Punjab

Fatehgarh Sahib

CC/66/2015

Avtar Singh - Complainant(s)

Versus

The OIC LTD - Opp.Party(s)

Sh SS Bhagrana

20 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

Consumer Complaint  No. 66 of 2015

                                           Date of institution : 21.07.2015                                                  Date of decision    : 20.04.2016

Avtar Singh aged about 58 years son of Sh. Jeet Singh resident of village Salani, Tehsil Amloh, District Fatehgarh Sahib.

……..Complainant

Versus

The Oriental Insurance Company Ltd. branch office Loha Bazar, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib.

…..Opposite Party

Complaint Under Sections 12 to 14 of the Consumer Protection Act.                                              

Quorum

Sh. Ajit Pal Singh Rajput, President                                       Smt. Veena Chahal, Member                                                       Sh. Amar Bhushan Aggarwal, Member

Present :  Sh.S.S.Bhagrana, Adv. counsel for the complainant.                      Sh.D.P.S.Anand, Adv.Cl. for the OPs.

 ORDER

 

By Ajit Pal Singh Rajput, President

                      Complainant, Avtar Singh aged about 58 years son of Sh. Jeet Singh resident of village Salani, Tehsil Amloh, District Fatehgarh Sahib, has filed this complaint against the Opposite Party(hereinafter referred to as the OP) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.                   The complainant got insured his truck No. PB-5N-9974, Engine and Chassis No.62440334,202235, Model TAT LPS 3516 EX, vide policy No.233603/31/2013/10476, vide cover note No.CHD-D-730189 dated 05.02.2013 from the OP, which is valid from 08.02.2013 to midnight of 07.02.2014. On 04.05.2013, Rupinder Singh son of Avtar Singh, complainant, driving the said vehicle and was going from Bathinda to Baroda(Gujrat). When the truck reached near Railway Phatak of village Khanpur, it met with an accident and was totally damaged. Driver, Rupinder Singh son of complainant also died due to burning of fire in the said truck. The matter was reported to the concerned policy station Ladnun, District Nagaur by the conductor Jasbir Singh but the police did not listen Jasbir Singh rather registered the case against Rupinder Singh by lodging FIR No.117 dated 04.05.2013 under Sections 279 and 304-A. The information was given to the OP by the complainant regarding the alleged accident and it was requested to give accidental insurance. The complainant also submitted all the documents, which were required for issuance of insurance claim. The vehicle in question was totally damaged in the accident and estimate of loss i.e. Rs. 16,58,512/- was given by T.T.Automobiles Service Station, Sirhind. Thereafter the complainant many times visited the office of OP to get the said insurance claim but the OP lingering on the matter by one pretext or the other and has totally refused to issue the insurance claim of the said truck, which amounts to deficiency in service on the part of the OP. The complainant also filed a complaint previously in this Forum on the same cause of action and the said complaint was disposed off with direction to the OP to settle the claim within 45 days, but the OPs putting off the matter on one pretext or the other and did not settle the claim of the complainant. Hence this complaint for giving directions to the OP to pay the insurance claim amount of Rs.16,58,512/- and Rs. 2,00,000/- as compensation for mental agony and harassment suffered by the complainant.

3.                   In reply to the complaint, the OP raised certain preliminary objections, inter alia, that the present complaint is not maintainable being premature as the OP is ready to settle the claim subject to furnishing of original driving license of late Sh. Rupinder Singh; the complaint is grossly misconceived and misdirected for which the same should be dismissed and complicated question of law and facts are involved, which requires elaborate evidence. As regards to the facts of the complaint the OP stated that on receipt of intimation of loss on 06.05.2013, the OP had immediately deputed Sh. Narinder approved IRDA Surveyor and Loss Assessor Nagaur(RJ) for spot survey, who submitted his report dated 10.11.2013 and Er. Rajesh Wadhawan approved IRDA Surveyor and Loss Assessor, Chandigarh was deputed for final survey, who in his report dated 16.10.2013 assessed the loss to the tune of Rs.9,98,500/- but the liability is denied. The complainant has submitted the photo copy of the driving license of late Sh. Rupinder Singh, which has allegedly been issued by licensing authorities Fatehgah-Farukhabaad, UP. The complainant was requested to supply the original driving license of deceased driver with verification report from licensing authority Fatehgarh- Fraukhabaad, UP and the insurance company is ready to settle the claim but the complainant has failed to get the same verified from that authority. Hence, there is no deficiency in service on the part of the OP. After denying the other averments made  in the complaint, it prayed for dismissal of the complaint.

