Ram Krishan son of Sh. Prem Dass resident of village Chowki, Post Office Olwa, Tehsil Anni, District Kullu, H.P.
1. National Insurance Company Ltd limited Branch Office
Main Market Tapri District Kinnour through its Branch
2. National Insurance Company Ltd through Branch Manager,
For the complainant Sh. Partap Parmar ,Advocate
For the opposite party Sh. C.L.Sharma, Advocate
Complaint under Section 12 of the
Consumer Protection Act, 1986.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is owner of vehicle No.HP-35-B-0128 which met with an accident on 5-8-2005 and sustained huge loss in the accident. The complainant paid premium of Rs.10,638/- for the insurance of the said vehicle. The complainant was issued policy on 16-9-2004 which was valid with effect from 16-9-2004 to 15-9-2005. The complainant averred that after the accident of the said vehicle, he completed all the formalities and applied for the payment of own damage claim before the opposite party, but the claim was illegally and wrongly repudiated by the opposite party vide letter dated 31-7-2006 which act on its part amounts to deficiency in service . The complainant has further averred that he had employed Sh. Gopi Chand as his driver who was holding a valid and effective driving license at the time of the accident. The complainant has further averred that the insurance value of the vehicle at the time of accident was to the tune of Rs.3,70,500/-. The complainant had served the opposite party with legal notice dated 8-9-2006 to make the payment of own damage claim but nothing has been done . Earlier the complainant filed complaint for redressal of his grievance before the Consumer Forum at Chandigarh which was withdrawn with liberty to file a fresh one as the said Forum was not having territorial jurisdiction to decide the matter. With these allegations, the complainant has sought a direction to the opposite parties to pay Rs.3,70,500/- plus interest at the rate of 24 % per annum , Rs.50,000/- on account of deficiency and mental agony and Rs.11,000, as litigation expenses.
2 The opposite parties resisted the complaint by filing reply and raised preliminary objections that there was no deficiency in service on the part of the opposite parties and as such the complaint is not maintainable , that the claim was duly processed, investigated and assessed and when the same was not found to be genuine the same was repudiated after due application of mind and decision in this regard was duly communicated to the complainant vide registered letter dated 31-7-2006, that the claim has been repudiated after due application of mind and as per the terms and conditions of the policy as the driver Sh. Gopi Chand was not competent and entitled to drive L TV vehicle on the date of accident , that the complainant has not come to this Forum with clean hands, that the disputed and complicated questions of fact and law involved in the case cannot be adjudicated by the Forum in a summary procedure and that the complaint is time barred. On merits ,the opposite parties have not denied the insurance of the vehicle in question and its accident . It has been averred that the complainant had informed the opposite party No.1 vide letter dated 18-8-2005 which was received on 29-8-2005 that the vehicle had met with an accident on 5-8-2005. It has further been averred that the complainant had informed that Sh. Gopi Chand alias Mahinder was the driver of the vehicle at the time of the accident . On receipt of the information, the opposite party No.1 wrote to the complainant vide letter dated 9-9-2005 Annexure R-3 to submit the estimate of repair and driving license of the driver The opposite party appointed Sh.R.S. Chandhoke as Surveyor and Loss Assessor to assess the loss . That the letters dated 21-12-2005 and 30-01-2006 Annexure R-4 and R-5. were written to the complainant to co-operate with the surveyor enabling the Surveyor to assess the loss Thereafter, the Surveyor had given interim survey report dated 23-2-2006 Annexure R-6. The opposite parties had further averred that the surveyor had submitted the final report annexure R-7 assessing the net liability to the tune of Rs.3,04,000/- on net of salvage value and the complainant had given his consent which is Annexure R-8. The complainant has submitted the driving license of Sh. Gopi Chand driver which on checking was found issued on 31-12-2001 and endorsed for motor cycle LMV, LTV and in the license against column of date of birth no date is written It has further been alleged that the first information report 61/2005 was lodged in Police Station Anni and a criminal case under section 279,337 and 338 IPC had been filed against Gopi Chand alias Mahinder and the driver had given his license No.892/ANNI issued by R.L.A Anni dated 13-9-2004 authorizing the holder to drive LMV ( Non transport) with effect from 13-9-2004 to 12-9-2007 and the date of birth in the said license was recorded as 18-7-1986 and the copy of the driving license is Annexure R-10 It has been alleged that since Gopi Chand was possessing two driving licenses , thus the same was in violation of the provisions of the Motor vehicle Act . Rest of the allegations have been denied being wrong. The opposite parties had prayed for dismissal of the complaint .
3. The complainant had filed rejoinder reiterating the averments made in the complaint and controverting the averments made in the reply by the opposite parties.
