State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Sh. Balak Ram Bahuguna on 7 September, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 154 / 2011
United India Insurance Company Limited
through its Regional Manager, Regional Office
Dehradun
......Appellant / Opposite Party
Versus
Sh. Balak Ram Bahuguna S/o late Sh. Nagendra Dutt Bahuguna
R/o Village Kansen, Patti Badagaddi
Tehsil Bhatwari, District Uttarkashi
......Respondent / Complainant
Smt. Anjali Gusain, Learned Counsel for the Appellant
Sh. Shardul Negi, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 07/09/2016
ORDER
(Per: Justice B.S. Verma, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 04.07.2011 passed by the District Forum, Uttarkashi in consumer complaint No. 73 of 2008.
2. Briefly stated the facts giving rise to the appeal are that Sh. Dhirender Prasad Bahuguna, the son of the complainant - Sh. Balak Ram Bahuguna, was the registered owner of vehicle No. UA07-P-5334 (Tata Spacio). The said vehicle was insured with the appellant - United India Insurance Company Limited for the period from 18.10.2006 to 17.10.2007 at an IDV of Rs. 4,55,480/- (wrongly mentioned as Rs. 4,79,453/- in the consumer complaint). During the currency of the insurance policy, the insured vehicle met 2 with an accident on 02.11.2006 at Kodar, Uttarkashi, when it was carrying passengers and the vehicle fell in a ditch. In the accident, the son of the complainant, who was also the owner of the vehicle, died at the spot. In the accident, the insured vehicle was totally damaged. The FIR of the accident was lodged with the police and intimation of the accident was also given to the insurance company. The insurance company appointed surveyor for assessment of loss. The surveyor visited the spot and told that the vehicle is not repairable and further told the complainant to take out the vehicle from the ditch and bring the vehicle to the workshop of Oberai Motors, Dehradun. The complainant completed all the formalities of the insurance company, but the claim was not settled by the insurance company. Thus, alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Uttarkashi.
3. The insurance company filed written statement before the District Forum and pleaded that on the date of the accident, the driver was not holding a valid and effective driving licence and, as such, the claim was not payable; that vide letter dated 19.12.2006, the complainant was asked to clarify the position on certain points regarding delaying in giving intimation of the accident as well as delay in requesting for final survey of the vehicle; that the surveyor S.K. Handa and Company vide their report dated 20.01.2007 have assessed the loss to the tune of Rs. 1,99,000/-; that the driving licence of the driver was got verified and it was found that the driver was not having an experience of five years on the date of the accident, as stipulated under the permit granted in favour of the vehicle owner; that there was violation of the terms and conditions of the permit as well as the insurance policy and hence the claim was not payable and that there is no deficiency in service on their part.
34. The District Forum after perusal of the evidence on record allowed the consumer complaint vide impugned order dated 04.07.2011 and directed the appellant - opposite party to pay compensation of Rs. 4,55,480/- to the respondent - complainant together with interest @6% p.a. from 26.11.2008, the date of filing of the consumer complaint till payment and Rs. 2,000/- towards litigation expenses. Aggrieved by the impugned order, the insurance company has filed the present appeal.
5. We have heard the learned counsel for the parties and gone through the record.
6. The main ground taken by the insurance company is that the driver of the insured vehicle was not having an experience of five years, which was a condition precedent mentioned in the permit granted in favour of the owner of the vehicle. Late Sh. Dhirender Prasad Bahuguna, the deceased owner of the vehicle in question, was granted temporary permit (Paper No. 4kha/3 of the original record) in respect of the vehicle in question (maxi cab) by the Regional Transport Authority, Dehradun. The said temporary permit was valid for the period from 01.11.2006 to 30.12.2006 and the vehicle met with an accident on 02.11.2006. In the said permit, there is no mention that the permit holder is required to engage a driver having an experience of five years in driving such vehicles. The insurance company has not filed any evidence to show that the permit holder was in the know that he was required to engage a driver having an experience of five years and that such a condition was mentioned in the permit issued in favour of the owner of the vehicle.
