State Consumer Disputes Redressal Commission
Oriental Insurance Co. vs M/S International Tractor Ltd. on 4 March, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.616 of 2013
Date of Institution: 03.06.2013.
Date of Decision : 04.03.2016.
1. The Oriental Insurance Company Limited, SCO No.18/19, Near
Mini Secretariat Improvement Trust Market, Hoshiarpur.
2. Oriental Insurance Company Limited, Division Office No.3 Link
Road, Ludhiana through Sh.Ram Avtar Deputy Manager
Oriental Insurance Company SCO No.109 to 111, Sector 17-D,
Chandigarh.
.....Appellants/opposite parties
Versus
M/s International Tractors Limited, Village Chak Gujran, P.O.
Piplanwala, Jalandhar Road, Hoshiarpur through its Authorized
Signatory Mr. Malkiat Singh, Deputy General Manager/Chief Factory
Manager.
.....Respondent/complainant
First appeal against order dated
16.04.2013 passed by the District
Consumer Disputes Redressal
Forum, Hoshiarpur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellants : Sh. Vinod Chaudri, Advocate
For the respondent : Sh. Suvir Sehgal, Advocate
................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Aggrieved by impugned order dated 16.04.2013 of the District Consumer Disputes Redressal Forum, Hoshiarpur (in short the "District Forum"), the appellants of this appeal (the opposite parties in the complaint) have directed this appeal against respondent of this appeal (the complainant in the complaint), vide First Appeal No.616 of 2013 2 which, the complaint of the complainant was accepted by directing the OPs to pay Rs.4,16,257/- with interest @ 9% per annum from the date of repudiation i.e. 26.07.2012 till actual payment, besides Rs.10,000/- as litigation expenses.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that the complainant is a manufacturer of tractors and has various depots and warehouses throughout India. The tractors are transferred from depots/warehouses/manufacturing plant/dealers to the nearby dealer/depots/warehouses through road. The complainant obtained a Motor Trade Policy-cum-Declaration Policy from OP no.2 on 29.01.2009 and it undertook to indemnify all types of loss including theft, own damage etc. on different models of Sonalika tractors, which were to be transferred/transported to different stations from anywhere in India by road. The maximum distance under insurance cover was 2200 kilometers by road between different dealers and depots. OP no.2 issued cover note no.CHD-C 542480 dated 19.01.2009 for the period 30.01.2009 to 29.01.2010. The complainant supplied the list of various tractors to OPs no.1 and 2, which were transferred from one station to another station of each month and same were supplied for the month April, 2009 also. On 17.04.2009, tractor Sonalika DI RX 47 bearing Engine no.3102FL82G148914 and chassis no.DZCSB153420/3 worth Rs.4,16,257/- was being transferred from International Tractors Limited, E49, Foundary Nagar, Agra, which was driven by Mr. First Appeal No.616 of 2013 3 Gurdeep Singh driver. When the said tractor reached in the jurisdiction of PS Attrauli, four persons came in Maruti Van and snatched the said tractor by dragging driver from the driver seat. They administered some intoxicants applied on the handkerchief to Gurdeep Singh and he became unconscious. Gurdeep Singh gained consciousness in the field only. They also took away the mobile phone and cash of Rs.1500/- from said driver Gurdeep Singh. FIR no.241 dated 19.04.2009 under Section 392, 328 IPC was registered at Police Station Attrauli, District Aligarh on the statement of Gurdeep Singh driver against four unidentified persons regarding snatching of tractor, one mobile phone and cash of Rs.1500/-. The incident was also reported to OPs and insurance claim was lodged for theft of the vehicle with OPs by making due compliance of the formalities. The police prepared untraced report of above FIR and it was accepted by the Judicial Magistrate, Attrauli, Aligarh on 09.07.2012, which was supplied to OPs also alongwith original documents. The OPs repudiated the insurance claim of the complainant on flimsy grounds. The repudiation of insurance claim has been assailed as malafide and illegal by the complainant. The complainant has, thus, filed the complaint against the OPs that they be directed to pay the insured amount of Rs.4,16,257/-, the price of said tractor, besides Rs.20,000/- as compensation for huge financial loss and mental harassment and Rs.10,000/- as costs of litigation. The complainant also prayed for awarding of interest @12% per annum.
