State Consumer Disputes Redressal Commission
United India Insurance Company Ltd. vs Smt. Amrita Devi on 23 November, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 40 / 2015
United India Insurance Co. Ltd.
Regional Office: Ratan Palace
Kaulagarh Road, Dehradun
Through its Chief Regional Manager
......Appellant / Opposite Party
Versus
Smt. Amrita Devi W/o Late Roshan Singh Bhandari
R/o Village Gangao, P.O. Bheeda, Patti-Choprakot
Thalisain, District Pauri Garhwal
.......Respondent / Complainant
Sh. Suresh Gautam, Learned Counsel for the Appellant
Sh. Sudesh Uniyal, Learned Counsel for Respondent
Coram: Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 23/11/2017
ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the opposite party-Insurance Company against the order dated 28.02.2015 passed by the District Forum, Pauri Garhwal in consumer complaint No. 28 of 2012, whereby the District Forum has partly allowed the consumer complaint and directed the opposite party-Insurance Company to pay Rs. 3,70,000/- to the complainant towards compensation for vehicle within two months from the date of receiving the complete salvage of the accidented vehicle from the complainant. In case of non- compliance of the order, the complainant will also entitled to get interest @ 6% per annum on the said amount from the date of filing the consumer complaint till the date of actual payment. The opposite party is also directed to pay Rs. 10,000/- towards mental agony and litigation expenses to the complainant 2
2. Briefly stated the facts of the case, as mentioned in the consumer complaint are that the husband of the complainant-Smt. Amrita Devi, named Late Roshan Singh Bhandari, was the registered owner of the vehicle Maxi Cab No. UK12-TA-0025. He had purchased an insurance policy No. 081500/31/09/01/00002979 for the vehicle from the opposite party-United India Insurance Co. Ltd. for a sum of Rs. 3,70,000/-. On 02.09.2010, the aforesaid vehicle No. UK12-TA-0025 met with an accident at about 03:00 P.M. at Village Pafadiyada 6KM ahead from Thalisain. In the said accident, husband of the complainant had died at the spot and the vehicle became completely damaged. At the time of accident, husband of the complainant was driving the vehicle. The complainant met the officers of the opposite party and asked for the claim amount, but they told the complainant that the vehicle cannot be displaced from the place of accident before their final survey. The complainant had made several correspondence to Sh. V.P. Singhal and Company, Surveyor of the opposite party, but he postponed the report several times, sometime in the garb of asking document or post-mortem etc. The complainant fulfilled all the formalities as per their requirement. Even after formalities, one year has already passed, but the opposite party did not pay the claim amount. During this time, the complainant suffered mentally as well as physically. The complainant sent a legal notice dated 06.08.2011 to the opposite party. Thereafter, the opposite party-Insurance Company gave a claim form, which was filled by the complainant and sent to the opposite party, but no amount of claim has been paid so far. The complainant again contacted with the opposite party and thereafter on 24.10.2011, a letter was sent by the opposite party to the complainant and demanded signature of the complainant on blank receipt and signed over the paper without payment of claim amount. The complainant signed over the blank receipt with revenue ticket and sent to the opposite party, even then the opposite party did not settle the claim and did not pay the claim amount. When the complainant said to the opposite party that in case claim amount is not paid, then she will go to the court, then the opposite party finally refused to pay the claim 3 amount. By the act of the opposite party, the complainant has suffered financial loss as well as mental agony. She has no means for livelihood of her son and she has no employment. In this way, the opposite party has committed a deficiency in service.
