Karamjit Singh, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against United India Insurance Co. Ltd., (here-in-after referred to as opposite party').
Briefly stated, the case of the complainant is that he is the owner of Nissan Sunny Car No.PB-03-Z-0089. It is comprehensively insured (Package Insurance) with opposite party vide Insurance Policy No.2004063117P111130434 effective from 05-11-2017 to 04-11-2018 for the IDV of Rs.4,05,0001/-. On 11-12-2017, the said vehicle met with an accident near Reliance Petrol Pump, Rampura Phul, when a cow came in front of the car and front side of the car hit that cow. The car went out of control and its front lower portion hit footpath. Karamjit Singh complainant was driving the said Vehicle at that time. He was having valid and effective driving licence. The complainant immediately lodged claim with the opposite party. The vehicle was shifted from Rampura to M/s AVC Motors Nissan, Authorized Service Centre at Bathinda, for estimates and repairs under the directions of opposite party and their surveyor. Sum of Rs. 2000/- were paid for shifting.
It is alleged that vehicle was repaired under the instructions and supervision of the opposite party and its Surveyor Er. Dinesh Kumar Goyal. After repairs, the complainant paid Rs.1,46,940/- from his own pocket. Original estimates, Tax Invoice and Receipts were supplied to the opposite party through Surveyor. The complainant approached opposite party and their higher officials and demanded claim, but they did not listen. He also demanded copy of final survey report from the opposite party but the same was not supplied.
It is alleged that the surveyor is under the thumb of Insurance Company. They cannot afford to disoblige their master i.e. Opposite party from where they have to obtain business. They are always to toe the dictates of the opposite party and prepare reports under their instructions. The complainant received letter dated 07-03-2018 under RTI application from the office of the opposite party vide which they illegally rejected his claim on illegal ground that the driving licence is not valid. There is no breach of insurance policy. Due to the non-payment of the claim of (Rs.1,46,940/- + Rs.2,000/- (shifting charges) = Rs.1,48,940/-, the complainant has suffered mental agony, pains. For these sufferings, he has claimed compensation to the tune of Rs.50,000/- and Rs. 50,000/- as cost of litigation in addition to claim amount of Rs. 1,48,940/-. Hence, this complaint.
Upon notice, the opposite party appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party raised legal objections that the complaint is not maintainable in present form. The complainant knowingly and willfully, violated the terms and conditions of insurance policy. He was not having legal and valid driving licence at the time of alleged accident. As per complainant, he himself was on wheel of car in question. The alleged driving licence produced by complainant to the surveyor was valid for MCWG and LMV-TR from 17-5-2013 to 16-5-2016 and for Non-transport and Tractor from 17-5-2013 to 19-3-2026. Hence, the complainant is not entitled to any claim or damages. There is no deficiency on the part of opposite party. The complaint is baseless, wrong, vague and self-contradictory. The decision of the company is final and valid. It cannot be challenged before this Forum. That material and complicated questions of facts and law are involved in present complaint. The complaint deserves to be dismissed for this reason. That as per insurance policy, there is specific arbitration clause. Hence, this Forum has got no jurisdiction to try, entertain and decide the complaint. The complainant is liable to be relegated to seek legal redress under Arbitration Act. That the complainant is estopped from filing the complaint due to his acts, conduct, admissions, omissions and acquiescence. He has concealed true and material facts from this Forum and has not come with clean hands. He has not produced requisite documents alongwith complaint. He is liable to be debarred from producing any more document on file. That the complaint is false, frivolous and vexatious. It deserves dismissal with special costs.
On mertis, ownership of the vehicle of complainant and its insurance are not specifically denied but it is stated to be matter of recrd. It is further mentioned that insurance was subject to terms and conditions of the policy. It is admitted that complainant lodged claim of damage of car but it is denied that complainant was holding valid and effective driving licence. It is reiterated that driving licence for LMV-TR was valid only for the period 17-05-2013 to 16-05-2016. The complainant was not competent to drive the car on 11-12-2017. As such, he has violated term and condition of insurance policy. It is denied that complainant spent Rs.1,46,940/- on the repair of the car. It is further mentioned that surveyor Er. Dinesh Kumar Goyal has assessed the loss for Rs.93,603/- less Excess Clause of Rs.1,000/- = 92,603/- less salvage value Rs.1,950/- = 90,653/-. However the company has observed that the said report was not showing correct value. It was showing more / high loss of car. After considering the same, it was found that the loss could have been assessed only as Rs.80,757/-, less Excess Clause of Rs.1,000/- = 79,757/- less salvage value Rs.1,950/- = 77,807/-. Since the complainant was not having valid driving license to drive the car in question, on the date of alleged accident, no liability of insurance company could have been fastened. It is admitted that claim has been repudiated vide letter dated 07-03-2018 and complainant was also intimated vide registered post dated 08-03-2018. After controverting all other averments, the opposite party prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence his affidavit dated 5-7-2018 (Ex. C-1), photocopy of certificate cum insurance (Ex. C-2), photocopy of R.C. (Ex. C-3), photocopy of D.L. (Ex. C-4), photocopy of receipt (Ex. C-5), photocopy of Invoice (Ex. C-6), photocopy of receipt (Ex. C-7), photocopy of letter (Ex. C-9) and closed the evidence.
