PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as it repudiated the insurance claim of the Complainant on the ground that the driver of the vehicle was not having an effective driving license, when he was driving the vehicle and the said vehicle met with an accident.
2) The facts of the complaint as stated by the Complainant are that, the Complainant is the owner of a Tanker No.MH-04-H-7255 (hereinafter mentioned as the said vehicle). The said vehicle was insured with the Opposite Party from 23/09/03 to 22/09/04 under the insurance policy no.120700/31/03/01630 and used by the Complainant for transporting business. He has employed one driver Ramlagan Yadav on this vehicle. Mr.Ramlagan was having driving license. The driver was also having a copy of certificate issued by institute of security & fire technology.
3) On 03/05/04, the consignment of Raw Aromatic Rich Feed Stock was being transported to Vadodara Gujarat from Mumbai in the above said insured vehicle. The said vehicle met with an accident on Sion Panvel Highway at Kalamboli New Mumbai on 03/05/04 at 21.10 hrs.police complaint has been lodged in this respect on the same day. Thereafter the vehicle was towed by the crane from the place of accident to the place of repair and vehicle was repaired on 05/05/04. The Complainant also submitted a claim form to the Opposite Party for regular survey on 05/05/04. The Complainant also intimated to the Opposite Party about the accident and damages and requested to conduct the spot survey. Survey was conducted by M/s. Emdees & Co. The Complainant has left the space blank for the estimated cost of repairs in the complaint.
4) The Complainant has further averred that, with the permission of Opposite Party, he got the repairs done. As the Complainant was waiting for his claim, the Opposite Party informed him in writing that the drivers of the said vehicle was not having a driving license with endorsement for hazardous goods in his driving license therefore, the Opposite Party could not pass the claim. The Complainant explained the Opposite Party that the goods being transported in the aid vehicle i.e. Raw Aromatic Rich Feed Stock does not fall under the list of Hazardous goods as mentioned in Motor Vehicle Act and Rules. Still the Opposite Party did not respond to his request. Thus, there was a gross deficiency in service on the part of the Opposite Party as it repudiated his insurance claim on unjust reason that the driver’s license was not having an endorsement for hazardous goods. The Complainant has prayed for compensation of Rs.2,20,000/- for the deficiency in service on the part of Opposite Party.
5) The Complainant has attached the xerox copies of the following documents in support of his complaint. -
License to transport the petroleum substances, PUC. National Permit, Certificate of weights & Measures Dept., Insurance Policy, Certificate from security & fire technology Institute dtd.31/03/04 and the driving license, consignment note, Police FIR & Spot Panchanama, A Bill of the crane, repair bills, Claim form, Survey Report,A repudiation letter dtd.03/12/04 from the Opposite Party, Letter dtd.31/08/05 address to Opposite Party, etc.
6) The Complainant also filed a delay condonation application on 10/09/07 as there was a delay in filing this complaint. A notice was served on the Opposite Party. Opposite Party filed its reply on 05/03/08. After hearing both the parties, the Forum has condoned the delay vide Roznama dtd.10/04/08 and order dtd.10/04/08.
7) The Opposite Party filed its written statement wherein it denied most of the allegations of the Complainant. However, it is admitted by the Opposite Party that it had issued policy no.120700/31/03101630 in respect of vehicle MH-04-H-7255 for a period from 23/09/03 to 22/09/04. The Opposite Party further stated that the Complainant lodged his claim vide his letter dtd.05/05/04 and the Opposite Party appointed a surveyor to assess the loss caused to the vehicle in question. Then the Opposite Party had called for certain information to enable the Opposite Party to assess the loss. Thereafter various reminders were sent but the Complainant failed to provide the required information (letter dtd.06/05/04). As per the provisions of Insurance Act, 1938, Opposite Party appointed Mr.Jitesh Ajmera to conduct the survey who surveyed the damage caused to the vehicle. He submitted his survey report dtd.12/05/04. The assessed loss was of Rs.34,070/-.
8) The Opposite Party has further submitted that the police investigation revealed that the driver Mr.Ramlagan Yadav was driving the said vehicle (tanker) even though he was not authorized to drive a vehicle carrying hazardous material and offence was registered against the driver U/s.279, 337 and 427 IPC R/W Sec.184 of Motor Vehicle Act and Sec.7 of Indian Explosive Act.
9) It is also stated that, the Complainant did not submit the documents required by the Opposite Party such as the endorsement on the driving license. The Opposite Party also appointed one Mr.Roopesh N. Patil to verify the said driving license. He obtained a certificate from RTO, Tardev. The Certificate states that the license holder is authorized to drive only LMV (TR) of HGV (TR) and is not authorized to carry hazardous goods.
10) The Opposite Party further submitted that, after perusal of the papers submitted by the investigator and the Complainant, after due and proper application of mind, the Opposite Party repudiated the claim vide its letter dtd.03/12/04. The Opposite Party has averred that, in view of the FIR and the report of RTO, driving license submitted by the Complainant is fake. Thus, the driver of the said vehicle was not holding a valid endorsement for handling hazardous goods. Thus, the Complainant had breached the terms ad conditions of the policy by employing a person to drive the vehicle with fake driving license coupled with endorsement by the RTO to carry hazardous goods. Therefore, Complainant is not entitled to the claim under the said policy.
