State Consumer Disputes Redressal Commission
National Insurance Company Ltd. vs Vinod Kumar & Others on 13 October, 2023
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.477 of 2021
Date of institution : 21.12.2021
Reserved on : 03.10.2023
Date of decision : 13.10.2023
National Insurance Company Ltd., Divisional office-II, 32, G.T.Road,
Panesar Complex, opposite Kings Hotel, Jalandhar City.
Now through its authorized signatory, B.K. Angurela, Dy.Manager,
Regional Office, SCO No.332-334, Sector 34-A, Chandigarh.
.....Appellant/Opposite Party
Versus
Vinod Kumar, son of Kailash Chand, resident of Street No.9, Avtar
Nagar, Jalandhar City deceased now represented through:
i) Smt. Asha Rani W/o Sh. Vinod Kumar,
ii) Prince Mahindru S/o Sh. Vinod Kumar,
iii) Monika D/o Sh. Vinod Kumar,
iv) Isha (minor) D/o Sh. Vinod Kumar, through her mother and
natural guardian Smt. Asha Rani W/o Sh. Vinod Kumar.
All residents of H.No.406, Street No.9, Avtar Nagar, Jalandhar City
....Respondents/Complainants
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 26.10.2021 of the District
Consumer Disputes Redressal Commission,
Jalandhar.
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued by:-
For the appellant : Sh. J.P. Nahar, advocate
For respondent : Sh. B.K. Gupta, Advocate
FA No.477 of 2021 2
KIRAN SIBAL, MEMBER
The instant appeal has been filed by the appellant/opposite party against the impugned order dated 26.10.2021 passed by District Consumer Disputes Redressal Commission, Jalandhar (in short, "the District Commission"), whereby the complaint filed by complainants against opposite party (in short 'OP'), under of the Consumer Protection Act, was allowed and the following relief has been granted:
"9. In view of the above facts and circumstances of the case and as per decision of Hon'ble Apex Court (Supra) he repudiation of insurance claim of the complainant by OP is unjustified. As such, we allow the complaint of the complainants (legal heirs of deceased) with direction to OP to pay IDV (Insured Declared value) of Rs.5,11,200/- to the legal heirs of the complainant in equal share along with interest @ 6% from the date of accident 12.06.2018 till its actual realization. The complainant is also entitled Rs.10,000/- as compensation and Rs.5,000/- as cost of litigation."
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts for the disposal of the appeal are that the complainant, Vinod Kumar (since deceased), was owner of TATA SFC 407/2955 Truck-LGV, bearing Registration No.PB-08-DG-9677, which was got insured from the OP, vide insurance policy No.404300311710000535, valid from 22.02.2018 to 21.02.2019. He paid the insurance premium to the tune of Rs.21,407/- for the insured declared value (IDV) of Rs.5,11,200/-. At the time of renewal of the policy, physical pre-inspection of the vehicle was duly made by the representative of the OP. The policy document and copy of proposal form were not ever issued, furnished or delivered by the OP to the complainant, only the cover note of the policy was issued. FA No.477 of 2021 3 Unfortunately, on 12.06.2018 at about 1:30 AM the vehicle in question met with an accident on G.T.Road, near village Khalra, District Jalandhar. The vehicle was extensively and badly damaged, which resulted into own damage/total loss. The intimation of the accident was promptly given to OP and the matter was also reported to the police authorities, vide G.D., No.040 dated 29.06.2018. Thereafter, the complainant lodged 'Own Damage Claim' and submitted prescribed claim form dated 07.07.2018, with all the supportive documents relating to the accident and estimate of damage and loss. The OP appointed its empanelled Surveyor, who assessed the loss and submitted his report dated 14.09.2018, but the said report was not supplied to the complainant. Thereafter, the OP, vide letter dated 24.09.2018, repudiated Own Damage Claim illegally on the ground that complainant Vinod Kumar was not authorized to drive the vehicle on the date of accident and his driving license was found expired on 06.05.2018. The complainant Vinod Kumar had a valid driving license and was entitled for the loss and damage sustained by the insured vehicle. Alleging deficiency in service on the part of the OP, the complainants filed the complaint before District Commission and sought directions against the OP to pay claim of Rs.5,11,200/- along with interest @ 12% p.a., Rs.50,000/- as compensation and punitive damages and Rs.10,000/- as cost of litigation.
