By: Sri. Sri. Mohamed Ismayil C.V., Member
The grievance of the complainant is as follows:-
1. The complainant purchased one JCB 3DX -2WD SIDE BACKHUE LOADER (KL53 P 5999) in order to facilitate his construction business and insured the vehicle with first opposite party . The first opposite party issued insurance policy certificate No.3004823119P113860818 and insurance coverage was valid between 29/01/2020 to 28/01/2021. As per the terms and conditions of the policy ,the opposite party was liable to indemnify the damages caused due to any accident to the vehicle. It is stated in the complaint that JCB vehicle met with an accident when it was working at a site, while trying to save a workman it was overturned due to unstable soil. The complainant approached the first opposite party along with photographs of the incident and as a result , surveyor came and inspected the vehicle thereby convinced and a estimate was given by the second opposite party and same was forwarded to the first opposite party for its approval . As per the instruction, the complainant submitted all relevant documents before the first opposite party. On the basis of direction given by the first opposite party the complainant purchased GA NON ROPS CAB – glazed material for repairing the JCB by spending 2,78,051/- from the second opposite party . The complainant also spent Rs.20,000/- as service charges. So the first opposite party is liable to reimburse all the expenses incurred for repair of damaged JCB vehicle as per the terms and conditions of the policy. The complainant approached the first opposite party to get reimbursed above said amount. But first opposite party was reluctant to refund the amount by stating that the complainant has no right to claim for reimbursement. The first opposite party issued a notice to the complainant on 04/11/2020 informing that the driver, who was driven the vehicle at the time of alleged accident did not have valid licence and thereby denying the claim of the complainant. When the complainant approached the first opposite party for clarification, the first opposite party stated that the driver was driving the vehicle having 70 kg heavier than the weight permitted by licence and therefore insurance claim could not be allowed. According to the complainant, the reason for repudiation of claim is frivolous in nature and is a trick for making loss to the complainant. The first opposite party was convinced of all facts and thereafter spare parts of the JCB vehicle was purchased and bill was issued in favour of the first opposite party. After remitting the entire amount by the complainant himself he has taken back the repaired vehicle from the second opposite party. The act of the first opposite party has caused mental agony, hardship. The construction work of the complainant also halted and thereby incurred financial loss. The driver of the JCB vehicle was Mr. Rahul S/o Rajan , who was appointed as driver ever since the complainant insured JCB vehicle and also at the time of accident MR. Rahul was driving the JCB vehicle with required licence. The validity period of licence was between 30/01/2010 and 29/01/2030 and licence number is 53/672/2020. The complainant produced all relevant documents including the driving licence of the driver. The first opposite party committed deficiency in service and unfair trade practice towards the complainant. The delay for reimbursement on the side of the first opposite party had caused financial loss of Rs.2,00,000/- to the complainant and also suffered mental agony and hardship . So the complainant prayed for a direction to the first opposite party to reimburse Rs.2,98,051/- as the expenses incurred for the repair work of the vehicle and Rs.2,00,000/- as compensation for mental agony and hardship suffered due to the act of first opposite party .
2. The complaint is admitted on file and issued notices to the opposite parties. The first opposite party appeared before the Commission and filed version. The second opposite party received notice but did not turn up and no version is filed hence set exparte.
3. In the version, the first opposite party admitted the insurance coverage under the Special Cover Miscellaneous and Special Type of Vehicles package policy to the vehicle of the complainant. According to him the policy was valid from 29/01/2019 to 28/01/2020. It is contended that there was no liability on the part of the first opposite party to compensate the damages as claimed by the complainant. The appointment of surveyor is admitted by the first opposite party and further added that a report was filed by the surveyor after inspection. According to the first opposite party the driver named Rahul was not entitled to drive the vehicle insured by the first opposite party. The driver of the complainant has a valid driving license only to drive Motor cycle, Light motor vehicle and Excavator. But in this case, the driver driven a MMV (Medium Motor Vehicles) construction equipment of 7570 kgs GVW (Gross vehicle weight). It is submitted by the first opposite party that an excavator comes under the category of weight below 7500 Kg and a MMV comes under the category of vehicles having gross weight of 7500 Kg to 9000 Kg. So the person who has driven the above said vehicle is not having a valid driving license to drive a MMV and hence the claim is repudiated by the first opposite party. The first opposite party did not commit any kind of deficiency in service or unfair trade practice towards the complainant and the complainant is not entitled for compensation as prayed in the complaint. As per the terms and conditions of the policy the first opposite party is not liable to compensate the damage as vehicle was driven by a person who is not having a valid driving licence. So the first opposite party prayed for dismissal of the complaint with compensatory cost.