11) The Opposite Party has also submitted that the Complainant is doing the business of transportation but not for earning his livelihood but is his business and its services are availed of for commercial purpose and hence, he is not a consumer within the meaning of Sec.2(i)(d)(ii) of the CPA, 1986. The Opposite Party also stated that he is not aware of the repairs done by the Complainant on 05/05/04 and denied the survey report of the survey appointed by the Complainant himself.
12) The Opposite Party further submitted that, the material in the vehicle was hazardous which requires necessary endorsement in the driving license of the driver. The Opposite Party has finally submitted that the complaint be dismissed with cost. The Opposite Party has also attached the xerox copies of the following documents -
Insurance policy no.120700/31/03101630, Report of Jitesh Ajmera (Surveyor) dtd.12/05/04, Photographs of the damaged vehicle, Report of Sajay Sawant (dtd.20/08/04), English version of the police papers such as, FIR & Panchanama, copies of FIR and Panchanama (in Marathi).
13) The Complainant also submitted his affidavit of evidence and written argument wherein he reiterated the facts mentioned in his complaint and denied the points mentioned in the written statement of the Opposite Party. The Opposite Party has also field its’ affidavit and written argument wherein it reiterated the facts mentioned in its written statement.
14) We heard the Ld.Advocates for both the parties and our findings are as follows -
The vehicle no.MH-04-H-7255 was insured with the Opposite Party. During the validity of the insurance policy no.120700/31/03/01630, the said vehicle met with an accident. The Complainant has informed the Opposite Party regarding this accident. As per Sec.64 UM of Insurance Act, 1938, the Opposite Party appointed surveyor who assessed the loss caused to the above said vehicle to the tune of Rs.34,070/-.
15) It is the contention of the Complainant that the survey was conducted by M/s.Emdees & Co. However, this surveyor was appointed by one M/s.Sidhu Roadlines, Chembur. This indicates that the Complainant has given his said vehicle to M/s.Sidhu Roadlines and this Road line appointed the surveyor who did not access the damage to the vehicle. Even the Complainant has left blank place in the complaint para 8 page 4 in respect of the amount of loss caused to the vehicle. It is stated in complaint like this -“The loss which was estimated by the surveyor was around…….Thus, the Complainant has tried to show that the Opposite Party has appointed M/s.Emdees & Co. as surveyor which is not the fact. Therefore, this report cannot be considered for deciding this complaint.
16) The Opposite Party has repudiated the claim on the ground that the driver of the said vehicle was not having effective license as there was no endorsement on his driving license allowing him to carry hazardous goods. It is seen from the papers on record that the driver Mr.Ramlagan Yadav was having a valid driving license.Butwhat is disputed is that he was not having the necessary endorsement on the driving license allowing him to transport hazardous goods in the said vehicle. The Opposite Party has presumed that the contents of the above said vehicle tanker were hazardous gods. The papers show that the said vehicle tanker was containing raw aromatic rich feed stock. When the Opposite Party states that the driver should have the driving license with endorsement allowing him to transport the hazardous goods, it is the responsibility of the Opposite Party to show that the goods carried by the said vehicle tanker were hazardous in nature. The Opposite Party has failed to establish this fact and therefore, his contention for repudiating the claim does not hold water. Therefore, the Opposite Party has repudiated the Complainant’s claim without any valid reason and there is a deficiency in its service. However, the prayers of the Complainant cannot be acceded to completely. As per the insurance policy only damage caused the insured vehicle is indemnified but the Complainant has prayed for towing charges, as well as the surveyor charges. The Complainant is not supposed to appoint a surveyor as per the Insurance Act. It is the liability of the insurer to appoint the surveyor and his assessment can be considered while settling the claim (Sec.64 (UM) of Insurance Act, 1938).
17) The Complainant has claimed Rs.1,08,296/- towards the repair of the vehicle. In this respect the Complainant has himself stated that this amount is approximate. The Complainant has not produced the receipts of this amount. He has produced the xerox copies of the receipts for total amount of Rs.67,297/-. However, this receipts are not approved by the authorized surveyor as contemplated under Sec.64 (UM) of the Insurance Act). It is also not clear from the receipts as to what are the parts purchased by the Complainant and whether these parts were damaged in the accident on 03/05/04. Thus, there is no relevancy of these xerox receipts to the damage caused on 03/05/04. The amount stated against loss caused as per surveyor’s report is (the space is kept blank). The Complainant has also prayed for Rs.30,000/- for appointment of a person to supervise, for conveyance and Road tax paid while the vehicle was idle. The Complainant is not entitled for such claims under the insurance policy. Therefore, in view of the above finding, we think it just and proper that the claim amount of Rs.34,070/- approved by the surveyor appointed under Sec.64 (UM) can be granted to the Complainant as loss caused to the said vehicle on 03/05/04. Hence, we pass the following order -
O R D E R
i. Complaint No.231/2007 is partly allowed.
ii The Opposite Party is directed to pay Rs.34,070/- (Rs. Thirty Four Thousand Seventy Only) to the Complainant
with interest @ 9% p.a. from 03/12/2004 till realization.
iii.Opposite Party is directed to pay Rs.5,000/- (Rs. Five Thousand Only) to the Complainant as compensation
towards mental agony caused to him as the Opposite Party repudiated the claim without any valid ground.
iv.Opposite Party is directed to pay Rs.5,000/-(Rs. Five Thousand Only) to the Complainant as the cost of this
complaint.
v. Opposite Party is directed to comply with the above order within 30 days from the receipt of this order.
vi.Certified copies of this order be furnished to the parties.
