- out of sum insured of Rs. Rs. 4,58,580/-] along with compensation of Rs. 20,000/- and cost of Rs. 10,000/- in 30 days.
In case the amount is not paid within 30 days, then OP will be liable to pay interest @ 7% pa on amount of Rs. 4,08,350/-.
8: Announced on this 21st November 2023 [कार्तिक 30 ,साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Shahina] [Inder Jeet Singh]
Member (Female) President
