Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 161.
Instituted on : 01.04.2019.
Decided on : 07.03.2022.
Suman wife of Jogender, resident of village Basana District Rohtak.
………..Complainant.
Vs.
- Reliance General Insurance Company Ltd., registered office 19, Reliance Centre, Wal chand Marg, Reliance Estate, Mumbai-400001, service through its branch through its Manager Rohtak.
- HDFC Bank, D.Park, Model Town, Rohtak, through its Branch Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. SHYAM LAL, MEMBER.
Present: Sh.D.S.Chauhan, Advocate for the complainant.
Sh.Sameer Gammbir, Advocate for the opposite party no.1.
Shri Rajesh Sharma, Advocate for the opposite party no.2.
ORDER
NAGENDER SINGH KADIAN PRESIDENT:
1. Brief facts of the case are that the complainant is registered owner of vehicle-car bearing No.HR-46-E-5748 and the same was got insured with the respondent no.1 as commercial vehicle vide insurance policy no.110521823380038915 for the period 19.10.2018 to 18.10.2019 for sum assured Rs.290000/-. The said vehicle was financed by the respondent No.2. Complainant was using the said vehicle to earn her livelihood. On 08.02.2019, the said vehicle met with an accident and suffered badly damaged and driver Amit who was driving the said vehicle also died in the accident. Intimation of damage of the said vehicle was immediately given to the respondent no.1 by the complainant. Surveyor deputed by respondent no.1 duly surveyed the damaged vehicle and assessed the total loss of the said vehicle. Complainant lodged her claim with the respondent no.1 alongiwth all the required documents. Respondent no.1 assured the complainant to disburse the claim amount within short period but despite repeated requests of the complainant, opposite party no.1 did not disburse the claim amount till date. Now the respondent no.1 vide its letter dated 07.03.2019 has repudiated the claim of the complainant on false and flimsy grounds. The act and conduct of the opposite party no.1 is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite party No.1 may kindly be directed to pay the claim amount of Rs.290000/-(insured value of vehicle) alongwith interest, compensation and litigation expenses as explained in relief clause.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party no.1 in its reply has submitted that the complainant has not submitted the repair details, salvage details to the answering respondent Insurance Company. Complainant was not holding insurable interest in respect of the vehicle bearing no.HR46E-5748 as the same was sold to Mr.Ankit Kumar. The name as per policy and registration certificate is Mrs. Suman, however the said vehicle is sold to and used by Mr.Ankit Kumar without the said transaction being effected in registration certificate as well as policy. As the complainant sold the vehicle, so complainant do not hold any insurable interest in respect of vehicle. The complainant has also admitted in her statement that the vehicle was sold to Mr. Ankit Kumar, further Mr. Ankit Kumar has also admitted that the vehicle was purchased from Mrs. Suman. Hence the claim of the complainant has been repudiated vide letter dated 7th March 2019 and the same is sent to the complainant by registered post. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint.
3. Opposite party No. 2 in his reply has submitted that the vehicle is subject to hypothecation in favour of the answering respondent as the vehicle was purchased by availing the loan facilities, hence the right of the complainant is restricted one and she cannot be termed as an absolute owner of the vehicle unless and until the loan has been cleared by the complainant. It is further submitted that answering respondent has no role to play in respect of the settlement of the insurance claim. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint.
4. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.PW1/A, documents Ex.P1 to Ex.P10 and has closed his evidence on dated 13.10.2021. Ld. counsel for the opposite party no.1 has tendered affidavit Ex.RW1/A and documents Ex.R1 to Ex.R11 and evidence of opposite party no.1 was closed by the court order dated 10.02.2021. Ld. Counsel for the opposite party no.2 tendered affidavit Ex.RW2/A and documents Ex.R2/1 to Ex.R2/3 and has closed his evidence on dated 10.02.2021.
5. We have heard learned counsel for the parties and have gone through the written arguments filed on behalf of respondent no.1 as well as material aspects of the case very carefully.
