Haryana

Ambala

CC/111/2022

Harish Kumar - Complainant(s)

Versus

The New India Assurance Co Ltd - Opp.Party(s)

Rohit Bansal

24 Sep 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	111 of  2022
Date of Institution	:	04.04.2022
Date of decision	:	24.09.2024

Harish Kumar Aged 51 years s/o Sh. Ram Parkash resident of House no. 1710/13, Near Gas Agency, Modern Complex, Barara, Tehsil Barara, Distt. Ambala.        

……. Complainant

Versus

1. The New India Assurance Co. Ltd. (A Govt. of India Undertaking) Through its Divisional Manager, 172-C, Laxmi Niwas, Rai Market, Ambala Cantt.
2. The New India Assurance Co. Ltd. Regd. & Head Office- Building No.87, MG Road, Fort Mumbai 400001 (M.R.) Through its M.D./Authorized Signatory.

 

….…. Opposite Parties

Before:         Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Rohit Bansal, Advocate, counsel for the complainant. 

                       Shri Mohinder Bindal, Advocate, counsel for the OPs.

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 Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay the claim amount of Rs.16,47,894/-.
2. To pay Rs.5,00,000/- as compensation for the mental agony and physical harassment suffered by the complainant.  
3. To pay Rs.11,000/- as litigation expenses.
4. To pay interest @ 18% P.A. on the above said amount from the due date, till its realization.  
5.  Grant any other directions which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant is owner of Truck bearing Regn. No. HR37E-9200, which he was using to earn his livelihood. The said vehicle was duly insured with OPs vide policy no. 35350031200300003784 covering period 17.10.2020 6:43:32 PM to 16.10.2021 11:59:59 PM. The complainant employed one Mehar Chand s/o Rattan Lal, as driver to drive the above mentioned truck and at the time of engaging the said Mehar Chand s/o Rattan Lal, as driver, the said Mehar Chand s/o Rattan Lal showed his license issued by the Manipur transport authority and after being satisfied the complainant kept Mehar Chand s/o Rattan Lal as driver for the abovementioned truck. The said driver remained in the employment and there was no complaint of any nature from any corner. On 24.12.2020, the above said truck of complainant which was being driven by its driver Mehar Chand s/o Rattan Lal was carrying poultry birds/Hen and was going from Chhatisgarh to Gwalior. The said truck when reached on Jhansi-Gwalior Highway near Triangle Chowk; there a Canter no. NL-1AC-2080 was parked by its driver on the road without parking lights, indicators and without affixing stickers at the back side of the said Canter. There was dense fog as a result of which the truck of complainant collided with the said Canter. The truck driver Mehar Chand suffered grievous injuries and the truck of the complainant was badly damaged. Thereafter, the police reached at the spot and rescued truck driver and cleaner and took them in a Hospital at Dattia and after some time Mehar Chand driver of truck was declared dead by the doctors of Dattia Hospital. To this affect an FIR no. 0150 dt. 25.12.2020 U/S 337/304-A IPS was lodged in Police Station Gora Ghar. In the said accident, the above said truck of complainant was badly damaged and soon after the accident, the complainant informed the OP No.1 about the accident well within time and the OP No.1 told complainant to get the said truck repaired from authorized agencies and to submit claim amount of damage to the OP No.1. Accordingly the complainant got the truck in question repaired from M/S Dhingra Trucking Pvt. Ltd. G.T. Road, Gharaonda, Distt. Karnal, Haryana vide three different bills i.e bill dated 18.3.2021 for Rs.2,00,000/- and bill dated 18.5.2021 for Rs.6,82,894/- and bill dated 18-6-21 for Rs.1,90,000/- and from M/S Sirhind Body Builder, Near Chakki Bridge, Bye Pass Road, Pathankot vide Bill no.527 dated 20.6.2021. In this manner, the complainant paid the total amount of Rs.16,47,894/- from his pocket towards repair of the said truck. Thereafter, as per the assurances given by the OP No.1, complainant after completion of all formalities required by the OPs submitted his claim for reimbursement of the said amount. Firstly, the OPs accepted the claim papers of complainant and assured that the claim amount will be released within 10 days and thereafter they made some objections on the claim of complainant i.e. validity of driving license of the driver just to harass and harm the complainant for no fault on his part. After objection by the OPs, the complainant submitted the copy of Driving license no. 32061/SPT dt. 7.5.2018 issued by the D.T.O. Senapati, Manipur to the OPs, which was submitted by Sh. Mehar Chand, driver of Truck no. HR37E-9200, at the time of his employment with the complainant and the complainant after verifying legality and validity of said driving license, had engaged the services of said Mehar Chand as driver of his truck no. HR37E-9200 and the complainant is not aware about driving license issued by LA/RTA Ambala dt. 13.2.2012 as alleged by the OPs. The driving license no. 32061/SPT dt. 7.5.2018 issued by the D.T.O. Senapati, Manipur to the driver Mehar Chand, produced by the complainant to the OPs is legal, valid and genuine and there is no fault on the part of complainant, thus the complainant is legally entitled for the claim amount and the OPs are legally bound to reimburse the claim of complainant but they intentionally and malafidely are trying to harass and humiliate the complainant without any reason. Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version wherein they raised preliminary objections to the effect that this complaint is not maintainable; the complainant has no loçus standi to file the present complaint and has not approached this Commission with clean hands as he has suppressed the material facts so as to get the claim amount; the instant complaint has been filed vexatiously only with the sole intention of gaining unlawfully without any just and legal cause; this Commission has got no jurisdiction to entertain and try the present complaint since there is no relationship of consumer between the parties; the complainant does not come under the preview of the Consumer Protection Act since the goods were meant only for commercial purposes; the present complaint is also not maintainable since the same is based upon the manipulations and fraud being played by the complainant with the sole motive to have compensation from the OPs deceitfully for which he is not entitled to etc. On merits, it has been stated that the complainant was very much aware of the fact that his driver was having a fake driving license allegedly shown to be issued by the Licensing authority/RTA, Ambala being resident of District Ambala and even initially submitted the copy of said DL no. HR0120120008596 dated 13.02.2012 but for the sake of the present claim in issue, he later gave another driving license to the surveyor by manipulating another license shown to be issued by LA, Senapati, Manipur, from a faraway place against the provisions of law and in contravention of the Motor Vehicle Act as well since his alleged driver had never resided at such place during his entire life time. Even otherwise a person according to law cannot have two driving licenses and the second driving license cannot be taken into consideration as per settled law 2014(3)PLR458, 2009()PLR635, 2017(2)PLR706. Even it has been held that the first DL which was initially provided and taken into possession by the police at the time of accident should be considered as held in case law 2018(I)PLR387. The complainant is also not entitled to any claim since the alleged loss to his truck has taken place due to gross negligence on the part of his driver who was driving his said truck negligently at the time of accident by keeping his feet and squatting on his driver seat. The reported claim of the complainant was entertained immediately without going into the aspect of maintainability of the claim and one independent IRDA licensed and approved surveyor Sh. R.S. Kohli, Surveyors & Loss Assessor was immediately deputed to assess the loss and to give his fact finding report with regard to the accident in question. The said surveyor visited the premises of workshop at Karnal where the truck in question was already parked for repair and has detail discussion with the mechanic and the complainant. After scrutinizing and elaborating the whole facts, position of the vehicle in question and the evidence, the said surveyor submitted his detailed report wherein he assessed the loss to the tune of Rs.10,15,736/- subject to terms and conditions of the insurance policy and approval by the competent authority. Initially, the insured submitted the driving license bearing No. HR0120120008596 dated 13.02.2012, of his driver Mr. Mehar Chand who was driving the vehicle at that relevant time of accident but when he came to know that the police of PS Goraghat, MP had got it verified and found it fake through online verification, thereafter he supplied another driving license to the surveyor shown to be issued from Manipur, which he later managed by manipulations purposely for this claim only. The driving license no., HR0120120008596 dated 13.02.2012 of the driver in the name of Mehar Chand submitted by the complainant initially and even recovered by the police from the possession of the deceased driver after the accident was got verified from the alleged licensing authority, LA/RTA, Ambala about its genuinity. The said licensing authority confirmed the alleged driving license as fake. Even otherwise also a person resident of Haryana cannot legally have a driving license from such a faraway place since as per law prescribed under the Motor Vehicle Act, a driving license can only be issued to a person who has residential proof of that particular area which in this case is missing.  In a case law decided vide FAO no. 1623 of 2014 decided on 21.03.2014, it has been doubted that a person who is resident of Karnal cannot get DL issued from Nagaland and thus his alleged DL of Nagaland was held and considered fake by the Hon'ble High Court. The verification of the initially submitted driving license was considered in detail by the competent authority and after scrutinizing and elaborating the whole facts, situation, records and the evidence at that stage of the claim, the OPs were compelled to repudiate the reported claim of the complainant as per the terms of the policy on the ground of fake driving license without going further into the merits of this claim. The complainant was duly informed about the fate of his claim vide an opportunity letter dated 03.02.2022 but inspite of all these legal