Complaint No: 05 of 2023.
Date of Institution: 06.01.2023.
Date of order: 16.02.2024.
Rohit Mahajan Son of Vijay Kumar resident of Islamabad Mohalla, Gurdaspur.
…....Complainant.
VERSUS
1. National Insurance Co. Ltd., Divisional Office Gurdaspur Road, Pathankot – 145001, through its Branch Manager.
2. Maruti Suzuki Arena Ltd., Pathankot Vehicleades, Jeewanwal Babri, Tehsil and District Gurdaspur – 143521, through its Manager.
….Opposite parties.
Complaint U/s 35 of Consumer Protection Act, 2019.
Present: For the Complainant: Sh.Rohan Kumar, Advocate.
For the Opposite Party No.1: Sh.Sandeep Ohri, Advocate.
Opposite Party No.2: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Rohit Mahajan, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, 2019 (here-in-after referred to as 'Act') against National Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant purchased Maruti Celerio Car bearing No. PB-06-AS-8678, Model ZXI Make Maruti Suzuki from the opposite party No. 2 in the year 2018 for a price of Rs.5,32,351/-. It is pleaded that the Car of the complainant was fully got insured by the opposite party No. 2 from the opposite party No. 1 under Policy No. 40150031211146829330. The period of insurance cover w.e.f. 25.08.2021 to 24.08.2022. At the time of insurance, the gross premium amount of Rs.12,786/- was paid. The complainant duly paid the premium of the insurance policy. So, the complainant hired the services of the opposite parties and falls within the definition of consumer under the opposite parties. It is further pleaded that during the period of Insurance the vehicle of the complainant unfortunately met with an accident on dated 13.04.2022 when Sanjeev Gupta brother of the complainant was driving the said Car bearing No. PB-06-AS-8678 and was coming from Amritsar Airport alongwith his mother after dropping his sister at Airport, it was around 05.30 P.M. when they reached near to Bye pass Dhariwal a little ahead to Bridge Jafferwal, a truck was going ahead of their car and driver of said unknown truck all of sudden changed his side from left to right in a very negligent way and struck the backside of the truck in the Car of the complainant. It is further pleaded that on the day of said accident, the complainant and his friend namely Amit Sharma son of Deepak Sharma resident of Mohalla Islamabad Gurdaspur who were also accompanied them on a separate vehicle, were also following them. It is further pleaded that Car bearing No.PB-06-AS-8678 damaged completely in the accident and in said accident, the mother of the complainant died whereas, Sanjeev Gupta suffered grievous injuries. It is further pleaded that FIR regarding the accident bearing No. 46 dated 13.04.2022 under section 304-A/279/427/337/338 IPC has been duly registered at Police Station Dhariwal on the statement of the complainant. It is further pleaded that after the accident, the complainant got the released the Car on sapurdari on dated 31.05.2022 and approached the Maruti Suzuki Gurdaspur i.e. the opposite party No. 2, firstly they started lingering the matter and then they kept the Car in the Garage, but after few week they refused to admit the claim of the complainant and make excuses that the complainant should approach the National Insurance Co. i.e. the opposite party No. 1. However, the Car of the complainant was kept lying in the Garage of the opposite party No. 2. It is further pleaded that the complainant lodged claim with the opposite parties and claim form was duly filled supported by all the relevant documents which was sent through registered post on dated 22.06.2022 to the address of the opposite parties. The surveyor was duly appointed by the opposite parties who also took photographs of the damaged vehicle and inspecting the vehicle, who assessed the loss of the damaged Car as a ‘Total Loss’. The complainant had also paid necessary fee Loss Assessment of the damaged vehicle. It is further pleaded that all the formalities were duly completed by the complainant as required by the opposite parties for the purpose of releasing the claim of damaged vehicle. The total loss of the damaged vehicle was assessed more than Rs.7,00,000/- by The Surveyor and Loss Assessor. It is further pleaded that to the utter surprise of the complainant, the opposite parties sent a registered Letter dated 17.10.2022 repudiating the genuine claim of the complainant on the grounds that “Mr. Sanjeev Kumar who was driving the vehicle at the time of accident was not holding any valid and effective driving license and “L” sign was not mentioned on accidental vehicle” whereas Sanjeev Gupta knows the driving from long time and also a good master in driving the four wheeler. Mr. Sanjeev Gupta brother of the complainant was having valid and effective driving license at the time of accident. It is further pleaded that the accidental vehicle was having bearing “L” sign on the front windshield glass of the Car, but due to accident the windshield was completely damaged and these facts were ignored by the surveyor while assessing the loss of the vehicle just to waive out their legal liability. It is further pleaded that the opposite party No. 1 refused to give IDV value of the accidental Car as the Car was fully insured because the complainant availed the ‘INVOICE PROTECT’ feature of the insurance policy and also paid the premium for said facility. Even the complainant is still paying the EMI’s of the said Car to the Finance Company. It is further pleaded that accidental Car was owned by the complainant and being regularly used by the complainant. It is further pleaded that by repudiating the genuine claim of the complainant, the opposite party No. 1 got wrongful gain and caused wrongful loss to the complainant. