BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.248 of 2019
Date of Instt. 05.07.2019
Date of Decision: 19.01.2021
Harmesh Kumar aged about 35 years son of Sh. Gurpiara Lal, resident of VPO Lambra Tehsil & District Jalandhar.
..........Complainant
Versus
1. The New India Insurance Company Limited. SCO 15-16, Shaheed Major Ramn Dada Commercial Complex, Kapurthala Chowk, Jalandhar-144008.
2. Roshan Lal son of Sh. Sarwan Dass, resident of Village Bhagwanpur, P. O. Lambra, Tehsil & Distrcit Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: Sh. K. K. Sehgal, Adv. Counsel for the Complainant.
Sh. R. K. Sharma, Adv. Counsel for OP No.1.
OP No.2 not required to summon.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that he is owner of Toyata Innova Car bearing registration No.PB-10-CJ-6355 and insured under Policy No.361001/31/17/01/00005273 (Rs.5 Lacs) by the OP/respondent No.1.
That an FIR bearing No.214 dated 27.04.2017 under Sections 279/337/338/427 IPC, PS Bhargo Camp, Jalandhar was lodged against the driver of the complainant regarding the occurrence of an accident as the above mentioned car was driven by the driver and accident took place with Jeep Bolero bearing No.PB-65-Z-5663. The same has been pending before the Hon’ble Court of Sh. Rajinder Singh Teji, JMIC, Jalandhar for 15.07.2019 and the complainant has not yet turned up for once. That the respondent No.1 posted a letter on 28.12.2018 to the complainant regarding accidental loss to above mentioned vehicle concerning claim No.361001/31/17/01/90000715 dated 26.11.2017 regarding accident dated 26.11.2017. It has been mentioned in the said letter that the OP/respondent No.2 repudiated the claim loss due to the reasons that the driving license of Mr.Roshan Lal being produced at the time of accident/final survey is not effective one as on date of accident. That the driver Roshan Lal filed an application to the Regional Transport Authority Jalandhar bearing No.128 dated 07.01.2019 and regarding explanation of vehicles to be categorized under the renewed license NO.PB-0820110236972 issued on 27.04.2011. Furthermore, he demanded explanation regarding validity of the vehicle Innova Car (Non Transport) and its inclusion in the category. It was utter surprise to know that the said Innova Car is a motor car vehicle and categorized as such under the MV Act 1988. That the Regional Transport Authority Jalandhar presented a query No.464 dated 29.01.2019 vide official report No.3982 dated 30.05.2019 and satisfactorily the inclusion and categorization of Innova car and further its validity for the license of driver Roshan Lal. That the complainant has attached the verified reports for the kind perusal of the Hon’ble Court for the factual prove that the driving license of Roshan Lal was effective one on the date of accident and accidental loss pertaining to claim No.361001/31/17/01/90000715 dated 26.11.2017 has been wrongly repudiated. That the complainant tried his level best for pillar to post, personally and telephonically he contacted all the responsible persons of the company, but always received a parrot like reply. That in the last week the complainant went to the office of OP No.1, but again unfortunately was not duly attended. The complainant is suffering from mental agony, financial loss and tension that too without his fault, and this act and conduct of OPs amounts to deficiency in service being provided by the OPs and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP No.1 be directed policy claim i.e. Rs.5,00,000/- with interest and litigation expenses and Rs.1,00,000/- as compensation to the complainant on account of deficiency and negligence on the part of the OP.
2. Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the complaint is not maintainable before this Forum, as such, the same is liable to be dismissed. It is further averred that while scrutinizing the claim papers, it was observed that Roshal Lal the driver of the insured vehicle bearing No.PB-10-JC-6355 was holding driving license No.PB-0820110236972 with date of issue as 27.04.2011 issued by Licensing Authority, Jalandhar for Tractor and LMV-GV and valid upto 26.04.2017 for Transport Vehicles and 11.11.2028 for Non Transport vehicles. It is evident that license has been issued to drive two categories of the vehicles i.e. Tractor and LMV-GV. The driving license for LMV-GV (Transport Vehicle) has expired on 26.04.2017, whereas the insured vehicle which is a LMV car met with an accident on 26.11.2017, as such Roshal Lal was not authorized to drive insured vehicle at the time of accident. The driving license covering the date of accident is valid only for Tractor, but the insured vehicle is LMV car having seating capacity of 7 persons and does not fall in the category of Tractor, as the tractor has been specifically defined in the Motor Vehicle Act under Section 2(44) which is reproduced as under:-
Section 2 (44) of Motor Vehicle Act.