3. The opposite party- United India Insurance Co. Ltd. has filed written statement before the District Forum and has pleaded that the complainant has not provided insurance policy particulars to the answering opposite party, hence para Nos. 1 & 2 of the complaint are not admitted. It is not admitted the date and time of alleged accident and alleged vehicle was insured with the answering opposite party. It is also not admitted that the vehicle in question was involved in any accident as alleged. The complainant put to strict proof of fact narrated by her in those paras. The answering opposite party reserves its right to amend written statement, if and when the policy particulars are made available to it. The answering opposite party has denied para Nos. 3 to 9 of the complaint. That no cause of action has arose to the complainant to file and maintain the present application, therefore, the application against the answering opposite party is liable to be dismissed. In the additional pleas, the answering opposite party has pleaded that the present complaint is wholly misconceiving, groundless and unsustainable in law. The dispute raised by the complainant in present complaint is manifestly outside the purview of the said act. That the complainant has not produced the relevant documents, i.e. driving licence, fitness, registration certificate, permit in respect of the vehicle to the knowledge of answering opposite party. It is submitted that driving licence of the driver was not valid and effective and driver was driving vehicle in question in hilly area without hill endorsement by the registering authority and he had no permission to drive upon hill road. The complaint is liable to be dismissed against the answering opposite party.
4. The District Forum, on an appreciation of the material on record, partly allowed the consumer complaint vide impugned order dated 4 28.02.2015 in the above manner. Aggrieved by the said order, the insurance company-appellant has filed the present appeal.
5. We have heard Sh. Suresh Gautam, learned counsel for the appellant and Sh. Sudesh Uniyal, learned counsel for respondent. We have also gone through the entire record of the District Forum and have also perused the material placed on record.
6. Learned counsel for the appellant has submitted before this Commission that the order of the District Forum is against the facts, law and merits of the case. The District Forum has failed to appreciate the evidence on record, which clearly shows that the driver was not holding valid and effective license at the time of accident to drive the vehicle on the hill roads, which is clearly violation of terms and conditions of the policy as well as the Motor Vehicles Act. The District Forum has wrongly allowed the claim of the complainant inspite of that there was violation of policy terms and conditions. The District Forum has wrongly granted the compensation of Rs. 3,70,000/- to the complainant, whereas the complainant has clearly violated the terms and conditions of the policy and passed the order against the law. The District Forum failed to appreciate the law laid down by the Hon'ble National Commission and State Commission, where there is no deficiency and the company has repudiated the claim of the complainant on the genuine ground and according to law. The District Forum has wrongly granted Rs. 10,000/- for the damages and cost of the suit, whereas there is no deficiency proved on the part of the company. The District Forum has also wrongly granted interest 6%, whereas there is no deficiency proved on the part of the company.
7. The respondent-complainant has filed her affidavit (paper No. 17Ka to 17Ka/2 on the District Forum's record). She has also filed particulars of registration certificate obtained from the R.T.O., Garhwal Division, Pauri annexure-1, particulars of permit annexure-2, copy of insurance policy annexure-3, copy of FIR annexure-4, copy of death certificate annexure -5, 5 copy of driving licence annexure-6 as well as photocopy of postal receipts and speed post annexures-7 alongwith postal receipt annexure-7-1, copy of letter in reply to the Surveyor annexure-8, copy of legal notice dated 06.08.2011 by Sh. Prakash Dhasmana, Advocate annexure-9 alongwith postal receipt annexure 9-1, copy of letter dated 24.10.2011 of insurance company to Smt. Amrita Devi annexure-10, copy of blank receipt with signature of Smt. Amrita Devi at revenue stamp annexure-11, copy of succession certificate annexure-12 and certified copy of final report issued from Judicial Magistrate, Ist Class, Pauri Garhwal dated 13.07.2011 annexures-13 & 13-1, before the District Forum.
8. On the other side, the Divisional Manager (without name), United India Insurance Co. Ltd., Haridwar has filed counter affidavit in evidence (paper No. 20Kha on the District Forum's record). Besides affidavit, the appellant-Insurance Company has filed an affidavit of Sh. Vikram Singh Rana, Advocate Surveyor (paper No. 23Kha on the District Forum's record) and copy of letter dated 24.12.2011 by Sh. Vikram Singh Rana, Advocate Surveyor to Divisional Manager, United India Insurance Co. Ltd. (paper No. 23Ga on the District Forum's record). Information under Right To Information Act dated 22.12.2011 sent by ARTO, (Administration) Dehradun to Sh. Vikram Singh Rana (paper No. 23Ga/3 on the District Forum's record), The Uttar Pradesh Motor Vehicles Rules, 1998 Section 193 (paper No. 23Ga/4 on the District Forum's record), notification dated 29.07.2008 by Sh. Vinod Sharma, Additional Transport Commissioner, Uttarakhand to RTOs' of Almora/Dehradun/Haldwani/Pauri (paper No. 23Ga/5 on the District Forum's record), information under RTI Act by the ARTO, (Administration) Dehradun dated 19.12.2011 addressed to Sh. Vikram Singh Rana, Advocate (paper No. 23Ga/6 on the District Forum's record) and copy of driving license of Sh. Roshan Singh Bhandari (paper No. 23Ga/7 on the District Forum's record) have been filed before the District Forum.
