State Consumer Disputes Redressal Commission
National Insurance Company Ltd. vs M/S D.S. Transport Corporation ( Regd.) on 3 May, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR -37 A, CHANDIGARH
First Appeal No.73 of 2022
Date of Institution : 02.02.2022
Reserved on : 18.04.2023
Date of Decision : 03.05.2023
National Insurance Company Limited, Branch Office No.6, G.T. Road,
Miller Ganj, Ludhiana-141003, through its Branch Manager.
........Appellant/Opposite Party
Versus
M/s D.S. Transport Corporation (Regd.), Plot No.112, Transport
Nagar, Ludhiana, through its Proprietor Shri Diljang Singh.
.....Respondent/Complainant
First Appeal under Section 41 of
Consumer Protection Act, 2019 for setting
aside order dated 06.12.2021 passed by
the District Consumer Disputes Redressal
Commission, Ludhiana.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the appellant : Sh. Sandeep Suri, Advocate For the respondent : Sh. Sahil Abhi, Advocate
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The appellant/opposite party i.e. National Insurance Company Limited, through its Branch Manager has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 (in 2 First Appeal No.73 of 2022 short the 'Act') being aggrieved by the order dated 06.12.2021 passed by the District Consumer Disputes Redressal Commission, Ludhiana (hereinafter referred as the "District Commission") in C.C. No.223 of 2015, whereby the complaint filed by the respondent-complainant was allowed.
2. It would be apposite to mention that hereinafter the parties would be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the complainant in the complaint filed before the District Commission are that the complainant got its public carrier vehicle bearing registration number PB-10-BV-0862 insured from OP-Insurance Company for the period with effect from 02.08.2013 to 01.08.2014. The IDV of the vehicle was Rs.4,85,000/-. Said vehicle met with an accident on 02.11.2013 while it was on the way Panipat to Karnal. The driver of the vehicle Sh. Amrik Singh was holding an effective and valid driving licence at that time. The claim of the accident was lodged with OP who appointed Surveyor and vehicle was inspected on 15.11.2013 and the report was submitted. As per Surveyor's report the proposed settlement was for a sum of Rs.2,03,000/- being the net loss as assessed on cashless basis. Thereafter, the complainant received a letter dated 27.02.2014 to verify/clarify as to whether the driving licence of driver Amrik Singh was cancelled on 05.06.2012 under the orders of the Court of JMIC, Malikpur. Said letter was replied by the 3 First Appeal No.73 of 2022 complainant vide letter dated 06.05.2014 by clarifying that the said driver was holding a valid driving licence at the time of accident. However, the claim of the complainant was still repudiated by the OP vide letter dated 22.05.2014.
4. Said complaint was contested by the OP after receiving notice. Reply to complaint was filed wherein certain preliminary objections were raised. The averments made in the complaint were specifically denied. It was also submitted in the reply as well as in the argument raised before the District Commission that the driving licence of the driver was cancelled as per the order of JMIC Malikpur as the Licensing Authority Nagpur had mentioned in the verification report dated 05.02.2014 that the licence was cancelled on 05.06.2012 as per computerized record. The investigator also submitted his verification report wherein it was mentioned that the licence of the driver Amrik Singh was cancelled. The Investigator also mentioned in the investigation report that the driving licence of the driver was not available in the computerized record of Nagpur City RTO. It was also mentioned in the reply that the driver was not holding valid and effective driving licence at the time of accident and the claim had rightly been repudiated.
5. After considering the averments made in the complaint and the reply of OP and on hearing the arguments raised by the counsel representing both the parties, the complaint filed by the complainant was allowed. The relevant portion of the order dated 4 First Appeal No.73 of 2022 06.12.2021 passed by the District Commission while allowing the complaint is re-produced as under:-
"11. As a result of above discussion, the complaint is allowed with an order that the OP shall consider and pay the claim of the complainant strictly in accordance with the terms and conditions of the policy and as per the report of the surveyor along with interest @7% per annum from the date of filing of complaint till the date of actual payment. Further, OP shall pay the composite compensation of Rs.5000/- (Rupees Five Thousand only) to the complainant. Compliance of order be made within a period of 40 days from the date of the receipt of the copy of this order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room."
6. The appellant/OP-Insurance Company has approached this Commission by way of filing appeal by raising a number of grounds.
