Haryana

Kaithal

437/20

Santro Devi - Complainant(s)

Versus

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

Sh.B.R Saini

15 Feb 2024

ORDER

                 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 437 of 2020.

                                                               Date of institution:   23.12.2020.

                                                               Date of decision:      15.02.2024.

 

Santro Devi w/o Shri Ishwar Singh, r/o H.No.79/19, Gali No.1, Ward No.19, Friends Colony, Kaithal.

                                                                                      …Complainant.

                                                 Versus

 

The New India Assurance Company Ltd., above Vijay Bank, Ambala Road, Kaithal, through its Branch Manager.

...Opposite Party.

 

Complaint under Section 35 of the Consumer Protection Act

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

                  

Present:       Shri B.R. Saini, Advocate for the complainant.   

                   Shri M.R. Miglani, Advocate for the Opposite Party.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT:

        Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’), against the OPs.

2.                It is alleged by the complainant that she is registered owner of Honda Activa bearing Registration No.HR-08W-6175 and the same was insured with OP vide two Wheeler Enhancement Cover Policy No.35440031180300000851 valid from 25.04.2018 to 24.04.2019. That in the month of August 2018, her husband namely Ishwar Singh was returning on the said Activa near Railway Phatak, Kaithal, meanwhile, one truck came in front of said Activa negligently and carelessly and hit the front portion of said Activa, due which, Activa was damaged badly. That she immediately intimated the OP and after that, one surveyor inspected the damaged activa. That with the permission of OP, she got repaired the said Activa after paying Rs.17500/- and after that, he contacted the OP regarding claim amount with submitting the requisite document with it, but OP did not pay the claim amount. That lastly, she sent a legal notice dated 27.11.2018 to OP and on its reply dated 21.01.2019, OP mentioned that your client has submitted the “DL which was found valid for LMV-NT-Car, TRV-Regd Chassis, TRV-PSV-Bus only and insured could not produce valid DL to drive two wheeler”. The above act of OPs, of not paying his genuine claim, amounts to gross deficiency in service, on its part, due to which, she suffered huge physical harassment, mental agony as well as financial loss, constraining her, to file the present complaint, against the OP, before this Commission.

3.             Upon notice of complaint, OP appeared before this Commission and filed its written statement, stating therein that after receiving intimation from complainant, OP appointed independent surveyor, who assessed the actual loss of vehicle for Rs.12900/- but complainant is not entitled for this amount as driver was not possessed valid DL for driving the vehicle in question. That the complainant had produced DL of her driver, which was only valid for driving LMV-NT-Car, TRV-Regd. Chassis, TRV-PSV Bus only. Complainant had not submitted DL which was authorized to drive two wheeler. As per law, a person who had possessed heavy DL, cannot drive or authorized to drive two wheelers endorsement of two-wheeler is required. That complainant had violated terms and conditions of insurance policy as well as provision of Motor Vehicle Act and Rule. Accordingly, the OP had repudiated the claim of complainant and duly intimated to the complainant vide letter dated 12.12.2019. Thus, there is no deficiency in service, on the part of OP and prayed for dismissal the present complaint.

4.                 To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C8.

5.                On the other hand, OP in its evidence tendered affidavit Ex.RW1/A and documents Annexure R-1 to Annexure R-4.

6.                We have heard the learned counsel for the parties and perused the record carefully.

7.                Learned counsel for the complainant has argued that the complainant is registered owner of Honda Activa which was insured with OP for the period from 25.04.2018 to 24.04.2019. He further argued that in the month of August 2018, the said Activa was badly damaged in a roadside accident and the complainant immediately intimated the OP in this regard, who appointed a surveyor to inspect the damaged activa. He further argued that with the permission of OP, the complainant got repaired the said Activa after paying Rs.17500/- and after that, contacted the OP regarding claim amount with submitting the requisite document with it, but OP did not pay the claim amount, rather repudiated the same on flimsy grounds, which amounts to gross deficiency in service, on the part of OP.

8.                On the other hand, learned counsel for the OP has admitted about insurance of vehicle in question with OP. He argued that after receiving intimation from complainant, OP appointed independent surveyor, who assessed the actual loss of vehicle for Rs.12900/-, but complainant is not entitled for this amount as driver was not possessed valid DL for driving the vehicle in question. He further argued that the complainant had produced DL of the driver, which was only valid for driving LMV-NT-Car, TRV-Regd. Chassis, TRV-PSV Bus only. Complainant had not submitted DL which was authorized to drive two wheeler. He further argued that as per law, a person who had possessed heavy DL, cannot drive or authorized to drive two wheelers endorsement of two-wheeler is required. He further argued that complainant had violated terms and conditions of insurance policy as well as provision of Motor Vehicle Act and Rule and accordingly, the OP had rightly repudiated the claim of complainant and duly intimated to the complainant vide letter dated 12.12.2019. In order to support his contentions, he placed reliance upon case law titled Oriental Insurance Co. Ltd., Appellant Versus Zaharulnisha & Ors., 2008(2) RCR (Civil), 913.