4. The complainant and first opposite party filed affidavit and produced documents. The documents produced by the complainant marked as Ext. A1 to A10 documents. Ext. A1 document is the copy of certificate of registration of vehicle No. KL 53 P 5999 owned by the complainant. Ext. A2 document is the copy of driving licence of the driver named Rahul. Ext. A3 document is the copy of insurance policy certificate dated 29/01/2020 issued by the first opposite party to the complainant. Ext. A4 document is the copy of purchase bill dated 09/09/2019 issued by the second opposite party to the complainant. Ext. A5 document is the copy of repudiation letter dated 04/11/2020 issued by the first opposite party to the complainant. Ext. A6 document is the copy of bill dated 05/09/2019 issued by the second opposite party to the first opposite party. Ext. A7 document is the copy of insurance policy certificate dated 29/01/2019 issued by the first opposite party to the complainant. Ext. A8 document is the copy of insurance policy certificate dated 29/01/2020 issued by the first opposite party to the complainant. Ext. A9 document is the copy of insurance policy certificate dated 29/01/2021 issued by the first opposite party to the complainant. Ext.A10 document is the copy of insurance policy certificate dated 29/01/2022 issued by the first opposite party to the complainant. The document produced by the first opposite party marked as Ext. B1 to B2 documents. Ext. B1 document is the copy of insurance policy certificate dated 29/01/2019 issued by the first opposite party to the complainant. Ext. B2 document is the copy of insurance survey report dated 21/06/2021.
5. Heard both parties in detail. Perused documents and affidavits. The points arisen for the consideration of the Commission are :-
- Whether the opposite parties committed any kind of deficiency in service or unfair trade practice as alleged in the complaint?
- If yes, then what is the relief and cost?
6. Point No.1 and 2
The complainant averred that his JCB 3DX 2WD side Backhue loader numbered as KL 53 P5999 has been insured with the first opposite party. In order to prove the ownership of the vehicle, the complainant produced copy of certificate of Registration issued by the authority and same is marked as Ext. A1 document. The complainant also produced copy of insurance policy certificates issued by first opposite party to the complainant to show the existence of valid insurance policy coverage and those documents are marked as Ext. A3, Ext.A7, Ext. A8, Ext. A9 and Ext. A10 respectively. Ext.A3 and A8 documents produced by the complainant are one and same. By going through those documents , it can be seen that the complainant was subscribing insurance policy coverage for a long period of time from the first opposite party . It is submitted by the complainant that his vehicle was met with an accident and sustained damages to the vehicle. So he approached the first opposite party to indemnify the damage caused to the vehicle due to the accident under the coverage of insurance policy. According to the complainant, he had spent total Rs.2,98,051/- for repairing the damages of the vehicle , occurred in the accident and that amount is to be reimbursed by the first opposite party as per the terms and conditions of policy coverage . The complainant produced Ext. A4 and A6 documents before the Commission to prove the expenses incurred for the repair work. It is submitted by the complainant that his claim for reimbursement was repudiated by the first opposite party alleging that driver of the vehicle did not possess valid licence at the time of accident. The repudiation letter issued by the first opposite party is produced by the complainant and marked as Ext. A5 document. On the contrary , it was contended by the first opposite party that at the time of alleged accident the driver of the vehicle was not possessed valid licence for driving the insured vehicle . According to the first opposite party the driver of the vehicle possessed licence only to drive motor cycle, light motor vehicle and excavator, but herein in this case, the above said driver had driven a MMV (Medium Motor Vehicle) construction equipment of having 7570 kgs GVW. It is submitted by the learned counsel for the first opposite party that the excavator comes under the category