In order to rebut this evidence, the opposite party has tendered into evidence affidavit dated 24-8-2018 of Baldev Singh (Ex. OP-1/1), photocopy of No Claim Letter (Ex. OP-1/2), photocopy of motor survey report (Ex.OP-1/3), photocopy of re-inspection report (Ex. OP-1/4), photocopy of photographs (Ex. OP-1/5), photocopy of consent letter (Ex. OP-1/6), photocopy of motor claim form (Ex. OP-1/7), photocopy of verification reports (Ex. OP-1/8 & Ex. OP-1/9), photocopy of driving licence (Ex. OP-1/10), photocopy of verification details (Ex. OP-1/11 to Ex. OP-1/13), photocopy of policy (Ex. OP-1/14) and closed the evidence.
Both the parties have also submitted written arguments.
We have heard learned counsel for the parties and gone through the record and written submissions of the parties.
The learned counsel for the complainant, after reiterating his stand as set up in the complaint, has further submitted that material facts are not in dispute. Admittedly the vehicle was got insured and it met with an accident within covered period. The opposite party has repudiated the claim vide letter dated 7-3-2018 (Ex. C-9) on the ground that at the time of accident, complainant/driver was not having valid and effective licence. The complainant has produced on record copy of registration certificate (Ex. C-3) which proves that class of vehicle is LMVCAR with Unladen Weight 1027 Kg. The driving licence (Ex. C-4) proves that complainant was holding licence for MV.GV : MCWG : TRANS: Tractor, The licence was valid till 19-03-2026 for Non Transport Vehicle. The vehicle in question is a Light Motor Vehicle and it is not a Transport Vehicle as per definition given in Motor Vehicle Act. Therefore, the vehicle in question is a Non-transport vehicle for which the complainant was having valid licence till 19-3-2026.
It is further submitted by learned counsel for the complainant that even otherwise kind of driving licence to be applied and issued by competent authority is mentioned under Section 10 of the Motor Vehicle Act, 1988. As per this section, competent authorities are to issue licence for Light Motor Vehicle, Transport Vehicle, Road-roller and motor vehicle of a specified description. The authorities are not to issue licence for any particular class of vehicle like truck, car etc., Therefore, in order to enhance the scope of licence, the issuing authority has rather mentioned the licence valid for Non-transport vehicle. By this way, scope of driving licence is enhanced which was restricted to tractor only. In these circumstances, the opposite party has misconception that the licence was not valid for car in question. The repudiation of claim is illegal. It amounts to deficiency in service.
The complainant has brought on record Invoice (Ex. C-6) issued by AVC Motors Nissan, which is authorised service centre of manufacturing company. The repair was got done under supervision of the surveyor appointed by the opposite party. The complainant spent a sum of Rs. 1,46,940/-. The opposite party cannot make any cut in this amount. The opposite party has to reimburse this claim amount. Of course, the opposite party has produced on record report of Er. Dinesh K Goyal, Surveyor (Ex. OP-1/3), He has assessed the loss to the tune of Rs. 92,603/-. He has not allowed certain items but without mentioning any reason. The opposite party has arbitrarily, at its own level, further reduced the net loss to the tune of Rs. 79,757/-. In this way, the opposite party has also not accepted the survey report. Although the opposite party has reduced the amount from the amount assessed by surveyor but there is no reason for reducing the loss. The name of competent authority who has reduced the loss is not mentioned. There is no affidavit of the officer who has made cut in the assessment made by surveyor. In these circumstances, the report of surveyor is to be discarded in toto. The complainant is entitled to amount claimed by him.
