Delhi

West Delhi

CC/08/886

KOMAL MEHTA - Complainant(s)

Versus

KUKREJA HOSPITAL - Opp.Party(s)

14 Nov 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

                            GOVERNMENT OF NCT OF DELHI

  150-151 Community Centre, C-Block, Janak Puri, New Delhi – 110058

                                                                                     Date of institution: 21.02.2011

Complaint Case. No. 105/11                                        Date of order: 13.11.2017

IN  MATTER OF

Ramesh Dalal  S/o  Randhir  Singh  R/o B-805, Dhula Dhar Appartment, Plot No. 15, Sector 5,  Dwarka, New Delhi.

                                                                                                                         Complainant

VERSUS

 

Bajaj Allianz General Insurance Company Limited , Plot  No.1, 2^nd  Floor DLF Industrial Area, Moti Nagar, New Delhi-110015

 

                   Opposite Party

 

ORDER

R.S. BAGRI,PRESIDENT

            Sh. Ramesh Dalal  named above herein  the complainant has filed the present consumer complaint under Section 12 of the Consumer Protection Act against  Bajaj  Allianz General Insurance Company Limited  herein after in short referred as the opposite party for directions to the opposite party to pay Rs. 5,89,427/- repair charges of his vehicle SUV Ford  Endeavour  bearing registration No. HR 13D 7207  and Rs. 3,00,000/-  as damages for harassment , inconvenience , tension, mental agony  and cost of  litigation alongwith  interest at the rate of  24% p.a.  

            Briefly facts of the complaint as stated are that the complainant on 30.06.2009    insured    his   SUV  Ford   Endeavour   bearing  registration   no.                

HR 13D 7207 with the opposite party for the period from 30.06.2009 to 29.06.2010. The complainant  after necessary  verification  appointed  Sh. Surender Singh as driver of the SUV on 20.02.2010. The SUV  met with an accident while driven  by Sh. Surender Singh  driver. The SUV was heavily damaged.  The complainant immediately contacted Harpreet Motor Gurgaon,  Haryana  and the opposite party  for repair of the SUV.   But the opposite party refused to repair the SUV on the ground that driving  license  of  the driver  was fake .  The complainant get the SUV repaired from M/s Harpreet  Motor Pvt. Ltd.  on  payment of Rs. 5,89,427 /- .  The complainant asked the opposite party to pay the repair charges of the SUV  but to no effect.  Hence the present complaint for directions to the opposite party to pay Rs. 5,89,427/- repair charges of his vehicle SUV Ford  Endeavour  bearing registration No. HR 13D 7207  and Rs. 3,00,000/-  as damages for harassment , inconvenience , tension, mental agony  and cost of  litigation alongwith  interest at the rate of  24% p.a. 

            After notice the opposite party appeared and filed reply admitting that the SUV was insured with the opposite party.  Sh. Surender Singh driver  was not holding a valid driving license. On verification  from the licensing authority  it transpired that the  driving license was forged.   Therefore, the opposite party is not liable to repair the SUV and pay insurance amount with  repair charges.   All other allegations of the complaint are vehemently denied by the opposite party and prayed for dismissal of the complaint. 

The complainant filed rejoinder to the reply of the opposite party while controverting stand of the opposite party and reiterating his stand taken in the complaint. He once again prayed for directions to the opposite parties

            When Sh. Ramesh Dalal complainant   was asked to lead evidence by way of affidavit he filed his  affidavit narrating facts of the complaint.  He also relied upon Annexure C-1  Nakal Rapat Raojnamcha dated 20.02.2010,  Annexure C-2 Motor Vehicle Cover Note, Annexure C-3 Request letter to the Manager of Bajaj Allianz Insurance Co. Ltd. and  Annexure C-4  Bills of  the   complainant.  When the opposite parties were asked to lead evidence by way of  affidavit they  tendered in evidence  affidavit of   Anushree Dutt Senior  Executive  Legal  narrating  facts of the reply.

We have heard learned counsel for the parties and   have gone through material on record carefully and thoroughly.