7. Mr. Sandeep Suri Advocate, learned counsel for the appellant submits that the driver of the vehicle who was driving the vehicle at the time of accident was not possessing valid and effective driving licence and a number of letters were sent to the respondent/complainant to clarify the position relating to cancellation of driving licence but the complainant did not place on record any rebuttal evidence. Learned counsel also submits that the claim was rejected after giving adequate opportunity to the complainant. Admittedly, the driving licence was cancelled on 05.06.2012 which was much earlier to the date of accident and as such the driver of the 5 First Appeal No.73 of 2022 vehicle was not holding a valid and effective driving licence at the time of accident. Learned counsel also submits that it was a clear cut case of violation of terms and conditions of the insurance policy as the driver of the vehicle was not holding a valid and effective driving licence at the time of accident. Learned counsel further submits that all the relevant factors were not taken into consideration by the District Commission while allowing the complaint. The driving licence was cancelled by the concerned licensing authority on the basis of Court's order. However nothing was placed on record to show as to whether the order of cancellation passed by the Court was challenged before the appellate Court or not? Meaning thereby the order of cancellation had attained finality. Learned counsel further submits that the District Commission has relied upon certain judgments but those judgments were not applicable in the present context. It was not a case of any 'deficiency in service' on the part of OP and the claim of the complainant was not payable but still the complaint was allowed. Further it was submitted by the learned counsel that the District Commission while allowing the complaint had not taken into consideration the arguments and the contentions raised at the time of hearing of the complaint and the evidence led by the appellant/OP was also not appreciated. It was a clear cut case of violation of terms and conditions of the insurance policy as the vehicle was being driven by the driver who was not holding an effective and valid driving licence at the date of accident. The interest awarded by the District Commission is also on the higher side as in 6 First Appeal No.73 of 2022 some of the cases the rate of interest had been awarded @6% per annum by the Hon'ble Supreme Court. Learned counsel has relied upon judgments i.e. "M/s Suraj Mal Ram Niwas Oil Mills Private Limited Vs. United India Insurance Co. Limited" 2010(4) RCR(Civil)845 and "Nimai Chandra Bhattacharjee Vs. National Insurance Co. Ltd. & others" 2012(III)CPJ-265 in support of his arguments.
8. Mr. Sahil Abhi Advocate, learned counsel for the respondent/complainant submits that the order passed by the District Commission is a detailed order and the same has been passed by giving specific findings and after proper appreciation of evidence available on the record led by both the parties. Learned counsel further submits that only first page of the insurance policy was received but no terms and conditions were received by the complainant at any point of time as it was never sent to him. Learned counsel also submits that the copy of cover note and first page of the policy were placed on the record alongwith the complaint and some other documents were annexed with the complaint. Those terms and conditions which were not supplied were not binding upon the respondent/complainant. Learned counsel further submits that the vehicle in dispute was driven by Driver Amrik Singh who was holding a valid and effective driving licence at the time of driving the vehicle. Fact regarding the accident was also intimated immediately to the OP and all documents required by the Investigator were also supplied to the Surveyor for assessment of the loss. The OP appointed one M/s 7 First Appeal No.73 of 2022 R.P. Gupta & Co. as Surveyor and Loss Assessor to assess the loss. Said Surveyor submitted its report dated 17.12.2013 with the OP annexed C-4 recommending for settlement of the claim to the tune of Rs.2,03,000/- as net loss on cashless basis. Said letter was received by the complainant whereby the OP had called upon the complainant for the first time. The driving licence of the driver was cancelled as per computer record in the RTO Nagpur on 05.06.2012, as per the order passed by the JMIC Malikpur and the complainant was called to clarify the position vide document Ex.C-5 page number 51 of the LCR. After receipt of said letter the complainant called upon the OP under RTI to supply the document but the OPs did not supply all the requisite documents. The letter of OP was duly replied by the complainant vide reply dated 06.05.2014 stating therein that the driver of the vehicle Sh. Amrik Singh was holding the valid and effective driving licence at the time of accident as driving licence was issued by the competent licensing authority Nagpur and that licence was not cancelled by the JMIC. Thereafter the request was made to the OPs to settle the claim of the complainant on total loss basis by considering the salvage of the