Haryana

Ambala

CC/329/2019

Shivcharan - Complainant(s)

Versus

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

Amit Kumar Garg

03 Oct 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

                                                          Complaint case no.         :     329 of 2019

                                                          Date of Institution           :     16.10.2019

                                                          Date of decision    :     03.10.2022.

Shivcharan aged about 29 years s/o Sh. Gurmukh Singh r/o Village - Budha Khera, Post Office - Jolly, Tehsil - Nariangarh, Distt. Ambala.                                                                                                              ……. Complainant

                                                                                       Versus

The New India Assurance Company Limited through its Branch Manager, Punjabi Mohalla - Ambala Cantt., Distt. - Ambala

….…. Opposite Party

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri Amit Kumar Garg, Advocate, counsel for the complainant

                     Shri Shubham Aggarwal, Advocate, counsel for the OP.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

(i) To pay a sum of Rs.2,66,526/- as estimated loss of the vehicle or to direct it to execute necessary directions to the workshop/ agency to repair the vehicle in question immediately.

(ii) To pay a sum of Rs.5,00,000/- as financial loss/ loss of future earnings suffered by the complainant.

 (iii) To pay a sum of Rs.3,00,000/- as compensation for causing mental, agony and physical harassment to the complainant and also for rendering deficient services and for adopting of unfair trade practice.                            

