State Consumer Disputes Redressal Commission
United India Ins.Co.Ltd. vs Dav Centenary Public ... on 26 February, 2010
1.Appeal no.1693/2008 United India Insurance Co.Ltd.,Sahara Chambers, Tonk Road,Jaipur. Appellant V. 1.D.A.V.Centenary Public School,Anoopgarh,Sriganganagar 2.Superintendent of Police,Sriganganagar. Respondents. 2.Appeal No.1587/2008 United India Insurance Co.Ltd.,Sahara Chambers, Tonk Road,Jaipur. Appellant V. 1.United India Insurance Co.Ltd.,Sahara Chambers, Tonk Road,Jaipur. 2.Superintendent of Police,Sriganganagar. Respondents Before Mr.Justice Sunil Kumar Garg-President Mr.Sashi Kumar Pareek-Member
Shri Pritam Bijlani,counsel for the appellant insurance company Shri Ajay Tantia,counsel for the res.no.1 complainant Ms.Nilu Mathur,counsel for res.no.2 2 Date of Judgement: 26.02.2010 BY THE STATE COMMISSION:
The abovementioned two appeals are being decided by this common judgement as both have been preferred against the order dated 31.7.2008 passed by the District Forum,Sriganganagar.
Appeal No.1693/2008
2. Delay of nine days is condoned.
3. This appeal has been filed by the appellant insurance company which was op no.1 before the District Forum,Sriganganagar against the order dated 31.7.2008 passed by the District Forum,Sriganganagar in complaint no.272/96 by which the complaint of the complainant respondent no.1 was allowed against the appellant insurance company in the manner that the appellant insurance company was directed to pay a sum of Rs.1,27,244.97/- as amount of compensation for the damage of the vehicle alongwith interest @ 9% p.a wef 28.2.06 till the payment is made and further to pay Rs.10,000/- as amount of compensation for mental agony and Rs.1100/- as amount of cost of litigation.
4. It arises in the following circumstances:
That the complainant res.no.1 had filed a complaint 3 against the appellant insurance company (op.no.1) as well as against res.no.2(op.no.2) before the District Forum,Sriganganagar on 16.5.06, interalia stating that he is the registered owner of mini bus bearing registration no.RJ.13.PA.0074 and the same was got insured with the appellant insurance company for a sum of Rs.4,56,000/- for the period 30.3.05 to 29.3.06. It was further stated in the complaint that to maintain the law and order in the District Sriganganagar,res.no.2,Supdt.of Police,Sriganganagar had requisitioned some buses and the mini bus of the complainant res.no.1 was also requisitioned by res.no.2 and the possession of that buses was also taken. It was further stated in the complaint that on 18.7.05 when the bus in question which was under the control of res.no.2 and when it was going towards the bus stand,the same had collided with a truck no. HR.61.1104,as a result of which the bus was damaged and a FIR bearing no.310/18.7.05 was lodged with the police station,Anoopgarh. It was further stated in the complaint that information of that incident was given by the complainant res.no.1 to the office of the appellant insurance company and a surveyor was appointed and the estimate of the damage of the bus was Rs.4,75,044/- and inspite of the bills submitted by the complainant res.no.1,the claim was repudiated by the appellant insurance company through letter dated 30.12.05 and thereafter the present complaint was filed claiming Rs.4,75,044/-.
A reply was filed by the appellant insurance company before the District Forum,Sriganganagar and the case of the appellant insurance company was that the surveyor appointed by the appellant insurance company had assessed the loss to the tune of Rs.1,27,224.97 and it was further alleged in the reply that 4 the driver of the mini bus, Shri Jagjeet Singh, was having a licence to dirve the LMV while the mini bus was a Transport Vehicle and he could not drive the vehicle and on ground of licence the complainant res.no.1 had violated the terms and conditions of the policy and the claim was rightly repudiated through letter dated 30.12.2005 interalia stating on the ground that the driving licence was not proper.
It was further replied that the licence of the driver of the min bus,Shri Jagjeet Singh,which was issued by the office of DTO,Sriganganagar clearly reveals that he was having a licence to drive LMV and not LTV and thus the claim was rightly repudiated on ground of licence. It was further stated by the appellant insurance company in its reply that the complainant res.no.1 had also filed a licence issued by the office of the DTO,Firozpur by which the licence in question was for the period 19.7.04 to 18.7.07 and the driver Shri Jagjeet Singh was also authorised to drive the LTV and HTV, but since the original of that licence was not produced,therefore,that licence was questioned and therefore,that licence was not found a valid one and claim was rightly repudiated on the ground that the driver Shri Jagjeet Singh was having a licence only to drive a LMV and not LTV plus HTV and it was prayed that the complaint be dismissed.