vehicle. Thereafter, the claim was repudiated in a totally illegal and arbitrary manner without taking into consideration the relevant documents. The complainant had also sought information regarding copy of order whereby the licence was cancelled and the period for which the licence was cancelled as per the provisions of Motor Vehicles Act. Certain other information and details were also sought but inspite of sending letters no such 8 First Appeal No.73 of 2022 information was supplied. Learned counsel also submits that neither the complainant nor the driver was aware about the cancellation of the licence by any order of the Court so passed. Even as per the provisions of the Motor Vehicles Act and no opportunity of hearing was given to the driver. Neither any opportunity of hearing was given nor any information/detail was supplied. Learned counsel further submits that licence of the driver can be suspended only for some period not permanently. All these factors clearly shows that the repudiation of the claim of the complainant was totally illegal and arbitrary act of the OP passed without following the terms and conditions of the policy. The order of the cancellation was passed at the back of driver Amrik Singh whereas neither he was involved in any criminal case nor any criminal case was registered against him. Even it has not been proved on record that the driver Amrik Singh was not having effective driving licence. Learned counsel has relied upon following judgments in support of his arguments:-
1. "New India Assurance Co. Ltd. Vs. Meera Rani Mittal"
2016(1)C.P.J.-590 (NC)
2. "Sijo Joseph Vs. Transport Commissioner and others" 2020(1) R.C.R.(Civil)-150 (Kerala High Court)
3. "P. Sampath Kumar Vs. The Licensing Authority"
W.P. No.27 of 2020, decided on 26.02.2020 (Madras High Court)
4. "Sunil Kumar Mishra Vs. State" 2020(2)R.C.R.(Civil) 422 (Delhi High Court)
5. "K. Babu Vs. The Transport Commissioner" W.P. No.1344 of 2020, decided on 26.02.2020 (Madras High Court) 9 First Appeal No.73 of 2022
6. "National India Insurance Co. Ltd. Vs. Smt. Fajari & others" FAO No.629 of 1997 (O&M), date of decision 08.04.2022 (Pb. & Haryana High Court)
9. We have heard the arguments raised by learned counsel for both the parties and we have also carefully perused the impugned order passed by the District Commission and other documents available on the file. Factum of filing of complaint by the complainant before the District Commission, reply thereof and the order dated 06.12.2021 passed by the District Commission and thereafter filing of appeal before this Commission by the appellant/OP is not in dispute. The District Commission has passed a detailed order whereby the complaint filed by the complainant was allowed. Only ground which has been taken in the appeal filed by the appellant/OP insurance company is that the licence of driver Amrik Singh was cancelled by the JMIC Malikpur and this fact has not been taken into consideration by the District Commission. It is an admitted fact of the case that the insured vehicle met with an accident while it was being driven by the driver Amrik Singh who was having a valid driving licence. A plea has been taken by the appellant/Insurance Company that the licence of said driver was cancelled under the orders of the JMIC and as such it cannot be said to be a valid driving licence. It has not been proved on record or even no document has been brought on record to show that the driving licence was cancelled by giving any intimation to the driver Amrik Singh or it was not issued by the competent authority. Certain information was sought by the complainant regarding copy of the order passed by the JMIC but nothing was conveyed to him. 10 First Appeal No.73 of 2022
10. As per version of the respondent/complainant that driver Amrik Singh was appointed as driver in the year 2010 and his licence was genuine and valid with expiry date as 30.03.2024 for non- transport vehicle and the said licence was valid for transport vehicle till 22.06.2014. The complainant and his driver was not aware of the cancellation of licence by any order of any Court. Even it was not informed to the licence holder as to whether he was involved in some criminal and why his licence was cancelled. Admittedly, neither any notice or explanation of the driver was sought nor any details of any case was mentioned in the repudiation letter or even orally told to the driver. Under Section 19 of the Motors Vehicles Act, the Licensing Authority has power to disqualify the driving licence. The Court has the power to disqualify the licence under Section 20 of the Motors Vehicles Act. The driving licence can be suspended for a particular period under Section 183 of the Motors Vehicles Act which deals with offense of excess speed and Section 185 of the Motors Vehicles Act deals with drunken driving. For offences like using a mobile phone while driving, over speeding, driving under the influence of liquor or any drug and jumping the red light the driving licence can be suspended for a period upto six months only under Section 19 of the Motor Vehicles Act, 1988. The licence of those found riding without helmet can be suspended only for a period of three months.
