Punjab

Rupnagar

CC/14/153

Daljit Singh - Complainant(s)

Versus

United India Insurance & Another - Opp.Party(s)

Sh. Mandeep Moudgil, Adv

29 Sep 2015

ORDER

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

                   Sh. Daljit Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for the following reliefs:-

i)       To direct the O.P. No.1 to make the payment of the claim amount of Rs.3,62,065/- qua the repair of the Tipper of the complainant.

ii)      To pay a sum of Rs.50,000/- as compensation on account of mental agony and physical harassment,

iii)     To pay a sum of Rs.20,000/- as litigation expenses,

 

 

2.                In brief, the case of the complainant is that he is the owner of TATA Tipper bearing registration No.PB-12-N-9401, which is being plied by him to earn his livelihood. He is having a valid route permit for plying the said Tipper. It is duly insured with the O.P. No.1 for a period commencing from 12.10.2013 to 11.10.2014. He got it financed from the O.P. No.2. On 20.04.2014, his Tipper met with an accident in the area of Police Station Nurpur Bedi regarding which FIR No.39 dated 21.4.2014 was got registered under sections 279, 304-A/427  IPC at Police Station Nurpur Bedi against the driver Sanjiv Kumar. Driver Sanjiv Kumar was having a valid and effective driving license for driving the Tipper as on 20.04.2014. On 27.4.2014, the mechanical test report of the said Tipper was also got prepared by the police and the intimation regarding the accident was immediately given by him to the O.P. No.2. The said Tipper was got repaired by him from the Authorized Dealer regarding which the following expenses were borne by him

1. The amount paid to GS Automobiles Dealers           Rs.2,25,000/-

  Of TATA Genuine Motor Parts

2. The amount paid to Libra Radiators                                   Rs.1,200/-

   Works, Ambala City

3. The amount paid to Pummy Show                                      Rs.65,895/-

    Repairing, GT Road, Ambala City

4. The amount paid to Shiva Painter                                       Rs.9000/-

   GT Road, Ambala City       

5. The amount paid to Satnam Singh                                      Rs.7000/-

   Denting &Repairing works Ambala City

6. The amount paid to M/s Om Parkash                        Rs.32,000/-

    Dhiman, Kamani Repair, Ambala City

7. The amount paid to Sunil Electric Works                           Rs.3500/-

    GT Road, Ambala City

8. The amount paid to Bitu Motor works                      Rs.11,000/-

    Ambala City

9. The amount to Ghotra Crane Service                        Rs.7500/-

    As transport Charges

 

                   He approached and requested the O.P. No.1 many of the times to make the payment of the said claim i.e. the amount spent by him on the repair of said Tipper.  As the said Tipper was duly insured with the O.P. No.1, therefore, it is liable to indemnify the complainant but the O.P. No.1 was putting off the matter on one pretext or the other and its officials have unnecessarily been harassing him by not making the payment. It is further stated that the O.P. No.2 is taking hasty steps to recover the amount of installments from him. As he is earning his livelihood by plying the said Tipper, but due to accident, the said Tipper remained out of function and as such, he could not earn anything and failed to repay the instalments of the loan to it. He has to make the repayment of the said amount from the amount to O.P. No.2 of claim to be recovered from the O.P. No.1. He approached the O.P. No.1 number of times and requested it to make the payment of the claim amount of Rs.3,62,065/-, but the O.P. No.1 did not paid any heed to his request. He also requested the O.P. No.2 to not to take the hasty steps to recover the amount till the receipt of the claim amount from the O.P. No.1, but it also did not accept his request. Hence, this complaint. 

