State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Harraj Singh Sidghu /O Sh Swaran Singh ... on 19 July, 2023
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. : 91 of 2023
Date of Institution : 15.05.2023
Date of Decision : 19.07.2023
National Insurance Company Limited, S.C.O. No.305-306, Sector 35-B,
Chandigarh through its Manager, RO SCO No.332-334, Sector 34-A,
Chandigarh.
...Appellant/opposite party
Versus
Harraj Singh Sidhu s/o Sh.Swaran Singh Sidhu, R/o #656, Phase 3A,
S.A.S.Nagar, Mohali
....Respondent/complainant
PRESENT:- Dr.Swantantar Kapoor, Advocate for the appellant.
Ms.Nilakshi Joseph, Advocate for respondent alongwith
respondent in person.
===============================================================
Appeal No. : 43 of 2023
Date of Institution : 20.03.2023
Date of Decision : 19.07.2023
Harraj Singh Sidhu s/o Sh.Swaran Singh Sidhu, R/o #656, Phase 3A,
S.A.S.Nagar, Mohali
...Appellant/complainant
Versus
National Insurance Company Limited, S.C.O. No.305-306, Sector 35-B,
Chandigarh through its Branch Manager/Authorised Signatory.
....Respondent/opposite party
PRESENT:- Ms.Nilakshi Joseph, Advocate for appellant alongwith appellant
in person..
Dr.Swantantar Kapoor, Advocate for respondent.
===============================================================
BEFORE:- JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.
MR.RAJESH K. ARYA, MEMBER.
2 PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT M.A. No.387 of 2023 in FA No.91 of 2023 (condonation of delay):-
Alongwith appeal no.91 of 2023, an application has been filed by the appellant-National Insurance Company Limited, for condonation of delay of 47 days in filing the same.
2. Arguments on this application were heard. For the reasons stated in this application, delay of 47 days in filing this appeal is condoned and the said application stands disposed of accordingly.
Appeals no.91 of 2023 and 43 of 2023:-
The above captioned appeals have arisen out of the common order dated 13.02.2023 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh, whereby consumer complaint bearing no.1193 of 2019 stood partly allowed by it, as under:-
"...In view of the above discussion, we hold that the OP-Insurance Company has wrongly and illegally rejected the claim of the complainant. Accordingly, the repudiation letter dated 20.12.2018 (Ann.OP-8) is set aside. Consequently, the present complaint deserves to be partly allowed and the same is accordingly partly allowed against the OP. The OP is directed to a. pay Insured Declared Value (IDV) of the vehicle i.e. Rs.4,80,000/- to the complainant along with interest @ 9% p.a. from the date of filing the complaint in this Commission i.e. 23.12.2019 till the date of its actual realization. b. pay Rs.7,000/- as compensation to the complainant on account of mental tension and harassment.
c. pay Rs.7,000/- as litigation expenses.
This order be complied with by the OP within 60 days from the date of receipt of its certified copy.
The pending application(s) if any, stands disposed of accordingly......."
3. Appeal bearing no.91 of 2023 titled as National Insurance Company Limited Vs. Harraj Singh Sidhu has been filed by appellant- opposite party, for setting aside the order impugned passed by the District Commission. Whereas, on the other hand, Appeal bearing no.43 of 2023 titled as Harraj Singh Sidhu Vs. M/s National Insurance Company Limited has been filed by the complainant- Harraj Singh Sidhu for modification of the order impugned.
