Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                                    Complaint No. : 677

                                                                    Instituted on     : 16.11.2021

                                                                    Decided on       : 20.03.2023

M/s Captain Jai Chand Filling Station through its Proprietor Surender Singh S/o Sh. Jai Chand, Prop. V.P.O. Beri, District Jhajjar.

                                                                             .......................Complainant.

Vs.

The New India Assurance Co. ltd. through its Divisional Office situated at Model Town, Delhi Road, Rohtak through its Divisional Manager.  Policy Number No. 35380631190100003786 valid w.e.f. 5/2/2020 to 4/2/2021.

                                                                             ……….Opposite party

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. TRIPTI PANNU, MEMBER.

                   DR. VIJENDER SINGH, MEMBER

Present:       Sh. Rajesh Sharma, Advocate for complainant.

                   Sh. A.S.Malik, Advocate for opposite party.

ORDER

NAGENDER SINGH KADIAN, PRESIDENT:

1.                          Brief facts of the case as per the complainant are that he is dealing in the business of petrol pump and selling the petroleum products at VPO Beri. He got insured his vehicle bearing registration No.HR-63D/6902 Model Tata Motor LPT 1613 with opposite party vide policy No. 35380631190100003786 having validity from 05.02.2020 to 04.02.2021. It is further submitted that on 27.04.2020 the vehicle being driven by his driver namely Surender Singh had met with an accident. The driver of the vehicle was competent to drive the vehicle and was having a license. Due to the said accident, the vehicle of the complainant was badly damaged. The complainant gave intimation regarding the accident to the insurance company and duly submitted the claim form alongwith all the documents which were required for the settlement of the claim. Thereafter complainant got repaired his vehicle from Anand Motors, Gohana. The complainant paid an amount of Rs.2,42,200/- to the firm M/s Petrotech Vessels Pvt. Ltd. for the repair of the petrol tank and Rs.7,82,004/- to the firm Anand Motors. The complainant had to spent the huge amount on the repairing of the aforesaid vehicle. But despite completing all the formalities and after passing a long period, the insurance company has not settled the insurance claim of the complainant. The act and conduct of the opposite party is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite party may kindly be directed to pay Rs.10,06,000/-(Rs. Ten Lakh and Six thousands only) alongwith an interest @ 15% p.a. from the date of submitting the claim before the opposite party to till the date of its realization. The opposite party also be directed to pay an amount of Rs.250000/- on account of mental agony and harassment, Rs.33,000/- on account of litigation charges and Rs.2500/- on account of other incidental legal expenses.

2.                          After registration of complaint, notice was issued to the opposite party. Opposite party in  preliminary objections of its reply has submitted that Oil Tanker No. HR-63-D-6902 was insured vide Policy No. 35380631190100003786 from 05/02/2020 to 04/02/2021 in favor of M/s. Capt. Jai Chand Filling Station. Said oil tanker was met with accident on 27/04/2020 when Mr. Surender Singh was driving the said tanker at the time of loss. He was holding a D/L for MCWG, LMV, PSV bus and transport only valid upto 30/03/2020. Issuing authority was Bahadurgarh, (HR). It is pertinent to mention here that said oil tanker was carried inflammable diesel at the time of accident as per spot survey report. It has been observed that driver at the time of accident was not having a valid and effective D/L as per law. There should be an endorsement in the D/L that driver has conducting training for a period of three days and should be specifically stated in the D/L that driver has competed the training of hazardous goods on 06/03/2020 and endorsement should be included in the D/L. But there is no endorsement in D/L submitted by the insured. So, there is violation of Section-9 of Central Motor vehicles rules 1989. Hence, claim is not payable. On merits, it is denied that the driver Surender was competent to driver oil tanker and was having valid and effective D/L on the date of loss. It is also denied that complainant paid an amount of Rs.2,42,200/- to firm M/s Petrotech Vessal Private Limited to repair of petrol tanker and Rs.7,82,004/- to firm M/s Anand Motors. It is further submitted that opposite party deputed Sh. R.K.Jain Mechanical Engg. Surveyor and loss assessor to assess the loss of the said oil tanker on the repair basis Rs. 5,28,775/-.  Opposite party informed the complainant on many occasions when he visited in the company that claim is not payable on the point of D/L as no endorsement on D/L regarding the training of hazardous good and said D/L was valid and effective upto 30.03.2020. Whereas accident took place on 27.04.2022. It is also denied that opposite party is liable to compensate the complainant for the loss suffered by the complainant on account of damages in the vehicle arising out of road accident. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.

