Gurdeep Singh, duly authorized Partner of M/s Apex Industries, Bathinda, (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 complainant firm is duly Regd. owner of Tata Super Ace Vehicle No.PB-03-AJ-0248 and Gurdeep Singh is duly authorised partner of the firm. The said vehicle is comprehensively insured (Package Insurance) with opposite party vide Insurance Cover Note No. 2004013116N100293231 w.e.f. 15-11-2016 to 14-11-2017 for the IDV of Rs.3,50,000/-.
It is alleged that opposite party obtained signatures of the Insured on blank proposal form as per Regulations of IRDA under Regulation (4)(1) of 2002. The IDV was fixed by the opposite party as per IMT and under GR-8 of IMT. It is settled principal that in case of Total Loss, the IDV will be paid by the Insurer and if loss exceeds 75%, it is a case of total loss.
It is pleaded that on 13-11-2017, the vehicle met with an accident with motor cycle in the revenue limits of P.S. City Barnala. At that time, Gurpreet Singh S/o Gurcharan Singh was driving the said vehicle. FIR No. 371 dated 13-11-2017 was registered at P.S. City Barnala. The complainant immediately lodged claim with the opposite party. The opposite party appointed spot surveyor Mr. B.L. Goyal from Dhuri. He inspected the vehicle at the spot. Thereafter, the vehicle was shifted with M/s Honey Enterprises, Tata Authorized Service Centre, NH-64, Bathinda-Dabwali Road, Gehri Butter, Bathinda, for estimates and repairs under the directions of opposite party and their spot surveyor. The said workshop issued estimates to the tune of Rs. 3,96,690/- against IDV of Rs.3,50,000/-. It exceeds 75% of the IDV. As such, it is a total loss. The opposite party appointed final surveyor M/s G.S. Associates from Bathinda. The complainant supplied all the documents. The complainant spent Rs.2,300/- for shifting the vehicle from spot to Bathinda and preparing estimates. Mr. Gurjinder Singh of M/s G.S Associates surveyed the vehicle and declared it a total loss as per GR-8 of the IMT. He also took signatures of the complainant on some blank forms, and discharge voucher with the understanding that it is a total loss.
It is pleaded that complainant approached opposite party and their higher officials and demanded total loss claim. The complainant also demanded copy of Spot and Final Survey Report but they did not supply the same. M/s. Honey Enterprises demanded Rs.250/- per day as parking charges. Having no alternative, complainant shifted the damaged vehicle without repair, as the cost of repair is more than IDV.
It is further pleaded that during processing of the claim, the opposite party appointed another person called as Investigator Mr. Parduman K. Sharma (Former Employee of Insurance Co.) for the verification of DL and papers of vehicle. The DTO Bathinda duly declared that Gurpreet Singh driver is holding valid DL for LMV/MCWG/Tractor only w.e.f. 09-11-2016 to 08-11-2036.
It is further pleaded that complainant received letter dated 29-03-2018 from the office of the opposite party vide which they rejected the claim of the complainant with the remarks that the driving licence of the driver is not valid.
In support of pleadings, the complainant has mentioned various authorities, the reproduction of which is not considered necessary at this stage for the sake of brevity.
It is also pleaded that due to non-payment of total claim amount, complainant is suffering mental agony and pains. For these sufferings, he has claimed compensation to the tune of Rs.50,000/- in addition to claim amount Rs.3,50,000/- i.e. IDV of vehicle; Rs 2300/- shifting charges; Rs 2,000/- per month as parking charges and Rs. 50,000/- as litigation expenses alongwith interest @ 18% P.A. 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 registered firm nor it has produced certified copy of Forms "A" & "C" from registrar of firms, Chandigarh. The case is barred u/s 69 of Indian Partnership Act. The case has not been filed by a duly authorised and competent person. The accident has allegedly taken place at Barnala. This Forum has got no jurisdiction to try and entertain this complaint. That the complainant has no locus standi and cause of action to file the complaint. That the claim in question was rejected only after getting it duly investigated from competent person. It was found that vehicle was being driven in utter violation of terms and conditions of insurance policy with due knowledge of insured. The driver of vehicle, at the time of accident, was not having a legal and valid driving licence. The claim has been rightly held as no claim.
It is pleaded that complainant has concealed true and material facts from this Forum. He is estopped from filing the complaint due to his acts, conducts, omission, admissions and acquiescence. That complicated questions of law and facts are involved in this case, which can be decided only after allowing the parties to adduce documentary and oral evidence. It is not possible under summary procedure. The complainant does not fall under the definition of consumer.
It is pleaded that the office of RTA, Bathinda, has specifically given in writing that Gurpreet. Singh is having licence of LMV/MCVG/Tractor only and not valid for goods vehicle whereas Super Ace is purely commercial vehicle and goods vehicle. To drive the same, specific endorsement is required.
The further legal objections are that the vehicle in question is commercial and was being applied for commercial purposes. That the complaint is bad for non-joinder of necessary parties. The alleged accident was caused by unknown driver and unknown vehicle That the complaint is false, frivolous and vexatious. It has been filed to get wrongful benefit.
On merits, ownership of complainant firm over the vehicle is stated to be matter of record. Issuance of Insurance policy is not denied but it is mentioned that it is subject to specific terms, conditions, exceptions. All other averments of the complainant are denied. In the end, the opposite party prayed for dismissal of complaint.