47. It is also important to mention that the said condition was made applicable by the Regional Transport Authority, Dehradun in its meeting dated 27.12.2008, as would be evident from the letter dated 15.04.2010 (Paper No. 43 on the record of the appeal) issued by the Public Information Officer / Assistant Regional Transport Officer (Administration), Dehradun to Sh. Bikram Singh Rana, Advocate in reply to his application dated 09.04.2010 submitted under the Right to Information Act, 2005. Thus, before 27.12.2008, there was no such condition prevalent in respect of maxi cab to engage a driver having an experience of five years. The driving licence of the driver Sh. Dhirender Prasad Bahuguna issued by the Licensing Authority, Rishikesh was valid for the period from 28.07.2006 to 27.07.2009 and the same was duly endorsed for hill roads w.e.f. 21.08.2006. The accident in question took place on 02.11.2006 and hence it can not be said that the driver was not holding a valid and effective driving licence on the date of the accident and the repudiation of the claim by the insurance company on the ground that the driver was not holding a valid and effective driving licence was not justified. Even otherwise, as is stated above, since no such condition regarding the driver having an experience of five years was mentioned in the temporary permit issued in favour of the vehicle owner and hence the insurance company was not at all justified in repudiating the claim on the said ground. It would not be out of place to mention here that the driver was authorised to drive light motor vehicle (transport) and his driving licence was valid for the period from 28.07.2006 to 27.07.2009 and he was also made authorised to drive the vehicle on hill roads w.e.f. 21.08.2006. Thus, on the date of the accident, i.e., 02.11.2006, the driver was possessing a valid and effective driving licence.
8. Learned counsel for the appellant - insurance company cited a decision of this Commission given in the case of The New India 5 Assurance Company Limited Vs. Sh. Pradeep Singh Bisht; 2009 (1) UAD 31. In the said case, the permit of the vehicle had a specific condition imposed on the permit holder of the vehicle that he shall employ such a driver who is having at least five years' experience in driving the transport vehicle. In the said case, the permit holder did not adhere to the said condition of the permit and employed the driver who was having experience of just over two years'. It was held that the repudiation of the claim was justified. In the instant case, as is stated above, no such condition has been mentioned in the permit issued in favour of the owner of the vehicle and, as such, the said decision does not apply to the facts and circumstances of the case.
9. Learned counsel for respondent - complainant cited a decision dated 30.11.2011 of this Commission given in First Appeal No. 182 of 2010; The Oriental Insurance Company Limited Vs. Sh. Rajendra Singh. In the said case, the insurance company had taken the stand that as per the condition of the permit, the driver was not having a valid and effective driving licence on the date of the accident and the claim was repudiated by the insurance company on the ground that the driver was not having an experience of five years. In the said case also, no such condition was mentioned in the permit issued in favour of the vehicle owner. It was held that in the absence of any such condition in the permit, it can not be said that the complainant was in know of any such condition that he has to employ a driver having at least five years' driving experience and the repudiation of the claim by the insurance company on the said ground was held to be unjustified.
10. So far as quantum is concerned, the vehicle was insured for sum of Rs. 4,55,480/- for the period from 18.10.2006 to 17.10.2007. The vehicle met with an accident on 02.11.2006. The surveyor S.K. 6 Handa and Company vide their report dated 20.01.2007 submitted to the insurance company (Paper Nos. 22 to 27) have assessed the loss to the tune of Rs. 1,99,000/-. The District Forum has nowhere discussed the report of the surveyor and has awarded the entire insured amount in favour of the complainant. It is a settled law that in insurance matters, the report of the surveyor is an important document and the same can not be ignored or brushed aside unless there is cogent and reliable evidence to the contrary on record. The perusal of the impugned order shows that the District Forum has merely written that the complainant has submitted the relevant documents with the insurance company and has nowhere stated that the assessment of loss made by the surveyor is on the lower side or not as per the actual loss suffered by the complainant. The perusal of the impugned order further shows that the complainant has not filed any document to show that he is entitled to the compensation in excess of the loss assessed by the surveyor. Therefore, the District Forum was not at all justified in awarding compensation of Rs. 4,55,480/- and the complainant is entitled to compensation of Rs. 1,99,000/-, the amount of loss assessed by the surveyor. The remaining order passed by the District Forum regarding interest and litigation expenses is perfectly justified. Thus, the appeal is to be allowed partly.
11. Appeal is partly allowed. Order impugned dated 04.07.2011 passed by the District Forum is modified to the extent that the amount of compensation is reduced from Rs. 4,55,480/- to Rs. 1,99,000/-. Rest of the impugned order passed by the District Forum is maintained. Costs of the appeal made easy.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA) K