Punjab

Faridkot

CC/17/268

Krishna - Complainant(s)

Versus

United India Insurance Company Ltd. - Opp.Party(s)

A K Arora

22 Jan 2019

ORDER

      DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :      268 of 2017

Date of Institution:  17.08.2017

Date of Decision:    22.01.2019

 

Krishna, aged about 54 years, wife of Sh Ashwani Kumar son of Sh Joginder Parshad, r/o Purana Bazar, Kotkapura, Tehsil Kotkapura, District Faridkot.

...Complainant

Versus

1. United India Insurance Company Ltd, New Bust Stand, New Talwandi Road, Zira through its branch manager/Authorized Signatory.
2.  Dinesh Kumar son of Sh Rajinder Kumar, r/o Guru Tegh Bahadur Nagar, Kotkapura.

 .....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

                Smt Param Pal Kaur, Member.

 

Present: Sh Anil Kumar Chawla, Ld Counsel for complainant,

              Sh Ashok Monga, Ld Counsel for OP-1,

              Sh Dinesh Kumar /OP-2 in person.

 

ORDER

(Ajit Aggarwal, President)

Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim worth Rs.70,287/-with interest and for further directing OPs to pay Rs

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20,000/- as compensation for deficiency in service, harassment, inconvenience, mental agony and Rs.8,000/-as litigation expenses.

2                                    Briefly stated, the case of the complainant is that complainant is the registered owner of car bearing registration no.PB-04-U/4957 and car of complainant is fully insured with OP-1 vide Insurance Policy bearing no. 2012033115010393 valid from 10.02.2016 to 9.02.2017. It is submitted that on 11.02.2016, complainant was coming back from Ambala to Kotkapura by her car and at that time car in question was being driven by Dinesh Kumar/Op-2. OP-2 was driving the car very carefully and slowly. Further submitted that due to fog vision was not clear and suddenly some stray cattle came on the road in front of her car and in order to save them, OP-2 applied brakes, but suddenly a canter struck their car from behind due to which her car was badly damaged. Canter driver immediately ran away. Complainant immediately reported the matter to Police and got recorded DDR no.025 dt 14.02.2016 to this effect and also intimated OP-1 about the said accident. Surveyor of OP-1 reached Police Station, Kotkapura, assessed the loss and sent the report regard loss suffered by her car to OP-1. Thereafter, on 13.02.2016, said car was sent to Garyson Motors Pvt Ltd for repair purpose and they claimed Rs.70,287/-as repair charges. Complainant paid the same and original bill regarding payment of repair charges was taken by Surveyor of OP-1 for submission to Insurance

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Company. Despite completion of all formalities, OP-1 have not paid any single penny on account of insurance claim for accident of said vehicle. OP-1 has been lingering on the matter on one pretext or the other, but now, they have flatly refused to make payment of insurance claim. Further submitted that after expiry of previous insurance policy, complainant again purchased new insurance policy of OP-1 which is still existing but in present policy, no claim bonus has been given to complainant on pretext that of pendency of previous claim. Complainant has made many requests to OPs but all in vain and now, Ops have flatly refused to make payment of genuine claim of complainant, which amounts to deficiency in service and trade mal practice on the part of Ops and it has caused harassment and mental agony to complainant for which he has prayed for directions to Ops to pay Rs.20,000/-as compensation and Rs.8,000/- for cost of litigation besides the main relief. Hence, the present complaint.

3                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 28.08.2017, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                    On receipt of the notice, opposite party-1 filed written statement wherein took preliminary objections that there is no deficiency in service on the part of OP-1 and therefore, it is not