4. The complaint was contested by the OP by filing written reply, wherein the OP stated that on receipt of information qua the loss caused to the insured vehicle, it appointed S. Charanjit Singh, Surveyor to assess the loss, who submitted his report dated 14.09.2018. The FA No.477 of 2021 4 surveyor assess the loss to the vehicle to the tune of Rs.1,87,000/- after deducting salvage to the tune of Rs.12,882/-. The surveyor further pointed out in his report that Sh. Vinod Kumar son of Sh. Kailash Chand was the driver of the vehicle at the time of alleged accident, whose driving license for LMV-GV expired on 06.05.2018 i.e. before loss/accident. The complainant had provided renewed DL valid LMV- TR upto 10.07.2021 w.e.f. 11.07.2018. To ply the said vehicle a DL for LMV-GV was required and since the earlier DL had expired prior to the alleged accident and renewed DL was issued w.e.f. 11.07.2018, therefore, the driver at the time of alleged accident was not having a valid and effective DL. Thus the claim was rightly repudiated, vide letter dated 24.09.2018, being not maintainable as per terms and conditions of the policy. There was no deficiency in service on the part of the OPs. After denying other averments in the complaint, the OP prayed for dismissal of the complaint.
5. The parties led their evidence before the District Commission in respect of their respective contentions. The District Commission after going through the record and hearing learned counsel for the parties, allowed the complaint of the complainants, vide impugned order as above. Aggrieved with the same this appeal has been filed by the appellant /OP.
6. We have heard learned counsel for the parties and have also gone through the written arguments submitted by them and record of the case.
FA No.477 of 2021 5
7. Learned counsel for the appellant/OP vehemently contended that the impugned order passed by the District Commission is wrong, illegal and against the settled principles of law. The District Commission, while passing the impugned order has not appreciated the fact that the DL of Vinod Kumar was valid for LMV from 07.01.2008 to 06.05.2020 and for LMV-GV the license was valid from 07.01.2008 to 06.05.2018. Further, the DL for LMV-GV was renewed from 11.07.2018 till 10.07.2021. Therefore, at the time of accident i.e. on 12.06.2018, he was not holding the valid driving license. The learned counsel further argued that the District Commission has relied on the judgment in the case of 'Mukand Dewangan Vs. Oriental Insurance co'., which is under challenge before the Hon'ble Supreme Court in the case titled as 'M/s Bajaj Allianz General Insurance Co. Ltd. Vs. Rambha Devi, Civil Appeal No.841 of 2018. The District Commission has also overlooked the fact that the estimates of loss to the vehicle was Rs.5,90,956/-, whereas the surveyor assessed the loss on repair basis to the tune of Rs.1,87,000/- after applying the depreciation considering the age of the vehicle. Since, the driver of the vehicle was not holding a valid and effective driving license the claim of the complainant was rightly repudiated. Alleging no deficiency in service on the part of the appellant/OP, the learned counsel for the appellant prayed for acceptance of the appeal by setting aside the impugned order.
8. On the other hand the learned counsel for respondents/complainants has contended that there is no perversity and illegality in the impugned order passed by the District Commission. The DL of the complainant Vinod Kumar was valid from 07.01.2008 to FA No.477 of 2021 6 06.05.2020 and the accident occurred on 12.06.2018, which too is well within the period of insurance policy valid from 22.02.2018 to 21.02.2019. Moreover, the surveyor in his report has categorically mentioned that the license of the complainant Vinod Kumar for plying transport vehicle was valid upto 10.07.2021, which was renewed by the complainant. But without considering the said facts, the appellant/OP repudiated the genuine claim of the complainants. The learned counsel further argued on the similar lines as stated in the complaint and prayed for dismissal of the present appeal.
9. We have given thoughtful consideration to the contentions raised by the parties.
10. Admitted facts of the case are that the vehicle in question was insured, vide Cover Note/Policy No.404300311710000535, valid for the period from 22.02.2018 to 21.02.2019, Ex. C-1. It is also not in dispute that the vehicle in question met with an accident during subsistence of the policy. The respondents/complainants alleged that the vehicle was completely damaged in the accident but the appellant/OP failed to give the claimed amount and illegally repudiated the genuine claim, vide repudiation letter dated 24.09.2018, Ex. O-4, on the ground that the driver Vinod Kumar was not authorized to drive the insured vehicle. Alleging deficiency in service, the respondents/complainants filed a consumer complaint before the District Commission, which was allowed vide impugned order as above. Aggrieved by the same the appellant/OP filed the present appeal.
