Haryana

Karnal

484/13

Mrs. Kamlesh Rani - Complainant(s)

Versus

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

Sh. S.S. Narwal

06 Nov 2015

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.484 of 2013

                                                               Date of instt. 24.12.2013

                                                               Date of decision: 06 .11.2015

 

Mrs.Kamlesh Rani w/o Mr.Om Parkash Arora resident of House No.67, Bank Colony, Railway Road, Karnal.

                                                                  ……..Complainant.

                                  Vs.

The New India Assurance Co. Limited, Gagan Building, GT Road, Karnal through its Divisional Manager.

                                                           ……… Opposite Party.

 

                   Complaint u/s 12  of the Consumer

                     Protection  Act.                                                                   

 

Before          Sh.K.C.Sharma……. President.

                   Sh.Anil Sharma ………Member.

                   Smt.Shashi Sharma…..Member. 

 

 Present:       Sh.S.S.Narwal Advocate for the complainant.

                   Sh.Gurmit Singh Advocate for the OP.

ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986  on the averments that she got insured her Maruti Ritz  car bearing vehicle identification No. MA3FDBIS00396880, Engine Number D13A1882382 and chassis No. MA3FDEBIS00396880,  with the Opposite Party ( in short OP) on the date of purchase i.e.  6.7.2012  and an amount of Rs.16066/- was paid as premium. The policy was valid from 6.7.2012 to 5.7.2013. The car met with an accident on 13.11.2012 in front of Sagar Ratna/KFC Restaurant, GT Road,  Karnal. At the time of accident,  car was being driven by her son Kapil Arora who was having valid learner’s driving licence. Sandip Kumar son of Om Parkash was sitting with him on the front seat of the car and was also acting as an instructor.  Other occupant of the car was Rajat son of Mahender Kumar. The car was dully carrying symbol  of  “L” in front and the rear.  In the said accident, her son Kapil Arora died, whereas Sandip Kumar and Rajat sustained minor injuries. It has been further pleaded that complainant  duly informed the OP and submitted the claim form. Mr.T.P.Singh was appointed as surveyor  by the OP, who duly inspected the vehicle  in the premises of the workshop, Modern Automobiles,  Namaste Chowk, Karnal and assessed the  loss on repairs basis as Rs.4,10,393.00, on total loss basis as Rs.5,15,000/- and on net salvage basis as Rs.2,65,000/-.  Thereafter, the OP asked the complainant to settle the claim for a sum of Rs.5,15,000/-  in case he was ready to furnish an affidavit in that regard by restricting the claim for the  said amount. Accordingly, she furnished affidavit to the OP, but  despite that her  claim was not settled. Instead of settling the claim, one Mr.S.S.Bajaj, of S.V. Associates, Karnal was appointed as investigator who carried out investigation and recorded the statements of Sandip and Rajat and caused harassment to the complainant.  On 14.3.2013, OP  served letter upon the complainant asking her to give reasons for making statement for  amendment of the daily diary report and by adding name of one Sandip alongwith clarification on the points given in the said letter.  The complainant replied the said letter on 23.3.2013, as per details given in para no.10 of the complaint. However, the OP did not settle the rightful claim of the complainant. Such conduct on the part of the OP amounted to deficiency in services, which caused her mental harassment , pain and agony apart from financial loss.

 

2.                Notice of the complaint was given to the OP who put into appearance and filed written statement controverting the claim of the complainant.  Objections have been raised that complainant has concealed the true facts from this Forum; that complaint is not maintainable; that complainant is estopped from filing the complainant by her own acts and conduct and that this Forum has no jurisdiction to entertain and decide the complaint as technical questions of law and facts are involved.

 

                    On merits, factum of insuring vehicle of the complainant has been admitted. It has been denied that Sandip was sitting in the car at the time of alleged accident on the front seat and that Symbol of “L” was  painted on the front or rear of the car. It has been submitted that  Sh.S.S.Bajaj, who was appointed investigator recorded the statements of the witnesses and collected record, which established that Sandip  was not travelling in the car and the same was being plied in violation of the  terms and conditions of the insurance policy. DDR No.34-A dated 17.11.2012 recorded in P.S.Sadar, Karnal was manipulated to introduce name of Sandip to fill up lacuna in the case. The claim of the complainant was rightly repudiated as per terms and conditions of the insurance policy and letter dated 13.5.2013 was sent to the complainant in that regard. The other allegations made in the complaint have been denied.

 

3.                In evidence of the complainant, affidavits of complainant, Sandip and Rajat Ex.CW1/A to Ex.CW3/A respectively and documents Ex.C1 to Ex.C6 have been tendered.

 

4.                On the other hand in evidence of OP affidavits of Sh.D.K.Sarin, and Sh.S.S.Bajaj, Ex.CW1/A and Ex.CW2/B respectively  and documents Ex.O1 to Ex.O18 have been tendered.

 

5.                We have heard the learned counsel for the parties and have gone through the case file very carefully.

 

6.                The claim of the complainant was repudiated by the OP only on the ground that his son  Kapil Arora (since deceased), who was driving the car at the time of accident was having only Learner’s licence and he was not  being instructed by any expert driver having valid and effective driving licence.

