Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                                             Complaint No. : 525

                                                                             Instituted on     : 09.10.2019

                                                                             Decided on       : 24.08.2023

Devender Kumar, age-45 years S/o Sh. Ajit Singh R/o H.No. 1521, Sector-1, Rohtak.

                                                                             .......................Complainant.

                                                Vs.

1. The New India Assurance Company Ltd. Registered and Head Office: New India Assurance Bldg., 87 M.G.Road, Fort, Mumbai-400001, through its CMD.
2. The New India Assurance Company Ltd., Divisional Office:313, Model Town, Delhi Road, Rohtak, through its D.M.
3. Vinod Kumar, Assistant Manager, The New India Assurance Company Ltd., 313, Model Town, Delhi Road, Rohtak.

                                                                             ……….Opposite parties.

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. TRIPTI PANNU, MEMBER.

                   DR. VIJENDER SINGH, MEMBER.

Present:       Shri Pardeep Mittal, Advocate for the complainant.

                   Shri Sameer Gambhir, Advocate for the opposite parties No. 1 to 3.

                                                ORDER

NAGENDER SINGH KADIAN, PRESIDENT:

1.                Brief facts of the case as per complainant are that he is owner of vehicle i.e. Honda Amaze Car bearing Registration no. HR-46E-9457, and the said vehicle is insured with opposite parties No. 1 and 2 vide policy number 14010331170300024045 valid w.e.f. 01.03.2018  to 28.02.2019. The IDV of the vehicle is Rs.5,63,970/-. On 22.01.2019 at about 6:00 AM Vijay Kumar S/o Suresh Kumar was driving the said vehicle and was coming from Gohana to Bichpari village. Then suddenly a dog came in front of the car and said driver tried to turn the car  just to save the dog, due to which the car rolled over into the fields wherein rain water was standing. The vehicle of the complainant was damaged due to above said incident. The complainant and the said Vijay Kumar gave intimation to the opposite parties regarding the aforesaid accident. Accordingly spot verification was conducted on the same day and later on aforesaid damaged vehicle was sent for repair to Jai Mata Motors by lifting the same through crane. Complainant submitted the claim form with the opposite parties alongwith all the relevant and requisite documents. Thereafter the aforesaid vehicle was got repaired by Jai Mata Motors for which the complainant paid an amount of Rs.1,99,154/- against invoice no. GST/19-20/2 dated 10.05.2019. Complainant  approached the opposite parties no. 2 and 3 and requested them to pass the aforesaid claim but to no effect. On 06.06.2019 opposite party no. 3 sent message through email that "Company liability works out to Rs. 1,78,500/- subject to confirmation from RTO that driver is holding driving license for LMV(NT) is also authorized to drive Taxi."  Thereafter said Vijay Kumar wrote a letter dated 01.07.2019 to Registering Authority Cum Sub Divisional Magistrate, Gohana pertaining to driving taxi by a person who is having license to drive LMV (NT) in consonance with Supreme Court Civil Appeal no. 5826 and Supreme court ruled dated 2017. On 15.07.2019 said Registering Authority Cum Sub Divisional Magistrate, Gohana replied the aforesaid letter vide memo no. 1180 wherein the Authority clearly gave opinion that in accordance with the decision of Hon'ble Supreme court of India in civil Appeal no. 5826 decided on dated 03.07.2017 a person who is having license to drive LMV (NT) is authorized to drive taxi/ transport vehicle also. Complainant submitted the copy of aforesaid reply with a request to pass the aforesaid claim. But the opposite parties sent a repudiation letter dated 31.07.2019 on the ground that said Vijay Kumar was not holding a valid driving license to drive taxi at the time of accident. It is also submitted  that opposite party no.3 has demanded an amount of Rs.20,000/- for passing the claim. The aforesaid vehicle was financed by Mahindra Finance and due to non-payment of claim amount by opposite party the complainant could not pay the amount of installments within time and thus the officials of Mahindra finance confiscated the vehicle of the complainant and the complainant has to pay an amount of Rs. 62,000/- for releasing the same. As such, there is deficiency in service on the part of opposite parties. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay an amount of Rs.1,99,154/- as amount of claim for repair of said vehicle alongwith spot survey charges, Rs.2500/- for crane charges and Rs.62,000/- paid to Mahindra Finance alongwith interest at the rate of 18% per annum w.e.f. 22.01.2019 till actual realization, Rs.51,000/- as amount of harassment as well as Rs.21,000/- as litigation charges to the complainant.