In support of his submissions, learned counsel for the complainant has placed reliance on :-
a) 2008(2) ACJ 721 (SC) case titled NIC Vs. Annappa
b) 1999(3) CPJ 5 (SC) case titled Ashok Gangadgar Vs. OIC
c) 2011 (2) RCR Civil 508 (Pb.) OIC Vs. Mukesh
d) 2013 (3) RCR Civil 654 (SC) S. Iyyapan Vs. UIIC
e) 2014 94) RCR Civil 977 (SC) case titled Kulwant Singh Vs. OIC
f) 2017 AIR (SC)3668 case titled OIC Vs. Mukand Dewangan
g) FA No. 20/2012 case titled ICICI Lombard Vs. Rajinder Singh
h) 2009 (4) CPJ 46 case titled NIA Vs. Pradeep
i) 2003 (1) CPJ 107 (NC) case titled K L Malhotra Vs. OIC
j) 2009 (4) CPJ 230 (NC) case titled OIC Vs. Mehar Chand
On the other hand, learned counsel for the opposite party has submitted that the claim is based on insurance policy, copy of which is relied upon by the complainant as Ex. C-2. The contract of insurance is like ordinary contract. The parties are bound by terms and conditions mentioned in the policy. Although, the complainant has denied from having received copy of policy containing full terms and condition but copy of policy/cover note (Ex. C-2) also find mentioned the persons entitled to drive the vehicle. It is categorically mentioned that a person should hold effective driving licence at the time of accident and is not disqualified. Therefore, the complainant cannot deny the fact that driver was required to hold valid/effective driving licence on the date of accident. The complainant has claimed that he himself was driving the vehicle on the date of accident. He has also produced on record his driving licence (Ex. C-4). Of course earlier driving licence was valid for transport and tractor also but subsequently, on the date of accident, it was valid only for non transport vehicle. Ex. OP-1/13 is the 'Information regarding Class of Vehicle Details' and as per this, it proves that driving licence was valid from 17-5-2013 to 16-5-2016 only for LMV-TR and it was valid for non-transport vehicle from 17-5-2013 to 19-3-2026. Ex. OP-1/12 also details the Driving Licence of the complainant. As per this document also, MCWG and tractor only falls in the class of non-transport. Therefore, this document also proves that on the date of accident complainant was not holding valid driving licence for car involved in the accident. There was breach of terms and conditions of the policy. As such, the opposite party is not obliged to reimburse the claim. The repudiation of claim is legal and valid.
It is further submitted by learned counsel for the opposite party that if this Forum comes to the conclusion that repudiation is not sustainable, in that situation, the complainant cannot claim the amount more than assessed by surveyor. Of course, the surveyor has assessed the loss to the tune of Rs. 92,603/- but on further scrutiny, it was noticed that report of the surveyor was not showing correct value. It was showing more/high loss of car. After considering the same, it was found that net loss is to the tune of Rs. 77,807/- only. The complainant cannot claim more than this amount.
In support of his submissions, learned counsel for the opposite party has cited :-
a) 2004(2) RCR (Civil) 114 case titled NIC Vs. Swaran Singh & Ors.
b) 2008(8) RCR (Civil) 912 case titled Ram Babu Tiwari Vs. UIIC
c) 2003(10) SCC 289 case titled OIC Vs. Felix Correa & others
d) 2007(2) Recent Civil Reports 370 case titled Ishwar Chandra & Ors Vs. OIC
e) 2009 AIR (Supreme Court) 208 case titled NIC Vs. Vidhyadhar Mahariwala & Ors.
f) 2009 (2) CPC 531 case titled Ram Kumar Sinha Vs. NIC
g) 2014 (11) RCR (Civil) 951 case titled Delhi Transport Corporation Vs. Jagdish Kararia and others
h) 2007 (15) SCC 28 case titled NIC Vs. Jarnail Singh & Ors.,
i) 2009 (3) RCR Civil 500 case titled NIA Vs. Suresh Chandra Aggarwal
j) 2012 (9) RCR (Civil) 709 case titled Joginder Malta Vs. UIIC
k) 2008 (57) RCR (civil) 170 case titled Vinay Kumar Vs. OIC
l) 2006 (2) CPJ 491 case titled NIC Vs. Chhimae Dolma
m) 2010 (2) CPC 288 case titled SDO (AEE) Grid Const. Sub. Divn. & Anr. Vs. UIIC
n) 2018 (4) PLR 765 case titled Bajaj Allianz General Insurance Co. Ltd., Vs. Rambha Devi & Ors.
o) 2009 (4) CPJ 379 case titled UIIC vs. Ashok Aggarwal
p) 2010 (1) CLT 22 case titled NIA Vs. New Good Luck Retrading Works
q) 2012 93) CLT 211 case titled Lakhvinder Singh Bhamra Vs. Cholamandalam MS General Ins. Co.
r) (CSCDRC) (Raipur): Law Finder Doc Ld 585609 case titled Venkateshwar Ispat Limited Vs
s) 2004 (11) SCC 545 case titled Arvind Mills Ltd., Vs. M/s. Associated Roadways
We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.
