OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C. 67/2003
Present:-
1)Md. Sahadat Hussain, A.J.S. - President
2) Md. Jamatul Islam - Member
M/S Jasuda LPG Distributors - Complainant
A Propertiership firm having its
principal place of business at Milan
Nagar, P.O. C.R. Building,
Dibrugarh-786003 in the district of
Dibrugarh, Assam, represented by its
sole proprietor, Sri Prodip Konch,
resident of Milan Nagar. P.O. C.R. Building .
P.A.Dibrugarh,Dist.Dibrugarh-786003,
Assam
-vs-
1) United India Insurance Company Ltd. - Opp.parties
United India House,
24 Whites Road, Chennai-600014.
2) United India Insurance Company Ltd.
Guwahati Regional Office, G.S.Road,
Bhangagarh, Guwahati-781005
3) The Branch Manager
United India Insurance Company Ltd.
R.N.Changkakoty Path, P.O. Dibrugarh-786001
Appearance-
Learned advocates Mr.B.Baruah for the complainant and Learned advocates Mr.I.Borooah for the Opp.Party No.1,2 &3, but none for Opp.Party No.4
Date of argument- 9.10.2018
Date of judgment- 14.12.2018
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by M/S Jasoda LPG Distributors , Dibrugorh against United India Insurance Co.Ltd. and two others was admitted on 22.7.03 and notices were served on all opp.parties and ; Opp.Party No. 1, 2 & 3 side filed their written statement on 3.11.2003. They also filed additional written statement on 25.11.04.The complaint against Opp.Party No.4 is proceeding on exparte. The complainant side adduce evidence of Sri Pradip Koch and Shri Dharmananda Rai in affidavit and they were also cross examined by the Opp.Party No.1, 2 & 3 side. The opp.party side filed evidence of Sri Ajit Chokraborty but his evidence was expunged vide this Forum’s order dtd. 20.11.2008 allowing the opp.parties to file fresh evidence and opp.parties later on filed evidence of Shri Sitangshu Deb on 22.5.09 and he was also cross examined by the complainant side on 8.9.11 and 2.8.13. After closure of the evidence Ld.advocate Mr.B.Baruah filed written argument for the complainant on 5.4.18 and Ld.advocate Mr. Raju Goswami for Opp.Party No. 1,2,& 3 on 2.8.18. Finally on 12.9.18 we have heard oral argument of Ld.advocate Mr.D.Talukdar for the complainant and of Ld.advocate Mr.I.Borooah for Opp.Party No.1, 2 & 3 and we fixed the day of the 7th Nov for delivery of judgment , but the day of 7.11.18 was holiday for Kalipuja declared subsequently, so we failed to deliver the judgment on that day and again on 22.11.18 we failed to deliver judgment due to malfunctioning of the computer and today we deliver the judgment which is as follows,
2) The case of the complainant M/S Jasuda LPG distributors represented by its proprietor Sri Pradip Koch, in brief, is that the vehicle of the complainant bearing registration No. AS-06-A-7295, which was insured with Opp.Party No.1 through Opp.Party No.2 vide policy No.130301/31/21/20/1/00/217/106/2000 which was effective from 9.2.2000 to 8.2.2001, had met with an accident on 30.1.01 at Raiganj in the state of West Bengal, and was badly damaged and they informed Opp.Party No.3 about the accident vide letter dtd. 30.1.2001 with a copy to Opp.Party No.1 and the vehicle was inspected on 5.2.2001 by chief vehicle examiner ,NBSTC, Raiganj , West Bengal; and the surveyor of Opp.Party No.1 surveyed the vehicle on the spot and about that they were also communicated vide letter dtd.19.2.2001; and one Shri Kanak Choudhury , Associates , a firm engaged in business of surveying and assessing loss, wrote a letter to them to submit necessary claim form, service estimate and the driving licence and accordingly they submitted all the required documents to them, but their claim was neither settled nor properly prosecuted; and then they vide letter 15.12.2001 requested opp.parties to settle the claim at an earliest but the claim was not settled by them and being compelled they filed a complaint before Insurance Ombudsman ‘Aquarices’ , Bhaskarnagar, Guwahati-1 on 25.2.2002 and filed the complaint to Ombudsman again on 22.3.03 in the proforma ‘P II’ along with all necessary documents . Thereafter, on 18.4.2002 Opp.Party No.3 informed them that the competent authority had repudiated their claim on the ground that the driver driving the vehicle at the time of accident had a fake driving licence as confirmed by the licencing authority though it was renewed subsequently by statutory authority. The Ombudsman