of weight below 7500Kg but a MMV comes under the category of vehicles having gross weight of 7500 Kg to 9000 Kg . When evaluating the evidence adduced by both sides, this Commission cannot stand with the argument put forward by first opposite party . As per Exts A3, A7, A8,A9 and A10 documents produced by the complainant and Ext. B1 document produced by the first opposite party the weight of the insured vehicle is 7460/-GVW . Ext. B1 document and Ext. A7 document are one and same. There is no document available before the Commission to show the weight of the vehicle as 7570 GVW except the surveyor report produced by the first opposite party and same is marked as Ext. B2 document by the Commission. The difference stated in Ext. B2 documents and policy certificates are very ignorable one and there is every chance for any additional fittings done at work site for proper functioning of the vehicle. Moreover it can be seen that there was no finding on the part of the surveyor that due to change of weight accident was occurred. Ext. B2 document is prepared on 20/03/2020 and after the preparation Ext. B2 document the first opposite party issued Ext. A10 document to the complainant. So it can conclude that the gross vehicle weight of the insured vehicle is 7460 and there is no justification for repudiation of the claim by the first opposite party. Moreover Ext. A3, A7, A8, A9, A10 and B1 documents clearly states that a person holding an effective learners licence may also drive the vehicle and such person satisfies the requirement of Rule 3 of Central Motor Vehicle Rule 1989.
7. The vehicle insured with the first opposite party is coming under the category of excavator. The driver has valid license for driving an excavator at the time incident. So there is no ground for repudiation of the claim made by the complainant. So there is deficiency in service on the part of the first opposite party by illegally rejecting the claim on frivolous ground. In the result, the Commission allows the complaint in the following manner. There is no claim against second opposite party in the complaint and so the second opposite party is exonerated.
- The first opposite party is directed to reimburse Rs.2,98,051/- to the complainant as the expense incurred for the repairing the damages caused to the insured vehicle of the complainant.
- The first opposite party is directed to pay Rs.25,000/- as compensation for the mental agony and hardship suffered due to the deficiency in service on the part of the first opposite party .
- The opposite party is also directed to pay Rs.10,000/- as the cost of the proceedings to the complainant
The opposite parties shall comply this order within one month from the date of receipt of this order; otherwise the entire amount shall bear 9% of interest per annum from date of order till realisation.
Dated this 14th day of December , 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A10
Ext.A1: Copy of certificate of registration of vehicle No. KL 53 P 5999 owned by the complainant.
Ext.A2: Copy of driving license of the driver named Rahul.
Ext A3: Copy of insurance policy certificate dated 29/01/2020 issued by the first
opposite party to the complainant.
Ext A4: copy of purchase bill dated 09/09/2019 issued by the second opposite party to the complainant.
Ext A5: copy of repudiation letter dated 04/11/2020 issued by the first opposite party to the complainant.
Ext.A6: copy of bill dated 05/09/2019 issued by the second opposite party to the first opposite party.
Ext.A7: copy of insurance policy certificate dated 29/01/2019 issued by the first opposite party to the complainant.
Ext A8: copy of insurance policy certificate dated 29/01/2020 issued by the first opposite party to the complainant.
Ext A9: copy of insurance policy certificate dated 29/01/2021 issued by the first opposite party to the complainant.
Ext A10: copy of insurance policy certificate dated 29/01/2022 issued by the first opposite party to the complainant.
Witness examined on the side of the opposite party:Nil
Documents marked on the side of the opposite party: Ext. B1 and B2
Ext.B1: copy of insurance policy certificate dated 29/01/2019 issued by the first opposite party to the complainant.
Ext.B2: copy of insurance survey report dated 21/06/2021.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
VPH
