Haryana

Kurukshetra

301/2016

Sidhu Broiler - Complainant(s)

Versus

UII - Opp.Party(s)

Gurlal Singh

31 Oct 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

                                                Complaint Case No.301 of 2016.

                                                Date of instt.18.11.2016.

                                                Date of Decision: 13.11.2018.

M/s Sandhu Broiler Breeders, 28 Inder Mandi, Shahbad Markanda a partnership firm through its Partner Surender Singh Sindhu SON OF Gurdayal Singh Sindhu, resident of village Tangori, Tehsil Shahbad.    

                                                                                                                                                        …….Complainant

                          Vs.

 

1. United India Insurance Company Limited through its Branch Manager, Railway Road, Kurukshetra.
2. United India Insurance Company Limited, through its Divisional Manager, SCO 14, 1^st Floor, Sector-3, HSIDC, Karnal.

                                                        ….OPs.

Complaint under section 12 of Consumer Protection Act.

 

Before:              Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Trikha, Member.

Present:     Sh. Gur Lal Singh, Adv. for complainant.

                Sh.R.K.Singhal, Adv. for the Ops.

 

ORDER:

 

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Surinder Singh Sindhu against United India Insurance Company Limited and another, opposite parties.

2.            Brief facts of the present complaint are that the complainant is a registered partnership firm and Surinder Singh Sindhu is one of its partner and the present complaint has been filed by the complainant firm through its partner Surinder Singh Sindhu, who has been authorized by the other partners to file the present complaint on behalf of the Firm.  The complainant firm is the registered owner of Eicher Vehicle Model 2015 and the same is insured with OP by paying a sum of Rs.30,162/- as insurance premium to the OP vide insurance policy bearing No.1123003115P100634422 valid for the period w.e.f. 10.4.2015 to 9.4.2016.  The above said insured vehicle had met with an accident on 16.7.2015 and intimation in this regard was given to the concerned police station, Ropar, Punjab. The above said vehicle was badly damaged in this accident and after the accident, the above said vehicle taken to Karnal in the workshop of M/s Bansal Motors. The complainant has paid Rs.9,200/- to M/s Anwar Khan Recovery Service on account of toeing the vehicle. The Ops have got the survey of the vehicle from approved surveyor and who has given detailed report.  However, the complainant has paid a sum of Rs.1345.20 paisa to the surveyor of the Ops on account of survey fee. The complainant has spent a sum of Rs.2,62,687/- for getting the vehicle repaired and the Ops were required to pay the said amount to M/s Bansal Motors, who repaired the vehicle, beside this the Ops are also liable to pay Rs.9,200/- as toeing charges and Rs.1345.20 paisa which was paid being survey fee. The complainant visited the office of the Ops many  times and requested to pay the above said amount but the Ops have repudiated the claim of the complainant on false grounds. Thus, it amounts to deficiency in service on the part of Ops. Hence, the present complaint was moved by the complainant claiming the amount of Rs.2,62,687/- along with interest @ 18% per annum, Rs.9,200/- as toeing charges, Rs.1342.20 paisa being the surveyor fee and Rs.2,00,000/- towards harassment and mental agony and Rs.22,000/- as litigation expenses.

3.                   Upon notice, opposite parties appeared and contested the complaint by filing written statement taking preliminary objections that this Forum has got no territorial jurisdiction to hear and try the present complaint as the insurance policy was issued by the United India Insurance Company Limited Karnal and the alleged accident had taken place in the area of Punjab and as such, this Forum has got no territorial jurisdiction. Moreover, the complainant has not come to this Forum with clean hands and has suppressed the true and material facts and as such, he is not entitled any relief. The true facts are that on receipt of intimation regarding the accident, M/s Ideal Surveyors and Loss Assessor, Mohali were deputed for spot survey and thereafter Shri A.P. Chawla, Surveyor was deputed to conduct the final survey and the complainant had produced the driving licence of driver Khushi Ram which was allegedly issued by Licensing Authority, Kanpur (U.P.) and the said  was got verified by the answering OP from the licensing authority and it was revealed that no licence has been issued in favour of above said Khushi Ram, rather the alleged driving licence was issued in the name of Kalp Nath Tiwari son of Jai Narayan Tiwari, resident of Kanpur for driving the L.M.V. (Private) vehicle and this the driving licence of Khushi Ram was found fake and claim was not payable. So, the claim of the complainant was repudiated and intimation was given to the complainant vide letter dated 10.12.2015. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering OPs and as such, the complaint of the complainant is liable to be dismissed with costs. On merits, the contents of the complaint were denied. Preliminary objections were repeated. Prayer for dismissal of the complaint was made.

