Haryana

Karnal

CC/183/2023

M/s Neeraj Enterprises - Complainant(s)

Versus

The New India Assurance Company Limited - Opp.Party(s)

Raj Kumar Sharma

03 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMISSION, KARNAL.

                                                        Complaint No. 183 of 2023

                                                        Date of instt.21.03.2023

                                                        Date of Decision: 03.01.2024

 

M/s Neeraj Enterprises, village Manjura, District Karnal through its Sole Proprietor Shri Neeraj Kumar son of Shri Satbir Singh, resident of village Manjura, District Karnal. (age about 31 years) aadhar card no.9040 5190 4021. Mobile no.99922-22390).

 

                                               …….Complainant.

                                              Versus

 

The New India Assurance Company Limited through its Divisional Manager, Divisional Office, opposite Old Bus Stand, old G.T. Road, Karnal.

                                                                      …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik……Member

              Dr. Suman Singh…..Member

                   

Argued by: Shri R.K. Sharma, counsel for complainant.

                   Shri Naveen Kheterpal, counsel for the OP.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant-firm is registered owner of a Truck no.HR-45C-4373. The said truck was insured with the OP, vide policy no.35360131220300000437, valid from 25.04.2022 to 24.04.2023. The IDV of the truck was Rs.24,00,000/-. The policy was package/comprehensive policy. The abovesaid truck is being used by the proprietor of the firm for his livelihood. On 23.08.2022 the said truck met with an accident within the area of Karnal. Thereafter, the matter was reported to the OP and on receipt of intimation, OP appointed a surveyor to investigate the matter. Complainant submitted all the required documents with the OPs including driving licence of the driver. It is pertinent to mention here that at the time of accident, the vehicle was being driven by its deriver Gurcharan Singh, who had a valid, legal and effective driving licence at the time of employment with the complainant-firm. The complainant-firm was satisfied regarding the genuineness of the driving licence as well as he had taken his driving test. The official of the OP had obtained the signature of the proprietor of the firm on some blank papers as well as blank printed papers. The concerned official of the OP told the complainant to get the said vehicle repaired from the company and thereafter, the amount of repair charges shall be made by the OP. Complainant got repaired the abovesaid truck from M/s Trailerindia and Agriculture Implement, Shop no.2, Banu Shamlal Market, Rohtak and IDC Chowk, Hisar Road, Rohtak. The complainant-firm has spent Rs.5,91,650/- on the repair of the truck. Thereafter, complainant submitted the bill of repair charges with the OP but after waiting sufficient long time, OP did not settle the claim of complainant. Complainant visited the office of OP several times and requested to settle the claim but OP did not any heed to the request of complainant. Then complainant sent a legal notice dated 09.02.2023 to the OP but it also did not yield any result. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to  maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the vehicle in question is commercial vehicle and also registered as commercial vehicle. Same was not used for livelihood and also it has also been acknowledged in the complaint that the vehicle was driven by driver Gurcharan Singh, thus it is clear that the vehicle was use for commercial purpose not for livelihood. It is further pleaded that the claim submitted by the complainant on the basis of accident occurred on 23.08.2022 is not maintainable as per the terms and condition of the policy and settled position of law, so same has not been paid to the complainant by OP. The vehicle was being driven at the time of accident by Shri Gurcharan Singh, who is not having valid driving licence to drive the vehicle in question at the time of accident, which amounts to gross violation of the terms and conditions of the policy. The repudiation of the claim on the basis of accident dated 23.08.2022 is due to violation of terms and conditions of the policy i.e. fake driving licence. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of legal notice and postal receipt Ex.1, copy of aadhar card of complainant Ex.C2, copy of tax invoice Ex.C3, copy of RC Ex.C4, copy of tax receipt Ex.C5, copy of authorization certificate Ex.C6, copy of permit Ex.C7 and Ex.C8, copy of insurance policy Ex.C9, copy of driving licence Ex.C10, copy of certificate of fitness Ex.C11 and closed the evidence on 04.07.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of R.K. Mittal Manager Ex.RW1/A, affidavit of Ajmer Singh Ahlawat Surveyor Ex.RW2/A, affidavit of Gurmeet Singh Ex.RW3/A, copy of repudiation letter dated 15.12.2022 Ex.R1, copy of survey report Ex.R2, copy of intimation form Ex.R3, copy of claim for Ex.R4, copy of insurance policy Ex.R5, copy of driving licence Ex.R6, copy of driving licence online report Ex.R7, copy of investigation report Ex.R8, copy of report of RTA, Karnal Ex.R9, copy  of email dated 12.06.2023 regarding DL verification Ex.R10, copy of application dated 11.05.2023 regarding verification of driving licence of Gurcharan Singh Ex.R11, postal receipt Ex.R12 and Ex.R13 and closed the evidence on 16.08.2023 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that the complainant’s firm got insured the vehicle in question with OP. The abovesaid truck was being used by the proprietor of the firm for his livelihood. On 23.08.2022 the said vehicle met with an accident  and the matter was reported to the OP. Complainant submitted all the required documents with the OP including driving licence of the driver. At the time of accident, the vehicle was being driven by its driver namely Gurcharan Singh, who was possessing a valid driving liecence. He further argued that at the time of employment of said driver, the complainant’s firm was satisfied with regard to the genuineness of his driving licence. Complainant got repaired his vehicle and spent Rs.5,91,650/- on its truck. Complainant requested the OP several times to settle the claim but OP did not pay any heed to the request of complainant and lastly repudiated the claim of the complainant, vide letter dated  15.12.2022 on the false and baseless ground and lastly prayed for allowing the complaint. Learned counsel for complainant relied upon the case law titled as Nirmala Kothari Vs. United India Insurance Co. Ltd. in 2020 (1) Law Herald (SC) 801, decided on 04.03.2020; Ved Kaur and Ors Vs Ramphal and others, 2016(3) Law Herald (P&H) 2455, decided on 02.06.2016 and United India Insurance Company Ltd. Vs. Jatinder Kumari in first appeal from order no.1868 of 2001, decided on 03.08.2001.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that the vehicle in question was being used for commercial purpose, thus, this Commission has no jurisdiction to try and entertain the present complaint. He further argued that the claim of the complainant has been rightly repudiated because at the time of accident, the driver was not having a valid and effective driving licence and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy and complainant lodged the claim with the OP.

