Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that complainant M/S Devi Dass Gopal Krishan (A Unit of Puri Oil Mills Ltd), Gandhi Road, Moga Tehsil & District Moga, is engaged in the business of processing/manufacturing of mustard oil and cattle feed mustered cakes and do the trading thereof in order to earn livelihood. That vide resolution dated: 09.12.2022 the Board of directors have authorized Mr. Ramesh Chander to file the present complaint to engage counsel, to sign complaint, give affidavit, evidence, suffer statement and do all acts in the prosecution of present complaint.
Alleged that complainant company had taken insurance policy from the Opposite Party to insure the truck bearing No.PB29J-9301 owned by them, vide Policy No.2012003121P113132570 for the period w.e.f 21.03.2022 to 20.03.2023. One Avtar Singh son of Nachattar Singh was the driver of above said Truck. On 05.08.2022 the said driver Avtar Singh was taking the above said Truck No.PB29J-9301 carrying in it mustard oil and refined oil vide Invoice No.TI/1166 dated: 04.08.2022 from Moga to Jalandhar and when the said truck was passing through Shahkot, on a newly constructed National Highway. Suddenly a stray animal came in front of said truck and in a effort to save said stray animal, the said truck got turnturtle and got damaged. On this report regarding above said accident was got recorded in Rapat Roznamcha in Police Station, Shahkot on 05.08.2022 and on the same day, vide letter dated 05.08.2022, the complainant gave written intimation to the opposite party regarding the said accident and it requested the opposite party to depute surveyor for assessment of loss incurred by the complainant in respect of above said truck due to above said accident. However, vide its letter dated 26.12.2022, Opposite Party declining the claim of complainant on the flimsy ground that "Driving License not valid". The complainant mailed a letter dated 07.01.2023 to the Regional Manager of opposite party insurance company at Ludhiana. But, vide reply dated: 24.01.2023, opposite party reiterated its earlier order dated: 26.12.2022 of repudiating the claim of complainant. The opposite party had registered the claim application (intimation letter) as claim No.2012003122C050151001. The nature of the insurance policy is GCV Private Carrier Package Policy and Policy Number is 2012003121P113132570 and Marine Insurance Policy Number is 2012002122 P100186981. Said policy was effective from 21.03.2022 to 20.03.2023. Alleged further that order dated 26.12.2022 of opposite party declining the claim of complainant on the ground of driving licence is illegal, null and void, as driver Avtar Singh son of Nachattar Singh who was driving the truck in question at the time of accident on 05.08.2022 was employed by the complainant on 29.04.2022, a few months earlier to the date of accident after ensuring that said driver had experience of driving heavy vehicles of about five years; before joining complainant, said Driver Avtar Singh had been driving heavy vehicles on long route of Bombay and Guwhati; before joining complainant said Driver Avtar Singh had produced before the complainant his driving licence with its validity till 05.11.2026; said driver Avtar Singh was driving the said Truck satisfactorily; undisputedly, an accident took place on newly constructed national Highway due to sudden entry of a stray animal in front of said truck being driven by said driver Avtar Singh who tried his best to save said stray animal and in this process truck got turnturtled. This circumstance has not no relation with the driving skill of the said driver Avtar Singh, who has been driving the said truck since 29.04.2022 satisfactory. Alleged further that on giving intimation of accident to opposite party on 05.08.2022 and making request of appointing surveyor for assessing damages/losses suffered by the said Truck No. PB29J-9301 the opposite party did not appoint surveyor and did not get assessed damages/losses suffered by the said Truck, rather issued letter dated 26.12.2022 declining/repudiating claim of complainant. The complainant on its own got repaired the above said damaged Truck and incurred an amount of Rs.1,99,298/- in total. So, the Opposite Party is liable to make the payment of the said amount. Claiming such act and conduct on the part of the Opposite Party deficiency in service, the complainant has filed the present complaint. Vide instant complaint, the complainant in question has sought the following reliefs:-
a) Opposite Party may be directed to make the payment Rs.1,99,298/- incurred by the complainant for the repair of truck in question.
b) To pay interest @ 18% p.a. w.e.f date of lodging claim till realization.
c) To pay an amount of R.50,000/- as compensation as well as deficiency service.
d) To pay an amount of Rs.55,000/- as cost of the complaint.
e) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Party filed written version taking preliminary objections therein inter alia that this Commission has got no jurisdiction to try and decide the present complaint since there is no deficiency in service or negligence as alleged on the part of answering Opposite Party. The complainant has lodged the claim with the opposite party regarding damage of their truck bearing registration no.PB-29J-9301 and immediately on receipt of the claim it was duly registered, entertained and processed. Mr. A.K Kapoor Surveyor and Loss Assessor was deputed for spot survey and he inspected the vehicle, clicked photographs, collected documents and submitted his spot survey report dated 06.10.2022. M/s K.S Bawa & Co., Surveyors and Loss Assessors were deputed for final survey and assessment of the loss. M/s K.S Bawa & Co. through its representative inspected the vehicle, took photographs, collected documents and they submitted their Final Survey Report dated 30.09.2022 alongwith documents and they assessed the loss of Rs.1,02,000/- subject to terms and conditions of the policy. The complainant submitted copy of driving licence of driver Avtar Singh S/o Sh.Nachattar Singh bearing DL no.PB-2920170076483. The said driving licence of Avtar Singh was got verified through Er. Gurwinder Singh Patheja, Surveyor and he got verified the said -DL from Regional Transport Authority, Faridkot and submitted his report dated 21.12.2022 alongwith verification report. The RTA, Faridkot has confirmed that said DL is valid for MCWG and LMV from 13.02.2017 to 31.12.2031. The said DL was valid for transport from 06.11.2018 to 05.11.2021, but the alleged accident took place on 05.08.2022. So at the time of accident the driver was not having valid DL to drive Heavy Goods Vehicle. The said DL was valid only for MCWG and LMV at the time of accident but the said truck no.PB-29J-9301 is Heavy Goods Vehicle (HGV) and the driver Avtar Singh was not having valid and effective driving licence to drive Heavy Goods Vehicle. After receipt of the Final Survey Report along with documents and verification report of DL, the claim of the complainant was duly scrutinized in terms of insurance policy and after applying the mind by the official of the company, the claim of the insured/complainant was found not payable and claim was repudiated vide repudiation letter dated 26.12.2022 on the ground that DL not valid. The complainant has violated the terms and conditions of the policy as the driver was not having valid and effective driving licence to drive the vehicle in question at the time of accident. Averred further that vehicle in question is Heavy Goods Vehicle (HGV) gross vehicle weight of which is 16200kg. The complainant has produced on record copy of fitness certificate in which category of vehicle in question has been specifically mentioned as HGV. In insurance policy it has been specifically mentioned that gross vehicle weight is 16200kg. The complainant has produced on record copy of RC of the vehicle in question in which it has been specifically mentioned that gross vehicle weight is 16200kg and class of vehicle has been mentioned HGV. So, the driver was not having valid DL for driving the vehicle in question and claim has been rightly repudiated vide letter dated 26.12.2022. The complainant replied to the repudiation letter vide their reply dated 07.01.2023. The complainant is not entitled for any claim. The present complaint is not maintainable since complicated question of aw and facts are involved which required elaborated evidence both oral and documentary and as such it is only civil court of competent jurisdiction which can try and decide the present complaint. The complaint cannot be decided by this Honorable Commission in a summary manner; the complaint is barred U/s 26 of the Consumer Protection Act; the complainant is estopped by their own act and conduct from filing the present complaint since the complainant has not come to this Commission with clean hands and had concealed the material facts from this Commission and as such they are not entitled to the any discretionary relief from this Commission; the complainant is not consumer as defined in the Consumer Protection Act. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is being made.
3. Complainant has also filed replication to the written reply of Opposite Party and denied all the objections raised by Opposite Party in its written reply.
4. In order to prove his case, Director of the complainant’s firm has placed on record his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C24.
5. On the other hand, Opposite Party has placed on record affidavit of Shama Arora Mittal, Divisional Manager, United India Assurance Co. Ltd. Ex.OP1/A, affidavit of Er.Gurwinder Singh Patheja, Surveyor and Loss Assessor Ex.OP1/B alongwith copies of documents Ex.OP1 to Ex.OP62 and affidavit of Sh.A.S.Kapoor, Surveyor and Loss Assessor Ex.OP63.
6. We have heard the counsel for the parties and gone through the written arguments submitted on behalf of both the parties and also gone through the documents placed on record.
7. It is admitted that complainant’s company got insured one truck bearing No.PB29J-9301, vide Policy No.2012003121P113132570 for the period w.e.f 21.03.2022 to 20.03.2023. One Avtar Singh son of Nachattar Singh was hired as driver to drive that truck by the complainant company. Not disputed that on 05.08.2022 the said driver Avtar Singh was plying the said Truck No.PB29J-9301 carrying in it mustard oil and refined oil vide Invoice No.TI/1166 dated: 04.08.2022 from Moga to Jalandhar and the said truck met with an accident near Shahkot due to which the said truck got damaged. Also the report regarding above said accident was got recorded in Rapat Roznamcha in Police Station, Shahkot on 05.08.2022 and on the same day, vide letter dated 05.08.2022 a written intimation was also given to Opposite Party raising the claim. However, the Opposite Party declined the claim of complainant on the ground that Driving License of driver Avtar Singh was found not valid and now the said repudiation has been challenged under the present complaint claiming it to be wrong and illegal.