4.            Ld. Counsel for the complainant tendered into evidence affidavit, Ex.CW1/A and documents Ex.C1 to Ex.C16 and thereafter, closed the evidence on behalf of complainant.

5.             Ld. Counsel for the Ops tendered into evidence affidavit, Ex.RW1/A and documents Ex.R1 to Ex.R12 and thereafter, closed the evidence on behalf of Ops.

6.             We have heard the ld. Counsel for the parties and have gone through the record available on the file carefully.

7.             Learned counsel for the complainant contended that the complainant is a registered partnership firm and Surinder Singh Sindhu is one of its partner and member of this partnership firm.  The complainant firm is registered owner of one Eicher Vehicle Model 2015 and the same is insured with the Ops by paying the sum of Rs.30,162/- as insurance premium, the copy of policy, Ex.C2 is enclosed with the file.  The next point raised by the counsel of complainant that the said vehicle met with an accident on 16.07.2015 regarding which due intimation was given by the complainant to the Punjab Police, copy of DDR, Ex.C2 is placed on the file.  The complainant has spent Rs.2,62,687/- on its repair but the Ops have repudiated the claim of complainant vide letter, Ex.R12 on the ground of fake driving  of driver.  The counsel of complainant contended that the Ops placed on record the documents Ex.R6 to Ex.R8 for proving the driving  as fake but in these documents, the issuance of driving  is shown as 17.10.1982, whereas in the document Ex.C5 tendered by the complainant in the evidence, the date of issuance of driving  bearing No.12789 is mentioned as 18.10.1982.  The verification is only by way of R.T.I., which is not admissible.  So, the report of investigator is illegal and forged.  He further contended that there is gross negligence on the part of Ops while repudiating the claim of complainant.  Learned counsel for the complainant placed reliance upon the authorities titled as Amalendu Sahoo Vs. OIC, bearing Civil Appeal No.2703 of 2010, date of decision: 25.03.2010 (SC); NIA Vs. Mamta Rani and others, bearing FAO No.417 of 1999 decided on 16.08.2017 (P & H High Court) and UII Vs. Vikas Education Society bearing FAO No.5149 of 2013 decided on 01.02.2018 (P & H High Court) .