4. We have heard the ld. counsel for the parties and have also gone through the entire record. It is admitted case of the opposite parties that the vehicle in question was insured with them with effect from 16-9-2004 to 15-9-2005 and during the currency of the insurance policy , it met with an accident on 5-8-2005. It is also admitted case of the parties that Sh.Gopi Chand was driving the vehicle at the material time. However, the claim of the complainant has been repudiated on the ground that Sh.Gopi Chand was possessing two driving licenses i.e. one issued by Licensing Authority Transport Department Agra issued on 31-12-2002 valid from 27-10-2004 to 21-10-2007 authorizing to drive LTV and another one issued by Registering and Licensing Authority Anni on 13-9-2004 and valid up to 12-9-2007 to drive LMV ( Non transport ). According to the opposite parties holding of two driving licenses by the driver of the vehicle in question amounted to violation of the terms and conditions of the policy as well as section 6 of the Motor Vehicles Act, 1988 and therefore the claim of the complainant was rightly repudiated.
5 Now the question which arises for determination before this Forum is as to whether the opposite parties were justified in repudiating the claim of the complainant only on this ground . The opposite parties have placed on record photocopy of the driving license issued by Licensing Authority Transport Department , Agra Annexure R-9. The perusal of the same shows that the license of Sh. Gopi Chand was issued on 31-12-2002 and was endorsed for driving LTV on 22-10-2004 and was valid with effect from 22-10-2004 to 21-10-2007. The opposite parties have also placed on record driving license Annexure R-12 issued by Registering and Licensing Authority, Anni . The perusal of the driving license Annexure R-12 shows that it was issued in favour of Sh.Gopi Chand on 13-9-2004 and was valid for driving LMV ( Non transport) with effect from 13-9-2004 to 12-9-2007. Annexure R-10 is the certificate issued by Registering and licensing Authority Anni, District Kullu, H.P. certifying that the driving licence No.892/Anni dated 13-9-2004 was issued by their office and valid up to 12-9-2007 for driving LMV The onus was upon the opposite parties to prove and establish that the vehicle was being driven in contravention of the terms and conditions of the insurance policy as well as the Motor Vehicles Act,1988 and in order to succeed in their case, in our opinion, the opposite parties were required to have established by placing on record concrete material showing that the owner / insured was negligent and was well aware of the fact that Sh. Gopi Chand driver was holding two different driving licenses and he still engaged him as driver. However, no material has been placed on record by the opposite parties to hold that there was any negligence on the part of the complainant/ owner in handing over the vehicle for being driven by his driver Sh. Gopi Chand despite the fact that he was holding two different driving licenses issued by the two different authorities . The perusal of the final survey report dated 25-3-2006 Annexure R-7 shows that the owner has handed over the driving license of Sh.Gopi Chand issued by RLA Agra which was valid for driving LTV with effect from 22-10-2004 to 21-10-2007 and in our opinion there was no reason for the owner to suspect that there were two driving licenses being held by the driver .Moreover there is no evidence on record to suggest that aforesaid driving license issued by Licensing Authority .Transport Department Agra is invalid . Even the opposite parties have not uttered a single word in the reply that the license issued by the Licensing Authority Transport Department Agra in favour of driver Sh.Gopi Chand for driving LTV is fake or invalid . In the case titled National Insurance Company Ltd Swaran Singh and others AIR 2004 Supreme Court 1531 it has been held by the Hon’ble Apex court that mere absence , fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defenses available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
6 In the present case also, no sufficient material has been placed on record by the opposite parties to show that there was any negligence on the part of the owner and he has failed to exercise reasonable care by engaging Sh.Gopi Chand as driver. Moreover there is nothing on record to suggest that the owner / insured was aware of the fact that Sh.Gopi Chand was having two driving licenses and despite that he engaged him as driver. Therefore it cannot be said that the complainant / owner had violated the terms and conditions of the insurance policy or the Motor vehicles Act,1988 in handing over the vehicle for being driven by driver Sh. Gopi Chand . In nut shell , we hold that the repudiation of the insurance claim by the opposite parties on the aforesaid ground alone is illegal and not sustainable and it amounts to deficiency in service .
7 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle. The complainant in his complaint had claimed the assessment of the loss on total loss basis On the other hand ,the opposite party has stated that the surveyor has recommended the loss at Rs.3,04,000/- on net of salvage basis after deducting Rs.40,000/- on account of salvage value with registration certificate and Rs.1000/- on less policy clause. The report of surveyor is dated 25-3-2006 Annexure R-7 Be it stated that the opposite party had also placed on record the consent of the complainant vide letter dated 24-3-2006 Annexure R-8 whereby he agreed to receive Rs.3,04,000/- in full and final settlement of the claim on net of salvages basis The complainant had not adduced any evidence contrary to the report of Surveyor and even not disputed his consent .Moreover the report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kiran Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is at Rs.3,04,000/ on net of salvage basis.
8 The complainant had claimed Rs.50,000/- as compensation on account of harassment and mental tension, due to deficiency in service on the part of the opposite party. As discussed above the opposite party has been deficient in providing service to the complainant , therefore he is entitled to some reasonable compensation on this score . Hence , It would be in the interest of justice ,if we award a sum of Rs.10,000/- as compensation.
9 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay a sum of Rs.3,04,000/ on net of salvages basis alongwith interest at
the rate of 9% p.a. from the date of filing of the complaint till realization to the complainant The opposite party is further directed to pay Rs.10,000/- as compensation on account of harassment and Rs. 2500/- as costs of litigation.