State Consumer Disputes Redressal Commission
Khushal Singh vs Daimler India Commercial Vehical Pvt. ... on 20 July, 2022
Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.103 of 2021
Date of institution : 05.04.2021
Reserved on : 06.07.2022
Date of decision : 20.07.2022
Khushal Singh aged about 30 years son of Manjit Singh r/o
Village Gaddiwal, P.O. Thana, Tehsil Anandpur Sahib, Distt.
Rupnagar.
.......Appellant/Complainant.
Versus
1. Daimler India Commercial Vehical Pvt. Ltd. Sipcot
Industrial Estate, Mattur, PO Orgadam Village
Sriperambudur Taluk, Kancheepuram, Tamil Nadu, Pin
Code: 602105.
2. Globe CV Pvt. Ltd. Village Mahedipur, Tehsil Khanna Distt.
Ludhiana having its Local Office at SCF No.24, Anaj
Mandi, Ropar PIN 140001.
3. National Insurance Company Ltd. having its Office at
Nangal Chowk, Rupnagar.
.....Respondents/Opposite Parties
First Appeal U/s 41 of the Consumer
Protection Act, 2019 against the Order
dated 19.02.2021 passed by the
District Consumer Disputes Redressal
Forum (now Commission), Ropar.
Quorum:-
Mr. Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued By:-
F.A. No.103 of 2021 2
For the appellant : Sh. A.S. Saini, Advocate
For respondent No.1 : Ms. Sanamjit Kaur, Adv for
Sh. Aditya Vermani, Advocate
For respondents No.2&3 : Ex-parte
HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER This First Appeal preferred by the Appellant/Complainant- Khushal Singh against the order dated 19.02.2021 of the District Consumer Disputes Redressal Forum (now Commission), Ropar (in short "The District Commission"), whereby the complaint filed by the appellant/complainant-Surinder Singh was dismissed.
2. It would be apposite to mention here that hereinafter the parties will be referred to, as have been arrayed before the District Commission.
3. The complainant-Khushal Singh filed the complaint against the OPs on the ground that OP No.1 is the manufacturer of the vehicle and OP No.2 is the authorized dealer. It is averred that complainant went to OP No.2 at Ropar for the purchase of the truck and accordingly purchased the same known as Bharat Benz 4023t bearing Engine No.400950D0034551, Chassis No.MEC2621CHGP034612 from OP No.2. He was asked by OP No.2 to get the same insured with OP No.3 since the insurance policy of OP No.3 was cashless and complainant would not face any problem as and when the truck requires any repair etc. Accordingly, the complainant subscribed the policy of OP No.3 bearing No.404001/31/16/6300001616, which was valid from F.A. No.103 of 2021 3 12.01.2017 to 11.01.2018 by paying an amount to the tune of Rs.67,818/- as premium. Complainant also got the vehicle financed from HDB Financial Service Limited, on monthly installments of Rs.73,400/- per month. Complainant got registration No. PB-12-Y- 4243. Insurance policy was again renewed by the complainant on previous terms and conditions. OP No.3 issued policy bearing No.404001311710000717 which was valid from 12.01.2018 to 11.01.2019 and payment of Rs.72,435/- as premium. Complainant also employed a driver namely Sh. Hardeep Singh son of Hardial Singh, resident of Gaddiwal of Rupnagar, who was having a valid Driving License bearing No.PB-1220140110244 issued by the Licensing Authority, SAS Nagar. Even, complainant checked the competency of the driver before employing him. On 24.06.2018, the vehicle met with an accident and front portion was badly damaged. Regarding this, he immediately informed the OPs as well as the Police and spot surveyor was conducted by the OPs through their various local branches. At the time of accident, the vehicle was being driven by Sh. Hardeep Singh, the driver of the complainant. On allurement from OPs No.1 & 2, the complainant took his vehicle for repair with OPs No.1 & 2 and complainant had to pay towing charges of Rs.1,00,000/- to OPs No.1 & 2 on 04.07.2018 and was assured that he will not have to pay anything for the repairs etc. The vehicle was repaired in the workshop of OP No.2 by 10.08.2018. The copy of the bill dated 13.08.2018 was provided by OP No.2 and complainant was assured that the vehicle F.A. No.103 of 2021 4 would be released within one week as the insurance policy was cashless and he would not pay anything to the OPs. It was alleged that OPs No.1 & 2 did not hand over the vehicle to the complainant and were demanding some illegal gratification and were compelling the complainant to pay the bills in order to get the vehicle released from their possession. But complainant time and again averred that the insurance policy was cashless and he was not supposed to pay anything. Since, the vehicle in question was the only source of income of the complainant and he was already paying a monthly installment of Rs.73,400/- but his request fell on deaf ears. A legal notice dated 15.09.2018 was also sent to the OPs to hand over the vehicle to the complainant but a reply dated 25.09.2018, was also received by the complainant. Complainant under compelling circumstances had to pay Rs.8,49,173/- to OP No.2 in order to get his vehicle released as full and final payment and then to start his work again. On 12.02.2019, OP No.3 repudiated the claim of the complainant on the ground that the Driving Licence was not genuine. It was further alleged that OP No.3 has malafidely and arbitrarily has repudiated the claim of the complainant. Alleging deficiency in service on the part of the OPs, complainant sought the directions against OPs to pay Rs.8,49,173/- the repair charges, Rs.1,00,000/- per month w.e.f. 13.08.2018 to 24.01.2019 and Rs.10,000/- as cost of litigation along with interest. He further sought Rs.1,00,000/- as compensation for mental and physical harassment.