A reply was also filed by res.no.2 on 29.9.06 admitting the fact that the bus in question was requisitioned for the purpose of maintaining the law and order and further since the bus in question was insured by the complainant res.no.1 with the appellant insurance company and the same was requisitioned by res.no.2 from the complainant res.no.1 for that res.no.2 could not 5 be termed as a consumer and it was further replied that a challan had been filed against the driver of the truck,Shri Jogendra Singh for committing offences us/279,337 & 338 of IPC and because of that no liability could be fastened so far as res.no.2 was concerned and it was prayed that the complaint be dismissed.
The District Forum after hearing both the parties,through the impugned order dated 31.7.2008 had allowed the complaint as stated above,interalia holding that -
that the licence which was issued by the DTO,Sriganganagar of the driver of the bus of the complainant res.no.1 on 2.8.03 was valid upto 1.8.2023 and that licence was of the category of LMV.
that the driver Shri Jagjeet Singh was having another licence which was issued by the Transport Authority,Firozpur on 19.7.04 and the same was valid upto 18.7.07 and that licence was valid to drive LTV or HTV and thus on ground of licence claim was wrongly repudiated by the appellant insurance company and it was further held that the driver,Shri Jagjeet Singh was having a valid and effective licence to drive the mini bus on the date of accident.
that on point of loss,no doubt the complainant res.no.1 had claimed a sum of Rs.475044/-,but taking into consideration the survey report of Shri Prem Ratan Agarwal dated 29.9.2005 by which the loss assessed was to the tune of Rs.1,27,224.97,therefore,that amount was ordered to be paid by the appellant insurance company to the complainant res.no.1.
5. Aggrieved from that order,this appeal has been filed by the appellants insurance company.
66. In this appeal,the following contentions have been raised:
(i)that since the licence issued by the DTO,Sriganganagar was valid only to drive LMV and not LTV,therefore,the findings recorded by the District Forum by which the licence was held to be valid and effective issued by the transport authoritities,Firozpur are erroneous one and could not be sustained and thus on ground of licence the claim was rightly repudiated.
(ii)that the so called licence issued by the office of DTO,Firozpur dated 19.7.04 should have not been taken into consideration by the District Forum as the original licence was not produced before the District Forum and further since the licence issued by the DTO,Sriganganagar was issued in the year 2003 and while that of Firozpur was issued in the year 2004,therefore,if issued so,was illegal under the provisions of law.
(iii) that since the bus in question was requisitioned by res.no.2 and since the bus on the date of accident was not under the control of the complainant res.no.1, but under the control of res.no.2,therefore,the appellant insurance company could not be held liable in such cases and if the liability if any,that should have been of res.no.2 Police Department and not of the appellant insurance company and thus the findings recorded by the District Forum by which the claim was decreed against the appellant insurance company could not be sustained and be quashed and set aside and thus the appeal be allowed.
7. On the other hand,the learned counsel for the respondents have supported the impugned order.
78. We have heard the learned counsel for the parties and perused the record.
9. There is no dispute on the point that the mini bus in question was got insured by the complainant res.no.1 with the appellant insurance company for the period 30.3.2005 to 29.3.2006 for a sum of Rs.4,56,000/-.
10. There is also no dispute on the point that the bus in question was requisitioned by res.no.2 for maintaining the law and order in Sriganganagar District.
11. There is also no dispute on the point that the bus in question was in the custody of res.no.2 when the same had met with an accident on 18.7.05 with a truck and the bus in question was damaged.
12. There is also no dispute on the point that for that accident, a report was lodged on behalf of the complainant res.no.1 with the police station,Anoopgarh bearing FIR no.310/05 and the police had submitted a challan against the driver of the truck,Shri Jogender Singh for committing the offences u/s 279,337 and 338 IPC.
13. There is also no dispute on the point that the surveyor appointed by the appellant insurance company Shri Prem Ratan Agarwal,who had submitted his report dated 29.9.2005 by which the loss assessed was to the tune of Rs.1,27,224.97.
14. There is also no dispute on the point that the licence issued by the DTO,Sriganganagar was valid for the period on 2.8.03 8 was valid upto 1.8.2023 and that licence was of the category of LMV.
15. On file,there is another licence issued by the DTO,Firozpur which was issued on 19.7.2004 in favour of the driver Shri Jagjeet Singh by which he was authorised to drive LTV and HTV and that licence was valid from 19.7.04 to 18.7.07.
16. In the facts and circumstances just narrated above,the question for consideration is whether the findings recorded by the District Forum by which the complaint was allowed only against the appellant insurance company could be sustained or not,and whether in the facts and circumstances just narrated above,res.no.2 could be held liable alongwith the appellant insurance or not and whether the complainant res.no.1 is entitled to the sum as assessed by the surveyor or more.
Issue of Licence
17. It may be stated here that the claim of the complainant res.no.1 was repudiated by the appellant insurance company on the ground that on the date of accident i.e on 18.7.2005,the driver of the complainant res.no.1,Shri Jagjeet Singh was having a licence only to drive LMV and for that reliance has been placed on a licence issued by the DTO,Sriganganagar.