office, vide letter dtd. 24.4.2002, informed them that the Ombudsman rejected their claim. They had actually employed the driver after doing all necessary formalities and the driving licence shown to them was also verified by D.T.O. of Sibsagar which had confirmed about the genuineness of the said driving license . The driver had certificate given by the principal, Driver and Conductors Training School Betkuchi (Guwahati) certifying that their driver Sri Dharmender Rai had successfully undergone a refresher course of LPG and Oil tanker. They, after making necessary enquiry and bonafidely believing that the driver has genuine driving licence and was competent to drive a LPG tanker, had appointed him as driver of their vehicle. After repudiation of claim, they enquired with the office of DTO, Mon, Nagaland about the driving licence of the driver and found that this is a licence issued in the name of the said driver but the said licence was wrongly quoted as D/L No.12472 while it would have been 12142. At the time of accident the original driving licence of the driver has been destroyed in fire and so a new licence was issued by D.T.O.Sibsagar giving reference of the original licence issued by D.T.O., Mon, Nagaland, the D.T.O.Sibsagar wrongly incorporated licence number in the driving licence of the driver for which they and their driver cannot be put on fault and as such question of licence being fake does not arise at all; and on that count rejection of their claim is illegal. For rejection of the claim they had to suffer severe financial loss affecting their business with I.O.C.Ltd. Accordingly they are entitled to get award of Rs. 10,50,000/- as per the policy with interest @18% p.a.from the date of application and also to compensation for suffering financial loss due to delay in settling the claim as well as to the cost of the proceeding.
3) The pleading of Opp.Party No.1 , 2 & 3 is that the complainant, being business concern does not come within the definition of consumer. The tanker used by the complainant was for commercial purpose and the complainant has a business of LPG tankers and hence the complainant is not consumer within the meaning of section 2(1)(d)(ii) of Consumer Protection Act,1086. They rejected the claim of the complaint after careful consideration and such repudiation cannot be termed as deficiency of service . They were not aware that accident occurred on 30.1.2001 and if assumably the accident did actually occur , it was due to driving the said tanker by a person not competent and qualified to drive the same and as such they does not have liability for the damage suffered as alleged by the complainant. The complainant had not employed the driver after making necessary formalities. The complainant did not make enquiry with DTO office, Sibsagar and the genuineness certificate of the driving licence is disputable. The driver had no requisite qualification to drive said tanker. The enquiry made in the DTO office, Mon , Nagaland and the genuineness of Annexure-I, J,K & L are also disputed, which the complainant side is to prove. It is not admitted that since the original driving licence was allegedly destroyed by a fire and a new licence was issued by DTO Sibsagar giving reference of original driving licence issued by DTO, Mon, Nagaland and that it was the fault of DTO, Sibsagar in wrongly incorporating the licence No. in the new licence. The statement of the complainant that they suffered financial loss is a false claim. In fact, complainant did not suffer any loss. As the complainant is not a consumer, they have no right to file the present complaint before this forum and if the complainant really had any grievance against them they had to approach civil court. As such, repudiation of claim of the complainant is not illegal. Their surveyor Mr.Kanak Choudhury and Associates surveyed the damage of the vehicle and assessed the loss, after requisite deduction, at Rs.2,36,500/- only. On enquiry made by their investigator they found that , the DTO Sibsagar gave opinion that , the driving licence No. F/12968/SBR/98/prof, the same was originally issued by DTO, Mon, Nagaland on 8.4.98 and the driver was authorized to drive Motor Cycle/ MMV only. Their investigator Shri K.C.Gogoi also sent a letter to the D.T.O. Mon, Nagaland about the driving licence and the D.T.O. Mon, Nagaland reported