“ ‘Tractor’ means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion): but excludes a road roller”.
It is a condition of the insurance policy that the person driving the insured vehicle must have effective driving license at the time of accident. As the driver of the insured vehicle was not holding any driving license to drive LMV car at the time of accident, it being breach of terms and conditions of the insurance policy, the claim of the complainant was repudiated as per terms and conditions of the insurance policy after due application of mind and the complainant/insured was informed vide letter of repudiation of claim dated 28.12.2008. It is further alleged that there is neither any negligence nor any deficiency in service or unfair trade practice on the part of the OP No.1. Repudiating the claim which is not payable as per terms and conditions of the insurance policy does not amount to any deficiency in service or unfair trade practice. The claim of the complainant stands repudiated vide letter dated 28.12.2018 as per terms and conditions of the insurance policy after due application of mind and the complainant was informed accordingly. On merits, it is admitted that the vehicle was insured by the OP No.1, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder not filed by the complainant.
4. In order to prove their respective versions, both the parties produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and also gone through the case file very carefully.
6. Precisely, the case set up by the complainant is that he is the owner of Toyota Innova Car and the same is insured vide policy No.361001/31/17/01/00005273 for Rs.5,00,000/- by the OP No.1 and the same was met with an accident with Jeep Bolero and after that the complainant lodged his claim, but the OP repudiated the same on the ground that the driving license of the Mr.Roshan Lal being produced at the time of accident/final survey is not effective one as on date of accident. Now dispute is only the repudiation of claim is valid or not. For that purpose, the complainant brought on the file Ex.C-1 Repudiation Letter, Ex.C-2 Application dated 07.01.2019, Ex.C-3 letter , Ex.C-4 Copy of New License, Ex.C-5 Copy of Old License.
7. On the other hand, the counsel for the OP submitted in his written reply that Roshal Lal the driver of the insured vehicle bearing No.PB-10-JC-6355 was holding driving license No.PB-0820110236972 with date of issue as 27.04.2011 issued by Licensing Authority, Jalandhar for Tractor and LMV-GV and valid upto 26.04.2017 for Transport Vehicles and 11.11.2028 for Non Transport vehicles. It is evident that license has been issued to drive two categories of the vehicles i.e. Tractor and LMV-GV. The driving license for LMV-GV (Transport Vehicle) has expired on 26.04.2017, whereas the insured vehicle which is a LMV car met with an accident on 26.11.2017, as such Roshal Lal was not authorized to drive insured vehicle at the time of accident. The driving license covering the date of accident is valid only for Tractor, but the insured vehicle is LMV car having seating capacity of 7 persons and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
8. After considering the overall circumstances as put forth by both the parties in their respective pleading, it reveals that the ownership of the Toyata Innova Car, bearing registration No.PB-10-CJ-6355 stands in the name of complainant, is not disputed. Further, it is also admitted fact that the said Toyata Innova Car was got insured by the complainant with the OPs and further, the said Toyata Innova Car met with an accident with Jeep Bolero and regarding that accident, matter was reported to the police and FIR No.214 dated 27.04.2017 was lodged. Further, it is also admitted fact that the complainant submitted an insurance claim with the OP and the said insurance claim was repudiated by the OP, vide repudiation letter dated 28.12.2018, copy of the same is available on the file Ex.C-1. The main ground for repudiation of the insurance claim is that the driving license of the Mr.Roshan Lal being produced at the time of accident/final survey is not effective one as on date of accident, the claim lodged with us is not admissible/maintainable as per the terms and conditions of motor policy.