F.A. No.103 of 2021 5
4. Notice of the complaint was issued to the OPs. OP No.1 raised preliminary objections on the ground of maintainability of the complaint and on the point of cause of action etc. On merits, the allegations of the complainant are parawise denied by OP No.1. Thus, by simply denying the allegations of the complainant, OP No.1 has prayed for dismissal of the complaint.
5. OP No.2 has filed separate written reply and also raised a number of preliminary objections on the ground of jurisdiction and maintainability etc. It was averred that earlier the complainant filed a complaint bearing No.132/2018 titled "Khushal Singh Vs Daimler India Commercial Vehicle Limited" and the same was withdrawn on 15.03.2019 without seeking any liberty to file fresh complaint. As such, OP No.2 has challenged the genuineness of the present complaint on the ground of maintainability. It was further averred that complainant was himself in touch with OP No.3 regarding the completion of documentation, formalities and processing of his claim etc. and was asked to take the delivery of the vehicle in question after making the payment towards OP No.2. Since, OP No.3 was raising the objections on the veracity of the licence of the driver and they were not getting the money from the insurance, as such, claiming the amount from the complainant directly was the only alternative left with them. Alleging the allegations of the complainant against OP No.2 is false and frivolous and OP No.2 also prayed for dismissal of the complaint. F.A. No.103 of 2021 6
6. OP No.3 also filed separate written reply and raised a number of objections in the reply but has admitted the subscription of the policy bearing No.404001311710000717 of the truck bearing No.PB-12-Y- 4243 which was valid from 12.01.2018 to 11.01.2019. It was admitted that the truck met with accident on 24.06.2018 in Satna (MP)., accordingly, OP No.3 deputed IRDA approved surveyor Sh. Arun.K.Jagiasi for spot survey, who submitted his report that at the time of accident, the vehicle driven by Hardeep Singh having Driving Licence No.PB1220140110244 issued by Licensing Authority, Mohali, was valid upto 23.11.2020. Thereafter, one Ravinder Kumar was appointed as surveyor for final survey, who submitted his report and observed that at the time of accident, the vehicle was loaded with Mineral Bauxite Grade Cement 36 M ton against the permitted carrying capacity as per Registration Certificate and Route Permit of 28,000/- Kg, which means that the vehicle was driven in gross violation of Section 113(3) of Motor Vehicle Act, 1988. It was further alleged that the Driving Licence issued by the Licensing Authority, Mohali, pertains to the renewal only and as per the verification report dated 18.07.2018, the original licence was issued bearing No.52609/SPT, which was sent to Manipur Office, for verification and it was found that the same was not issued by that licensing authority. It was specifically alleged that the driver got the fake licence renewed, as such, the claim was repudiated on this ground. OP No.3 prayed for dismissal of the complaint.
F.A. No.103 of 2021 7
7. Both the parties led their respective evidence before the District Commission. Complainant tendered into evidence his affidavit Exs.CW1/A alongwith documents Ex.C-1 to Ex.C-22 whereas, to rebut this evidence counsel for OP No.1 tendered the evidence affidavit of Sh. Jagadheesh Kumar, Ex.OP1/C. Counsel for OP No.3 also tendered affidavits of Sh. Sanjeev Khurana, Deputy Manager, National Insurance Company Ex.OP3/1 and Sh. Ravinder Kumar Goyal, Surveyor and Loss Assessor Ex.OP3/2 alongwith documents Ex.OP3 to OP3/11.
