Haryana

Yamunanagar

CC/1020/2012

Principal ,Maharaj Aggarsain Sr.Secondry School - Complainant(s)

Versus

The Oriental Insurance Co.Ltd. - Opp.Party(s)

V.K.Kamboj

18 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 1020 of 2012

                                                                                          Date of institution: 25.09.2012

                                                                                          Date of decision: 18.04.2017

 

Principal, Maharaj Aggarsain Sr. Secondary School, VPO Jathlana, Distt. Yamuna Nagar.

                                     …Complainant.

                                    Versus

The Oriental Insurance Company Ltd. Opposite Hindu Girls College, Old Court Road, Jagadhri, Distt. Yamuna Nagar, through its Branch Manager.

 

                                                                                                                                              ...Respondent

BEFORE:       SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND ………..MEMBER.

 

Present:          Shri V.K. Kamboj, Advocate for complainant.

                        Shri Sushil Garg, Advocate for respondent.

 

ORDER (ASHOK KUMAR GARG PRESIDENT)

 

1                       The present complaint has been filed by the Principal of Maharaj  Aggarsain Senior Secondary, School ( hereinafter referred as complainant) under section 12 of the Consumer Protection Act, 1986 amended up to date. 

2.                     Brief facts of the present complaint, as alleged by the complainant are that complainant is having 25 seater mini school bus bearing registration No. HR-58-7994 which was insured with the respondent (hereinafter respondent will be referred as OP Insurance Company) vide insurance policy bearing No. 261701/31/2012/1534 valid from 14.05.2011 to 13.05.2012. It has been further mentioned that on 12.08.2011 when driver Jitender Singh was driving the bus in question then it met with an accident near Jathalana Mandi due to failure of steering of the bus and bus in question hit into the tree and badly damaged. Thereafter, the claim was lodged with the OP Insurance Company and bus in question was got repaired from Satya Bus & Truck Body maker bye-pass road, Yamuna Nagar and an amount of Rs. 45,000/- was spent on the repair of the bus in question. Thereafter, the complainant visited so many times to the office of OP Insurance Company but all time the matter was put off on one pretext or the other. Ultimately, OP Insurance Company, vide letter dated 19.07.2012 asked the complainant to supply the copy of driving license issued by DTO Agra which was not in the possession of the complainant as he has submitted the same with the DTO Zunheboto, Nagaland when he applied the license for driving the heavy vehicles and the heavy driving license issued by the DTO Zunheboto, Nagaland has already been submitted to the OP Insurance Company. All the facts were told to the official of OP Insurance Company and was requested to pay the amount but all in vain. Lastly, prayed for directing the OP Insurance Company to pay a sum of Rs. 45,000/- on account of repair of the bus in question and also to pay compensation as well as litigation expenses. Hence, this complaint.

3                      Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as there is no deficiency in service on the part of OP Insurance Company because the complainant despite of various reminders dated 19.09.2012 and 13.03.2012 to supply the copy of driving license bearing No. 3147/AG/06 issued by DTO Agra for proper verification, but the complainant did not supply the same and ultimately the OP Insurance Company again intimated the complainant vide its letter dated 20.09.2012 to supply the abovesaid documents, but the complainant failed to submit the same; complainant has no cause of action to file the present complaint; complainant was driving the vehicle in question at the time of alleged accident without any valid and effective driving license; the surveyor and loss assessor was deputed by the Op Insurance Company to assess the loss/damages who assessed the loss to the tune of Rs. 19,800/- as per terms and conditions of the insurance policy; this Forum has got no jurisdiction to entertain and decide the present complaint; complainant has concealed the true and material facts from this Forum and on merit it has been admitted that the Op Insurance Company got survey and the surveyor assessed the loss/damages to the tune of Rs. 19,800/- in strict terms and conditions of the insurance policy, however, the driver Jitender Singh was not holding any valid and effective driving license at the time of alleged accident. Hence, the claim of the complainant was rightly repudiated by the OP Insurance Company vide its letter dated 20.09.2012. Lastly, prayed for dismissal of complaint.

4                      In support of case, counsel for the complainant tendered into evidence short affidavit of Sh. Sushil Kumar, Principal, Maharaj Aggarsain Senior Secondary School as Annexure CW/A and documents such as photo copy of permit as Annexure C-1, Photo copy of registration certificate as Annexure C-2, Photo copy of letter dated 19.07.2012 issued by OP insurance Company to the complainant as Annexure C-3, Photo copy of driving license of Jitender Singh as Annexure C-4, Photo copy of insurance policy as Annexure C-5 and closed the evidence on behalf of complainant.

5                      On the other hand, learned counsel for the OP Insurance Company tendered into evidence affidavit of Sh. Abhas Topo AM Divisional Office, OIC as Annexure RA and affidavit of Sh. M.L.Garg Surveyor and Loss Assessor as Annexure RB and documents such as Photo copy of repudiation letter dated 20.09.2012 as Annexure R-1, Photo copy of letter dated 13.08.2012 as Annexure R-2, Photo copy of letter dated 24.07.2012 as Annexure R-3, Photo copy of letter dated 19.07.2012 as Annexure R-4, Photo copy of letter dated 02.05.2012 issued by investigator alongwith information received in RTI as Annexure R-5, Photo copy of driving license of Jitender Singh as Annexure R-6 , Photo copy of verification of driving license as Annexure R-7 and R-8, Photo copy of letter dated 26.08.2011 issued by the OP Insurance Company as Annexure R-9, Photo copy of surveyor report dated 21.09.2011 as Annexure R-10 and Photo copy of insurance policy as Annexure R-11 and closed the evidence on behalf of Op Insurance Company.