After having heard  learned counsel for the parties and going through the material available on record it is common case of the parties that the complainant  has insured  his SUV  Ford  Endeavour  bearing registration No. HR 13D 7207 with the opposite party.  The complainant  employed Sh. Surender Singh Driver on the SUV.  But  on 20.02.2010  when Sh. Surender Singh was driving  the SUV the same met with an accident.  The opposite party refused to repair and pay compensation on the ground that Sh. Surender Singh was  not holding a valid driving license  on the date of the accident.  The complainant spent Rs. 5, 89, 427/-  on repair  of the SUV. 

Learned counsel for the complainant argued that at the time of  employment  of  Sh. Surender  Singh as driver  of the complainant  on the SUV he satisfied himself  that the driver was holding a valid   driving license .  Therefore, the opposite party can not avoid its liability to pay the compensation.  In support of his arguments he placed reliance on case law report as  2008 Legal  Eagle 2997  Supreme Court of India  titled  Premkumari and Ors. Vs Prahlad Dev and Ors.   Wherein the Hon’ble Supreme  Court   of India  held  that when  an owner is hiring a driver  he will

 therefore have to check whether the driver has a driving license .  If the driver  produces a driving  license which on the face of it looks genuine, the  owner is not expected to  find out whether  the license has in fact been issued by  a competent authority or not.  The owner would then take the test of the driver.     If he  finds  that the driver is competent  to drive the vehicle, he will hire the driver.  We find it rather strange that insurance companies expect owners to make  enquiries with RTOs, which are spread all over the country, whether the driving license  shown  to them is valid or not .  Thus where the owner has satisfied himself  that  the  driver has a license and  is driving competently  there would be  no breach of Section 149  (2)(a)(ii) .  The insurance company would not then  be absolved  of liability.  If it ultimately turns  out that the license  was fake, the insurance  company would  continue  to remain liable unless they   prove that the owner/insured was  aware or had noticed  that the license  was  fake  and still permitted that  person to  drive.  More importantly, even in such a case the insurance company  would  remain liable  to the innocent third  party , but it may be able  to recover from the insured.   This  law has been laid down in Skandia(1987) 2SCC 654, Sohan Lal Passi(1996) 5 SCC 21 and Kamla (2001) 4 SCC 342 Cases.  We are in full agreement with the views expressed therein  and seen no reason to take a   different view.

Therefore, in view of above decisions when the owner after verification satisfied  himself  that the driver has a valid license and driving the vehicle  in question competently at the  time of accident there would be no breach of Section 149(2) (a)(ii), in that event, the Insurance company  would  not then be absolved of liability.  It is also clear that even in the case  that the license  was fake , the Insurance Company  would continue  to remain  liable to  prove that the owner was aware or noticed that  the license was fake and still permitted him to  drive.”

Similar are facts of the present case.  The complainant satisfied him that  Sh. Surender was  holding  a valid driving  license on the date of the accident .  Therefore, the opposite party can not  absolve from its liability to get the vehicle  repaired and pay compensation.

The complainant from his affidavit , Nakal Rapat Raojnamcha dated 20.02.2010,  Motor Vehicle  Cover Note No. BZ0802090412, Request letter to the Manager of Bajaj Allianz Insurance Co. Ltd. and   Bills  succeeded to prove that  he  had  to spent Rs.  5,89,427/-  on repair of the vehicle .  The opposite party  failed  to pay the amount.  Hence there is unfair trade practice and deficiency in service on the part of the opposite party. Therefore, we direct the opposite party to  pay Rs. 5,89,427/- repair charges of the vehicle  with interest @ 9% to the complainant from date of filing  the complaint till actual realization of the amount and pay  sum of Rs. 1,00,000/- as compensation on account of harassment , inconvenience , tension, mental agony suffered by the complainant   and cost of the litigation.         

Order pronounced on : 13.11.2017

• Compliance of the order be made within 30 days after receipt of the order.
• Copy of order be sent to the concerned parties free of cost.
• Thereafter, file be consigned to record.

         

 

                  

(PUNEET LAMBA)                                                              ( R.S.  BAGRI )

             MEMBER                                                                               PRESIDENT