Chandigarh

DF-I

CC/310/2018

Gaurav Sharma - Complainant(s)

Versus

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

Rohit Malik

29 May 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

                               

Consumer Complaint No.	:	CC/310/2018
Date of Institution	:	28/06/2018
Date of Decision	:	29/05/2019

 

Gaurav Sharma, R/o H.No.381, Saini Vihar, Phase-I, VPO Baltana, District SAS Nagar, Mohali – 140604 (Punjab).

…..Complainant

V E R S U S

 

The Oriental Insurance Company Limited, DO-III, SCO No. 72 & 73-A, 2^nd Floor, Grain Market, Sector 26, Chandigarh, through its Senior Divisional Manager.

……Opposite Party

 

QUORUM:	SH.RATTAN SINGH THAKUR	PRESIDENT
	MRS.SURJEET KAUR	MEMEBR
	DR.S.K.SARDANA	MEMBER

                                                       

ARGUED BY	:	Sh.Rohit Malik, Counsel for Complainant.
	:	Brig.B.S.Taunque (Retd.), Counsel for Opposite Party.

 

PER DR.S.K.Sardana, member

1.         In brief, the Complainant purchased a brand new Ford Figo car bearing Registration No.PB-01-B-1629 to earn his livelihood and got the same insured with the Opposite Party, for an IDV of Rs.5,68,400/-, vide cover note Annexure C-1, valid from 09.08.2016 to 08.08.2017. As the ill luck would have it, whilst the aforesaid vehicle was being driven by the Authorised Representative of the Complainant (Sh.Surjit Singh), it met with an accident and got extensively damaged on 30.07.2017. The vehicle was shifted to Bhagat Ford Workshop at the instance of Opposite Party to whom intimation of the loss was given. Upon intimation, the OP-Insurance Company had deputed a Surveyor & Loss Assessor who inspected the vehicle. The Complainant had to spend Rs.1,31,481/- towards repair of the vehicle and foot the expenses from his own pocket; whereas the OP-Insurance Company despite repeated requests and demands did not settle the claim and finally, vide letter dated 26.12.2017 repudiated the claim of the Complainant on flimsy grounds. Hence, the complainant has brought this Consumer Complaint.
2.         Notice of the complaint was sent to Opposite Party seeking its version of the case.
3.         Opposite Party contested the complaint and filed its reply, inter alia, admitting the basic facts of the case. It has been pleaded that on receipt of intimation from the Complainant regarding his car having met with accident on 31.07.2017, Surveyor Balvider Singh, an IRDA approved Surveyor was appointed to assess nature, cause and extent of loss/damage subject to terms and conditions of the insurance policy. Accordingly, the Surveyor started the survey and assessment on 05.08.2017 and submitted his survey report. As per the assessment of loss, a sum of Rs.89,261/- was only payable to the Complainant in accordance with terms and conditions of the policy. However, keeping in view the aspect of negligence and driver not in possession of a valid DL at the time of accident, the Complainant is not entitled to any compensation.  It has been asserted that as a goodwill gesture, Opposite Party made an offer to settle the claim and offered to pay Rs.89,000/- to the Complainant vide letter dated 24.08.2018, but he declined to accept the same. As such, the offer was closed.  Pleading that there is no deficiency in service or unfair trade practice on its part, Opposite Party has prayed for dismissal of the complaint.
4.         Controverting the allegations contained in the reply of Opposite Party and reiterating the pleadings in the Complaint, the Complainant filed the rejoinder.
5.         The parties led evidence in support of their contentions.
6.         We have gone through the entire record and have also heard the arguments addressed by the Ld. Counsel for the Parties.
7.         After giving our thoughtful consideration, to the rival contentions, advanced by the counsel for the Complainant, Opposite Party, and the evidence, on record, we are of the considered opinion, that the Complaint is liable to be accepted, for the reasons to be recorded hereinafter.
8.         The core questions, that fall for consideration are as to whether, the OP - Insurance Company could legally and validly repudiate the claim of the complainant/insured, in toto, in respect of the car, in question, merely on the ground of not having a valid driving license to drive the insured vehicle.
9.         Ld. Counsel for the Opposite Party has argued that the driving license submitted by the Complainant is MCWG, LMV & LMV-GV only and is not valid for driving a Transport Vehicle (Passengers). Therefore, the claim of the Complainant was validly repudiated on the ground of not having a valid driving license. However, we are not impressed with this for the reason that in an important judgment in the realm of Motor Vehicle Laws, the Supreme Court, in Civil Appeal No. 5826 of 2011 titled as “Mukund Dewangan Vs. Oriental Insurance Company Limited”, 2017 (2) Law Herald (SC) 1441, has held that there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding license to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. The bench comprising Justice Amitava Roay, Justice Arun Mishra and Justice Sanjay Kishan Kaul was answering reference made to it by a division bench, when it observed certain inconsistencies in some of the judgments. The questions referred by the division bench and the answers to it by the three-judge bench are the following: - 

What is the meaning to be given to the definition of “light motor vehicle” as defined in Section 2(21) of the MV Act? Whether transport vehicles are excluded from it?

‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

Whether ‘transport vehicle’ and ‘omnibus’ the “gross weight” of either of which does not exceed 7500 kg. would be a “light motor vehicle” and also motor car or tractor or a road roller”, “unladen weight” of which does not exceed 7500 kg. and holder of a licence to drive the class of “light motor vehicle” as provided in Section 10(2)(d) would be competent to drive a transport vehicle or omnibus, the “gross vehicle weight” of which does not exceed 7500 Kgs. or a motor car or tractor or road roller, the “unladen weight” of which does not exceed 7500 Kgs.?

A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also 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 in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 Kg or a motor car or tractor or road roller, the “unladen weight” of which does not exceed 7500 Kg. This is to day, no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.

What the effect of the amendment made by virtue of Act No. 54 of 1994 w.e.f. 14.11.1994, while substituting Clauses (e) to (h) of Section 10(2), which contained “medium goods vehicle”, “medium passenger motor vehicle”, “heavy goods vehicle” and “heavy passenger motor vehicle” by “transport vehicle”? Whether insertion of expression ‘transport vehicle’ under Section 10(2)(e) is related to said substituted classes only or it also excluded transport vehicle of light motor vehicle class from the purview of Sections 10(2)(d) and 2(41) of the Act?

The effect of the amendment made by virtue of Act No. 54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of Section 10(2) which contained “medium goods vehicle” in section 10(2)(e), the medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 120(2)(g) and “heavy passenger motor vehicle” in section 10(2)(h) with expression ‘transport vehicle’ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle. 

What is the effect of Amendment of Form 4 as to the operation of the provisions contained in Section 10 as amended in the year 1994 and whether the procedure to obtain the driving licence for transport vehicle of the class of “light motor vehicle” has been changed?

The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedures to obtained driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding license to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. 

                In the case in hand before us, it is evidently clear from Annexure OP-4 placed on record by the Opposite Party, that the unladen weight of the insured vehicle was 1024 Kgs and the driving license submitted by the Complainant is MCWG, LMV, LMV-GV. Thus, on the strength of Mukund Dewangan Vs. Oriental Insurance Company Limited (supra) it is not imperative for this Forum to go into the further questions on the issue and it is vouch safe to conclude that there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding license to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect; if the unladen weight of vehicle does not exceed 7500 kg. no separate endorsement on the license is required to drive a transport vehicle of light motor vehicle class. 

10.         The Hon’ble Punjab and Haryana High Court in case titled as Oriental Insurance Company Limited, Chandigarh Vs. Khursheed and another, Civil Writ Petition No.3996 of 2011, decided on 22.3.2011, has held that :-

 “…Insurance Companies are charging hefty premium for insuring the vehicles. Once the question of liability arises, the companies resort to one technical objection and the other.  These Companies really chase people and literally promise everything at the time of selling policy.  It is usual to see people struggle to run after agents and surveyors to get their rightful claims.  Such agents then look other way and make insurers to make rounds to Company offices.  Insurers are then made to approach the Courts and are even dragged to this Court on one technical plea or the other.  No one really is made to read the terms while making him to sign on the printed forms for selling policies.  This attitude must change. Atleast, the Courts should not be burdened with this uncalled for litigation”

11.         Admittedly, the surveyor has assessed the loss to the vehicle in question to the tune of Rs.1,22,647.74/- whereas the complainant has prayed that Opposite Party be directed to make payment of Rs.1,31,481/- on account of repair of the damaged vehicle.  It is settled proposition of law that the surveyor’s report is an important document and cannot be brushed aside without any cogent evidence to the contrary. We are of the opinion that in the absence of any reason to disbelieve the Surveyor’s report, the same deserves to be accepted and the amount recommended by the Surveyor ought to have been awarded. Reliance placed on Pradeep Kumar Sharma Versus National Insurance Company reported in III (2008) CPJ 158 (NC).
12.         In view of the above findings, we are of the concerted opinion that the repudiation of claim of the Complainant is wholly unjustified and amounts to deficiency in service on the part of the Opposite Party, which certainly has caused immense, mental and physical harassment to the complainant.
13.         In the light of above observations, the present complaint of the Complainant deserves to succeed against the Opposite Party, and the same is allowed, qua it. The Opposite Party is directed, to:-

1. To pay Rs.89,261/- as assessed by the Surveyor, to the Complainant, along with interest @ 9% p.a. from the date of repudiation i.e. 26.12.2017, till realization.

(ii)    To pay Rs.15,000/- as compensation to the complainant for the unfair trade practice and harassment caused to him.

(iii)   To also pay a sum of Rs.10,000/- to the complainant as litigation expenses. 

 

14.         The above said order shall be complied within 30 days of its receipt by the Opposite Party; thereafter, it shall be liable for an interest @12% per annum on the amount mentioned in sub-para [i] above from the date of repudiation i.e. 26.12.2017, till it is paid. The compensation amount as per sub-para [ii] above, shall carry interest @12% per annum from the date of institution of this complaint, till it is paid, apart from cost of litigation as in sub-para [iii] 
15.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

 

	Sd/-	Sd/-	Sd/-
29/05/2019	[Dr.S.K.Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
	Member	Member	President
“Dutt”