2.             Brief facts of this case are that the complainant is the registered owner of the Ashoka Lylond Dost- bearing No. HR37D9403 which was got insured from the OP vide policy no.71070031180150000277, valid from 24.05.2018 to 23.05.2019. On 03.05.2019 the said vehicle met with a road side accident in the area of Police Station - Nariangarh, Kala Aamb Chowki, Distt. Ambala with a truck to save cows/Neel Gaaye. It has been stated that the said cows suddenly came in front of vehicle, as a result of which, the driver- Naveen Kumar and complainant were injured and the vehicle was also badly damaged. The police of Kala Aamb Post, Distt. - Ambala also registered a D.D.R. on very next day and after recording the statements of the driver and the complainant, the police handed over copy of said D.D.R. on 14.05.2019. The driver Naveen Kumar was taken to CHC- Mullana, while the complainant was taken to CHC - Nariangarh wherefrom he was referred to Sector-6, Panchkula. After the accident the complainant/his father gave its information to the OP who got the said vehicle surveyed from its authorized surveyor. The said surveyor assessed the loss of the accidental vehicle to the tune of Rs.266526/- and asked the complainant to transport it to nearby workshop. On 10.05.2019 the father of the complainant took the said damaged vehicle to PMG MOTORS Agency at Village Manglai, Ambala -Saha Road, Ambala Cantt., Distt. Ambala for repairs.  The manager of PMG Motors asked to submit all the necessary documents for approval of the insurance company to repair the vehicle in question.  However, the OP did not approve the claim of the complainant and he was shocked to receive repudiation letter dated 19.08.2019 from the OP, stating therein that it has been observed that as per the claim form name of the driver is mentioned Naveen Kumar whereas actual driver as on date of loss was Shiv Charan-complainant, which fact was concealed and that the complainant was not in possession of any driving license. After receiving the said letter, the complainant visited the office of the OP in the matter but to no avail.   It has been stated that the name of the complainant was mentioned in the challan while loading goods, as driver, in an ordinary process and he did not pay attention to the same, while loading the goods. Moreover, the complainant himself was sitting in the vehicle in question and as the complainant himself has no driving license, therefore he had engaged Naveen Kumar. By repudiating the genuine claim, the OP has committed deficiency in providing service. Hence, the present complaint.
3. Upon notice, OP appeared and filed written version and raised preliminary objections with regard to cause of action etc.  On merits, while admitting factual matrix of the case regarding obtaining of insurance policy in question by the complainant, in respect of the vehicle in question, it is stated that  the claim of the complainant was repudiated by OP vide letter dated 19.08.2019 on the ground that though the complainant who was driving the vehicle at the time of accident but he was not having any valid Driving Licence. In order to cover the lacuna, complainant plotted his friend namely Sh. Naveen Kumar into the scenario, which fact is also well proven by the MLR's submitted by both complainant and Naveen Kumar to the Investigating Officer, as the MLR of the complainant reveals that he sustained injuries on the right hand side of the body particularly on right hand and right foot which can be clearly seen from the photographs. The truck was also damaged from right hand side which clearly makes out the case that on the day of the accident, Sh. Shiv Charan only was driving the said vehicle. Furthermore, the date of accident is 03 May, 2019 and the MLR of the Complainant i.e. Sh. Shiv Charan is also recorded as 03 May, 2019 as per the MLR. The said MLR of Sh. Shiv Charan is of the same place where the accident of the said vehicle took place. On the other hand, the MLR of Sh. Naveen Kumar is dated 04 May, 2019 at 6:25 p.m. from CHC, Mullana which is far off from place of accident and was after thought of plotting him as a driver of the insured vehicle. The injury marks as per the MLR of Sh. Naveen Kumar are minor bruises, superficial laceration and abrasion on Left foot. And the injury is simple on the left hand side. By any chance even if the version of the complainant that Naveen Kumar was driving the vehicle on date of accident and he was sitting on the other side is believed to be true, Naveen Kumar must have sustained injuries on the right hand side as the vehicle itself is damaged from the right hand side (i.e. the driver's side) and not left hand side as shown by the  complainant.  Another aspect which is required to be considered that after the said accident, the owner and insured Sh. Shiv Charan was immediately rushed to Naraingarh Hospital, while the alleged accompanying seater Naveen Kumar did not even accompany him to the hospital and went back to his home from the spot of incident, which is also unbelievable. Therefore, the OP was right in repudiating the claim of the complainant. Rest of the averments of the complainant were denied by the answering OP and prayed for dismissal of the present complaint with costs.
4.           Complainant tendered his affidavit and affidavit of Shri Naveen Kumar son of Shyam Lal R/o Sohana, Tehsil Barara, District Ambala as Annexure CW1/A and CW2/A along with documents Annexure C-1 to C-11 and closed the evidence of the complainant. On the other hand, learned counsel for the OP tendered affidavit of Mona Bagga, Senior Divisional Manager, New India Assurance Company Limited, Rai Market, Ambaa Cantt. as Annexure OP1/A alongwith documents Annexure OP-1 to OP-17 and closed evidence on behalf of the OP.
5.           We have heard the learned counsel for the parties and have also gone through the record very carefully.
6.           Learned counsel for the complainant submitted that infact at the time of accident the vehicle in question was driven by Naveen Kumar, driver however, the name of the complainant was wrongly written on the challan as driver, as such, the OP was legally bound to pay the claim amount of the damaged vehicle being under insurance cover, but, his genuine claim has been repudiated by the OP on the flimsy grounds, which act amounts to deficiency in providing service. 
7.           On the contrary, the learned counsel for the OP submitted that because the complainant who was driving the vehicle at the time of accident as is evident from the Challan No.1001 dated 03.05.2019, Annexure OP-4, was not holding any driving licence, therefore, his claim was rightly repudiated as per terms and conditions of the insurance policy.
8.           Perusal of repudiation letter, Annexure OP-1 reveals that the claim of the complainant was repudiated by the OP on the ground that though it was the complainant, who was driving the vehicle at the time of accident, yet, he concealed this fact, and on the other hand, he introduced Naveen Kumar as driver.  It may be stated here that in the Challan No.1001 dated 03.05.2019, Annexure OP-4, against the column driver, it has been written as “Shivji” and the column meant for owner has been left blank. The fact that the name of the complainant has been written in the said challan, as driver, has been admitted by the complainant in his complaint. Thus, this document, Annexure OP-4, leaves no doubt for this Commission to hold that it was the complainant who was driving the vehicle in question at the relevant time and not the Naveen Kumar.
9.           From the perusal of repudiation letter, Annexure OP-1, it is evident that the OP not only repudiated the claim on the ground that at the occurrence of the incident complainant was driving the vehicle and not Naveen Kumar and also on the ground that non holding of driving licence by the complainant, at the relevant time when he was driving the vehicle. It is not the case of the complainant that at the time of accident he was holding a valid licence to drive the vehicle in question.  In the face of Challan No.1001 dated 03.05.2019, Annexure OP-4, the plea raised by the complainant to the effect that only Naveen Kumar was driving the vehicle in question cannot be taken into consideration.
10.           In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove his case, therefore, no relief can be granted to him. Resultantly, this complaint stands dismissed with no order as to cost. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced on: 03.10.2022.

 

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

              Member                         Member                       President