 3.               On being put to notice, the O.P. No.1 filed written statement in the shape of affidavit of Smt. Hemali Batra, Deputy Manager of United India Insurance Company Limited, taking preliminary objections; that this Hon’ble Forum has no jurisdiction to entertain and try the complaint; that there is no deficiency in service on the part of the O.P. No.1; that the complainant has no cause of action to file the complaint against the O.P. No.1. On merits, it is admitted that the Tipper bearing No.PB-12-N-9401 was insured by the company in the name of Sh. Daljit Singh, complainant. It is stated that Sh. Romi, who was driving the vehicle in question and as per FIR was not having a valid and effective driving license at the time of alleged accident. The driving license produced by the complainant was of some other person namely Sanjiv Kumar, who has wrongly been alleged by him to be known as Romi. Moreover, the police has challaned the Driver under section 181 of Motor Vehicle Act, for not holding a driving license at the time of accident vide proceedings under section 173 of Cr.P.C. So there is a breach of the policy condition thus, the O.P. No.1 is not liable to pay any amount to the complainant. Later on, the complainant produced a Driving License bearing No.PB-0220030175971 issued from the DTO, Amritsar, whereas, the driver did not reside at any time in Amritsar. The date of birth mentioned in Driving License does not tally with the Date of birth mentioned in the Ration Card of the said driver. In the police record and also in the record of Ration Card, the address of the alleged driver has been mentioned as resident of Village Jhallian Kalan, District Ropar. No document has been produced by the complainant in which the name of the Sanjiv Kumar @ Romi has been found mentioned.  Since, the driver was not holding a driving license at the time of alleged accident and the police has rightly challaned him. Therefore, the claim is not payable being breach of policy condition. Moreover, no intimation regarding the accident was given immediately to

the O.P. No.1. As a result thereof, it could not appoint a surveyor for spot inspection. A surveyor cum loss assessor namely Sh. Vinod Sharma was duly appointed to assessed the loss, who has assessed the loss of the vehicle in question to the tune of Rs.2,30,753/-, which is to be paid on fulfillment of the policy condition. Same is evident from the report dated 09.08.2014. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, it being without any merit.

4.                The name of the O.P. No.2 stands deleted vide order dated 14.01.2015.

5.                On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant Ex. C1 and photocopies of documents Ex.C2 to Ex.C26 and closed the evidence. On the other hand, the learned counsel for the O.P. No.1  tendered affidavit of Smt Hemali Batra, Deputy Manager of United India Insurance Company Ex.OP-1, photocopies of documents Ex.OP-2 to Ex.OP-21 and closed the evidence.

6.                We have heard the learned counsel for the parties and gone through the record of the file carefully.

7.                At the outset, the learned counsel for the O.P. No.1 has vehemently argued that as per FIR (Ex. C12), Sh. Romi was driving the insured vehicle at the time of accident, whereas the complainant has produced the driving license of some other person, namely, Sanjiv Kumar, that is why, the claim lodged by the complainant is not payable. To this effect, the learned counsel for the complainant submitted that in fact, Romi is the nick name of Sh. Sanjiv Kumar and at the time of accident he was driving the insured vehicle. This fact got clarified from the report of the investigator and Loss assessor dated 02.10.2014 (Ex.OP-5) wherein, Sh. Davinder Sharma, has categorically stated that he visited the village Jhallian, District Ropar and met the father of said Sanjiv Kumar, who told him that Romi is the nick name of Mr. Sanjiv Kumar. To this effect, the father of Sh. Sanjiv Kumar had also executed a declaration duly countersigned by the Sarpanch of the said village. He had also provided him the photocopy of Adhar Card of Sanjiv Kumar and that of the Ration Card of his family, in which name of said Sanjiv Kumar was found mentioned. The photograph depicted on the impounded driving license by the police and the photographs affixed on the Adhar card and the ration card were of the same person. Thus, it is proved beyond any doubt that Sh. Sanjiv Kumar, who is also known as Romi and who was driving the vehicle in question at the time of accident and the aforesaid objection raised by the learned counsel for the O.P. is without any force.

8.                The surveyor/investigator in his report (Ex.OP-5) has categorically mentioned that the father of Sh. Sanjiv Kumar had produced his declaration duly countersigned by the Sarpanch of his village to the effect that Romi is the nick name of Sanjiv Kumar. It may be stated that the report of the surveyor/investigator has significant evidentiary value and cannot be displaced unless it is contradicted by credible evidence to the contrary. Even in the challan form Ex.OP-9, in the column of the name of the accused Sanjiv Kumar @ Romi has been found mention. In the judgment Ex.OP-20, on which the O.P. No.1 is placing making reliance, the name of the respondent No.2 has been written as Sanjiv Kumar @ Romi. From the aforesaid document it can be inferred that the Romi is the nick name of Sanjiv Kumar and the objection raised by the O.P. No.1is not tenable. Hence rejected.