4.                   In order to prove the case the complainant tendered in evidence  attested copy of policy Ex. C-1, attested copy of FIR Ex. C-2, true copy of estimate Ex. C-3, copy of driving license Ex. C-4, true copy of death certificate Ex.C-5, true copy of postmortem report Ex. C-6, true copy of form No.38 Ex. C-7, affidavit of complainant Ex. C-8 and closed the evidence. In rebuttal the OP tendered in evidence affidavit of Sh. A.K. Sehgal, Sr. Divisional Manager Ex. OP-1, affidavit of Er. Rajesh Badhawan Ex. OP-2, true copies of documents i.e. insurance policy Ex. OP-3, letter dated 06.10.2015 Ex. OP-4, report of licensing authority Ex. OP-5, Driving license Ex. OP-6, claim form Ex.OP-7, survey report Ex. OP-8, FIR Ex. OP-9, Spot Survey report Ex. OP-10, copy of letter dated 01.09.2015 Ex. OP-11, copy of letter dated 26.03.2014 Ex. OP-12, copy of letter dated 08.02.2013 Ex. OP-13 and closed the evidence.

5.                   The ld. counsel for the complainant has submitted that the main controversy involved in the present case is that the claim of the complainant was repudiated, vide letter dated 01/09/2015, in an arbitrary manner. He stated that the OPs have failed to place on record any material, to prove that the Driving License of the complainant was forged or fake. The ld. counsel pleaded that the police authorities have no where stated that the said driving license was fake. The ld. counsel also argued that the Ld. counsel for the OPs is not authorized to represent the OPs as he had not place on record Power of Attorney, hence his submissions cannot be accepted. The ld. counsel relied upon the case law titled as "National Insurance Co. Ltd. Vs. Sant Kumar Goyal, in I(2005) CPJ 79(NC)". The Hon’ble National Commission has observed in para No.6, "In the Case, Harbhajan Lal Vs. National Insurance Co. Ltd., in R.P.No.2166 of 2003 decided by a Full Bench of this Commission on 29.09.2003 relied upon above observations in Lehru's case and rejected the repudiation of the Insurance Company in absence of evidence to prove that the driving licence was fake one to the knowledge of the owner and claim of the complainant was upheld.

            As regards the compensation that it is not a third party claim but owner's claim, it may be mentioned that in National Insurance Co. Ltd. V. Swaran Singh's case I(2004) SLT 345=I(2004)ACC1(SC)=2004 ACJ P.I, following observations were made:

(iii)     The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in Sub-Section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time".

6.                   On the other hand, the ld. counsel for the OPs has stated that the claim of the complainant was only repudiated due to non supply of original Driving License. He also stated that as per the terms and conditions of the policy the complainant was several times requested by the OPs to supply the original Driving License and the same is evident from Ex.OP-11 and Ex.OP-12. The ld. counsel pleaded that during the pendency of the present complaint also the OPs had several times requested the complainant to supply the original Driving License but the complainant never bothered to supply the same. The ld. counsel argued in order to settle/decide the claim of the complainant it is important for the complainant to fulfill the formalities in view of the terms and conditions of the Policy. The ld. counsel further argued that in the affidavit sworn by the complainant, the complainant is silent about giving the original driving license. He stated that no report of loss of Driving License has been placed on record in order to prove, the said Driving License was lost, therefore the same could not be handed over to the OPs and the in absence of the original Driving License the same could not be verified and thus the claim cannot be decided.

7.                   After hearing the ld. counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions, we are of the considerate view that the complainant had failed to provide the original Driving License to the OPs despite their repeated requests as it is evident from Ex.OP-11 and Ex.OP-12. The complainant has also failed to place on record any material document in order to provide the reason for non supplying of the original Driving License. As per letter i.e Ex.OP-13, it is established that the OPs had attempted to verify the details of the Driving License but could not get any information due to non supplying of original Driving License by the complainant.

8.                   The ld. counsel for complainant has relied upon the case laws, which in our opinion are not applicable to the facts of the present case, as in the present case the complainant was unable to supply the original Driving License due to which the OPs were not able to verify the authentication of the same.

9.                   Accordingly in view of our aforesaid discussion, we direct the complainant to supply the original Driving License and the OPs shall after getting the same verified make the payment to the complainant i.e. Rs.9,98,500/-(Nine Lac ninety eight thousands and five hundred only) in view of the Survey Report i.e Ex.OP-8. In case the complainant is not satisfied from the decision of OPs, the complainant is granted liberty either to approach this Forum or any appropriate court of law. The OPs are directed to comply with this order within 45 days from the date of receipt of original Driving License. The present complaint is hereby disposed of with the aforesaid observations. Parties to bear their own costs.                              

10.                 The arguments on the complaint were heard on 06.04.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:20.04.2016

(A.P.S.Rajput)                          President

 

(Veena Chahal)                        Member

 

      (A.B.Aggarwal)                       Member