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maintainable in present form. It is averred that they received intimation regarding alleged accident on 12.02.2016 and they immediately appointed  Mr Ashok Bansal as Surveyor, who inspected the spot and  damaged vehicle at Police Station, Kotkapura and at that time, complainant handed over copy of RC of vehicle and copy of driving license of Dinesh Kumar driver to him. He submitted his report on 20.02.2016. after that U S Kohli was appointed Surveyor, who thoroughly investigated the case and recorded the statements of husband of complainant and driver Dinesh Kumar. Said Surveyor submitted his report on 12.03.2016. Thereafter, Charanjit Garg was appointed Surveyor. He inspected the vehicle during repairs at workshop in the presence of workshop Incharge and after thorough inspection and keeping in view the parts replaced and repair made, he assessed the loss to the tune of Rs.67,598/- and submitted the final Survey Report with OPs on 31.05.2016. Both complainant and her husband showed full satisfaction for the claim assessed by Ops. After that driving license of driver Dinesh Kumar was got verified by OPs from DTO, Faridkot and as per verification issued by DTO, Faridkot, it was held that driving license no.57431/DTO/FDK of Dinesh Kumar driver was fake as it was issued in the name of one Harjinder Singh son of Jarnail Singh and thus, it is clear that complainant knowingly handed over the vehicle in question to Dinesh Kumar driver, who was not have effective and valid driving license at the time of said accident and then, after

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thorough application of mind and keeping in view all the terms and conditions of policy in question, claim of complainant was declined as ‘No Claim’ and intimation regarding this was also sent to complainant vide letter dated 29.09.2016. It is further averred that present complaint involves complex questions of law and facts requiring lengthy evidence, which is not possible in summary proceedings of this Forum. Moreover, complainant has concealed the material facts from this Forum and it discloses no cause of action. However, on merits, OP-1 admitted that vehicle in question was insured with them and due intimation regarding accident was given to them by complainant. they have denied all the other allegations and reiterated the same pleadings taken in preliminary objections and further averred that there is no deficiency in service on the part of OP-1 and prayed for dismissal of complaint with costs.

5                                    OP-2 also filed reply and admitted all the allegations levelled by complainant in complaint being true and correct and averred that there was no fault on his part in said accident and prayed for just decision by the Forum.

6                                              Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-6 and then, closed his evidence.

 

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7                                   In order to rebut the evidence of the complainant, LD Counsel for opposite party 1 tendered in evidence, affidavit of R N Bansal, Div. Manager as Ex OP-1/1 and documents Ex OP-1/2 to Ex OP-1/14 and then, closed the evidence. OP-2 himself tendered in evidence his affidavit Ex OP-2/1 and then, closed his part of evidence.

8                                      The ld Counsel for complainant argued that the complainant is owner of vehicle bearing registration no. PB-04 U 4957. This vehicle of complainant was insured with OPs. Copy of insurance cover is Ex C-5 and copy of RC is Ex C-6. Insurance was valid from 10.02.2016 to 9.02.2017. The vehicle of complainant met with an accident on 11.02.2016 and got damaged in that accident. The complainant duly reported the matter to the Police, which is clear from General Diary Details Ex C-2 as well as to OPs, who appointed Surveyor to assess the loss. The Surveyor assessed the loss and then, complainant got repaired his car from Garyson Motors and paid Rs.70,287 to them. Invoice issued by Garyson Motors for repair purpose is Ex C-3. Complainant lodged the claim with OPs but OPs rejected the same without any reason and have not paid a single penny to complainant. They repudiated the claim of complainant on false and frivolous ground against the law and facts. OPs repudiated the claim for no reasons. The complainant made many requests to Ops to make payment of insurance claim, but all in vain. All these acts of OPs amount to deficiency in service and trade mal practice on

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their part. He has prayed for direction to OPs to pay insurance claim of complainant alongwith interest and compensation.

9                                       To controvert the arguments of ld counsel for complainant, ld counsel for OP-1 argued that vehicle of the complainant was insured with them. They duly received intimation regarding accident of insured vehicle and also appointed a Surveyor to assess the loss. Loss to the tune of Rs.67,598/- was assessed by Surveyor but when they got verified the driving license of Dinesh Kumar driver from the District Transport Office, Faridkot, they found that at the time of said accident, said driver Dinesh Kumar was not holding valid driving license and driving license handed over to them was fake as it was in the name of one Harjinder Singh of Moga, which is against the terms and conditions of policy in question and therefore, claim of complainant was rightly repudiated keeping in view the all the terms and conditions  of policy. There is no deficiency in service on the part of OP-1 and prayed for dismissal of complaint with costs.