 

7.                As per the case of the complainant Sandip Kumar was sitting with Kapil Arora, on the front seat of the car and acting as Instructor.  The learned counsel for the complainant in this regard referred to the documents Ex.C3, Ex.C11 and Ex.C14.  According to Ex.C3 and Ex.C11 Sandip Kumar was also travelling in the car at the time of accident.  Such report was made by the police on the basis of enquiry from some respectables. Sandip Kumar  and Rajat also made statements to the same effect, the copies of which are Ex.C12 and Ex.C13.Rajat Kumar on whose statement DDR regarding the accident was entered , in his statement Ex.C14, stated that he was perplexed  due to the accident, therefore, on account of  fear he did not disclose the name of Sandip Kumar to the police in his statement  dated 13.11.2012.

 

8.                The learned counsel for the OP put a great thrust on the contention that as per the statement of Rajat  dated 13.11.2012, on the basis of which DDR regarding the accident was entered, he and Kapil only were travelling in the car at the time of accident, as is evident from Ex.O2 and Ex.O3.  The Investigator appointed by the OP, who also recorded the statements of Sandip and Rajat, the copies of which are Ex.O7 and Ex.O12,  came to the conclusion that Sandip was not accompanying  in the car at the time of accident and including of his name after four days, of getting recorded the first DDR,  was an afterthought   with a view to get claim.   It has further been argued that Kapil was having only Learner’s licence and he was not accompanied by expert Instructor having valid driving licence and as such there was violation of condition of insurance policy. Therefore, claim of the complainant was rightly repudiated by the OP  In support of his contention he also referred to  Alka Ojha Vs.Rajasthan Public Service Commission (2011) 9 Supreme Court Cases 438 and New India Assurance Co.Latd. Vs. Mandar Madhav Tambe and others 1996 ACJ 253.

 

9.                The proposition of law  laid down in the aforecited authorities that a person  holding a Learner’s licence would not be  regarded as duly licensed, cannot be doubted, but the question arises whether Sandip  Kumar was  accompanying Kapil Arora as the person instructing him to drive the vehicle at the time of accident.  The perusal of documents Ex.O7  to Ex.O12 shows that statement of Sandip Kumar was recorded twice by the Investigator appointed by the OP, firstly on 18.12.12 and then on 9.3.2013 and similarly statement of Rajat was recorded twice, firstly on 10.12.2012 and  again 7.3.3013.  As per their statements they were also sitting in the car at the time of accident.    However, report of Investigator Ex.O6 indicates that he came to the conclusion only on the basis of some minor contradictions found in the statements of Rajat and Sandip Kumar. Such minor contradictions are bound to occur even in the statements of most truthful witnesses, if recorded on different occasions after  long gap of time. Even otherwise, human faculties   regarding perception, observation and memorization minute details differ from man to man . Therefore, on the basis of such minor contradictions, the statements recorded by the police during enquiry cannot be brushed aside. Police  had even enquired from respectables  and obtained their signatures and on the basis of enquiry, made noting in the case diary  that Sandip Kumar was also sitting in the car at the time of accident. Under such circumstances, we are of the opinion that evidence of the complainant  is sufficient to establish that Sandip Kumar was also sitting in the car at the time of accident and the report of Investigator appointed by the OP is not sufficient to discard such evidence.

 

10.               According to provisions of Section 3 of the Motor Vehicles Act, a person holding Learner’s Licence should lbe accompanied by an Instructor holding an effective driving licence to drive the vehicle and such Instructor is sitting in such a position to control or stop the vehicle. Sandip Kumar was sitting on the  front seat alongwith the driver and certainly was  in a position  that he could control or stop the vehicle, but unfortunately he could not avoid the accident.  Copy of the driving Licence of Sandip Kumar has been produced as Ex.C9, according to which he was having valid and effective driving licence on the date of accident. OP has not disputed the validity of driving licence of Sandip Kumar.  Thus, condition for driving a vehicle by a person holding Learner’s Licence as envisaged u/s 3 of the Motor Vehicles Act stood duly fulfilled.  Under such circumstances, repudiation of the claim of the complainant by the OP was not legally justified and as such there was deficiency in services on the part of the OP.

 

11.               The complainant in his complaint gave details of assessment of the loss made by the surveyor appointed by the OP i.e. on repair basis as Rs.4,10,313/-, on total loss basis as Rs.5,15,000/- and on net salvage basis  as Rs.2,65,000/-. This fact has not been disputed by the OP in the written statement. The copy of the insurance policy Ex.C1 shows that the vehicle was insured for Rs.5,31,250/-. Repair basis loss was assessed as Rs.4,10,393/-  which was more than the 75% of the value of the vehicle. Therefore, in such a situation, the complainant was entitled to  the assessment made by the surveyor  on   total loss basis i.e. Rs.5,15,000/-.

 

12.               As a sequel to the foregoing discussion, we accept the present complaint and direct the OP to make the payment of Rs.5,15,000/- to the complainant alongwith interest at the rate of nine per cent per annum from the date of filing of the present complaint i.e.  24..12.2013 till its actual realization. The complainant shall also be entitled for a sum of Rs.10,000/- for the mental agony and harassment caused to her and for  litigation expenses.  The OP shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:06.11.2015                                                                            

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.

 

 

 

 

 

 

 

 

Present:        Sh.S.S.Narwal Advocate for the complainant.

                   Sh.Gurmit Singh Advocate for the OP.

 

                   Arguments heard. Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:06.11.2015                                                                             

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.