11. Section 21 of the Motor Vehicles Act, 1988 is also relevant, which is reproduced as under:-
11First Appeal No.73 of 2022
21. Suspension of driving licence in certain cases.--
(1) Where, in relation to a person who had been previously convicted of an offence punishable under section 184, a case is registered by a police officer on the allegation that such person has, by such dangerous driving as is referred to in the said section 184, of any class or description of motor vehicle caused the death of, or grievous hurt to, one or more persons, the driving licence held by such person shall in relation to such class or description of motor vehicle become suspended--
(a) for a period of six months from the date on which the case is registered, or
(b) if such person is discharged or acquitted before the expiry of the period aforesaid, until such discharge or acquittal, as the case may be.
(2) Where by virtue of the provisions of sub-section (1), the driving licence held by a person becomes suspended, the police officer, by whom the case referred to in sub-section (1) is registered, shall bring such suspension to the notice of the Court competent to take cognizance of such offence, and thereupon, such Court shall take possession of the driving licence, endorse the suspension thereon and intimate the fact of such endorsement to the licensing authority by which the licence was granted or last renewed.
(3) Where the person referred to in sub-section (1) is acquitted or discharged, the Court shall cancel the endorsement on such driving licence with regard to the suspension thereof.
(4) If a driving licence in relation to a particular class or description of motor vehicles is suspended under sub-section 12 First Appeal No.73 of 2022 (1), the person holding such licence shall be debarred from holding or obtaining any licence to drive such particular class or description of motor vehicles so long as the suspension of the driving licence remains in force.
Section 183 of the Motor Vehicles Act, 1988 is as under:-
Section 183 of the Motor Vehicle Act refers to the punishment and penalties imposed on offenders found guilty of over speeding in the country. Over speeding is a cause of big concern as it can lead to accidents and damage to property and/or life. Guilty parties may need to pay a fine and can also face a prison term. Repeat offenders will be dealt with more severity. In extreme cases, the driving licence can also be seized which will then need to be applied for release in traffic court, by the offender. Therefore, it is important to know the speed limits beforehand and follow the rules.
12. The Hon'ble High Court in case of "Sijjo Joseph"
(Supra) has discussed the provisions of Motor Vehicles Act, 1988 under the which the licence can be suspended. The relevant para 23 of the order is reproduced as under:-
23. As per Rule 21 of the Central Motor Vehicles Rules, for the purpose of clause (j) of sub-section (1) of Section 19 of the Motor Vehicles Act, the commission of the acts enumerated in clauses (1) to (25) thereof, by the holder of a driving licence 13 First Appeal No.73 of 2022 shall constitute nuisance or danger to the public. Rule 21 reads thus;
"21. Powers of licensing authority to disqualify.-
For the purpose of clause (j) of sub-section (1) of section 19, the commission of the following acts by holder of a driving licence shall constitute nuisance or danger to the public, namely:--
(1) Theft of motor vehicle.
(2) Assault on passengers.
(3) Theft of personal effects of passengers. (4) Theft of goods carried in goods carriages. (5) Transport of goods prohibited under any law. (6) Driver, while driving a transport vehicle, engages himself in activity which is likely to disturb his concentration. (7) Abduction of passengers.
(8) Carrying overload in goods carriages. (9) Driving at speed exceeding the specified limit. (10) Carrying persons in goods carriage, either inside the driver's cabin in excess of its capacity or on the vehicle, whether for hire or not.
(11) Failing to comply with the provisions of Section 134. 14 First Appeal No.73 of 2022 (12) Failure to stop when signaled to do so by any person authorised to do so.
(13) Misbehaviour with and showing discourtesy to passengers, intending passengers or consignors and consignees of goods. (14) Smoking while driving public service vehicles. (15) Abandoning vehicle in a public place causing inconvenience to other road users or to passengers in the vehicle.
(16) Driving vehicle while under the influence of drink or drugs. (17) Interfering with any person mounting or preparing to mount upon any other vehicle.
(18) Allowing any person to sit or placing things in such a way as to impede the driver from having a clear vision of the road or proper control of the vehicle.
(19) Not stopping a stage carriage at approved stopping places for a sufficient period of time in a safe and convenient position upon demand or signal of the conductor or any passenger desiring to alight from the vehicle and unless there is no room in the vehicle, upon demand or signal of any person desiring to becoming a passenger.
(20) Loitering or unduly delaying any journey and not proceeding to the destination as near as may be in accordance 15 First Appeal No.73 of 2022 with the time table pertaining to the vehicle, or, where there is no such time table, with all reasonable despatch. (21) Not driving a contract carriage, in the absence of a reasonable cause, to the destination named by the hirer by the shortest route.
(22) The driver of a motor cab not accepting the first offer of hire which may be made to him irrespective of the length of the journey for which such offer is made.