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the claim of Rs.7,50,000/- to the complainant alongwith interest @ 18% from the date of accident till its realization and Rs.70,000/- for mental agony and harassment and deficiency in services alongwith Rs.20,000/- as litigation expenses, in the interest of justice, equity and fair play.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action and locus standi to file the present complaint. It is pleaded that the insurance is a contract between two parties. Both the complainant and answering OP No. 1 bind with the terms and condition of the insurance policy and there is no deficiency in services on the part of the answering OP No. 1 / insurance company. It is further pleaded that the matter of fact is that the claim of the complainant is not legally maintainable due to the breach of the terms and conditions of the policy. The claim has been intimated to the insurance company. The surveyor namely Mr. H.S. Bedi has been duly appointed to inspect and assess the loss. The report of surveyor has been received. Mr. Sanjiv Gupta was driving the vehicle at the time of alleged accident, but he was holding only learning license and nobody was sitting on the driver side holding any valid and effective driving license and there was no mark of “L” was mentioned on the accidental vehicle. So, this fact clearly shows that the driver was not having valid and effective driving license at the time of accident and it is breach of the terms and conditions of the insurance policy and of the provision of Motor Vehicle Act. It is further pleaded that the registered letter dated 17.10.2022, 28.10.2022 and 25.11.2022 has been duly sent in this regard at the complainant address. The Central Motor Vehicle Rules, 1989 Chapter – 2, clearly provides that the person with learner license must be accompanied by a person holding effecting driving license. It is further pleaded that in this case, the surveyor Mr. H.S. Bedi SLA No. 27058 has been duly appointed and he submitted his interim survey report dated 13.10.2022 and afterward submitted final survey report dated 14.12.2022 after physically verifying the damaged vehicle and assessed the loss. The assessed loss on repair basis is of Rs.7,74,440/-. It is further pleaded that on Net of Salvage Basis with R.C & with Return to Invoice benefit Rs.3,81,753/- and on Net of Salvage Basis without R.C & with Return to Invoice benefits Rs.4,47,941/-, but the IDV (Insured Declared Value of the vehicle was Rs.2,91,698/- only). It is further pleaded that even otherwise if this Ld. Commission comes to the conclusion that there is any liability of the answering OP No. 1 / insurance company then in that case it is only Rs.2,91,698/- IDV of the damaged vehicle after making compulsory deduction of excess clause & wreck value of the damaged vehicle, but as already stated the claim has been repudiated and not maintainable and as such there is no liability of the answering OP No. 1 / insurance company.
On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Opposite party No.2 did not appear despite the service of notice and was proceeded against exparte vide order dated 06.04.2023.
5. Learned counsel for the complainant has placed on file affidavit of Rohit Mahajan, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-10 alongwith complaint.
6. Learned counsel for the opposite party No.1 has placed on file affidavits of Ms. Sunita Saini, (Senior Divisional Manager, Authorized Person of National Ins. Co. Ltd, Pathankot) as Ex.OPW-1/A and Mr. H.S. Bedi, (Surveyor and Loss Assessor, Gurdaspur) as Ex.OPW-2/A alongwith other documents as Ex.OP-1/1 to Ex.OP-1/10 alongwith reply.
7. Rejoinder filed by the complainant.
8. Written arguments filed by the complainant but not filed by the opposite party No.1.
9. Counsel for the complainant has argued that vehicle of the complainant which was insured with the opposite party No.1 met with an accident on 13.04.2022 when Sanjeev Gupta was driving the car. It is further argued that claim regarding accidental loss to the car was lodged with the opposite party No.1 but opposite party No.1 repudiated the claim on the ground that Mr.Sanjeev Gupta was having a learner's licence at the time of accident and sign of 'L' was not affixed on the vehicle. The Act of opposite party No.1 regarding repudiation of the claim amounts to deficiency in service as learner’s licence is a vilid licence.
10. On the other hand counsel for the opposite party No.1 has argued that the driver of the car was having learner's licence and no one having a valid license was sitting with him in the car and there was no mark of 'L' on the car as such repudiation of the claim is totally justified and claim was rightly repudiated.
