State Consumer Disputes Redressal Commission
New India Ass Co Ltd vs Nareshbhai R Patel on 16 January, 2023
Details DD MM YY
Date of disposal 16 01 2023
Date of filing 17 01 2019
Duration 30 11 03
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 02
APPEAL NO. 231 of 2019
New India Assurance Co. Ltd.
Having its Registered Office at
87, M. G. Road, Mumbai-400 001
And having its Regional Office at
5th Floor, Popular House,
Ashram Road, Ahmedabad-380 009. ...Appellant.
V.s
Nareshbhai Ranchhodbhai Patel,
Aged: 45 years, Occu: Business,
Residing at: R.S. No. 544
Block No. 739, Opp. Govt. Guest House,
Near Smashanbhumi, Olpad Kim Road,
Olpad, Surat. ...Respondent.
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BEFORE: Mr. M. J. Mehta, Judicial Member,
Ms. P. R. Shah, Member.
APPERANCE: L.A. Mr. A. R. Mehta for the appellant, No appearance for the respondent.
============================================================== ORDER BY Mr. M. J. Mehta, JUDICIAL MEMBER.
1. Heard Ld. Advocate Mr. A. R. Mehta. He has submitted an application to proceed the matter Ex-parte against the respondent in appeal No. 231 of 2019. Ld. Advocate submitted that the notice of this appeal on admission was issued and the appellant advocate had taken direct service at the time of admission of the appeal. The appellant advocate has duly served a copy of the Appeal, summons issued and all list of documents to the Respondent on 21.12.2019. The Track consignment sheet was produced K.Navlakha A/19/231 Page 1 of 7 before this Commission which showed that the delivery was done on 21.12.2019 at 12:51:58 hrs to the Respondent. Therefore, considering that despite the notice being already served on 21.12.2019 there is no appearance from the respondent side the appellant advocate has submitted an application requesting to deal with the appeal Ex-parte. As all the necessary documents were considered by Hon'ble Appellate Commission at the time of admitting appeal and notice was duly served upon the respondent and thereby, at this juncture the matter shall have to be proceeded Ex-parte.
2. Considering the submissions and documentary evidence we are of the opinion that the evidence of the service of the notice is already established. And therefore, we decide to pass the order to proceed with the matter Ex-parte.
3. Ex-parte Application granted. Necessary proceedings be carried out by the Office.
4. Thereby, today heard the matter. The appellant has preferred an appeal being aggrieved with the judgment delivered by the Ld. District Commission, Surat (main), on 30.11.2018 in Complaint No. 381/16.
5. The appellant is the original opponent where as the respondent is the original complaint therefore, hereinafter the parties will be referred to by their original nomenclature/status.
6. The brief facts of the complainant are as under:
The complainant had obtained Insurance Policy of his truck GJ5 BT 8079 and on 17.01.2014. According to complainants case the truck was burnt due to a short-circuit and thereby the damage estimated was about Rs. 15,00,000/. The complainant got the truck repaired at the Company Authorized Service Centre, Nanavati Auto Mobiles Repair and K.Navlakha A/19/231 Page 2 of 7 incurred the expenses of Rs. 16,00,429/- The complainant submitted the claim before the Insurance Company and it was rejected because the driver was not having a valid driving licence.
7. So, the complaint was filed and defendant Insurance Company appeared before the Ld. District Consumer Commission and taken the defence that the driving licence No. 4741/3/SS of Rohtas R.T.O. Office of the truck driver was fake licence and therefore, there is a breach of the driver clause of the policy. The prime condition being that the driver of the vehicle ought to have a valid licence at the time of the incident but in the instant case when the short-circuit took place the licence was fake which is a prime breach of the terms and condition of the Policy.
8. The complainants Advocate submitted before Ld. District Commission that the driving licence is not a material issue because the incident has taken place because of short-circuit and thereby, resulting into damages and costs to the complainant and therefore, the complainant is entitled to the expenses incurred on repair of the truck and the Insurance Company unlawfully has not allowed the claim and therefore, the complaint is tenable. The Ld. District Commission, is of the view that the incident has taken place because of short-circuit and there is no evidence brought on record that there was negligence on part of the driver because of which there was short-circuit in the truck. Considering the submissions advanced by the Ld. Advocate on behalf of the complainant complaint was allowed and opponent was ordered to pay to the complainant Rs. 16,00,429/- the expenses incurred for repair.
9. Today, this appeal is taken for hearing. Considering the application advanced on behalf of the Ld. Advocate of the Appellant original Opponent that the notice of the admission of appeal was duly served upon the respondent. The matter is taken up for Ex-parte hearing today.