18. No doubt,this licence was issued by the DTO,Sriganganagar but the complainant res.no.1 had also produced a copy of another licence issued by the DTO,Firozpur showing that it was issued on 19.7.04 and it was valid upto 18.7.07 and Shri Jagjeet Singh,driver was also authorised to 9 drive LTV and HTV.
19. The question is whether this licence which was issued by the DTO,Firozpur upon which reliance was placed by the District Forum,Sriganganagar could be said to be a licence duly issued by the authority or not;
20. No doubt,on file there is a photostat copy but to rebut that the appellant insurance company could have made verification of that licence from the Transport Authority,Firozpur as on the photocopy of that licence, the licence number mentioned is visible and similarly there is a seal also alongwith the photo of the driver. Not only this in support of that the learned counsel for the complainant res.no.1 Shri Ajay Tantia has also shown the original licence issued by the DTO,Firozpur on 19.7.04 in name of the driver,Shri Jagjeet Singh,therefore,after seeing the original licence,the doubt which was created by the learned counsel for the appellant insurance company on the ground that in absence of original licence,the licence issued by the DTO,Firozpur could not be said to be a valid one is rejected and the licence issued by the DTO,Firozpur appears to be duly issued by the competent authorities and that licence could not be questioned in absence of any documentary evidence produced by the appellant insurance company and the District Forum had rightly placed reliance on that licence.
21. When this being the position,the licence could not be questioned and if the District Forum had placed reliance on that licence it had not committed any mistake and thus on point of licence,the findings recorded by the District Forum are liable to be conformed one and the same are confirmed and the contentions of the learned counsel for the appellant insurance 10 company in respect of the licence stands rejected.
On point of Liability on res.no.2.
22. No doubt,the vehicle in question was requisitioned by res.no.2 for maintaining the law and order but the vehicle in question registered under the provisions of M.V.Act was not a private vehicle but a public vehicle and this is one of the aspects of the matter.
23. So far as the liability of the appellant insurance company is concerned,that could not be fastened on res.no.2 so far as OD Claims are concerned.
24. Had the claim would have been preferred by third party,the position would have been different one.
25. For two reasons that the vehicle in question was not a private vehicle and the claim was not preferred by a third party,therefore,the following authorities-
1.Rajasthan State Road Transport Corpn. V. Kailash Nath Kothari & ors reported in 1997 ACJ 1148
2.National Insurance Co.Ltd. V. Deepa Devi & ors reported in 2008 ACJ 705 on which reliance was made by the learned counsel for the appellant insurance company would not go to help the appellant insurance company and thus no doubt,the District Forum had not given any findings in respect of the liability on res.no.2, but this Commission is of the view that for the damage to the vehicle only the appellant insurance company would be held liable and to 11 that extent,the findings are liable to be confirmed one and second contention also stands rejected.
Assessment of the value.
26. Since in this case,the surveyor appointed by the appellant insurance company,Shri Prem Ratan Agarwal,who had submitted his report dated 29.9.2005 by which the loss assessed was to the tune of Rs.1,27,224.97,therefore,we see no reason to differ with the findings recorded by the surveyor in his report about the assessment of the loss in question as the report of the surveyor,Shri Prem Ratan Agarwal dated 29.9.2005 is based on correct evaluation of entire documents and papers available on record and while assessing the loss to the tune of Rs.1,27,224.97 the surevyor had considered each and every aspect of the matter in detail and thus we see no reason to differ with the findings and conclusions of the surveyor as they are based on correct appreciation of evidence on record and the amount of Rs.1,27,224.97 as assessed by the surveyor appears to be just,proper and reasonable and we see no ground either to enhance the amount or to reduce the amount.
Rs.10,000/- awarded by the District Forum as compensation.
27. Since in this case on Rs.1,27,224.97 interest had been awarded by the District Forum,therefore,awarding of Rs.10,000/- as amount of compensation for mental agony could not be justified and that part of the order by which Rs.10,000/- was ordered to be paid to the complainant res.no.1 by the appellant 12 insurance company deserves to be quashed and set aside and to that extent this appeal deserves to be allowed.
28. For reasons as stated above,this appeal filed by the appellant insurance company is partly allowed in the manner that that part of the order by which Rs.10,000/- was ordered to be paid to the complainant res.no.1 by the appellant insurance company is quashed and set aside and to the above extent the impugned order dated 31.7.2008 passed by the District Forum,Sriganganagar is modified.Rest order is maintained.
Appeal No.1587/2008
29. This appeal has been filed by the complainant appellant for enhancement of the amount.
30. It may be stated here that while deciding Appeal No.1693/2008,the amount as assessed by the surveyor was found just and proper one.
31. When this being the position,this appeal filed by the complainant appellant for enhancement of the amount deserves to be dismissed and the same is dismissed.
32. Both the abovementioned appeals stand disposed off accordingly.
(Sashi Kumar Pareek) (Justice Sunil Kumar Garg) Member President A/G