First Appeal No.616 of 2013 4
3. Upon notice, OPs appeared and filed written reply by raising preliminary objections that complainant is a limited concern and is not consumer of OPs. The complaint is not maintainable in the eye of law. It was further averred that the insurance claim was repudiated prior to filing of the present complaint. The complaint is alleged to be bad for non-joinder of necessary parties. It was further averred that matter cannot be adjudicated in summary procedure by the Consumer Forum on account of intricacies involved in the case, which would entail the recording of elaborate evidence. On merits, the OPs admitted the insurance of the vehicles of the complainant. It was pleaded in the written reply on merits that insurance claim was payable to complainant, if driver was holding valid and effective driving licence at the time of incident. It was averred that the driver was not holding valid and effective driving licence at the time of above incident and hence, the insurance claim was correctly repudiated by the OPs. The OPs prayed for the dismissal of the complaint.
4. The complainant tendered in evidence affidavit and documents Ex.C-1 to C-15 and closed the evidence. As against it, OPs tendered in evidence affidavit and documents Ex.R-1 to R-4 and closed the evidence. Sh. Ravi Gupta, Administrative Officer of OPs was also examined before District Forum on 28.02.2013. On conclusion of evidence and arguments, the District Forum Hoshiarpur partly accepted the complaint, as referred to above. First Appeal No.616 of 2013 5 Dissatisfied with the order of District Forum, the OPs now appellants have preferred this appeal against the same.
5. We have heard the learned counsel for the parties and have also examined the record of the case. The order of District Forum under challenge in this case has been assailed by the appellants on the ground that the claim of the complainant was found untenable on account of fake driving licence. The repudiation of Contract of Insurance was justified by counsel for appellants in this appeal on the ground that Gurdeep Singh, who drove the tractor in question at the time of above mugging incident was not holding valid and effective driving licence therefor. We have to consider the evidence on the record to decide this controversy between the parties in this case. Ex.C-1 is the untraceable report of theft of vehicle supplied to OPs, now appellants by complainant. Ex.C-2 is the statement. Ex.C-3 is the motor claim form. Ex.C-4 is the report of Investigator. Ex.C-5 is the copy of FIR lodged about this theft, vide FIR no.119 dated 19.04.2009 for the offences under Section 392/328 of IPC at Police Station Attrauly. This FIR has been lodged by Gurdeep Singh with the police with regard to robbery of the above tractor by unidentified robbers. Ex.C-6 is the affidavit of Malkiat Singh, Deputy General Manager of complainant to support the case of complainant on the record. Ex.C-7 is the supplementary affidavit of Malkiat Singh, Deputy General Manager. Mark C-8 is the extracts of the meeting of Board of Directors of complainant which authorized Malkiat Singh to pursue the case. Mark C-9 is the copy of declaration First Appeal No.616 of 2013 6 policy. Mark C-10 is the copy of insurance premium paid. Mark C-11 is the delivery chalan cum invoice international tractors limited. Mark C-12 is the copy of driving licence of Gurdeep Singh driver. Mark C-13 is the copy of tractor delivery slip. Mark C-14 is the untraced report. The OPs relied upon affidavit of Mohan Thakur, Sr. Divisional Manager of OPs Ex.R-1, wherein he stated that the claim is not tenable for want of effective and valid driving licence by the driver at the time of robbery. He further stated that terms and conditions of insurance policy are binding on the parties strictly. Ex.R-2 is the Insurance Certificate-cum-policy Schedule. Mark R-3 is the copy of letter dated 26.07.2012 sent by OPs to complainant. Ex.R-4 is the report of District Transport Officer, Hoshiarpur to the effect that driving licence no.5393/Ren/2000-01 was renewed in the name of Lakhbir Singh S/o Sher Singh, which is valid for HT and valid for the period from 22.01.2001 to 21.01.2004. It is further reported that this driving licence has not been issued in the name of Gurdip Singh S/o Bant Singh, as per the record of the District Transport Officer concerned.