6.                     We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

7.                     It is not disputed that complainant’s Mini School Bus bearing  Registration No.HR58-7994  which was insured with the OP Insurance Company vide Insurance Policy bearing No.261701/31/2012/1534 valid from 14.05.2011 to 13.05.2012, met with an accident on 12.08.2011 which is duly proved from copy of Insurance Policy (Annexure R-11). It is also not disputed that on the intimation of the complainant, an independent surveyor and loss Assessor Shri M.L. Garg was appointed by the OP Insurance Company, who submitted his facts findings report dated 21.09.2011 by assessing the net loss to the tune of Rs.19,800/- which is duly evident from the copy of surveyor report (Annexure R-10). It is also not disputed that the complainant was registered owner of the bus in question.

8.                     The only plea of the OP Insurance Company is that the complainant despite various reminders dated 19.09.2012, 13.03.2012 and 20.09.2012 has not submitted the original copy of driving license bearing No. 3147/AG/06 issued by DTO Agra for proper verification. Learned counsel for the Op draw our attentions towards the investigation report dated 02.05.2012 of Sh. V.K. Aggarwal, (Annexure R-5) argued that the office of the Licensing Authority, Agra was demanding the original license of the driver for verification as the record of the driving license bearing No. 3147/AG/06 is not traceable. Learned counsel for the Op further argued that accordingly as per report of the investigator, the complainant was asked to submit the original driving license but he failed to submit the same, hence the claim of the complainant has been rightly repudiated by the Op Insurance Company vide its repudiation letter dated 20.09.2012 Annexure R-1.

9                      On the other hand, learned counsel for the complainant argued at length that OP Insurance Company has totally failed to prove that the driver of the bus in question was not having valid and effective driving license at the time of alleged accident and the claim of the complainant has been wrongly and illegally repudiated by the OP Insurance Company. Learned counsel for the complainant draw our attention towards the verification report of renewal issued by Licensing Authority/ District Transport Officer, Zunheboto, Nagaland (Annexure R-8) and argued that as per this report, the driving license in question issued by Licensing Authority, Agra was duly renewed by the DTO Zunheboto Nagaland. Learned counsel for the complainant also draw our attention towards the copy of driving license Annexure R-6 and argued that complainant could not submit the original driving license issued by the DTO, Agra as the driving license of the driver in question was deposited with the DTO Zunheboto Nagaland at the time of renewal of the said license. Lastly, prayed for acceptance of complaint.

10.                   After hearing both the parties, we are of the considered view that the Op Insurance Company has wrongly and illegally repudiated the claim of the complainant as from the perusal of verification report issued by DTO Zunheboto Nagaland Annexure R-8, it is duly evident that the driving license of the driver of the complainant was duly renewed by the Licensing Authority i.e. DTO Zunheboto Nagaland w.e.f. 12.11.2010 to 11.11.2013 which was meant for motorcycle, LMV, HTV, HGV (Professional D/L). We have also perused the photo copy of driving license Annexure R-6 and from the perusal of this photo copy, it is duly evident that driver Jitender Singh son of Bhupinder Singh was holding a driving license No. 3147/AG/2006 Agra (U.P) since 13.03.2006. it is settled law that the burden to prove the violation of the terms and conditions of the Insurance Policy, if any, was on the shoulder of the OP Insurance Company but the Op Insurance Company has totally failed to discharge the same as neither any Licensing Clerk has been summoned with record from the Licensing Authority, Agra nor any verification report issued by the Licensing Authority/ DTO, Agra has been placed on file and in the absence of any cogent evidence, we are unable to hold that the driver of the bus in question was not having any valid and effective driving license at the time of accident. Hence, we have no option except to allow the complaint of complainant.

11.                   Now, the next question remains, as to what extent the complainant is entitled to get damages. Learned counsel for the complainant argued that complainant has spent Rs. 45,000/- on account of damage to the vehicle which is not tenable as no cogent evidence by way of expert report has been filed by the complainant to prove that he is entitled to get the same whereas on the other hand, loss has been assessed by the Surveyor and Loss Assessor to the tune of Rs. 19,800/- on net loss basis vide his report (Annexure R-10) and it is settled proposition of the law held by the Hon’ble National Commission as well as State Commission in various cases that surveyor is the best technical person to assess the loss and credence should be given to the surveyor report in the absence of any discrepancy or ambiguity in the surveyor report.

12.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs. 19,800/- to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization and further to pay Rs. 2,000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law.  Copies of this order be sent to the parties concerned free of cost as per rules. File be consigned to the record room after due compliance.

Pronounced in open court:

Dated: 18.04.2017                  

                                               

                                                                                                (ASHOK KUMAR GARG)

                                                                                          PRESIDENT

                                                                                          DCDRF Yamuna Nagar

 

 

                                                                                         

(VEENA RANI SHEOKAND)        ( S.C.SHARMA)

 MEMBER                                        MEMBER