In support of complaint, the complainant has tendered into evidence affidavit dated 14-8-2018 of Gurdeep Singh (Ex. C-1), photocopy of Cover Note (Ex. C-2), photocopy of R.C. (Ex. C-3), photocopy of D.L. (Ex. C-4), photocopy of FIR (Ex. C-5), photocopy of estimates (Ex. C-6), photocopy of exemption from permit (Ex. C-7), photocopy of no claim letter (Ex. C-8), photocopy of fitness (Ex. C-9), authority letter (Ex. C-10), photocopy of Form 'A' (Ex. C-11), photocopy of Form 'C' (Ex. C-12), payment receipt (Ex. C-13), affidavit dated 14-8-2018 of Amarjeet Singh (Ex. C-14), payment receipt (Ex. C-15) and closed the evidence.
In order to rebut this evidence, the opposite party has tendered into evidence affidavit dated 22-10-2018 of Baldev Singh (Ex. OP-1/1), photocopy of policy (Ex. OP-1/2), photocopy of survey report (Ex. OP-1/3), photocopy of estimate (Ex. OP-1/4), photocopy of final survey report (Ex. OP-1/5), photocopy of verification of DL (Ex. OP-1/6), photocopy of letter (Ex. OP-1/7) and closed the evidence.
The complainant has submitted written arguments also.
We have heard learned counsel for the parties, written arguments of the complainant and gone through the record.
The learned counsel for the parties have reiterated their stand as taken in their respective pleadings and detailed above.
To support submissions, learned counsel for the complainant has cited following case law :-
a) 2018 (2) RCR Civil 358 (SC) case titled Jagdish Kumar Sood Vs. UIIC
b) 2017 AIR (SC) 3668 case titled Mukund Dewangan Vs. OIC
c) 2014 (4) RCR Civil 977 SC case titled Kulwant Singh Vs. OIC
d) 2019 (4) RCR Civil 549 P & H, HC, case titled Iffco Tokio GICVs.Radha Devi Pandey
e) FAO No. 2228 of 2013 decided on 7-10-2017 P&H, HC, case titled NIC Vs. Billu Singh
d) 2008 (2) ACJ 721 SC case titled NIC Vs. Annappa
f) 2013 (3) RCR Civil 654 (SC) case titled S Iyyapan Vs. UIIC
g) 2011 (2) RCR Civil 508 (Pb) case titled OIC Vs. Mukesh
h) 2017 (3) R.C.R. (Civil 757) case titled Sant Lal Vs. Rajesh & Ors.
We have carefully gone through the record and have considered the rival contentions.
The admitted facts are that the complainant being owner of vehicle got it insured from the opposite party. No. 1. The Insurance was valid from 15-11-2016 to 14-11-2017. The vehicle met with an accident on 13-11-2017 i.e. within covered period. The complainant lodged claim. The opposite party appointed spot surveyor, final surveyor and then Investigator but after receipt of survey reports, the opposite party repudiated the claim vide letter dated 29-3-2018 (Ex. C-8).
From the perusal of this letter, it is noticed that the opposite party has denied the claim by observing that driver Gurpreet Singh was not holding licence for goods vehicle.
Therefore, main point for consideration is whether the driver was holding valid driving licence or not.
The certificate of registration (Ex. C-3) proves that class of the vehicle is LGV (Light Goods Vehicle) and GVW 2180 Kgs. Unladen Weight is 1180 Kgs. The driving licence of Gurpreet Singh (Ex. C-4) proves that it was valid for LMV (NT) only.
As per Section 2 (21) of Motor Vehicles Act, 1988, light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of which does not exceed 7500 Kgs. Therefore, from this definition, it is clear that the vehicle in question falls under the category of LMV and the driver Bhushan Kumar was competent to drive this vehicle.
In the case of Sant Lal Vs. Rajesh & Ors. (supra), Hon'ble Supreme Court after relying upon the observations recorded in the case of Mukund Dewangan Vs. Oriental Insurance Company, set aside the order of repudiation. The repudiation was on the ground that driver was having licence to drive light motor vehicle but was driving tractor attached to trolley.
Keeping in view the law laid down in the cited case also, the conclusion is that driver Gurpreet Singh was competent to drive the vehicle in question. The vehicle falls in the definition/category of LMV and Gurpreet Singh was holding licence for LMV.
Therefore, the conclusion is that the driving licence issued to the driver Gurpreet Singh covers the vehicle involved in the accident also. As such, repudiation of claim is not sustainable.
Now the point for determination is the amount to which complainant can be held entitled. The complainant has pleaded that it is a case of total loss. The estimate for repair is to the tune of Rs. 3,96,690/- which is more than IDV of the vehicle. Of course, the opposite party appointed surveyor and the report of surveyor is Ex. OP-1/5, but the surveyor has not assessed the loss despite the fact that surveyor was provided estimates obtained from the authorized service centre of the vehicle. However, the surveyor has recommended that insured is not interested to pursue the claim and assessment is not possible considering nature of repair. When the surveyor himself has admitted that assessment is not possible considering nature of repair, therefore, it is to be inferred that vehicle is beyond repair and is a total loss. In these circumstances, complainant is held entitled to IDV of the vehicle i.e. Rs. 3,50,000/-.
Therefore the complainant is held entitled to claim amount of Rs. 3,50,000/- 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. 3,50,000/- with interest @ 9% P.A. w.e.f. 29-3-2018 till payment. The complainant will execute letter of subrogation/documents and complete the other formalities, if any, required by law for release of claim
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 :
12-12-2019 (M.P.Singh Pahwa )
President
(Manisha)
Member