facts and even very much aware about the fate of the DL and claim, the complainant even sent a legal notice dated 28.01.2022 received on 03.02.2022 through his advocate which was duly replied by the OPs through their advocate vide reply dated 14.02.2022 with all the clarification but again the complainant through his advocate sent a reply to opportunity letter in the shape of legal notice just to put undue pressure. Since the complainant failed to give any explanation to the legal quarries put to him vide letter dated 03.02.2022, so his reported claim in question was finally repudiated and he was duly informed about the repudiation of his claim vide letter dated 08.03.2022 but again the complainant in order to put undue pressure filed this false complaint by exploiting the process of law; hence the present complaint deserves dismissal on this score alone.
4.           The insurance policy was issued subject to certain terms and conditions and the terms and conditions of the Policy were explained to the complainant at the time of proposing policy and the same was served to the complainant along with the Policy Schedule and the complainant was legally bound to abide and follow the same without any lapse. The Insurance Policy is contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy. It is absolutely wrong that the complainant can be said to be using his said truck to earn his livelihood rather he was using the same commercially by employing a driver. Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint with costs.
5.           Learned counsel for the complainant tendered affidavit of complainant as Annexure C-A alongwith documents as Annexure C-1 to C-20 and closed the evidence on his behalf. On the other hand, learned counsel for the OP tendered affidavit of Mona Bagga, Sr. Divisional Manager and Authorized Signatory of OPs-Company-The New India Assurance Co. Ltd., Divisional Office, Ambala Cantt. and Shubham Arora, Investigator, resident of house No.3548/1, Timber Market, Ambala Cantt. and R.S. Kohli, Surveyor and Loss Assessor, having its office at #521, Sectr-13, Urban Estate, Kurukshetra  as Annexure OP/A to OP-C respectively alongwith documents as Annexure OP-1 to OP-13 and closed the evidence on behalf of OPs.
6.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by not paying the claim amount to the complainant, which fell due under the policy in question, as accident of the vehicle in question took place during subsistence of the said policy, the OPs are deficient in providing service, negligent and adopted unfair trade practice.  He further submitted that the claim of the complainant was wrongly repudiated by the OPs, on the ground that the driver, driving the vehicle was not having valid licence, but on the other hand, a valid licence issued by the Manipur Authorities was handed over to the OPs. He further submitted that even at the time of keeping the said driver on job, he checked his driving skills and also physically checked his licence issued by the Manipur Authorities. In support of his contention, the learned counsel for the complainant has placed reliance on Nirmala Kothari v. United India Insurance Company Limited [(2020) 4 SCC 47], decided by the Hon’ble Supreme Court of India, New Delhi and  National Insurance Company Vs. Chand Kaur and Others, 2005 (1) RCR (Civil) decided by the Hon’ble Punjab and Haryana High Court, Chandigarh.
8.           On the contrary, the learned counsel for the OPs submitted that since the driver-Mehar Chand driving the vehicle in question at the time of accident was not having any valid licence, as the licence handed over by him to the police authorities, which had been  allegedly issued by the Ambala, Transport Authorities, was found to be fake, therefore, the claim of the complainant was rightly repudiated by the OPs. He further submitted that later on, the   complainant produced licence of the said driver, issued by Manipal Authorities, which had been procured by him, as such, the said licence is also not sustainable in the eyes of law, because the as per the provisions of MV Act, the driver cannot keep two licences, at a time.  In support of his contention, the learned counsel for the OPs has placed reliance upon the judgment dated 16.09.2008, passed by the Hon’ble Supreme Court of India, New Delhi, in the case of National Insurance Company Limited Vs. Gurucharan Singh, and the judgment dated 18.09.2008 passed by the Hon’ble Supreme Court of India, New Delhi, in the case of National Insurance Company Limited Vs. Harbhajan Lal, judgment dated 21.02.2017, passed by Hon’ble Punjab and Haryana High Court, Chandigarh, in the case of Paramjit Kaur and Others Vs. Nahar Singh and Others, and the judgment dated 25.07.2011, passed by the Haryana State Consumer Disputes Redressal Commission, Haryana, Panchkula in the case of National Insurance Company Limited & Another Vs. Gopal Pathak.  
9.           The moot question which falls for consideration is, as to whether, the complainant is entitled to any relief in this case or not. It may be stated here that perusal of contents of claim repudiation letter dated 03.02.2022, Annexure OP-2 reveals it was repudiated on the ground that driving licence bearing no.HR-0120120008596 dated 13.02.2012, Annexure OP-6,  allegedly issued by the Haryana Transport Authorities has been found to be fake, as informed by the RTA Ambala, vide report dated 16.07.2024, Annexure OP-5. 