The admitted facts are that the opposite party has repudiated the claim lodged by complainant vide letter dated 7-3-2018 (Ex. C-9). The ground for repudiation is that the complainant did not have valid and effective driving licence. Therefore, the controversy is whether the complainant was holding valid and effective driving licence on the date of accident or not.
Ex. C-3 is the copy of registration certificate of the car in question. It shows that class of vehicle is LMVCAR with Unladen Weight 1027 Kgs. The complainant has placed on record his driving licence (Ex. C-4). It is noticed that driving licence was previously valid for MV.GV : MCWG Transport & Tractor. Subsequently, it is mentioned as valid till (Non transport) 19-3-2026. In the last part of validity particulars of the vehicle for which it was valid is not mentioned. It is not disputed that vehicle falls under the definition of Light Motor Vehicle. For the sake of convenience, this definition, as given in Motor Vehicles Act, 1988, is reproduced below :-
2 (21) “ Light Motor Vehicles “
- means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 Kgs.
A perusal of aforesaid definition makes clear that car falls under the class of Light Motor Vehicle.
Now the point is whether the complainant is eligible to drive the car, although he was having valid licence of Non-transport vehicle. Definition of Non-transport vehicle is not given in Motor Vehicles Act. However, the Transport Vehicles is defined as under :-
2 (47) “Transport Vehicle”
- means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
When there is no specific definition of Non-transport vehicle, therefore, from the definition of Transport Vehicle, it is to be inferred that vehicles other than falling in the class of Transport Vehicles are Non-transport Vehicles. Therefore, it is clear that tractor and car also falls in the class of Non-transport Vehicles. The complainant was holding valid licence for Non-transport vehicles. Therefore, it is not accepted that complainant was not holding valid driving licence.
There is another aspect of the matter also. Hon'ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd (supra) also noticed that after amendment of Motor Vehicles Act 54 of 1994, the following class of licences were to be issued :-
a) motorcycle without gear
b) motorcycle with gear
c) invalid carriage
d) light motor vehicle
e) transport vehicle
f – h
i) road-roller
j) motor vehicle of a specific description
It was also noticed that in place of medium goods vehicle, medium passenger motor vehicles, heavy goods vehicle and heavy passenger motor vehicles, the category of “Transport Vehicle” was inserted.
This observation also makes it clear that Transport Vehicles means medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle and heavy passenger motor vehicle.
From this aspect also, the conclusion is that the complainant was not debarred from driving the vehicle in question only for the reason that he was holding licence for Non-transport and not for Transport vehicle.
Resultantly, repudiation of claim is not sustainable.
Now the point for determination is the amount to which complainant can be held entitled. The complainant has produced bill (Ex. C-6) to prove that he spent a sum of Rs. 1,46,940/-. Admittedly the opposite party appointed surveyor. The surveyors are appointed under statute. The report of surveyor is to be preferred even if there is invoice issued by authorized service centre. In case the matter is to be decided on the basis of invoice issued by authorized service centre, there would be no purpose to appoint surveyor. The opposite party has produced on record report of surveyor (Ex. OP-1/3) whereby the surveyor has assessed the loss to the tune of Rs. 92,603/-.
Hon'ble National Commission in the case titled New India Assurance Co. Ltd Vs. Kamal Naryan 2007(1) CLT 112 (N.C) has held :- “Report of Surveyor is an important piece of document and evidence – Cannot be brushed aside without sufficient reasoning.”
The surveyor has assessed the net loss to the tune of Rs. 92,603/- . The opposite party has reduced this amount to the tune of Rs. 79,757/- but there is nothing on record which authority has reduced this amount. Therefore the complainant is held entitled to claim amount of Rs. 92,603/- with compensation by way of interest @ 9% P.A. from the date of repudiation till payment.
In view of what has been discussed above, this complaint is partly accepted with Rs. 10,000/- as cost. The opposite party is directed to pay to complainant Rs. 92,603/- with interest @ 9% P.A. w.e.f. 7-3-2018 till payment.
The compliance of this order be made within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
16-10-2019
(M.P.Singh Pahwa )
President