9.                The learned counsel for the O.P. No.1 further argued that Sh. Sanjiv Kumar was not holding a valid & effective driving license at the time of accident. Same is evident from the judgment passed by the Hon’ble MACT Court, Rupnagar, Ex.OP-20 in which it has been declared that the said DL of Sanjiv Kumar is fake and invalid.  This fact further got corroborated from the statement of Sh. Wassan Singh, Clerk, DTO Office, Amritsar, who was summoned on filing of application dated 06.05.2015 by the O.P. No.1 had appeared along with online record in respect of License No.PB-0220030175971 issued in the name of Sanjiv Kumar son of Dharminder Singh resident of VPO Verka, District Amritsar, who has categorically stated that at the time of issuance of the duplicate/renewed Driving License to the applicant, the record of the original DL of Said Sanjiv Kumar was not verified, which is against the rules and as per the provisions of the Motor Vehicle Act, 1988. There may be lapse on the part of the dealing hand and the applicant and at present the above said dealing hand Amritpal Singh is in the Central Jail, Amritsar, under the allegations of preparing the fake RCs of the vehicles. The genuineness of the Driving License in question can only verified from the original register which now not traceable and cannot be produced before this Forum. In the record of DTO Office, Amritsar, there is no proof regarding residential address of Sh. Sanjiv Kumar. Since Sh. Sanjiv Kumar was not having valid and effective Driving License at the time of alleged accident. Therefore, as per terms and conditions it is not liable to indemnify the complainant for the alleged loss. In rebuttal, the learned counsel for the complainant submitted that Sanjiv Kumar @ Romi, who was driving the insured vehicle, was holding a valid & effective driving license at the time of accident. Same is evident from the driving license, of Sanjiv Kumar, (Ex. C5), issued by the Licensing Authority, Amritsar. He further submitted that Sh. Wassan Singh, Clerk District Transport Office, Amritsar, has categorically stated that the D.L. in question was issued by the DTO Amritsar and the same was issued by the concerned DTO after going through and verifying the record. As per office record and as per his knowledge Sh. Sanjiv Kumar has never been disqualified from driving any vehicle and the driving license in question issued by the DTO Amritsar in the name of Sh. Sanjiv Kumar is still valid.  Inspite of the fact that Sanjiv Kumar was holding valid and effective Driving License, the Insurance company has illegally repudiated his claim. Therefore, complaint filed by him be accepted and O.Ps. be directed to indemnify the complainant for the loss occurred to him.     

10.              From the perusal of the driving license (Ex. C5), it is evident that it was issued on 10.5.2003 and the date of birth of said Sanjiv Kumar was mentioned in it as 12.1.1980. In the copy of Adhar Card (Ex.OP-3), the year of birth of said Sanjiv Kumar has been mentioned as 1989, whereas in the copy of Ration Card (Ex.OP-1), which was issued on 30.1.2007, his age at that time was mentioned as 15 years. In all the above referred three documents the different date of birth is mentioned. The Hon’ble MACT Court in the case titled as Gurdev Kaur and others Vs Daljeet Singh and others has held that  keeping in view the conflicting date of birth in the above said record, it cannot be said that Sanjiv Kumar @ Romi was having a valid driving license at the time of accident. It may be stated that on the basis of the documents just referred above and on the basis of the statement of Sh. Wassan Singh, Clerk District Transport Office, Amritsar, which is self contradictory, it will not be just and proper to arrive at a conclusion as to whether Sh. Sanjiv Kumar was holding a valid & effective driving license at the time of accident. To prove this fact leading of voluminous evidence, examination and cross-examination of the witnesses, is required. Since the proceedings before this Forum are summary in nature, the complex questions of law & facts involved in this case cannot be adjudicated upon by this Forum. In the case—‘Oriental Insurance Company Ltd. Vs. Munimahesh Patel’, IV (2006) CPJ 1 (SC), the Hon’ble Supreme Court has held that the  proceedings before the Consumer Fora are essentially summary in nature and the mater having complex factual position could not be examined by the Consumer Fora and the appropriate Forum was the civil court.

11.              In view of the above discussion, we dispose of the complaint, and the complainant may seek his remedy before the appropriate civil court, if he so desires. The parties are left to bear their own costs.

 

                   The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

ANNOUNCED                                                                       (NEENA SANDHU)

Dated .29.09.2015                                                PRESIDENT

 

 

                                                 (SHAVINDER KAUR)

                                                                     MEMBER