back that driving licence No. 12472/M/prof, of Sri Dharmendra Rai was not issued from their office. The driver did not posses valid and effective D.Licence and he had also not undergone any refresher course for qualifying him to drive vehicle carrying goods of dangerous and hazardous nature as per section 14/2/a of Motor Vehicle Act, 1988, and for that, by allowing the driver to drive the said oil tanker, the complainant committed breach of policy condition. In driving licence No. 12142/M/prof, originally issued on 22.4.98 by DTO, Mon, Nagaland, renewed upto 21.4.2006. It is not mentioned that it is a duplicate licence. In DL No. F/12145/SN/proff/04 dtd.19.5.04. The original DL is given as E-12,968,SV/Prof issued on 8.4.98 by DTO, Sibsagar with further reference as T/F/4975/NLP issued on 5.5.03 by DTO North Lakhimpur and as such the concerned DL is disputed and the photograph fixed in the DL is doubtfull. Their investigator M/S Bureau of Investigation Agency investigated the matter about the driving licence of the driver and submitted their report and they found that, the said driver has not undergone training under Driver and Conductor Training School, Betkuchi, Guwahati and as such training certificate submitted by the complainant is a fake one. The DL issued by DTO , Mon, Nagaland had not authorized the driver to drive oil or LPG tanker and the DL issued by DTO , Sibsagar authorized the driver to drive LMV/MMV only. The renewal driving licence which was issued by DTO, North Lakhimpur on 5.5.03 authorized the driver to drive dangerous and hazardous goods vehicle w.e.f. 19.5.04 to 18.5.05. The DL No. 12472/M/Prof dtd. 8.4.98 was not issued in the name of the driver of the complainant . It was issued in the name of one Shri Kensing Engti, son of B. Engti. The office of Silvandee fleets also informed them that no driver by name of Dharmendra Rai is working under them and therefore DL allegedly issued by DTO, Mon is a fake DL as such driving licence issued by DTO, Sibsagar and the DTO North Lakhimpur are not genuine driving licence. As such, the complainant is not entitled to get relief as prayed and the complaint is liable to be dismissed .
4) The pleading of Opp.Party No.4 (Ombudsman) is that, the policy was taken at Dibrugarh and accident occurred in Raiganj (W.B.) and Opp.Party No.1,2 and 4 do not resides or carry on business for gain within local limit of this forum and as such this forum has no jurisdiction to entertain the claim. There is no cause of action against him. The award dtd. 24.4.2002 passed by him was duly sent to the complainant . The complaint against him liable to be dismissed.
5) We have perused the pleading as well as evidence of the parties and it transpires to us that, both sides admits that- (i) The complainant M/S Jasuda LPG Distributors; Milan Nagar, Dibrugarh is a proprietorial firm and Sri Pradip Koch is the sole proprietor of the said firm, (ii) The complainant has a LPG tanker bearing registration No. AS-06/A-F 295 and the said vehicle was insured with United India Insurance Co.Ltd.(Opp.Party No.1) through Branch Manager, United India Insurance Co.Ltd., Dibrugarh branch (Opp.Party No.3) vide policy No. 130301/31/21/20/1/00217/106/2000 which was effective from 9.2.2000 to 8.2.2001, (iii) The said vehicle of the complainant had met with an accident at Raiganj , (W.Bengal) and got damaged and about the accident Opp.Party No.1, Opp.Party No.3 and the Raiganj branch of Opp.Party No.1 were also duly informed (iv) The damaged vehicle was inspected by CEV examiner, NBSTC, Raiganj, West Bengal on 5.2.2001, (v) The vehicle was also surveyed on the spot by the surveyor Shri Jayanta Dhar deputed by the opp.party side and one M/S Kanak Choudhury and Associates also surveyed the vehicle to whom the complainant submitted all documents and they also submitted the report to the opp.parties, (vi) The opp.party had not settled the claim of the complainant in spite of repeated request made by the complainant and then complainant filed a complaint before the Insurance Ombudsman at Guwahati and complainant also on 22.3.2003 submitted proforma P –II to the insurance Ombudsman; but on 18.4.2002, Opp.Party No.3 informed the complainant that, the competent authority had repudiated their claim on the ground that , the driver plying the vehicle at the time of accident had a false driving licence.