6. In the present case insurance and accident of the vehicle is not disputed. After the accident, complainant filed the claim with the opposite party. Opposite party appointed the investigator who has submitted his report before the insurance company and the same is placed on record as Ex.R4. But the opposite party No.1 vide its letter dated 07.03.2019 placed on record as Ex.P9 has repudiated the claim of the complainant on the ground that the name of insured as per policy and registration certificate is Mrs. Suman, however the said vehicle is sold to and used by Mr.Ankit Kumar without transferring the policy and RC. As the complainant sold the vehicle, so complainant do not hold any insurable interest in respect of vehicle. Ld. counsel has also placed reliance upon the judgment dated 16.11.2010 of Hon’ble National Commission, New Delhi titled as New India Assurance Co. Ltd. Vs. Shri Divya Prashad and order dated 11.07.2018 of Hon’ble National Commission in case titled as Ankleshwar bharuch Gujarat Vs. Future General India. It is further submitted in the repudiation letter that : “On careful perusal of said documents and the investigations in the matter, it was observed that at the time of accident 14 persons were seated inside the vehicle whereas its seating capacity as per policy and registration certificate is 13. At the material time of loss the vehicle was carrying passengers exceeding the legal carrying capacity”. But perusal of documents/FIR shows that only 4 persons were sitting in the alleged vehicle. As per the R.C.Ex.P1 and insurance Ex.P2, the seating capacity of vehicle is 5. Hence the wrong plea has been taken by the opposite party no.1 in its repudiation letter. Regarding the selling of vehicle opposite party has only placed on record photocopy of statement of insured Ex.R5 but the same is merely a photocopy and is not supported with the affidavit of investigator or the insured. Hence the law cited above by ld. counsel for the opposite party No.1 is not fully applicable on the facts and circumstances of the case. At the time of arguments, opposite party No.1 has also taken the plea that at the time of accident driver was not holding valid and effective driving licence. On the other hand ld. counsel for the complainant has pleaded that driver was holding valid and effective driving licence at the time of accident and to prove the same driving licence of Amit Kumar has been placed on record as Ex.P7, as per which the same was issued for M.C. with Gear, LMV-NT-Car, LMV-Tractor Only. Ld. counsel for the complainant has also placed reliance upon the FAO No.4102 of 2015(O & M) of Hon’ble
Higt court of Punjab & Haryana, Chandigarh, as per which Hon’ble Court has held that : “A driving licence which is valid for LMV is valid for driving of the transport vehicles of the same category”. In the alleged decision, Hon’ble High Court has placed reliance upon the judgment of Hon’ble Apex Court in case of Mukand Dewegan Vs. Oriental Insurance Co. Ltd., 2016(4)SCC 298 as per which Hon’ble Apex Court has held that : “46. Section of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As per light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles”. The law cited above is fully applicable on the facts and circumstances of the case. Hence the claim of the complainant has been wrongly repudiated by the opposite party No.1 and opposite party no.1 is liable to compensate the complainant.
7. It is also on record that opposite party No.1 has placed on record investigation report but did not file any surveyor report to assess the loss. But on the other hand, as per complainant the vehicle was badly damaged in the accident and the same is total loss. To prove the same complainant has placed on record estimate Ex.P10 for Rs.491365/- which is more than the IDV of the vehicle. As such he is entitled for the IDV of vehicle. Regarding the hypothecation of vehicle, opposite party No.2 has placed on record affidavit Ex.RW2/A and as per para no.9 of the same it is submitted that during the pendency of the present complaint, the complainant has cleared her loan liability. If the complainant is found entitled to get any amount from the insurance company, in that case now the Bank has no objection to make the payment of the claim amount to the complainant directly as the loan account stood cleared. Complainant has also placed on record loan Closure letter Ex.P8 annexed with NOC dated 13.01.2020. Hence complainant is entitled for the IDV of vehicle Rs.290000/- after deducting the scrap value of vehicle which we assess as Rs.40000/- i.e. Rs.250000/-(Rs.290000/- less Rs.40000/-).
8. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.1 to pay Rs.250000/-(Rupees two lac fifty thousand only) alongwih interest @ 9% p.a. from the date of filing the present complaint i.e. 01.04.2019 till its realisation and shall also pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. However complainant is directed to complete the formalities e.g. letter to the RTO for cancellation of R.C. and to send the copy of the same to the insurance company for information within 15 days from today and thereafter opposite party shall comply with the order dated 07.03.2022 of this Commission within one month from the date of submission of alleged documents by the complainant.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
07.03.2022.
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Nagender Singh Kadian, President
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Shyam Lal, Member.