9.                Evidently the complainant was the registered owner of Honda Activa bearing Registration No.HR-08W-6175 vide Registration Certificate Annexure C-3, and the same was insured with OP vide Two Wheeler Enhancement Cover Policy bearing No.35440031180300000851, valid from 25.04.2018 to 24.04.2019 with IDV of Rs.47,800/-, vide Policy Schedule Cum Certificate of Insurance Annexure C-1/R-1. The said vehicle was damaged in a roadside accident, while the same was driven by husband of complainant namely Ishwar Singh. The complainant got repaired the same from Kaithal Tractors after paying Rs.17500/-, as is clear from Tax Invoice Annexure C-7. The OP also appointed a surveyor namely M.K. Arora, who submitted his report Annexure R-3, wherein, he assessed the net payable amount to the tune of Rs.12900/-.

10.              The complainant lodged the claim with the OP, who repudiated the same vide letter dated 27.11.2018 Mark-A. In this regard, learned counsel for OP has specifically contended that the complainant had produced DL of the driver i.e. her husband namely Ishwar Singh as Annexure R-2, which was only valid for driving LMV-NT-Car, TRV-RigidChasi, TRV-PSV-Bus Only and as per law, a person who had possessed heavy DL, cannot drive or authorized to drive two wheelers. To support his contentions, he placed reliance upon case law titled Oriental Insurance Co. Ltd., Appellant Versus Zaharulnisha & Ors. (supra), wherein, the Hon’ble Supreme Court of India has held that “A. Motor Vehicles Act, 1988, Section 149(1) – Motor Vehicles Act, 1988, Section 10(2) – A driver of scooter causing fatal accident by rash and negligent driving of scooter- Driver of scooter was holding licence for driving heavy motor vehicles – Cannot be held that driver of scooter had a vehicle within meaning of Section 10(2) of Motor Vehicles Act – Insurer not liable”.

11.              Contrary to it, learned counsel for the complainant has contended that a person who was holding the heavy driving license was also authorize to drive two wheelers i.e. Activa in question. In order to support his contentions, he placed reliance upon document Mark-Z i.e. Guidelines dated 16.04.2018 written by Ministry of Road Transport and Highways, New Delhi to The Principal Secretaries (Transport)/Secretaries (Transport)/Transport etc. for compliance of judgment dated 03.07.2017, passed by the Hon’ble Supreme Court of India in Civil Appeal No.5826 of 2011 titled Mukund Devagan V/s Oriental Insurance Company and Others and para No.3 of said letter is relevant, which reads as under:-

3.       In view of the legal position as settled by the Hon’ble Supreme Court in the above judgment, the requirement under the Motor Vehicles Act, 1988 to obtain the transport licence would arise in case of medium/heavy goods and passenger vehicles 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 following vehicles:-

1. Motor cycle without gear.
2. Motor cycle with gear.
3. Light motor vehicle (goods/passenger).
4. e-rickshaw/e-cart.

12.              So, from the perusal of above contents of letter Mark-Z, it is clear that there is exemption from the requirement to obtain the endorsement for commercial vehicles, would also apply to motor cycle without gear i.e. Activa in question. Keeping in view the case law, laid down by the Hon’ble Supreme Court of India, referred in letter dated 16.04.2018 Mark-Z as well as the facts & circumstances of the present case, we are of the considered opinion that the OP has wrongly repudiated the claim of the complainant on this very ground that a person who possessed heavy DL, cannot drive or authorized to drive two wheelers, which amounts to gross deficiency in service on the part of OP.

13.              Now the question which arises for consideration is what should be the quantum of indemnification? In his complaint, complainant demanded repair charges of Rs.17500/- and produced bill Annexure C-7 in this regard. Contrary to it, Shri M.K. Arora, Surveyor, Loss Assessor & Valuer, in his report Annexure R-3 has assessed the net payable amount to the tune of Rs.12900/-. The surveyor is an independent person. So, this report of surveyor is taken into consideration for deciding the compensation amount in the complaint. In this regard, we rely upon a judgment 2(2008) CPJ page 182 (NC), United India Insurance Co. Vs. Maya, wherein, it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provisions of Insurance Act, 1938. In view of the report of surveyor, we are of the considered view that the complainant is entitled for an amount of Rs.12,900/- along with compensation amount and litigation expenses. However, it is pertinent to mention here that the case law, produced by the OP is not disputed, but the same is not applicable to the case in hand, being rested on different footings.

14.              In view of our above discussion, we accept the present complaint and direct the OP, to make the payment of Rs.12,900/-, to the complainant, along with compensation amount of Rs.10,000/- + litigation expenses of Rs.5,000/-, within a period of 45 days, from the date of preparation of certified copy of this order, failing which, the award amount shall carry interest @6% per annum, from the date of this order, till its realization.

15.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:15.02.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

Typed by: Sham Kalra, Stenographer.