Thus , it is crystal clear that, the vehicle of the complainant which was insured with opp.Party No.1 through Opp.Party No.3 had met with an accident at Raiganj, West Bengal on 30.1.2001 while it was being driven by driver, Shri Dharmendra Rai, and it got substantial damage and the opp.party side surveyed the damage vehicle on the spot of the accident deputing surveyor, Sri Jayanta Dhar; and the loss of the complainant was also got assessed through M/S Kanak Choudhury and Associates. and the damage was also surveyed by Chief Vehicle Examiner NBSTC, Raiganj, West Bengal. The opp.party side is found admitting the damage of the said vehicle in the said accident, but they repudiated the claim of the complainant only on the ground that driver who had driven the said vehicle on the day of accident had a fake driving licence.
6) Admittedly M/S Jasoda LPG distributors is the proprietorial firm of the Pradip Koch. From his evidence it is found that, he was earning his livelihood as LPG distributors by doing business through the said firm and it is his only source of income. This fact is not denied by the opp.party side . Thus, it is clearly established that , Sri Pradip Koch through his said proprietorial firm is earning his livehihood and doing that business he purchased vehicle Nol AS-06/A/7295, which is a LPG tanker, and he engaged driver Shri Dharmendra Rai, to drive the said LPG tanker in relevant time. As the said use of the said LPG tanker by him so as to earn his livehihood, it can not be said that, on the day of accident Sri Pradip Koch, the sole proprietor of the complainant firm, used his vehicle for commercial purpose , but it must be said that his case is covered under explanation given below the section-2(1)(d) of Consumer Protection Act,1986. Hence, the proprietor of the complainant firm Sri Pradip Koch, is a consumer of service under the Opp.Party No.1,2 & 3 in respect of the said vehicle and accordingly, he has right to approach this forum for seeking relief from this forum. Hence , we hold that, this forum has jurisdiction to dispose of the complaint filed by the present complainant.
7) Admittedly, the business address of the complainant is at Dibrugarh and the accident take place outside outside the territorial jurisdiction of this forum and the policy issued by the branch manager of Opp.Party No.1, Dibrugarh branch, Assam. The opp.party sides Ld.advocate submits that, this forum has no jurisdiction as the vehicle of the complainant was insured by Dibrugarh branch of Opp.Party No.1 and accident had taken place outside the territorial jurisdiction of this forum and the complainant has residential address at Dibrugarh. Perusing the case record it is found that Opp.Paty No.1 namely, united India Insurance Co.Ltd. is also carrying business within the territorial jurisdiction of this forum by establishing its branches. Hence, we hold that as per provision of subsection 2 of section –11 of Consumer Protection Act,1986, this forum has territorial jurisdiction to try the present complaint. Secondly, the value of the complaint is Rs.10,50,000/- with further claim i.e. interest, compensation for loss suffered and costo of the complaint. Hence, we hold that, this forum has also pecuniary jurisdiction to adjudicate upon the complaint filed by the complainant.
8) Now, moot question is that, the order of opp.party repudiating the claim of the complainant is lawful or not ? To determine this question, we have to find out whether the driver of the complainant had genuine driving licence as well as authority to drive the said LPG tanker.
The opp.party side states that, the driver of the complainant did not possess valid and effective licence at the time of accident and as such they repudiated the claim of the complainant. Reversely in this respect the plea of the complainant is that after verifying the driving licence of the driver in the office of D.T.O. Sibsagar and after finding genuineness of the D.L. and also after seeing the certificate given by the Principal, Drivers and Conductors Training School,Betkuchi, Guwahati which reflects that the driver had gone a refresher course of LPG and oil tanker, he was satisfied that, the driver had a genuine Driving licence and he is competent to drive said vehicle, he had appointed the said driver to drive the said vehicle.
