Haryana

Ambala

CC/266/2013

SMT KAILASH GOEL - Complainant(s)

Versus

THE NEW INDIA ASSURANCE CO. LTD. - Opp.Party(s)

Mukesh Kumar

31 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                             Complaint Case No.      : 266 of 2013

                             Date of Institution         : 09-10-2013

                             Date of Decision            : 31.05.2017

 

Kailash Goel wife of Late Sh. Rajeshwar Kumar Goel, resident of house No. 4378, Anaj Mandi, Ambala Cantt.                                                  

……Complainants.

Versus

1. The New India Assurance Co. Ltd. Divisional Office 100, The Mall Ambala Cantt through its Senior Divisional Manager.
2. The New India Assurance Co. Ltd. Near Railway Station G.T. Road, Shahbad Distt. Kurukshetra through its Branch Manager.

                                                ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act

BEFORE:   SH. D.N. ARORA,  PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.                  

Present:       Sh. Mukesh Kumar, counsel for complainant.

                   Sh. Nikhlesh Bhagi, counsel for opposite parties.

ORDER.

                    In nutshell, brief facts of the complaint are that the husband of the complainant Late Sh. Rajeshwar Kumar Goel son of Sh. Sohan Lal Goel was owner of Scooter bearing registration No. HR01R-3357 and the above said vehicle was insured with the opposite parties vide policy No. 35360331100100008043 for the period from 24-11-2010 to 23-11-2011. It is submitted that on 15-01-2011 at about 5:30 PM, the husband of the complainant was travelling on his scooter bearing regn. No. HR01R-3357 and he was coming from Ambala City to Ambala Cantt. by plying the above said scooter. When he reached near Air Force Station, there was a speed breaker and his scooter was slipped and he was fallen down on the road along with scooter and he died at the spot. His post Mortem was conducted by the doctor of Civil Hospital, Ambala Cantt vide PMR No 28 dated 16-01-2011. An DDR was also got lodged by Sh. Vijay Kumar in this regard at P.S. Ambala Cantt. on 15-01-2011. The complainant has filed the claim on account of death of her husband with opposite parties and had also completed all the formalities of the opposite parties and but they failed to pay the claim amount despite repeated demands, requests, visits by the claimant which is totally against the natural justice & law. The complainant has also issued a legal notice dated 03-10-2012 through Regd. A.D. post through his counsel to the opposite party which was duly served upon the opposite party and the opposite party had also given a false and vague reply dated 16-10-2012 of the above said notice. Hence, the complainant has prayed that the OPs be directed to pay the claim amount of Rs. 1,00,000/-, Rs. 50,000/- as compensation on account of harassment, mental agony along with interest @ 18% p.a. and Rs. 11,000/- as litigation expenses.

 2.               Upon notice, OPs appeared through counsel and filed written statement raising preliminary objections qua maintainability of complaint and suppression of material facts. On merits, it has been submitted that the scooter No. HR01-R-3357 was insured with the OP No. 2 and OP No. 2 issued the policy. The complainant lodged the claim with the OP No. 2, on which OP No. 2 appointed Sh. Vinod Baweja as investigator in the matter. During Investigation Mr. Vinod Baweja demanded driving licence of deceased Sh Rajeshwar Goel, but the same was not supplied to Investigator. The OP No. 2 even wronte a letter dated 23-05-2011 to the complainant and demanded the driving licence but the complainant did not supply the same. So the file be closed as “No claim” due to non completion of claim formalities and no supply of driving licence of deceased who was driving the insured vehicle at the time of accident. It is further submitted that as per terms and conditions of the insurance policy the insurance company is liable only when the driver of insured vehicle was having valid driving licence. It is further submitted that non supply of driving licence of Sh. Rjeshwar Goel draws an inference that he was not having valid driving licence at the time of accident, hence the vehicle at the alleged accident was being used violation of terms and conditions of the policy.

Rest of averments made by the complainants are denied. Thus the OPs have prayed that there is no fault on their part and sought for dismissal of complaint with costs.

3.                To prove his version, counsel for complainant tendered affidavit as Annexure CX alongwith documents as Annexures C-1 to C-9 and closed the evidence of complainant.  On the other hand, counsel for OPs tendered affidavit of R. Singhal as annexure R1 and affidavit of M.L. Vaish as annexure R2 and documents as annexure R3 and annexure R12 and closed the evidence on behalf of the OPs.    

4.                We have heard learned counsel for the parties and gone through the case file very carefully. Counsel for the opposite parties has argued that the policy in question purchased from the Branch office of Shahbad Distt. Kurukshetra and complainant filed the claim before the Branch office of Shahbad and entire correspondence were made with the Branch office at Shahadbad and nothing has been done with the branch office at Ambala, hence no jurisdiction is made out at Ambala. In this regard counsel for the complainant has argued that the accident in question was took place at Ambala and DDR was also got lodged at P.S. Ambala Cantt. on 15-01-2011. In view of the submission made by the counsel for the complainant, part cause of action arose at Ambala, hence, the plea of jurisdiction of the opposite parties is not sustainable.