4.                Learned counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C10 and has closed his evidence on dated 19.10.2022. Ld. counsel for the opposite party tendered affidavit Ex. RW1/A, documents Ex. R-1 to Ex. R-6 and closed his evidence on 20.01.2023.

5.                We have heard learned counsel for the parties and have gone through 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 got repaired his vehicle from Anand Motors, Gohana and petrol tank from the Petrotech Vessels Pvt. Ltd. and had spent an amount of Rs.782004/- and Rs.224200/-  respectively. The complainant has also submitted that the surveyor has wrongly assessed the claim of the complainant. To prove the same complainant has placed on record copy of tax invoice Ex.C1 amounting to Rs.782004/- and Ex.C3 amounting to Rs.224200/- and submitted his claim with the opposite party. Copy of receipts Ex.C4 to Ex.C7 are also placed on record. Opposite party also appointed the surveyor who as per his report Ex.R3  & Ex.R4 has assessed the loss. But the opposite party had not paid the claim amount till date and has repudiated the claim of the complainant on the ground that endorsement to drive the hazardous goods vehicle has not been mentioned in the driving license of the driver. We have minutely perused the D.L. of driver Surender singh and there is no endorsement of hazardous goods on the alleged DL. But the complainant has placed on record a certificate Ex.C9 issued by the Driving Training School, as per which, Surender Singh has attended the training programme for ‘Safe transportation of hazardous goods’ conducted from 14.01.2020 to 16.01,2020. Whereas the date of accident is 27.04.2020. Hence from the alleged certificate Ex.C9, it is proved that complainant had taken the training from the Govt. authorized department to ply the hazardous goods vehicle before the date of accident. Moreover,  respondent failed to place on record any document that endorsement of harzardous goods is mandatory on driving licence for driving the hazardous goods vehicle.. It has been established that the driver of the vehicle can ply the hazardous goods carrying vehicle. Hence the repudiation of claim on this ground is illegal and amounts to deficiency in service and the opposite party is liable to pay the claim amount to the complainant. The opposite party has placed on record two survey reports. As per survey report Ex.R4 dated 15.12.2020 the loss has been assessed as Rs.646710/- after deducting the scrap value of damaged parts. Another survey report Ex.R3  dated 23.04.2021 amounting to Rs.528775/- is also placed on record by the opposite party which is issued by the same surveyor. No reason has been mentioned by the insurance company in their written statement or in the affidavit filed by the Divisional Manger that why the second survey report has been submitted on dated 23.04.2021. They have not mentioned any technical reason in their written statement or in the affidavit. Moreover there is difference of assessment of loss in both the reports and this difference has not been described anywhere in the report Ex.R3.  We have minutely perused both the survey reports. As per the complainant, he has spent an amount of Rs.224200/- on account of purchase of new oil tanker whereas the surveyor has assessed an amount of Rs.117500/- against the oil tanker. In fact the complainant has purchased the oil tanker for 224200/- and he also spent labour charges on installation of the same. The surveyor has mentioned the installation charges of oil tanker as Rs.40000/- in his survey report. In this way the total expenditure on the oil tanker comes to Rs.264200/-(Rs.224200/- plus Rs.40000/-). The scrap value of the oil tanker has been assessed as Rs.50000/- by the surveyor but citation of scrap value of the oil tanker has not been taken from the market and he has assessed the value on his own. We have assessed the scrap value of oil tanker as Rs.20000/-. Hence the assessment of oil tanker is as under:- Purchase value of new tanker Rs.224000/- less 15% on account of depreciation  less Rs.20000/- as scrap value plus Rs.40000/- as labour charges i.e. Rs.210400/-.  The opposite party is also liable to pay the difference of amount of alleged assessed amount and the amount assessed by the surveyor i.e. Rs.92900/-(Rs.210400/- less Rs.117500/-). Hence the opposite party is liable to pay the claim amount as per survey report Ex.R4 amounting to Rs.676710/- plus Rs.92900/- on account of less assessment of oil tanker as explained above.                                                                                                                                                                                                                                                               

8.                In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party to pay the alleged amount of Rs.769610/-(Rupees seven lac sixty nine thousand six hundred and ten only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 16.11.2021 till its realization and also to pay a sum of 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 within one month from the date of decision.

8.                Copy of this order be supplied to both the parties free of costs.

9.                File be consigned to the record room after due compliance.

Announced in open court:

20.03.2023.

                                                          ..........................................

                                                          Nagender Singh Kadian, President

                                                         ..........................................

                                                          Tripti Pannu, Member

                                                                        ……………………………….

                                                          Vijender Singh, Member