2.                After registration of complaint, notices were issued to the opposite parties. Opposite parties in their reply has denied that driver was holding valid driving License to drive the vehicle. The vehicle is commercial and the Policy is issued of commercial so the driving License is required to drive the commercial vehicle. The driver was holding driving licence to drive only Tractor, LMV& Motorcycle whereas the vehicle is commercial Taxi and the driving License of driver has no endorsement of commercial/Transport License in the driving License. The answering opposite party Insurance company has repudiated the claim of the complainant that driver of the vehicle was not holding commercial/Transport license to drive the vehicle Taxi( Passenger carrying vehicle) and the same is violation of terms and conditions of insurance Policy. The claim of the complainant has rightly repudiated vide letter dated   31-07-2019. The claim amount as assessed by the statutory surveyor under section 64UM of the insurance act is valid and tenable and therefore the claim for additional sum is untenable and unsustainable. It is settled law that mere production of estimate and bill does not entitle of the amount and assessment of surveyor cannot discard or brush aside. It is denied that complainant paid an amount of Rs.199154/- to Jai Mata Motors for repair of vehicle. The opposite party insurance company had already submitted to the complainant that commercial/transport driving License is required to drive passenger carrying commercial vehicle. The vehicle is commercial Taxi and the Policy is also issued of commercial vehicle. The answering opposite party insurance company has repudiated the claim of the complainant as per the terms and conditions of Policy and Motor vehicle Act. Surveyor assessment is of Rs.1,78,500/- but the same is not payable due to the fact that driver was not holding commercial/transport driving License to drive the vehicle and the same is violation of terms and conditions of Insuance Policy. It is wrong and denied that opposite party no.3 has demanded an amount of Rs.20,000/- for passing the claim. All the other contents of the complaint were stated to be wrong and denied and opposite party no. 1 prayed for dismissal of complaint with costs.

3.                Ld. Counsel for the complainant in his evidence has tendered his affidavits Ex.CW1/A & Ex. CW-2/A, documents Ex.C1 to Ex.C27 and closed his evidence on dated 10.08.2021. Ld. Counsel for the opposite parties in their evidence has tendered his affidavit Ex.RW-1/A, documents Ex. R1 to Ex. R21 and closed his evidence on dated 28.09.2021.

4.                We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.

5.                In the present case insurance and accident of the vehicle is not disputed. The claim of the complainant has been repudiated by the insurance company vide letter dated 31.07.2019 on  the ground that the driver Mr. Vijay Kumar s/o Suresh Kumar  was not  authorized to drive the taxi i.e. a commercial vehicle.  After receiving this letter the driver of complainant approached to the licensing authority Gohana regarding the license. The registration authority–cum-Sub Divisional Magistrate Gohana clarified the queries made by Vijay Kumar driver. The reply has been placed on record as Ex.C17 and Ex.C18. The Sub Divisional Magistrate Gohana has submitted that the Hon’ble Supreme Court has given a decision on dated 03.07.2017  in Civil Appeal No. 5826 of 2011-Mukand Devagan V/s Oriental insurance Company and the matter of issue of driving licence for light motor vehicles and Ministry of Road Transport and Highways Government of India is also issued a notification. No. RT-11021/441/2017-M.V.L dt. 16-04.2018 on the basis of decision given by Hon'ble Supreme Court on dt. 03-07-2017, said that a transport vehicle and omnibus the gross vehicle weight of either of which does not exceed 7500 Kg. would be light motor vehicle and also taxis motor car or tractor or a road roller, unladen weight of which does not exceed 7500 kg and holder of a driving licence to drive class of  "Light Motor Vehicle" as provided under section 10(2) (d) is competent to drive transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 Kg”. We have minutely perused the registration certificate of vehicle in question which is placed on record as Ex.C2. The perusal of registration certificate itself shows that the unladen weight of the vehicle is 955kg, which is less than the prescribed weight of                     7500kg, as mentioned in the authority. So as per our opinion, the driver was authorized to drive the vehicle in question.  On the other hand, authority cited by ld. counsel for the opposite party titled as Tarun  Parekh Vs. OIC  is not fully applicable on the facts and circumstances of the case.  Moreover written statement, affidavit and other documents filed by the respondent itself shows that the surveyor Sh. Vokesh Arya  has been appointed by the opposite party and he assessed the loss in the vehicle in question. The surveyor report has been placed on record as Ex.R13. As per this report the complainant has suffered a loss of Rs.178500/- but on the 6^th page of survey report, it has been specifically mentioned that the policy of the vehicle is zero dep. Policy and loss has been assessed accordingly. But the complainant has submitted that he has spent an amount of Rs.199154/- on the repair of the vehicle in question. To prove this fact he has placed on record bill Ex.C15. Perusal of this bill itself shows that the complainant has spent an amount of Rs.199154/- on the repair of the vehicle. As per surveyor himself the policy is a zero dep. policy but he has deducted some amount without any authentic reason. As such as per our opinion he is entitled for the repair charges Rs.199154/- after deducting Rs.500/- as excess clause and Rs.4823/- as salvage value i.e.Rs.193831/-.

6.                In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.1 & 2  to pay the amount of Rs.193831/-(Rupees one lac ninety three thousand eight hundred and thirty one  only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.09.10.2019 till its realization and shall also pay Rs.10000/-(Rupees ten thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision.

7.                Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.

Announced in open court:

24.08.2023.         
                                                         .....................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          Tripti Pannu, Member

                                                                        ……………………………….

                                                          Vijender Singh, Member