10                                OP-2 submitted before the Forum that in said accident there was no fault on his part. Dinesh Kumar /OP-2 prayed for dismissal of complaint against him.

11                                           We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

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12                            The case of complainant is that insured vehicle of complainant met with an accident and got damaged. She lodged claim with OPs but they wrongly repudiated the claim for no reason. In reply OPs admitted the insurance of said vehicle. It is also admitted that due intimation was given by complainant regarding said accident to OP-1. There is also no denial by OP-1 that they repudiated the claim of complainant. Main ground taken for repudiating the claim of complainant by OP-1 is that at the time of said accident, driver Dinesh Kumar was not having effective and valid driving license. Driving license given by Dinesh Kumar to Surveyor belongs to one Harjinder Singh of Moga, which is in violation of terms and conditions of the policy in question and they have rightly repudiated the claim of complainant.

13                                    The ld counsel for complainant placed on record copy of judgment passed by Hon’ble Supreme Court of India in SLP No. 9027 of 2003 titled as National Insurance Co. Ltd Vs Swaran Singh (SC) wherein it is held that A. Motor Vehicle Act, 1988, Section 149 (2) (a) (ii) and proviso to Sub sections (4) and (5)-Disqualification of driver – Validity of driving license – Insurer is entitled to raise all defences available under section 149(2) of the Act- However, mere absence, fake or invalid at the relevant time are not the defences available to insurer against the insured or third parties – To avoid its liability towards the insured also the insurer has to prove the insured to be guilty of negligence and failure to

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exercise reasonable care in compliance of conditions of policy -  Burden is on the insurer to establish breach of policy by leading cogent evidence – mere non production of license or evidence by the insured cannot be considered as discharge of burden of insurer. B. Motor Vehicles Act, 1988, Sections 15, 141 & 149 (2) (a) (ii) and proviso to sub sections (4) and (5) – Validity of driving license- Defences for insurer – Effective License and ‘Duly Licensed’ – Non renewal of license – Third party claim – Driving with an unrenewed license and being duly  licensed are different terms and may amount to an offense, but not to affect the third party claim in itself-The works ‘duly licensed’ have been used in a past tense – Rule enables renewal of a license even after expiry. D. Motor Vehicle Act, 1988, Sections 14, 15 & 149 (2) (a) (ii) – Learning driving license–Breach of policy – Disqualification of driver – Validity of learner’s driving license – Learner’s driving license is a valid driving license under the Rules -  The insurer cannot take it as a  defence to avoid its liability.

14                                  Ld Counsel for complainant further placed reliance on judgment passed by Hon’ble Supreme Court of India in Civil Appeal No.8276 of 2009 titled as Pepsu Road Transport Corporation Vs National Insurance Company wherein it is observed that Motor Vehicle Act, 1988, Section 149 (2) (a) (ii)-When an owner hires a driver, he had to satisfy that driver had valid driving license and had competency to drive – Owner is not expected to go

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to the extent of verifying the genuineness of the driving license with the Licensing Authority – if such a driver causes accident, then Insurer and not the insured will be liable.

15                                 From the above discussion and keeping in view the evidence and citations placed on record by complainant, it is made out there is deficiency in service on the part of OP-1 in repudiating the claim of complainant on the ground that driving license held by driver was not valid and effective, as it is not the duty of complainant to verify the genuineness of driving license.  Therefore, in these circumstances, we are fully convinced with the arguments of counsel for complainant. He has succeeded in proving his case. OP-1 has wrongly and illegally repudiated the claim of complainant which amounts to deficiency in service and trade mal practice on their part. Therefore, present complaint is hereby allowed against OP-1 and OP-1 is directed to pay Rs.67,598/- as claim assessed by Surveyor for the loss on account of damage of vehicle with interest at the rate of 9 % per anum from the date of filing the complaint till final realization. OP-1 is further directed to pay Rs.3000/-to complainant as litigation expenses. Complaint against OP-2 stands hereby dismissed as he has no role in making payment of insurance claim to complainant. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 22.01.2019                      (Parampal Kaur)     (Ajit Aggarwal)

                                                            Member                  President