69. Now it is to be seen whether husband of the complainant Late Roshan Singh Bhandari was the registered owner of the vehicle Maxi Cab No. UK12-TA-0025 and whether this vehicle was insured from the appellant-Insurance Company at IDV of Rs. 3,70,000/- for a period from 03.01.2010 to 02.01.2011. It is also to be seen whether the vehicle in question met with an accident on 02.09.2010 at Village Pafadiyada and in this accident, the registered owner Sh. Roshan Singh Bhandari had died alongwith other persons. It is also to be seen whether the driver Sh. Roshan Singh Bhandari was having valid and effective driving licence with hill endorsement to drive public service vehicle and transport vehicle on hill roads. From the perusal of the registration certificate particulars as well as permit particulars (paper Nos. 18Ga to 18Ga/1 on the District Forum's record) annexures 1 & 2 of the affidavit of Smt. Amrita Devi- respondent (paper No. 17Ka to 17Ka/2 on the District Forum's record), it is very much clear that this vehicle No. UK12-TA-0025 Maxi Cab was registered in the name of Sh. Roshan Singh Bhandari S/o Magan Singh Bhandari and permit to drive this vehicle was valid from 06.04.2009 to 05.04.2014. In this way, registration as well as permit was valid at the time of accident. It is also to be seen whether insurance policy number 081500/31/09/01/00002979 was purchased by Sh. Roshan Singh Bhandari or not. It is clear that this insurance policy was purchased by Late Roshan Singh Bhandari for his vehicle No. UK12-TA-0025 for IDV of Rs. 3,70,000/- and this insurance was valid from 03.01.2010 to 02.01.2011. Other documents like copy of FIR and copy of death certificate (paper Nos. 18Ga/4 and 18Ga/5 on the District Forum's record) also evident of the fact that one Sh. Kundan Singh Negi had lodged FIR at Nayab Tehsildar, Thalisain, Garhwal regarding the accident of Maxi Cab number UK12-TA- 0025, which was occurred on 02.09.2010 at Pafadiyada village. Police / Tehsildar after investigation have submitted final report before the Court, which was accepted by Sh. Sudhir Tomar, Judicial Magistrate, First Class, Pauri Garhwal on 13.07.2012, which is evident from the document (paper No. 18Ga-16 on the District Forum's record). Now we have to see whether 7 driving licence of Sh. Roshan Singh Bhandari (paper No. 18Ga/6 on the District Forum's record) was having hill endorsement to drive the public service vehicle or transport vehicle on hill routes. From the perusal of the driving licence of Sh. Roshan Singh Bhandari, we came to know that this licence was issued on 24.04.2006 for driving motor-cycle only. But on 17.02.2010, the driver Sh. Roshan Singh Bhandari was authorised to drive LMV (T) only, which was effective upto 16.02.2013. On this document, i.e. driving licence, we have not found any endorsement regarding driving of this vehicle on hills. Meaning thereby there is no hill endorsement in the name of Sh. Roshan Singh Bhandari to drive this public service vehicle Maxi Cab on hill routes. In the affidavit, Divisional Manager of Insurance Company has deposed that the driving licence of the driver Sh. Roshan Singh Bhandari was valid only for LMV (T) and no endorsement for hills driving was there. As such, the driver was not authorised to drive the insured vehicle or passenger carrying commercial vehicle. We have gone through the affidavit of Sh. Vikram Singh Rana, Advocate Surveyor, who obtained information under Right To Information, Act as well as copy of notification / letter dated 29.07.2008 sent by Sh. Vinod Sharma, Additional Transport Commissioner, Uttarakhand to the RTOs' Almora/Dehradun /Haldwani/Pauri. We have also gone through Section 193 of The Uttar Pradesh Motor Vehicles Rules, 1998. In the letter dated 29.07.2008, the Transport Commissioner has directed the Regional Transport Officers of Almora, Dehradun, Haldwani and Pauri that The Uttar Pradesh Motor Vehicles Rules, 1998, is applicable in Uttarakhand also. According to Section 193 of The Uttar Pradesh Motor Vehicles Rules, 1998, hill endorsement is necessary on the driving licences of the drivers driving the vehicle on hill routes.