(23) The driver of a motor cab demanding or extracting any fare in excess to that to which he is legally entitled or refusing to ply motor cab.
(24) Abandoning a transport vehicle as a mark of protest or agitation of any kind or strike in a public place or in any other place in a manner causing obstructions and inconvenience to the public or passengers or other users of such places. (25) Using mobile phone while driving a vehicle."
13. The appellant/OP has not produced on record any such order of the JMIC and the RTO office regarding cancellation of the driving licence of Amrik Singh. The Hon'ble National Commission in case of Meera Rani Mittal (Supra) has held as under:-
"16. Admittedly, the driving licence of the driver was valid from 30.08.1992 to 13.03.2000. However, I fail to understand as to how after a period of seven years, the licensing authority all of a 16 First Appeal No.73 of 2022 sudden has woken up and cancelled the driving licence of the driver."
14. The appellant/OP has not produced on record any evidence/document to show the period of suspension of licence of driver Amrik Singh. The order passed by the Hon'ble Madras High Court in case of "P. Sampathkumar" (Supra) is relevant wherein it has held as under:-
"4. In response to the aforesaid submissions made, Learned Counsel for the Petitioner highlights that the aforesaid order of suspension dated 10.01.2020 passed by the Licensing Authority has been purported to have been made under clauses (1)(d) and (f) in Section 19 of the Act read with Rule 21 of the 5/8 Central Motor Vehicles Rules, 1989, and not in the exercise of power conferred by clause (1-A) in Section 19 of the Act. He further contends that even in clause (1-A) in Section 19 of the Act, the Licensing Authority has been empowered to disqualify a person from holding driving licence for a first offence for a period of three months and as the driving licence of the Petitioner has been seized on 11.12.2019, the aforesaid period of three months has also now lapsed, and the suspension of licence for a period exceeding that limit is without jurisdiction and the Licensing Authority would have to return the driving licence to the Petitioner. It is further pleaded that on account of seizure of the driving licence, the Petitioner is out of employment and any further delay in returning his driving licence causes hardship for his livelihood and as such, expeditious decision would have to be taken by the Licensing Authority in the matter."17
First Appeal No.73 of 2022
In the present the appellant/OP has not produced on record any evidence that on which date the licence of driver Amrik Singh was seized and when it was returned.
15. The Hon'ble Punjab & Haryana High Court in case of "Smt. Fajari" (Supra) has held as under:-
"The appellant-insurance company has failed to prove that the insured (owner) was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. In this scenario, this Court finds no merit in the submissions made by learned counsel for the appellant-insurance company. The appellant-insurance company cannot absolve itself from it's liability of paying the compensation. Resultantly, the appeal deserved to be dismissed."
16. The appellant/OP rejected the claim simply by saying that the driving licence of the driver Amrik Singh was cancelled by the JMIC in some case is not relevant in the present case as the appellant failed to produce on record any such order under which the licence was cancelled. Neither the details of the case nor any information which was relevant for the accident of the present case has been mentioned in the reply or in the grounds of appeal or even in the arguments raised before this Commission. Totally a vague averment has been made not in the grounds of appeal but in the oral 18 First Appeal No.73 of 2022 arguments without producing on record the relevant documents/information. The judgments relied upon by the appellant are not applicable to be facts and circumstances of the case.
17. In view ratio of law laid down by different Courts as mentioned above and our detailed discussion, the District Commission has rightly allowed the complaint by issuing direction to pay the claim of the complainant strictly in accordance with the terms and conditions of the policy and as per the report of the Surveyor alongwith interest @7% per annum from the date of filing the complaint till actual realization. Even the rate of interest @7% cannot be said to be on higher side and the District Commission has rightly awarded 7% interest. Accordingly, finding no merit in the arguments raised by learned counsel for the appellant, the appeal is hereby dismissed. The order passed by the District Commission is upheld.
18. The appellant had deposited an amount of Rs.25,000/- at the time of filing of the appeal with this Commission and had also deposited an amount of Rs.2,47,717/- on 01.04.2022 in compliance with order of this Commission. Said amounts, alongwith interest accrued thereon, if any, shall be remitted by the Registry to the District Commission by way of DD/Cheque in accordance with law. The respondent/complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law. 19 First Appeal No.73 of 2022
19. Since the main case is decided, the pending applications, if any, are also disposed of.
20. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER May 03, 2023 (MM)