Regarding driving licence of the driver, the complainant in his evidence states that, before appointing Shri Dharmendra Rai as driver of his LPG and Oil tanker and the said driver produced driving licence and a certificate issued by the Principal of Driver and Conductors Training School, Betkuchi, Guwahati showing that he had undergone a training course in driving LPG and Oil tanker and he being satisfied that the said driver was competent to drive LPG tanker and then he hired the said driver. He also states that after the said accident, the said driver got a new licence issued by D.T.O.Sibsagar giving reference of the licence issued by DTO, Mon, Nagaland and Exbt.15 is the photocopy of the said driving licence and that after the accident , the driver took a refresher course for driving LPG, Oil tankers and Exbt.16 is the certificate issued by the concerned authority. He further states that after the accident he alongwith the driver enquired in the office of the DTO, Mon, Nagaland about the driving licence and found that D.L. No.12142 which was issued to his driver by DTO, Mon, Nagaland on 22.4.98 was for heavy goods vehicle and Ext.17 is the certificate issued to that effect and as well as Exbt.18 is the duplicate copy of the said driving licence. In the cross-examination, he states that on examination of the driving licence of the driver, he found that the said driver was authorized to drive heavy motor vehicle , but he does not remember if in the driving licence there was special endorsement authorizing the driver to drive vehicle containing hazardous goods or not. The complainant is found to have based on Exbt.15 driving licence, Exbt.18 driving licence . After perusing these exhibits , it is found that Exbt.15 licence was issued by DTO, Sibsagar on 19.5.2001 and that was issued authorizing the driver to driver LMV, MMV and HMV only as well as Exbt.18 was issued by DTO, Mon, Nagaland giving effect from 22.4.1998 to 21.4.2001 authorizing to drive LMV, MMV and HMV only. Thus, it is crystal clear that in the driving licences (Ex.15 and 18) there is no endorsement authorizing the said driver to drive vehicle carrying hazardous goods (oil and LPG).
We have perused Exbt.17 which is a certificate issued by DTO, Mon and found that DTO, Mon, Nagaland certifies that DL No.121427 was issued to Shri Dharmendra Rai on 22.4.98 for heavy goods vehicle only. We have perused Exbt.16 and found that it is a photostate copy of a certificate purported to have been issued by the Principal of Driver and Conductors Training School, Betkuchi, Guwahati on 11.6.2001. The original certificate was not exhibited and the complainant has not sought permission from this Forum to exhibit this piece of photostate copy nor adduce evidence of any person to prove authencity of the said certificate . Hence Ex.16 can not be accepted as a piece of evidence . Secondly, if we accept this document then also we find that, the said driver enrolled in the said institute on 12.6.2001 to undergo refresher course of LPG and Oil tanker for the period w.e.f. 12.6.2001 to 14.6.2001 which is a period after the accident. Thus if it is supposed that the said driver had undergone refresher course for that period, then also we find that the said refresher course, does not cover the date of accident. Thus , it is established that before the date of accident the driver had not undergone any refresher course of LPG and oil tanker and that is why there is no endorsement in his driving licences (Ex.15 and 18) authorizing him to drive the vehicle carrying hazardous goods like oil and LPG, meaning thereby that on the date of accident, the said driver did not have proper licence to drive the said LPG tanker of the complainant . It is already found that, the complainant states in cross examination that he does not remember whether there was special endorsement in the driving licence of the said driver authorizing the driver to drive vehicle of hazardous goods . It is also found that the complainant side has failed to prove that before the accident his driver had undergone training of driving LPG and Oil tanker. Thus, it is established that when the driver produced the driving licence to the complainant before driving the