4. The facts in brief are that the complainant-Harraj Singh Sidhu is the registered owner of the Tanker bearing Regd.No.UP-70ET-8397, which was insured with the opposite party under Policy No.420101311710002598 valid for the period from 13.09.2017 to 12-09-2018 for an Insured Declared Value of Rs.4,80,000/- (infact Rs.18,60,000/-). It was stated that at the time 3 of issuing the insurance policy, the opposite party neither supplied copy of the policy containing terms & conditions nor terms and conditions were explained to the complainant. On the intervening night of 17/18.3.2018 the said vehicle was being driven by the driver from Nabha to Una and when it reached near Machhiwara, a stray cow came across and in order to save it, the driver applied breaks, as a result of which, the vehicle became out of control and was damaged badly. Matter was reported to Police Station Machhiwara, District Khanna, Punjab and on the statement of driver Rakesh Kumar, DDR was registered vide G.D.No.020 on 18.03.2018. The opposite party was intimated regarding the accident of the vehicle and upon receiving the intimation, it appointed Surveyor namely Didar Singh Ruprai who conducted the spot survey on 22.3.2018. Thereafter the opposite party appointed second Surveyor namely Ravinder Kumar Goyal, who assessed the loss of the vehicle to the tune of Rs.5,98,500/-. The complainant waited patiently but the claim amount was not disbursed by the opposite party. On the other hand, the opposite party sent a letter dated 10.10.2018 raising unnecessary query while disputing the physical presence of the driver on wheels at the spot as on the date of accident and raised objection that driver namely Rakesh Kumar was undergoing training at Baroda on 17.03.2018 and how he came present at Nabha and started the journey from Nabha on 17.03.2018 at 8:30 P.M. The said query was duly explained by the complainant to the opposite party that the said driver has already done his training and thereafter completing the training in advance, he resumed duty at Nabha. The opposite party also raised an objection that in affidavit it is submitted that no bodily injury occurred to the driver and in the complaint wherein as per the contents of DDR, driver on wheel along with cleaner received injuries on their body. The complainant clarified the opposite party that the driver and cleaner did not suffer any major injury but minor injuries and a formal medical aid was provided to the driver by the doctor and there is also not third party loss. When the matter was not resolved by the opposite party, the complainant sent a legal notice dated 1.1.2019 but to no avail. Hence, consumer complaint was filed before the District Commission.
5. The consumer complaint was contested by the opposite party by way of filing written reply, wherein, it was stated that the complaint is defective due to non-joinder of necessary parties as the complainant has not impleaded HDFC Bank Limited as the opposite party being financer of the said vehicle of the complainant. While denying all the allegations made against it, it was further stated that it was not possible for the driver to reach at Machhiwara at 12:15 AM on 18.3.2018 when he started the journey from Nabha at 8:30 PM because the Tanker was to be loaded with LPG Gas Cylinders, which are to be taken from Indian Oil corporation Depot. The 4 Surveyor namely Didar Singh Ruprai submitted Spot Survey Report dated 22.3.2018 wherein it is stated that the driver Rakesh Kumar had produced the Driving License which was valid for Transport Vehicle upto 23.7.2018 but at Column 5(h) of the report, it is clearly mentioned that "Training Certificate for Explosive : To be Verified", which means that at the time of accident, the Training Certificate for Explosive was not available with the driver, which is mandatory as per Rule 9 of the Motor Vehicles Rules, 1989. As the driver had no Training Certificate for Explosives, which is mandatory under rule 9 of the Motor Vehicles Rule, 1989, so the Training Certificate for Explosives was procured from M/s Swami Seva Associates, Vadodara and found that the driver underwent the training from 15.3.2018 to 17.3.2018. The driver license has been issued by State Government of J & K and the certificate produced is from alleged institute of State Government of Gujrat. The driver should have made an application in writing on a plain paper alongwith his driving license and the relevant certificate to the Licensing Authority in whose jurisdiction he resides for making necessary entries in his driving license and after endorsement of the same, he is authorized to drive a goods carriage carrying dangerous or hazardous goods. The said Training Certificate from 15.3.2018 to 17.3.2018 was procured from M/s Swami Seva Associates, Vadodara and was not in possession of the driver Rakesh Kumar. When the complainant realized that Driving License is not valid for carrying hazardous goods and the claim might be repudiated, the driver of the complainant procured the Training Certificate from M/s Swami Seva Associates, Vadodara. The Surveyor has assessed the loss of Rs.5,98,500/- but the Insured Declared Value of the said vehicle was Rs.4,80,000/- only and the assessment of loss is subject to terms & conditions and that the claim was rightly repudiated vide letter dated 20.12.2018.