K.Navlakha A/19/231 Page 3 of 710. Heard Ld. Advocate Mr. A. R. Mehta, for the appellant mainly contending that the order passed by the Ld. District Commission is not tenable in eye of law because there is a fundamental breach of the Policy condition that the complainants driver at the time of the incident did not have a valid driving licence. Therefore, the order of the Ld. District Commission is required to be interfered with. Further, Ld. Advocate, submitted before us the assessment carried out by the authorized surveyor at page No. 83 to 85 wherein surveyor has observed that the payable amount is Rs. 12,37,877/- and thereby, this amount is to be taken into consideration by the Ld. District Commission which has not been considered and thereby the order of the Ld. District Commission is not tenable.
11. Further, the Ld. Advocate Mr. A. R. Mehta, submitted that the Ld. District Commission has wrongfully observed that there is no relation between the fake licence defence and cause of action arising to the complainant. Because if the motor vehicle was stationery then the issue of fake licence would not arise but in the instant case vehicle was in motion and therefore, the issue of fake licence is a gross violation of policy conditions. The Ld. District Commission did not consider even the survey report and therefore, we are not in a position to accept the observation and conclusion of the Ld. District Commission.
12. Ld. Advocate Mr. Mehta has further submitted at the most in this appeal 50% of the amount assessed by the surveyor should be awarded because the incident having taken place, wherein there is a breach of the Policy, because the driver was not having a valid driving licence. Therefore, the claim on non standard basis shall have to be considered and award may be passed accordingly.
K.Navlakha A/19/231 Page 4 of 713. Considering the submissions advanced by the appellant advocate Mr. A. R. Mehta, we are not in agreement with that because there is no nexus with the licence and the incident that had taken place and the request to dismiss the complaint is not valid as this is not a case of a Motor accident, but a case of short-circuit.
14. Ld. Advocate Mr. Mehta, further, submitted to consider the judgment III (2018) CPJ 102 (NC) in the case of United India Insurance Co. Ltd. Vs. Nirmala Kothari wherein on the ground of the fake licence with the driver of the vehicle it was held that no liability can be fastened on the appellant. But in that case the motor accident had taken place and there was an accident with the tractor as a result of which the complainant and his daughter died and the vehicle was totally damaged. Here according to our view the vehicle had a short-circuit without any collision as per the complainants case. Therefore this judgment is not applicable in the instant case. We do not agree with the appellant side submission that if the concerned vehicle was not in motion and at that time had the incident taken place then it would be their liability but as the incident has taken place when the vehicle was in motion and therefore, the Ld. District Commission order should be quashed and set aside. The submission in the judgment I (2018) CPJ 429 (NC) in the case of Prakashnath Jha Vs. Oriental Insurance Co. Ltd. relied upon by the Ld. Advocate also does not hold ground because the factual aspects are very different.
15. Furthermore, Ld. Advocate Mr. A. R. Mehta, has mainly targeted the issue that the Ld. District Commission has allowed the entire claim of Rs. 16,00,429/- along with the 8% interest but there is no reasoning given nor the assessment report by the surveyor considered. How the Ld. District Commission, has thought right to allow the full claim amount as claimed by the complainant has not been explained by the Ld. District K.Navlakha A/19/231 Page 5 of 7 Commission. We are in agreement with this submission that there is no reason assigned by the Ld. District Commission, regarding allowing the full claim of the complainant as per the expenses incurred for the truck which was Rs. 16,00,429/- If we look into the matter of damages as claimed herein by the complaint it is pertaining to short-circuit having taken place in the truck and ultimately it was burnt out and the surveyor had assessed the net payable amount at Rs. 12,37,877/-. Thus, there is no concrete cogent reasons given by the Ld. District Commission as to why the assessment as per the surveyors assessment sheet was not accepted and therefore, merely on observation and presumptions it cannot be considered an appropriate decision by the Ld. District Commission. Therefore, at this juncture we come to the conclusion that the present appeal is required to be partly allowed and the amount as assessed by the surveyor Rs. 12,37,877/- is to be awarded to the complainant and thereby we are passing the following order.
ORDER
1. Hereby the present appeal 231/19 is partly allowed.
2. The appeal by the appellant is partly allowed and order of the Ld. District Commission is modified as under:
The appellant-original opponent is ordered to pay Rs. 12,37,877/- (Twelve lakh thirty seven thousand eight hundred seventy seven) to the respondent complainant along with 7% interest from the date of the filing of the complaint.
3. Further it is ordered that the appellant has to pay to the complainant Rs. 3,000/- for inconvenience and Rs. 2,000/-as litigation costs.
K.Navlakha A/19/231 Page 6 of 74. Office is directed to verify the amount deposited by the appellant in Appeal No. 231/19 or C.M.A No. 184/19. If found deposited, refund the same with interest, if any, accrued on the deposit to the appellant through RTGS after following due procedure and verification. For this purpose the appellants has to apply to the Account branch accordingly.
5. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to Ld. District Commission, Surat (Main), for taking necessary action.
6. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 16th January 2023.
[Ms. P. R. Shah] [Mr. M. J. Mehta]
Member. Judicial Member.
K.Navlakha A/19/231 Page 7 of 7