11. This appeal has been preferred by the appellant/OP mainly on the ground that the complainant being driver of the insured vehicle FA No.477 of 2021 7 was not holding a valid and effective driving license on the date of accident and for that reason the claim has been rightly repudiated by the Insurance Company. From the perusal of the file, pleadings as well as evidence brought by the parties, it is observed that the driving license of the insured, Ex.O-3, was valid till 06.05.2018 for transport vehicle(LMV-GV) and till 06.05.2020 for Non-Transport Vehicle(LMV) and the same was further renewed for transport vehicle(LMV-GV) w.e.f.11.07.2018 to 10.07.2021, Ex. C-27. It was the case of the appellant/OP that as the DL of the insured driver was valid for plying LMV-GV (Transport vehicle) till 06.05.2018 and the accident had occurred on 12.06.2018 i.e. after few days from the date of expiry, he was not holding a valid DL for plying the said vehicle at the time of accident. No doubt, the driving license of the driver for plying transport vehicle, as mentioned on the DL, was valid till 06.05.2018 but he had duly renewed the said DL for plying the same w.e.f.11.07.2018. It goes to show that the driver of the insured vehicle must have duly applied for renewal of the DL for plying the transport vehicle after the expiry of the same. The appellant/OP failed to lead any cogent evidence to establish that the driver had applied for renewal of the DL, after the date of accident. In the absence of the same, the benefit of doubt has to go in favour of the consumer. Moreover, it is not the case of the appellant/complainant that the driver of the insured vehicle was unskilled and holding a fake, forged or fabricated driving license and it has not challenged the genuineness of the same. It is also not the case of the appellant/OP that the accident took place due to the rash and negligent driving of the driver. There is only a gap of few days between FA No.477 of 2021 8 the date of expiry of DL for plying transport vehicle and date of accident and the claim qua the insured vehicle cannot be repudiated by the Insurance company on these hyper technical grounds.
12. Even otherwise, the driving license of the driver of the insured vehicle was valid w.e.f .07.01.2008 to 06.05.2020 for Non- Transport Vehicle (LMV). A perusal of "Permit In Respect of Goods Permit (Hire or Reward)", Ex. C-25, shows that the Gross weight of the insured vehicle, bearing Registration No. PB-08-DG-9677, is 4450 Kg (Unladen Weight 2000 Kg + Pay Load 2450 Kg). Now, it would be relevant to reproduce definition of "Light Motor Vehicle" as given in Section 2 (21) of the Motor Vehicles Act, 1988, which is as under:
"light motor vehicle" means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kilograms."
As the 'Unladen Weight' of the insured vehicle in question is 2000 kg, which does not exceed 7500 kg, therefore, the vehicle duly comes under the definition of 'Light Motor Vehicle'. The Hon'ble Supreme Court has held in case titled as "Kulwant Singh & others Vs. Oriental Insurance Company Ltd." 2015(2)SCC-186 that "driver possessed driving licence for driving "light motor vehicle", but was driving "light goods vehicle" when accident occurred- There is no breach of Insurance Policy- Held :-
(i) A driver had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well.
(ii) Insurance Company is not entitled to recovery rights on the ground of breach of conditions of insurance policy.FA No.477 of 2021 9
13. We are further fortified the judgment of the Hon'ble Supreme Court in case 'Mukund Dewangan v. Oriental Insurance Co. Ltd. 2017 (IV) CPJ 13 (SC)'; wherein it has minutely discussed the various provisions of the Motor Vehicles Act, 1988 and categorically held in Para No.46 (relevant portion) as under:
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre- amended position as well the postamended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and FA No.477 of 2021 10 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg.
and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
14. It has been contended by the learned counsel for the appellant/OP that reliance cannot be placed on the Judgment of Hon'ble Supreme Court of India in the case of 'Mukund Dewangan'(Supra) as the observation made by the Apex Court in the said Judgment is under challenge before it in the case of "M/s Bajaj Allianz General Insurance Co. Ltd. Vs. Rambha Devi" in Civil Appeal No.841 of 2018 and the same has been recommended for reconsideration by a Larger Bench of the Apex Court. The said submission of the learned counsel for the appellant/OP is not tenable as from the perusal of order dated 13.09.2023 passed by the Hon'ble Apex court in the above said Civil Appeal No.841 of 2018, the matter is still under consideration and has not attained finality. FA No.477 of 2021 11
15. In view of our above discussion and from the ratio of the aforesaid authorities of the Hon'ble Supreme Court, we are of the opinion that the driver was holding a valid and effective driving license at the time of accident and accordingly the appellant/OP cannot repudiate the claim on this ground.