8. Ld. counsel of the Opposite Party has repelled the claim of the complainant stating that the complainant has lodged the claim with the opposite party regarding damage of their insured truck bearing registration no.PB-29J-9301 and immediately on receipt of the claim it was duly registered, entertained and processed. Mr. A.K Kapoor Surveyor and Loss Assessor was deputed for spot survey and he inspected the vehicle, clicked photographs, collected documents and submitted his spot survey report dated 06.10.2022. Thereafter, M/s K.S Bawa & Co., Surveyors and Loss Assessors were deputed for final survey and assessment of the loss. M/s K.S Bawa & Co. through its representative inspected the vehicle, took photographs, collected documents and submitted the Final Survey Report dated 30.09.2022 alongwith documents and they assessed the loss to the tune of Rs.1,02,000/- subject to terms and conditions of the policy. The complainant submitted copy of driving licence of driver Avtar Singh S/o Sh.Nachattar Singh bearing DL no.PB-2920170076483. The said driving licence of Avtar Singh was got verified through Er. Gurwinder Singh Patheja, Surveyor from Regional Transport Authority, Faridkot who submitted his report dated 21.12.2022 alongwith verification report. The RTA, Faridkot confirmed that said driving license is valid for MCWG and LMV from 13.02.2017 to 31.12.2031. It is submitted further that the said driving license was valid for transport from 06.11.2018 to 05.11.2021, but the alleged accident took place on 05.08.2022. So at the time of accident the driver was not having valid driving license to drive Heavy Goods Vehicle. The said DL was valid only for MCWG and LMV at the time of accident. So, the claim of the complainant was found not payable and claim was repudiated vide letter dated 26.12.2022 on the ground that DL not valid.
9. So, from the above, the main ground for rejection of the claim in question by the Opposite Party is that at the time of accident the driver in question was not holding a valid and effective driving license. It is submitted by the counsel for the complainant that while hiring the said driver i.e. Avtar Sigh his driving license as supplied by him (Ex.C14) was seen and checked and on this very license, it was duly mentioned that it was valid for driving a transport vehicle upto 05.11.2026 and for driving non transport it was valid upto 31.12.2031. Now, in the given scenario, it is to be seen that whether the repudiation of the claim is justified or not, for the just decision of the present complaint.
To resolve the issue in dispute we are well guided by the judgement of Hon’ble Supreme Court of India in Civil Appeal No.4919 of 2022 titled as Rishipal Singh Vs. New India Assurance Co. Ltd. & Ors. Decided on 26th July, 2022, wherein Hon’ble Supreme Court of India held as under:-
“The owner of the vehicle is expected to verify the driving skills are not run to the licensing authority to verify the genuineness of the driving license before appointing a driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving license issued to the driver.”
As per the judgement so rendered by the Hon’ble Supreme Court of India (Supra), it is now established that while employing a driver, driving license of the said driver could only be checked and his driving skills are to be adjudged at the most and it is not expected that driving license be also verified from the authorities to check its genuineness when once the driver is also driving the vehicle perfectly.
10. From the perusal of the verification report (Ex.OP8) as procured by the Opposite Party, it is evident enough that driving license in question is valid for MCWG and LMV from 13.02.2017 to 31.12.2031 and was valid for transport from 06.11.2018 to 05.11.2021, which in actual was shown valid uptil 05.11.2026 in the driving license (Ex.C14) as provided by the driver in question to the complainant company), whereas the alleged accident took place on 05.08.2022. That means the driving license shown by the driver in question was partially valid for which the complainant company was not aware. So, there is no fault attributable on the part of the complainant company for the wrong played upon it by the driver in question. It has also been observed that the driver in question was having the requisite skill to drive the transport vehicle in question and was duly issued the driving license which for the reason best known to the driver in question was shown valid uptil 05.11.2026 whereas the validity period was uptil 05.011.2021. In our concerted opinion for the abovesaid reason the repudiation of the genuine claim of the complainant company is illegal and unjustified and Opposite Party is liable to make good the loss of the complainant company.
11. In view of the discussion above and being guided by the judgement as referred above, we are of the opinion that the Opposite Party rendered deficient services and has wrongly and illegally repudiated the genuine claim of the complainant .
12. Now come to the quantum of amount to be awarded to the complainant. Vide instant complaint, the complainant claimed the amount of Rs.1,99,000/- spent on the repair of truck in question. However, surveyor duly appointed by Opposite Party namely K.S. Bawa & Co. vide his Final Motor Survey report assessed the amount to the tune of Rs.1,02,000/- and the said report has not been countered by the complainant by way of any affidavit/document in contrary. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”.
13. Keeping in view the aforesaid facts and circumstances and relying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
14. Sequel to the above discussion, the present complaint is partly allowed and Opposite Party is directed to make the payment of Rs.1,02,000/-(Rupees One Lakh Two Thousand only) to complainant as been assessed by the surveyor of the Opposite Party alongwith interest @ 9% per annum from the date of assessment i.e. 30.09.2022 till its actual realization. Further Opposite Party is directed to pay to the complainant costs of Rs.20,000/-(Rupees Twenty Thousand only) as compensation for rendering deficient service and Rs.10,000/- (Rupees Ten Thousand only) as litigation expenses for burdening unavoidablve litigation. The pending application (s), if any also stands disposed of. The compliance of this order be made by the Opposite Party within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party is further burdened with additional cost of Rs.20,000/-(Rupees Twenty Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