6. The contesting parties led evidence in support of their case.
7. The District Commission after considering the rival contentions of the contesting parties and on going through the material available on record, partly allowed the consumer complaint, in the manner stated above.
8. Hence these appeals.
9. We have heard the rival contentions of the contesting parties and also gone through the material available on the record, including written arguments of the opposite party.
10. It may be stated here that because, in the present case, neither the issuance of policy in question qua the vehicle in question for the IDV of Rs.18,60,000/- nor the fact that the accident took place during currency of the said insurance policy nor submission of claim by the appellant- complainant nor its repudiation by the insurance company are in dispute, as 5 such, only the following questions fall for consideration before this Commission:-
a. Whether, it has been proved on record that the driver-Rakesh Kumar had undergone a special training to drive transport vehicle carrying hazardous goods?
b. Whether, the said driver was present at the time of accident at the spot?
c. What the appellant/insurance company was justified in repudiating the claim of the insured on the ground that since at the time of accident of the vehicle in question, the driver-Rakesh Kumar is having a certificate of aforesaid training under Section 9 of the Motor Vehicles Rules 1989 to driver a vehicle carrying hazardous goods but has not got the same endorsed on his driving licence?
d. Whether, the District Commission was right in awarding an amount of Rs.4,80,000/- to the appellant-complainant considering the said amount as IDV of the vehicle in question and if not, what is the actual amount of claim, the appellant- complainant is entitled for?
11. First coming to the question, as to whether, it has been proved on record that the driver-Rakesh Kumar had undergone a special training to drive transport vehicle carrying hazardous goods? It may be stated here that perusal of Training Certificate, Annexure OP-4 having been issued by /s Swami Seva Associates, Ranoli, Dist. Baroda, reveals that the driver-Rakesh Kumar son of Sh.Daleep Singh, having Driving Licence No.JK2020130009878 (Reasi, JK), valid upto 23.07.2018, had undergone special training for the period from 15.03.2018 to 17.03.2018 (valid upto 16.03.2019) for driving the transport vehicle carrying hazardous goods/chemicals (Safe Transportation of Hazardous Products by Road), in line with Section 9 of the Motor Vehicles Rules, 1989. It is also coming out from the record that after receiving the accident claim from the appellant- Harraj Singh Sidhu, the insurance company itself has got the said training certificate checked and verified from its Surveyor and Loss Assessor-Z.A. Amiri, who gave its certificate dated 18.08.2028 (at page 83 of the paper book of District Commission) to the effect that after checking and verifying the said Training Certificate of the driver- Rakesh Kumar, at M/s Swami Seva Associates, Ranoli, Dist. Baroda, the same has been found to be in order. Relevant part of the said certificate is reproduced hereunder:-
6 139, Paradise Complex, Z. A. AMIRI
Sayaji Gunj, Opp. College, SURVEYOR & LOSS ASSESSOR
Baroda 390 005. MISC/ENGINEERING/MOTOR
Tele-Fax No.: (0265) 2363455 License No.: SLA/25533
Mobile No. : 98250 26355 Valid upto: 02.10.2019
E-Mail :[email protected] PAN NO. : ABVPA8711A
GSTIN:24ABVPA8711A1Z0
Ref. No.: 2017-18/018 Date: 18.08.2018
WITHOUT PREJUDICE
To,
Manger,
National Insurance Co. Ltd.,
Claim Hub,
Baroda.
Dear Sir,
Sub: Verification of Training Certificate issued by M/S Swami Seva Associates, Ranoli, Brda Name of Driver Mr. Rakesh Kumar S/o Mr. Daleep Singh.; Training Certificate no. BRD/SSA/NO.008666 dated 17.03.18-valid upto 16.03.19.