                   The second defence raised by the opposite parties is that the driver/deceased was not holding valid driving licence at the time of accident and the same was expired and was not got renewed.

                   It is not disputed that Late Sh. Rajeshwar Goel was the owner of the Scooter in question as per annexure C1 and the said scooter was insured for the period from 24-11-2010 to 23-11-2011 as per annexure C2. It is also admitted that an accident of Sh. Rajeshwar Goel was took place on 15-01-2011 and the owner/driver/Sh. Rajeshwar Goel died on the spot as also proved by the documents annexure C4 and C5. We have perused the copy of driving licence annexure C3 placed by the complainant herself, vide which, clearly shows that the said driving licence was valid upto 02-08-2010 and the accident took place on 15-01-2011. Hence, it is proved that at the time of accident, the husband of the complainant was not having valid licence, however, he was holding an expired licence, which has no value in the eyes of law. In this regard opposite parties has produced document annexure R3 vide which the driving licence of the deceased Sh. Rajeshwar Goel was verified and found that the licence was valid upto 02-08-2010.

                   In this regard counsel for the complainant has relied upon the provisions of Section 96 (2) (b) (ii) of Motor Vehicle Act:- Driver holding expired licence at the time of accident but not disqualified from holding licence-liability of insurance company is not excluded and the insurance company is liable to pay the claim and in this regard he relied upon 1971 Supreme (Mad) 199.               

          Counsel for the complainant has relied upon case law rendered by High court of Judicature at Madras 1971 84 LW 518; 1971 2 MLJ 377; 1971 0 Supreme (Mad) 199; titled as V.V. Raghavan, J. Motor Owners’ Insurance Co. Ltd. vs. Dantel C.R.P. No. 1615 of 1968. Decided  on 15-03-1971, 2010 (1) CLT titled as United India Insurance Company vs. Gaj Pal Singh Rawat, wherein it is held that Insuarnce claim-repudiation-driving licence-driver not holding valid driving licence on the date of accident which had already expired and was not got renewed within 30 days-driver driving vehicles since 1997- the cause of accident sudden fall of stones, one of which hit the vehicle in question as a result of which the vehicle fell into the river – the report of the investigator also states the same cause of action – The accident in question had not taken place on account of any fault of driving on the part of the driver – the findings of both the For a below allowing the claim are not only based material on record but are well founded – do not find any infirmity in order passed by the state commission.      

                   Counsel for the opposite parties has argued that the deceased was not having a valid licence at the time of accident, hence, the complainant is not entitled for any amount of claim. He also relied upon the case law laid down by Supreme Court of India cited in IV (2009) CPJ 14 (SC) titled as New India Assurance Company Ltd. v. Suresh Chandra Aggarwal, wherein it is held that Motor Vehicles Act, 1988 – Sections 3(1), 5, 15  Motor Accident claim-Driving licence –Validity- driving licence of driver driving vehicle at accident time expired on 25-10-1991, four months prior to accident –renewed subsequently from 23-03-1992 – no application for renewal of licence made within 30 days of date of expiry – licence could not be renewed with effect from date of its expiry –deceased driver had no valid and effective licence on date of accident –provisions of Motor vehicle Act violated by entrusting vehicle to person not holding valid licence –insurer not liable to indemnify for loss suffered – repudiation of claim justified and case law in Revision Petition No. 3433 of 2009 from Order dated 23-04-2009 in Appeal No. 229 of 2008 of State Commission, Himachal Pardes. D/d 15-04-2010 titled as National Insurance Company Ltd. and Anr. vs. Sansar Chand, wherein it is held that Consumer Protect Act, 1986 Sections 21 () and 24A Insurance –Breach of Policy –Accident Claim-Driver was holding invalid driving licence-Repudiation of claim justified and another case law delivered by National Consumer Disputes Redressal Commission in Revision Petition No. 67 of 2011. D/d 23-08-2013 titled as national Insurance Company ltd. v. Sanjeev Kumar and Revision Petition No. 3135 of 2006, from order dated 20-07-2006 in appeal No. 77 of 2001 of State Commission, UT Chandigarh. D/d. 06-10-2010 titled as Veena Bansal v. National Insurance Co. Ltd. which are squarely covering the facts of the present case.  

5.                 In view of the aforesaid discussion, we are of the confirmed view that the deceased Rajeshwar Goel was not holding a valid driving licence at the time of accident and in view of the case laws placed by the opposite parties, which are fully applicable on the facts and circumstances of the present case, hence, complainant is not entitled for any amount as prayed. As such, we do not find any deficiency in service on the part of the opposite parties, hence, the complaint is hereby dismissed with no order as to costs. Copies of the order be sent to the parties concerned. File after due compliance be consigned to record room.

ANNOUNCED ON: 31.05.2017.                               (D.N. ARORA)

                            PRESIDENT       

         

 

                                                                             (PUSHPENDER KUMAR)

                                                                                      MEMBER

 

       (ANAMIKA GUPTA)

                                                                                      MEMBER