9. Now, question before us is only whether the claim of the complainant has been repudiated by the OP wrongly or not, for that purpose, it is very much required to go through the pleading as well as documents and we go through the document Ex.C-3 in which the complainant sought some information through RTI application and in reply to this application, it is specifically mentioned that Light Motor Vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms. Motor Car means any motor vehicle other than a transport vehicle, omnibus, road roller, tractor, motor cycle or invalid carriage and in support of this observation, we like to refer a pronouncement of Himachal Pradesh High Court, cited in 2016(3) ACC 370, titled as “Amar Nath Vs. Deli Devi and Anr.”, wherein his Lordship held as under:-
“Motor Vehicle Act, 1988, Sections 149 and 2(21) Liability of insurer-Offending vehicle in terms of Section 2 (21) of Act comes under definition of “Light Motor Vehicle” – from perusal of copy of driving license, showed that driver was competent to drive car/Jeep/Tractor and said license was valid and effective at the time of accident – It can be said that offending vehicles falling within definition of “Light Motor Vehicle” – Registration certificate of vehicles also proved where it is mentioned that unladen weight of offending vehicle was 1660 kg – Findings of Tribunal that driver of offending vehicle was not having valid and effective driving license5 – Improper and unsustainable – Held, in view of definition and matter, insurer liable to pay compensation, to claimants – Appeal allowed.
As per the copy of RC the unladed weight of Innova car is 1585 Kg so after considering the overall facts and circumstances, we came to conclusion that the OP illegally repudiated the claim of the complainant and as such, the complainant is entitled for the relief. Further as per report of Surveyor Ex.O-5 the net loss of the vehicle is Rs. 3,38,000/- after deducting all the amounts as per rules and regulations of the opposite parties.
10. The Hon'ble National Commission, New Delhi in case titled Sportking Synthetics Versus United India Insurance Company Limited and others reported in IV (2019) CPJ-307 (NC) held as under.-
“Consumer Protection Act, 1986- Sections 2 (1)(g), 14 (1) (d), 21 (a) (i)- Insurance- Fire accident- Surveyor appointed- Loss assessed-Full and Final settlement-Discharge voucher signed- Further claim repudiated- Deficiency in service alleged- Surveyors are appointed under provisions of Insurance Act 1938 and their report cannot be brushed aside without any cogent reason- Surveyor has given a clear reason for adopting volumetric analysis for assessment of loss in respect of yarn- Stock was already burnt and only ashes were left- There is no set procedure in Insurance Act, 1938 and Surveyor has used prevailing method of assessment as per accepted norms- For valuation of stocks, clearly market value cannot be taken as loss that has been suffered by complainant as this loss is of his cost price- Surveyor has rightly used invoices and no deficiency is seen in this regard- This Commission would not sit over judgment of Surveyor because Surveyor is a technically qualified and licensed surveyor who has independently assessed loss- Interest can be awarded from date of filing of complaint if amount was not paid before filing of complaint.”
This citation of Hon'ble National Commission is fully applicable to the facts and circumstances of the present matter and in the present matter also the Surveyor of opposite party in his survey report Ex.OP-5 that the Surveyor assessed the loss of Rs. 3,38,000/- but they have repudiated the claim on some baseless ground as mentioned in preceding paras of this order. In the present complaint the complainants sought for Rs. 5 lacs on account of insurance claim etc. but in view of this judgment the Surveyor report is most important document as he is a technically qualified person appointed by the opposite party under the provisions of Insurance Act 1938 so now in our view the opposite parties are liable to pay the amount of Rs. 3,38,000/- as assessed by the Surveyor. Hence, by not paying the amount to the complainant on the basis of even Surveyor report is clear cut deficiency in service and unfair trade practice on the part of the opposite parties.
11. The Hon'ble Punjab and Haryana High Court at Chandigarh in case titled New India Assurance Company Limited Versus Smt. Usha Yadav and others 2008(3) RCR (Civil) Page-111 held as under.-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs. 5,000/- for luxury litigation being rich.”
This citation is also fully applicable to the facts of present case as in the present matter also the opposite party earned premium from the complainant but at the time when complainant lodged insurance claim then opposite parties rejected the same on the baseless ground, which is clear cut deficiency in service and unfair trade practice on their part.
12. As a result of our above discussion, there is merit in the present complaint and same is partly allowed. Accordingly, the OP No.1 is directed to pay the amount of Rs. 3,38,000/- to the complainant on account of insurance claim. The OP No.1 is further directed to pay Rs.10,000/- to the complainant as consolidated amount of compensation for mental tension, harassment and litigation expenses. Compliance of the order be made within the period of 45 days from the date of the receipt of the copy of this order, failing which the OP No.1 is directed to pay the above mentioned amount of Rs. 3,38,000/- alongwith interest at the rate of 6% per annum from the date of order till actual realization. 13. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
19th Day of January 2021
(Kuljit Singh)
President
(Jyotsna)
Member