As desired by you vide your mail dated 10.08.2018, I have checked/verified the subject Training Certificate at M/S Swami Seva Associates, Ranoli, Dist. Baroda and found the same is order.
Copy of subject Training Certificate verified by M/s Swami Seva Associates is enclosed. The confirmation letter dated 18.08.2018 of the certificate details issued by M/s Swami Seva Associates is also enclosed.
Hope this will fulfill your requirements.
Thanking You, Yours truly, Z. A. AMIRI SURVEYOR & LOSS ASSESSOR In view of above, it is held that the appellant-Harraj Singh Sidhu has proved that the driver-Rakesh Kumar had undergone a special training to drive the transport vehicle carrying hazardous goods/chemicals (Safe Transportation of Hazardous Products by Road), in line with Section 9 of the Motor Vehicles Rules, 1989. Thus, answer to this question is in the affirmative.
12. The next question that falls for consideration is, as to whether, the said driver (Rakesh Kumar) was present at the time of accident in question at the spot? It may be stated here that from the Motor Spot Survey Report dated 22.03.2018, Annexure C-5 issued by Sh.Didar Singh Ruprai, Surveyor and Loss Assessor and final motor survey report dated 06.03.2018, Annexure C-6, having been issued by Sh.Ravinder K. Goyal, Surveyor and 7 Loss Assessor (both appointed by the insurance company) it is clearly coming out that both these Surveyor and Loss Assessors have clearly opined that the driver who was driving the vehicle in question at the relevant time of accident was Sh.Rakesh Kumar and that his driving licence was checked and found in order. Thus, this opinion given by the Surveyors and Loss Assessors, in the respective Motor Spot Survey Report dated 22.03.2018, Annexure C-5 and also final motor survey report dated 06.03.2018, Annexure C-6, leave no doubt with this Commission to hold that it was Rakesh Kumar, driver who was driving the vehicle in question when it met with an accident and as such, was present at the spot. Thus, answer to this question is in the affirmative.
In this view of the matter, it is also held that once the driving licence of the driver-Rakesh Kumar was found to be valid for driving transport vehicle by the Surveyors & Loss Assessors and also his presence at the time of accident in question has also not been disputed by the said Surveyors & Loss Assessors in their reports, referred to above, and no doubt has been raised in that regard, as such, it cannot be inferred that it was not possible for him (Rakesh Kumar, Driver) to reach Nabha from Baroda on 17.03.2018. Thus, the insurance company cannot wriggle out of the situation by taking a plea that since the training of the driver, as per training certificate completed on 17.03.2018, as such, it was not feasible for him to reach Nabha on the same day.
13. The next question that falls for consideration is, as to whether, the appellant/insurance company was justified in repudiating the claim of the insured on the ground that though at the time of accident of the vehicle in question, the driver-Rakesh Kumar is having a certificate of aforesaid training under Section 9 of the Motor Vehicles Rules 1989 to driver a vehicle carrying hazardous goods but has not got the same endorsed on his driving licence? It may be stated here that a similar controversy has been set at rest by the Hon'ble Punjab and Haryana High Court at Chandigarh, in Oriental Insurance Company Limited Vs. Rajinder Kumar Sharma and ors., F.A.O. No.54 of 2013 (O & M), decided on 17.02.2017 and National Insurance Company Limited Versus Harbans Kaur and ors. FAO No.1210 and 8292 of 2014 decided on 26.03.2018. Relevant part of Oriental Insurance Company Limited (supra) is reproduced hereunder:-
"......Admittedly, the driver was holding a licence to drive a tanker. The endorsement neither increases the efficiency of a driver nor decreases in case of its absence. It only authorizes to carry goods of dangerous or hazardous nature. For driving such a vehicle, no further experience of driving is required. This could be said to be a lapse on the part of the driver as well on the part of the appellant but this lapse was not responsible for the cause of any accident. The crux of the matter is that if the driver was not having necessary endorsement as required under the Rules, it cannot be 8 said to be the cause of accident. The endorsement is not required to be given to the driver after having gone through any special training or licence to drive a tanker would also be entitled to have this endorsement subject to fulfilling all other conditions as required under the Motor Vehicles Rules/Motor Vehicles Act with regard to professional skill of driving. It has been certified by the licensing authority at the time of granting licence to him that he was entitled to have driving licence on the basis of test and other driving skills. It is not the case of the appellant that his driving licence was not obtained properly.