said vehicle, he had no authorization to drive the LPG tanker of the complainant and knowing that fact well, the complainant allowed him to drive the said LPG tanker . So, it is a clear case of violation of terms and condition of insurance policy, which the complainant had done with the opp.party (United India Insurance Company) . Secondly, the opp.party side states that the Exbt.15 is a fake driving licence having the original driving licence D.L. 12472 was not issued in the name of present driver by DTO, Mon, Nagaland. OPW-1 Sri Sitangshu Deb states in evidence that their investigator investigated the driving licence of the driver and got a certificate from Sibsagar, where-in the DTO, Sibsagar mentions that DL No.F/12968/SBR/98 (Exbt.15) was issued on 18.5.2001 by him basing on the DL issued by DTO, Mon, Nagaland which is 12472/M/Proff-98. On 8.4.98 (Ex.18), and that when their investigator investigated the said driving licence he found that DTO, Mon, Nagaland reported that the said DL was issued in the name of the one Shri Kensing Engti, son of B.Engti , but not in the name of Dharmendra Rai. We have perused Ex.9 and found that the DTO, Mon reported to the investigator of the opp.party (Bureau of Investigation Agency , Guwahati) that , DL No. 12472/Mon/proff-98 was issued in the name of one Shri Kensing Engti , S/O Birsing Engti and it was issued on 2.6.98, but it was not issued in the name of Dharmendra Rai , but DL No.12142/98 was issued in the name of Dharmendra Rai. Thus, it is clear that DL No. 12142/Mon/profof-98 (Ex.18) is a genuine Driving Licence , but DL No. 12472/M/Proff was issued by DTO, Mon to one Shri Kensing Engti , S/O Birsing Engti but not to the driver of the complainant . It is found that DTO, Sibsagar issued Ex.15 to the Dharmendra Rai on the basis of DL No. 12472/M/proff dtd. 8.4.98 issued by DTO, Mon which was in the name of Kensing Engti. So, driving licence No. 12472 /M/proff purported to had been issued issued on 8.4.98 by DTO, Mon which was produce by Dharmendra Rai for procuring DL No.F/12968/SIV/proff dtd.18.5.2001 was a fake licence . Therefore , we declare that DL No. F/12968/SIV/proff dtd. 18.5.2001 ( Ex.15) was a fake licence. It is found that on the strength of that licence the complainant appointed Shri Dharmendra Rai to drive his LPG tanker on the day of accident. So, the act of allowing the driver Shri Dharmendra Rai to drive the concerned LPG Tanker by the complainant on the day of accident is an act of violation of terms and condition of Insurance policy done by the complainant with the opp.party . So, in such circumstances also, we have to hold that at the time of appointing the concerned driver by the complainant, it had come to the knowledge of the complainant that the said driver had no authority to drive his LPG tanker and in such situation the case law referred by the Ld.advocate of the complainant, which are (i) III (1996) CPJ 422 New India Assurance Co.Ltd.-Vs-CAPT.Jagadish Kumar-(ii) (2003) 6 SCC 420 (Para 9 to 10) Jitendra Kumar-Vs-Oriental Insurance Co.Ltd. (iii) (2003) 3 SCC338 United India Insurance Co.Ltd.-vs- Lehrn and others, are not applicable in our present case . Likewise Ramchandra Singh –vs- Rajaram & others, Civil Appeal No. 8145/2018 referred by the complainant side is also not applicable in our present case having Hon’ble Supreme Court gives decision on that case in respect of third party claim i,e, compensation for death of a person in a vehicular accident.
So, it is a clear case violation of terms and conditions of the policy taken by the complainant in respect of his LPG tanker. Hence, complainant is not entitled to get any compensation for damage of his LPG tanker in the said accident and the complaint is liable to be dismissed.
9) Summing up out discussion as above, we hold that the repudiation of the claim of the complainant is lawful. Opp.parties has not committed any deficiency of service to the complainant by repudiating his claim filed before them and so the complaint is liable to be dismissed . Accordingly the complaint against the opp.parties is dismissed on contest.
Given under our hands and seals on this day of 14th December ,2018.
(Md.Sahadat Hussain)
President
(Md J.Islam)
Member