16 Another contention raised by the appellant/OP is that the District Commission, while awarding the claim on IDV basis, has failed to appreciate the fact that the surveyor has assessed the loss on repair basis to the tune of Rs.1,87,000/- after applying the depreciation considering the age of the vehicle. A perusal of surveyor's report dated 14.09.2018, Ex.O-2, shows that the surveyor 'Charanjit Singh' has assessed the loss to the tune of Rs.1,87,000/- in respect of insured vehicle and given a complete and detailed assessment against each and every part described along with the estimated and assessed value after applying the depreciation etc. taking in view the age of the vehicle. The complainant has neither in his complaint rebutted these as being incorrect nor has through any cogent evidence brought on record as to which part has been undervalued or are assessed less by the surveyor. It is an admitted fact that the vehicle in question has already been plying on the road after its repair. Hence, it cannot be said that there was a total loss/damage to the vehicle. Moreover, from the perusal of survey report, we find that the surveyor has nowhere declared the vehicle to be a case of total loss. Since, the claim was not for total damage of the vehicle, therefore, the amount of loss assessed by the Surveyor to the tune of Rs.1,87,000/-, after deduction of depreciation etc. as per terms and conditions of the insurance policy, seems to be FA No.477 of 2021 12 reasonable. Moreover, the appellant/complainant has not led any rebuttal evidence to the expert evidence adduced by the respondents- Insurance company in the shape of survey report, which has gone un- rebutted.
17. Reliance is being placed on the judgment of the Hon'ble Supreme Court in the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited &Anr., (2009) 8 SCC 507, wherein it has been observed as under:-
"31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.
32. There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reason for not accepting the report."FA No.477 of 2021 13
18. Further the Hon'ble Supreme Court in Sikka Papers Limited Vs. National Insurance Company Limited and Ors., (2009) 7 SCC 777, has observed as under:-
A. " Insurance- Terms and conditions specified in insurance policy- Binding effect- Insurance policy not covering parts of machinery which were required to be replaced due to normal wear and tear-Held, Insurance Company while assessing claim, rightly excluded those parts- B. Insurance Act, 1938,- S. 64-UM- Surveyor/Loss assessor's report- Weightage to be given- Held, Though not the last word, yet there must be legitimate reason for departing from report- No infirmity found in surveyor's report and therefore held, Insurance Company rightly admitted claim as per the report."
19. Accordingly, we are of the opinion that the amount of loss assessed by the Surveyor to the tune of Rs.1,87,000/-, is justified and the order passed by the District Commission requires modification. Therefore, in our view, the respondents/Legal heirs are entitled to the claim amount of Rs.1,87,000/- as assessed by the surveyor in equal shares. Moreover, ends of justice would be met if reasonable compensation is enhanced to meet the expenses towards litigation and harassment.
20. Sequel to the above, the appeal is partly allowed and the order of the District Commission is modified as under:
i) Appellant/OP is directed to pay Rs.1,87,000/- (instead of Rs.5,11,200/-), along with interest @ 7% (instead of 6% p.a.) per annum from the date of accident i.e. 12.06.2018 till realization.FA No.477 of 2021 14
ii) Appellant/OP is further directed to pay Rs.20,000/- (instead of Rs.10,000/-) as compensation and Rs.10000/- (instead of Rs.5000/-) as cost of litigation.
21. The Appellant/OP is directed to comply with the order within one month from the date of receipt of certified copy of this order.
22. The appellant has deposited a sum of Rs.3,17,007/- at the time of filing of the appeal. This amount alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the District Commission forthwith. The parties may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
23. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. Mahah) PRESIDINGJUDICIAL MEMBER (KIRAN SIBAL) MEMBER October 13, 2023.
(Dv)