11. Opposite party No.2 remained exparte.
12. We have heard the Ld. counsels for the complainant and opposite party No.1 and gone through the record.
13. To prove his case complainant has placed on record his duly sworn affidavit Ex.CW-1/A and his self declaration, copy of sale certificate Ex.C1, copy of ledger account Ex.C2, copy of policy Ex.C3, copy of R.C. Ex.C4, copy of FIR Ex.C5, copy of claim form Ex.C6, postal receipts Ex.C7, copy of letter dated 17.10.2022 Ex.C8, copy of learner's licence Ex.C9, copy of licence Ex.C10 whereas opposite party No.1 has placed on record affidavit of Sunita Saini Sr. D.M. Ex.OPW-1/A, affidavit of H.S.Bedi Surveyor & Loss Assessor Ex.OPW-2/A, copy of letter dated 17.10.2022 Ex.OP-1/1, copy of letter dated 28.10.2022 Ex.OP-1/2, copy of letter dated 25.11.2022 Ex.OP-1/3, copy report of surveyor Ex.OP-1/4 and Ex.OP-1/5, copy of claim form Ex.OP-1/6, copy of learner's licence Ex.OP-1/7, copy of policy Ex.OP-1/8, copy of Central Motor Vehicles Rules Ex.OP-1/9 and copy of FIR Ex.OP-1/10.
14. It is admitted fact that complainant is owner of car No.PB-06-AS-8678 and the said car was insured with the opposite party No.1. It is further admitted fact that car owned by the complainant met with an accident on 13.04.2022 while being driven by Sanjeev Gupta. It is further admitted fact that at the time of accident of Sanjeev Gupta was having a learner's licence. It is further admitted fact that Mr.H.S.Bedi was deputed as surveyor to assess the loss who assessed the loss as Rs.2,04,243/-. It is further admitted fact that claim lodged by the complainant has been declined by the opposite party No.1. Perusal of file shows that on the date of accident i.e. 13.04.2022 Mr.Sanjeev Gupta was holding a learner's licence copy of which is Ex.C9. It is further admitted fact that no one was sitting with the driver having a valid licence at the time of accident. It is further admitted fact that as per Central Motor Vehicles Rules a person with valid licence is required to be sitting with the driver having learner's licence. The plea of the complainant is that the learner's licence is also a valid licence and the claim has been wrongly repudiated by the opposite parties and has also relied upon judgment of Hon'ble Supreme Court of India titled as National Insurance Co. Ltd. Vs. Swaran Singh and Ors reported in 2003(3) LJR 826 wherein it has held as under:-
D.Motor Vehicles Act, 1988, Sections 14, 15 and 149(2)(a)(ii) - Learning driving license - Breach of policy - Disqualification of driver - Validity of learner's driving license - Learner's driving license is a valid driving license under the Rules - The insurer cannot take it as a defense to avoid its liability".
And order of Madhya Pradesh State Consumer Disputes Redressal Commission (Bhopal) reported in 2006(2) C.P.C. 504 titled as Nagendra Prasad Dubey. Vs. National Insurance Co. Ltd. wherein it has held as under:-
"Consumer Protection Act, 1986 - Section 14 (1) (d) - Insurance claim - Learner's license - Only ground for repudiation of a valid claim was given that person driving the vehicle was not duly licensed - Repudiation of claim unjustified - It has been held in Swaran Singh's case 2004 (1) SLT that a person holding learner driving license is a duly licensed person under the Act and Rules - Impugned order dismissing the claim of appellant set aside - Respondent directed to pay claim of Rs.1,06,729/- a with 6% p.a. to appellant -Appeal allowed". (Paras 3 & 4).
Perusal of file shows that learner's licence has been issued on 29.12.2021 and the accident has taken placed on 13.04.2022 meaning thereby that a period of more than four months had elapsed which is sufficient to acquire driving skills for a person having a learner's licence. Learner's licence was confirmed on 13.06.2022. Moreover, it is not the case of the opposite party No.1 that the accident took place due to negligence of the driver or for want to driving skills of the driver of the car. As such we have no hesitation in holding that repudiation of the claim by the opposite party No.1 is totally unjustified.
15. Accordingly, it is held that complainant is entitled to receive the amount as assessed by the surveyor. Perusal of file shows that as per policy Ex.C3 the IDV of the vehicle as mentioned as Rs.2,91,698/- and the surveyor has assessed the payable amount as Rs.2,04,243/- and in view of the facts involved in the present case, the present complaint is partly allowed and insurance company i.e. OP.No.1 is directed to pay the compensation as assessed by the surveyor on non-standard basis i.e. 75% of Rs.2,04,243/- (Rs.1,53,182/-) within 30 days. However, if order is not complied with within 30 days after receipt of copy of this order the amount referred above shall carry interest @ 9% P.A. from 13.10.2022 i.e. the date of assessment made by the surveyor till realization.
16. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Feb. 16, 2024 Member.
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