10.           It may be stated here that though driving licence bearing no.HR-0120120008596 dated 13.02.2012, Annexure OP-6 pertaining to the driver-Mehar Chand has been found to be fake, yet on the other hand, it is the definite case of the complainant, as argued by his counsel also, that at the time of employment of driver-Mehar Chand, he has submitted the driving licence bearing no.32061/SPT dated 22.06.2015, Annexure C-9 having been issued by the District Transport Officer, Senapati District Manipur. It is also the definite case of the complainant that he had got verified the legality and validity of the said licence, Annexure C-9 and only thereafter he had engaged the services of driver-Mehar Chand. It has also been specifically mentioned by the complainant in his complaint that he is not aware of driving licence bearing no.HR-0120120008596 dated 13.02.2012, Annexure OP-6. It is significant to mention here that it is not the case of the OPs that the driving licence bearing no.32061/SPT dated 22.06.2015, Annexure C-9 having been issued by the District Transport Officer, Senapati District Manipur is not legal and valid nor they have proved so.
11.           In the case of National Insurance Company Limited Vs. Gurucharan Singh (Supra), It has been held by the Hon’ble Supreme Court of India that the complaint filed by the insured and not by third party- Therefore Swaran Singh’s case (2004 ACJ 1 (SC) not applicable and complaint dismissed. In the case of National Insurance Company Limited Vs. Harbhajan Lal, (Supra), the Hon’ble Supreme Court of India has held that no sooner the insurer is able to prove that the licence was fake one, the insurer is absolved from its liability. In the case of Nirmala Kothari v. United India Insurance Company Limited (Supra) decided by the Hon’ble Supreme Court of India on 04.03.2020, has reiterated the principle and interpretation of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 and elucidated that “While hiring a driver the employer is expected to verify if the driver has a driving license. If the driver produces a license which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the license unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving license there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving license. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the license was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.” It may be stated here that it is settled law that when two different view/observation between any judgments are found, the law which goes into the favour of the consumer/insured should be taken into consideration.
12.           In the case of Paramjit Kaur and Others Vs. Nahar Singh and Others, (Supra), the Hon’ble Punjab and Haryana High Court has held that the driver of offending vehicle holding 2 licences- The driver could not hold 2 licences and the first licence did not authorize him to drive the vehicle he was driving at the time of accident-Therefore, insurance company could not have been made liable.  In the case of National Insurance Company Limited & Another Vs. Gopal Pathak (Supra), the Hon’ble State Consumer Disputes Redressal Commission, Panchkula has held that complainant violated terms of insurance policy as driver of vehicle was holding two driving licence out of which first driving licence was found fake- Person cannot hold two driving licences simultaneously- Complainant not entitled to any compensation with respect to damage of his vehicle which was being driven by an unauthorized person. It may be stated here that the judgments/orders passed by the Subordinate Courts/Commissions, in the aforesaid cases, referred by the learned counsel for the OPs, shall not hold field in the face of law laid down by the Hon’ble Supreme Court in Nirmala Kothari Vs. United Insurance Company Limited (supra),
13.            In view of the principle of law laid down by the Hon’ble Supreme Court of India, in the case of Nirmala Kothari Vs. United India Insurance Company Limited (Supra), we do not hesitate to conclude that the insurer was wrong in repudiating the claim of the complainant and is thus liable to indemnify the complainant for the loss suffered by the complainant. Now coming to the quantum of the indemnification. Though the complainant has sought amount of Rs.16,47,894/- yet, the Surveyor in his report dated 26.04.2021 Annexure OP-3, which is a detailed one, has assessed the liability of the insurance company to the tune of Rs.10,15,736/-. The complainant has not challenged this report, Annexure OP-3 by placing on record any contrary evidence.  Under these circumstances, the complainant is held entitled to an amount of Rs.10,15,736/-. By not making payment of this amount of Rs.10,15,736/- the OPs are deficient in rendering service and guilty of unfair trade practice. 
14.           In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs, in the following manner:-
    1. To pay the claim amount of Rs.10,15,736/- alongwith interest @6% p.a. from 03.02.2022 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 OPs are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. 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:- 24.09.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President