6. From perusal of above referred evidence on the record, it is evident that the complainant relied upon copy of driving licence Mark C-12, bearing no.5393REN dated 22.01.2001. Although, it is not a clear copy, which has been intentionally tendered by the complainant on the record. On the other hand, the report of District Transport Officer Hoshiarpur Ex.R-4 is on the record to the effect that driving licence no.5393/Ren/2000-01 was not issued to Gurdip First Appeal No.616 of 2013 7 Singh and as per record of Registering Authority it was issued to Lakhbir Singh S/o Sher Singh. From report of District Transport Officer Ex.R-4, it is plain that Gurdeep Singh driver was not holding effective and valid driving licence at the time of above incident of robbery.
7. The District Forum observed in the order that the incident of the matter has nothing to do with the driving licence and as such, it overturned the contention of OPs, now appellants on this point. We have to examine this point as to whether it is peremptory for driver to hold valid and effective driving licence for driving the vehicle on the road, although it has no nexus with the incidence. On this point, counsel for the appellant referred to law laid down by Apex Court in "Suraj Mal Ram Niwas Oil Mills Private Limited Vs. United India Insurance Company Limited & another" 2010(10) Supreme Court Cases-567, wherein it has been held that "Interpretation of insurance contract and its term- Strict construction prescribed- Words in an insurance contract, held, must be given paramount importance and interpreted as expressed without any addition, deletion or substitution." The appellants also referred to law laid down by the Apex Court in "Oriental Insurance Co. Limited Vs. Sony Cheriyan" 1999 Judicial Reports Consumer-523 that the "Contract of Insurance is between the parties and terms of the contract have to strictly construed to determine the liability of the insurer. Insured cannot claim anything more than what is covered by the insurance policy." The respondent in this appeal relied upon law First Appeal No.616 of 2013 8 laid down in "National Insurance Co. Ltd. & another Vs. Suresh Babu & another" 2007(1) CPC-275 that complainant carrying more passengers in violation of terms of policy. Claim can be settled on non-standard basis. This authority is not attracted to the fact situation of the facts of the case ex facie. Even reference was made to law laid down by the Apex Court in "Jitendra Kumar Vs. Oriental Insurance Co. Ltd. & others" 2003(6) SCC-420 that claim cannot be repudiated on the ground that driver did not have valid driving licence, because in the cited authority, the fire caused damage to vehicle which occurred due to mechanical failure and not due to any fault or act, or omission of the driver. The contract of insurance is on the record, vide Ex.R-2. There is proviso in the contract of insurance that person including the insured can drive provided he holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. The contract of insurance is that effective driving licence should have been held by the driver at the time of accident. Now, we have to determine this point whether the incident of robbery falls within the definition of accident, which is required by contract of insurance or not. It is, thus, plain from perusal of the contract of insurance Ex.R-2 that it was mandatory for any person including the insured to hold effective driving licence at the time of accident. The word accident has been used in the contract of insurance in the instant case, because the vehicle was not met with an accident, but it was rather extortioned from Gurdeep Singh driver by unknown miscreants. Consequently, the incident of robbery dehors the mandate of the contract of insurance that in case of First Appeal No.616 of 2013 9 accident of vehicle, the driver must hold valid and effective driving licence.
8. The next submission raised by counsel for appellants is that the claim cannot be granted in excess of the insured amount. From perusal of contract of insurance Ex.R-2, we find that the tractor was insured for Rs.3,48,246/- only. The District Forum awarded the amount of claim as Rs.4,16,257/- to complainant from OPs, now appellants. It is in violation of the contract of insurance Ex.R-2. The order of District Forum is, thus, modified by holding that the OPs, now appellants are liable to pay the insured amount of vehicle as Rs.3,48,246/- only for which the vehicle was insured, alongwith interest @ 9% per annum from the date of repudiation of insurance claim till the actual payment. The order of the District Forum is modified to the extent of amount of quantum of claim of insurance, as referred to above. Resultantly, we partly accept the appeal of the appellants and order that OPs, now appellants shall pay the amount of Rs.3,48,246/- alongwith interest @ 9% per annum from the date of repudiation of insurance claim till the actual payment and Rs.10,000/- as litigation expenses to complainant.
9. As a result of our above discussion, we partly accept the appeal of the appellants by modifying the order of the District Forum Hoshiarpur dated 16.04.2013, as referred to above.
10. The appellants had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the First Appeal No.616 of 2013 10 registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days.
11. Arguments in this appeal were heard on 02.03.2016 and the order was reserved. Now the order be communicated to the parties.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER March 04, 2016.
(MM)