10. Rule 193 of The Uttar Pradesh Motor Vehicles Rules, 1998 are applicable in the State of Uttarakhand also, which reads as under:-
"193. Endorsement of certain licences for hill roads - No person shall drive a public service vehicle or a goods vehicle on a hill road unless his licence to drive such 8 public service vehicle or goods vehicle has been endorsed by a Registering Authority with a permission to drive upon hill roads situated within the jurisdiction of such Registering Authority or in the case of a public service vehicle hired by tourists, by the Registering Authority of the State with which reciprocal arrangement on the point have been agreed upon".
11. In the instant case, there was no hill endorsement in the driving licence of the driver Sh. Roshan Singh Bhandari at the time of accident and he was not authorised to drive public service vehicle or goods vehicle on hill routes. In the case of Rajinder Singh Negi vs. Oriental Insurance Co. Ltd.; IV (2008) CPJ 250 (NC), the Hon'ble National Commission has observed that the hill road endorsement on a driving licence is not a mere formality, which can be brushed aside as unnecessary in a State, which is generally hilly. Consequently, repudiation of the own-damage insurance claim of the petitioner by the respondent insurance company is valid in law. Repudiation of claim by insurer justified. This Commission in the case of First Appeal No. 68 of 2014; Universal Sompo General Insurance Co. Ltd. vs. Sh. Purushottam Dutt Pant, decided on 24.02.2016, has held that there is no hill endorsement made in the driving licence of driver. Section 193 of The Uttar Pradesh Motor Vehicles Rules, 1998 clearly prohibits plying of a public service vehicle or a goods vehicle on a hilly routes by a person, who has not been permitted by the registering authority and not endorsed driving licence. There was no hill endorsement so as to authorize him to drive the vehicle in hill roads.
12. In the instant case, the vehicle in question was a Maxi Cab fall within the definition of Public Service Vehicle as envisaged in Section 2(35) of the Motor Vehicle Act. Driver Sh. Roshan Singh Bhandari was issued a driving license to drive LMV (T) only. From the perusal of the said driving license, it is observed that there was no hill endorsement. Therefore, it is clear that the driver-Sh. Roshan Singh Bhandari was not having a valid driving license at the time of accident. Section 193 of The Uttar Pradesh Motor Vehicle Rules, 1998 clearly prohibits plying of a 9 public service vehicle or a goods vehicle on a hilly routes by a person, who has not permitted by the registering authority. There was no hill endorsement so as to authorize him to drive the vehicle in hill roads. There is no dispute that the accident took place in the hills of Pafadiyada village in the hills of the State of Uttarakhand. Thus, it is proved beyond any shadow of doubt that on the date of accident, driver Sh. Roshan Singh Bhandari was not having a valid and effective driving licence to drive the vehicle, which is a public service vehicle, therefore, the insurance company has rightly repudiated the respondent's claim.
13. For the reasons aforesaid, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order. The order impugned being not sustainable in the eyes of law, is liable to be set aside and appeal is fit to be allowed.
14 In view of the above, the appeal is allowed. Impugned judgment and order dated 28.02.2015 passed by the District Forum, Pauri Garhwal is set aside and the consumer complaint No. 28 of 2012 is dismissed. No order as to costs. The statutory amount deposited by the appellant at the time of filing the appeal be released in appellant's favour.
(MRS. VEENA SHARMA) (D.K. TYAGI)