8. After hearing both the parties, District Commission dismissed the complaint of the complainant, vide impugned order. Hence, this appeal.
9. We have heard the contentions of learned counsel for the appellant in the present appeal as respondent No.1 deleted from the array of parties vide separate order dated 06.07.2022 and respondents No.2 & 3 were proceeded against ex-parte vide order dated 08.06.2021.
10. Learned counsel for the appellant urged that the District Commission has arrayed while deciding the claim of the complainant by holding that the vehicle was overloaded and it amounts to violation of terms and conditions of the insurance policy because Registration Certificate does not allow more than 28,000/- Kg of weight whereas the vehicle was loaded with Mineral Bauxite Grade Cement 36 M ton, F.A. No.103 of 2021 8 which is factually wrong because the OPs have themselves given up this plea while repudiating his policy vide Annexure A/6 as there is no mention that the vehicle was overloaded but the policy was repudiated only on the score of validity of the driving licence. He further submitted that it is well settled principle of the law that the Insurance Company cannot take a plea rejecting the claim of the insurer which is not a ground of rejection of the claim in the repudiation letter. He also relied upon the ruling of Hon'ble Supreme Court in case titled as "Saurashtra Chemicals... Vs. National Insurance Co. Ltd" decided on 13th December, 2019" has held that an insurance company cannot travel beyond the ground mentioned in the letter of repudiation and in case a ground is not taken in the letter of repudiation, the same cannot be taken at the time of filing reply before the consumer courts. The relevant part is reproduced as under:-
"22. Hence we are of the considered opinion that the law as laid down in 'Galada' on issue (2) still holds the field. It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC.
23. Admittedly in the case at hand there was no reference of delay in intimation or lodging of the claim as stipulated in Clause 6(i) of the General Conditions of Policy in the repudiation letter.F.A. No.103 of 2021 9
24. The NCDRC has failed to take into consideration this aspect of the matter and, therefore, cannot be held to be justified in rejecting the claim of the appellant, on that ground".
11. We have also gone through the ruling of the Supreme Court of India (Supra) wherein it has been specifically held that once the Insurance Company has failed to take a ground in the repudiation letter then Insurance Company cannot take that plea for rejection of the claim of the complainant, on that very ground.
12. Learned counsel for the complainant further contended that the main issue on which the District Commission has rejected the claim of the complainant is that the driving licence produced by the complainant of the driver is not a genuine one. He further argued that it has been proved the licence which were produced by the complainant was verified by the RTA, SAS Nagar as it was found to be issued on the basis of DL No.52609/SPT issued from DTO Senapati District Manipur and as per report received from the Senapati District Manipur that the driving licence No.52609/SPT is not found to be correct in their office but this view is not sustainable in the law laid down by Hon'ble Supreme Court of India in Civil Appeal No.1999-2000 of 2020 titled as "Nirmala Kothari Vs. United Insurance Company Ltd" decided on 04.03.2020 has held that mere absence, fake or invalid driving licence is not a defences available to the insurer either against the insured or the third parties.
F.A. No.103 of 2021 10
13. We do agree with the findings of the Hon'ble Supreme Court but the facts of the present case are quite different from the case mentioned above as this is case of no licence of the driver who was driving the vehicle at that time and the owner himself has filed this present complaint of compensation and further this is not a complaint against third party. Moreover, Hon'ble Supreme Court of India also in a case "United India Insurance Company Limited Vs. Davinder Singh" decided on 12.10.2007, held that "renewal of fake licence cannot cure the inherent fatality. Liability to indemnify, in case driver has fake licence, insurance company will not be liable to indemnify the owner of the vehicle for the loss sustained by him".
14. Moreover in the present case the complainant has not placed on record the legible copy of the licence for consideration of the Court, in these circumstances this is a case of no licence whereas it was a duty of the owner of the vehicle to see and verify the licence of the driver to whom he handed over the vehicle for the driving and also the onus was heavily on the complainant to prove the valid licence in favour of the driver as the Insurance Company has already discharged the onus to prove that the photocopy of the said licence produced by the complainant before the District Commission is the renewal of licence, were never in existence as per the report received from the Senapati District Manipur.
F.A. No.103 of 2021 11
15. In view of the above said discussion, we do not find any merit in the present appeal to interfere with the findings of the District Commission, as such, this appeal is devoid of any merit is hereby dismissed.
16. The appeal could not be decided within the statutory period due to heavy pendency of work.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER July 20, 2022.
SK