11.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.R1 dated 15.12.2022 on the ground that the driver of the vehicle was not having a valid and effective driving licence at the time of accident.

12.           The claim of the complainant has been repudiated by the OP on the above said ground. The onus to prove its version was relied upon the OP but OP has miserably failed to prove its version by leading any cogent and convincing evidence. The OP has appointed Shri Gurmeet Singh, Investigator to investigate the genuineness of the driving licence of the driver of the vehicle in question. To verify the genuineness of the driving licence of Shri Gurcharan Singh son of Nachhatar Singh, driving licence no.HR0520120063988 dated 25.10.2012, he moved an application Ex.R11 dated 11.05.2023 under Right to Information Act, 2005 to RTA Office, Licensing Authority, Karnal and tender his affidavit Ex.RW3/A. In his affidavit, he stated that as per record, the above said driving licence is not available on Sarthi portal. If the licence was not available on Sarthi Portal, it does not mean that the driving licence was not genuine one and driver was not having a valid driving licence. Hence, plea taken by the OP is having no force and finding of Shri Gurmeet Singh Investigator is not justified. 

13.           Further, the OP has alleged that vehicle in question was being used by the complainant for commercial purpose. The onus to prove its version was relied upon the OP, but OP has miserably failed to prove its version by leading any cogent and convincing evidence that the vehicle was being used for commercial purpose.  The complainant has specifically stated in his complaint as well as in his affidavit tendered in evidence that the vehicle in question was being used by him for earning his livelihood. In this regard, we placed reliance upon the case law titled as M/s Prabhu Dayal Trilok Chand Versus Oriental Insurance Company Limited and Anr. in consumer case no.908 of 2016 decided on 24.05.2022 of Hon’ble National Commission wherein the Hon’ble National Commission held that a contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. The complainant is a consumer and the complaint is maintainable. Further, in case titled as M/s Paramount Digital Color Lab and Ors etc. Versus M/s Agfa India Pvt. Ltd. and Ors. etc. in civil appeal nos. 2109-2110 of 2018 decided on 15.02.2018 wherein the Hon’ble Supreme Court held that if person purchases goods for commercial purpose and such commercial purpose is for earning livelihood by means of self employment-Such person will come within definition of consumer-Appellant purchased machine for self employment- Quality of ultimate production of machine depends upon skill of person who uses machine-In case of exigencies, if person trains another person to operate machine so as to produce final product based on skill and effort in matter of photography and development, same cannot take such person out of definition of consumer.  In view of the ratio of the law laid down in the aforesaid judgments, facts and circumstances of the case, the present complaint is maintainable before this Commission.  Hence, plea taken by the OP has no force

14.           Furthermore, in Nirmala Kothari’s case (supra) Hon’ble Supreme Court held that complainant had employed the driver after checking his driving license-after accident, on verification licensing authority deposited that record of the license was not available with them-Not a case by insurance company that the owner is guilty of willful negligence while employing the driver-driver had been driving competently and there was no reason for the owner/employer to doubt the veracity of the driver’s licence-Insurance Company is held liable to indemnify the owner. Hon’ble Supreme Court further held that fake license-liability of owner/insured-while hiring a driving the employer is expected to verify if the driver has a driving licence-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.

15.  

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

16.           Keeping in view, the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OP while repudiating the claim of the complainant amounts to deficiency in service, which is proved otherwise genuine.

17.           As per the survey report Ex.R2 dated 28.10.2022, loss has been assessed by the surveyor of the OP to the tune of Rs.3,36,287/- but complainant has claimed Rs.5,91,650/- as repair charges on the basis of tax invoice Ex.C3 issued by Trailerindia and Agriculture Implement. The model of the vehicle is 2018 and the accident took place on 23.08.2022, hence, the depreciation made by the surveyor of the OP is justified and surveyor report will prevail. In this regard we are relying upon the authority 2(2008) CPJ paged 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 provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, we are of the considered view that the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

18.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.3,36,287/- (Rs.Three lakhs thirty six thousand two hundred eighty seven only) the loss assessed by the surveyor of the OP alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 15.12.2022 till its realization to  the complainant’s firm. We further direct the OP to pay Rs.25,000/- to the complainant’s firm on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of 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: 03.01.2024

                                                                     

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Suman Singh)

                          Member                      Member