8.             On the other hand, learned counsel for the Ops argued that the vehicle of complainant is a commercial vehicle.  The second point raised by the counsel of Ops that this Forum has no jurisdiction to decide the matter because the complainant has taken the policy from Karnal and the accident took place in Punjab, so, this Forum at Kurukshetra has no jurisdiction to entertain and try the present complaint.  The next point raised by the counsel of Ops that the claim was repudiated on the ground of fake driving .  The Investigator of the Ops has given the report i.e. Ex.R6 which was made by the Investigator after taking the R.T.I. from the department.  The R.T.I. documents are Ex.R7, R8 and R9.  The counsel of Ops further contended that due to fake driving  of the driver, the claim of complainant was repudiated.  The complainant has violated the terms and conditions of the policy, which is Ex.R2.  The counsel of Ops submitted authority on the point of jurisdiction cited in Sonic Surgical Vs. NIC, 2010(1) CLT page 252,  wherein it has been observed by Hon’ble Supreme Court that Territorial jurisdiction-Insurance Claim-Cause of action-Policy of insurance was obtained at Ambala covering risk of godown situated at Ambala-Fire destroyed insured stock lying down there-No cause of action arose at Chandigarh though Company has branch office at Chandigarh-Commission at Chandigarh has no territorial jurisdiction to adjudicate upon the matter.  The counsel of Ops also submitted authority on the point of fake  cited in 2009 ACJ page 666 titled as NIC Vs. Meena Aggarwal (SC), wherein it has been held that Claim was rejected by insurance company on the ground that driver was not possessing a valid driving  and the van, a private vehicle incurred for personal use, was being used as a taxi for hire-Owner filed complaint before District Forum under Consumer Protection Act which was rejected-Whether insurance company was justified in repudiating the claim-Held:Yes.  Similarly, the counsel of Ops also submitted authorities cited in 2011(2) CPC page 118 tilted as OIC Vs. M.D.Srinivasa (NC) and 2011(2) CPC page 543 titled as UII Vs. Jitendra Surya (NC).  The next point argued by the counsel of Ops that the documents taken through R.T.I. are admissible because it is a Govt. Agency to issue the documents and in this regard, the learned counsel of Ops placed reliance upon the case law titled as Munshi Ram and another Vs. Balkar Singh and others bearing FAO No.598 of 2014, date of decision: 18.02.2016 (P & H High Court), in which it has been observed that “Held-response through RTI is of a public officer and it is a public document and would require no further corroboration in the manner contemplated under Section 77 of the Evidence Act-Document must be taken to be true of what its recital state-Certified copy of the licence issued also shows that licence had been renewed at the DTO Office at Mansa on 26.08.2008, which was valid up to 19.09.2011-This, driver had a valid driving licence at the relevant time-Owner and driver were entitled to full indemnity”.  The next point contended by the counsel of Ops is that the renewal of driving licence cannot take away the effect of fake licence.  In this context, he placed reliance upon the case law titled as OIC Vs. Prithvi Raj bearing Civil Appeal No.648 of 2008, date of decision: 24.01.2008 (SC), wherein it has been held that “Motor Vehicles Act, 1988, Sections 149 and 147-Fake driving licence renewed by Licensing Authority-It will remain fake-Renewal cannot take away effect of fake licence and transform a fake  as genuine”. 

9.             From the pleadings, evidence of the case and on appraisal of rival contentions of both the parties, we find that there are three following questions/points involved in the present complaint which are to be adjudicated by this Forum as under:-

Question/Point No.1:- Whether this Forum has territorial jurisdiction to entertain and try the present complaint?

Question/Point No.2:- Whether the complainant was using the vehicle as commercial and he falls under the definition of consumer as enshrined in Consumer Protection Act, 1986 or not?

Question/Point No.3:- Whether the complainant was using the valid or fake licence at the time of alleged accident or not?

       Firstly, we take the first question/point regarding territorial jurisdiction.  On perusal of file, it is clear that in the present case, the policy was obtained at Karnal but accident has taken place in Punjab.  So, this Forum has no territorial jurisdiction to entertain and try the present complaint.  Now we come to the second question/point.  From the record, it is clear that the complainant is a registered firm and RC of that registered firm is Ex.C3 which clearly shows that the vehicle was used as commercial one and the insurance policy of vehicle also shows on the face of it that the vehicle in question was used as commercial.  As per the definition of “Consumer” under Section 2(1)(d) of Consumer Protection Act, 1986, the “consumer” means any person who:

(i)             buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

                So, we are of the considered view that the complainant does not fall under the definition of consumer as enshrined in Section 2(1)(d)(i) of Consumer Protection Act, 1986. 

                So far as the third question/point regarding fake licence is concerned, in this regard, the counsel of Ops placed on file the documents Ex.R5 to Ex.R9 and from these documents, it is clear that the driving licence of driver Khusi Ram is fake driving licence.  So, in the facts and circumstances of the case, we are of the considered view that the Ops have rightly repudiated the claim of complainant.  The authorities submitted by the counsel of Ops are fully applicable to the facts of instant case, whereas the authorities submitted by the counsel of complainant are not disputed but the same are not applicable to the facts of instant case.    

10.            Thus, on the above-noted three questions/points, we find no merit in the present complaint and accordingly, the same is hereby dismissed.  A copy of said order be supplied to the parties free of cost.  File be consigned to record-room after due compliance.     

Announced in open court:

Dt.:13.11.2018.  

                                                                        (Neelam Kashyap)

                                                                        President.

 

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.