In view of facts as mentioned above, there is no force in the argument raised by learned counsel for the appellant to the effect that the driver of the offending vehicle was not having valid and effective driving licence. Moreover, keeping in view the age, dependency and other heads, the amount of award cannot be said to be on the higher side. Moreover, it has also been held in various judgments of this Court that in case a person has been given a licence for a particular type of vehicle specified therein, it cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. For example, if a person is granted a licence for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licences for car as well as jeep separately. In view of facts as discussed above, it is held that the driver was holding a valid licence. Simply because of the reason that the driver did not get any endorsement on the driving licence to drive the vehicle containing hazardous substance he has committed any error under law. Accordingly, there is no merit in the contentions raised by learned counsel for the appellant-insurance company and, therefore, the appeal being devoid of any merit is hereby dismissed............"
Similar view has been expressed by the Hon'ble National Commission in United India Insurance Co. Ltd. vs Prahallad Rai, Revision Petition No. 273 of 2020, decided on 19 February, 2020. Relevant part of this order is reproduced hereunder:-
"......I have given my thoughtful consideration to this contention of learned counsel and have perused the file. From the concurrent findings of the fora below, it apparent that license authority had issued a certificate certifying that driver had underwent training as per Rule 9 of the Central Motor Vehicle Rules during the period 16.01.2014 to 17.01.2014 under OISD conducted by Indian Oil Corporation Ltd., Jharsuguda Bottling Plant, Jharsuguda under the seal and signature of RTO, Jharsuguda and Plant Manager. This certificate duly confirms that driver had underwent training in terms of Rule 9 of the Central Motor Vehicle Rules, 1989 and hence there is no violation of this rule on the part of the driver....."
In the present case also, as has been discussed in earlier part of this order, it has been proved on record that the driver-Rakesh Kumar had undergone a special training to drive the transport vehicle carrying hazardous 9 goods/chemicals (Safe Transportation of Hazardous Products by Road), in line with Section 9 of the Motor Vehicles Rules, 1989 for the period from 15.03.2018 to 17.03.2018, as such, in our considered opinion if the said fact was not endorsed on his driving licence, that in itself cannot be said to be a fundamental breach as to have contributed to the cause of the accident, especially, when it is not in dispute that the driver was possessing valid licence to drive the transport vehicle. Furthermore, it is also not the case of the insurance company that the accident took place because of the hazardous substance being carried in the vehicle in question. On the contrary, it has been candidly agreed by the Surveyors and Loss Assessors in their reports, referred to above, that it was on account of coming of a stray cow suddenly in front of the vehicle and in order to save, the driver applied brakes but the tanker went out of control and overturned, resulting into its damage. It has also been opined by the said Surveyors and Loss Assessors that the cause of loss is accidental in nature and damage coincides with the history and type of loss; the loss seems fresh in nature; there is no breach of warranty; and that the cause of loss is admissible. Under these circumstances, the insurance company cannot be allowed to repudiate the claim of the appellant-Harraj Singh Sidhu on the ground that the driving licence was not endorsed qua training under Section 9 of the Motor Vehicles Rules 1989 to driver a vehicle carrying hazardous goods. Thus, answer to this question is in the negative.
14. The next question that falls for consideration is, as to whether, the District Commission was right in awarding an amount of Rs.4,80,000/- to the appellant-complainant considering the said amount as IDV of the vehicle in question? Perusal of cover note of the policy in question Annexure C-1 reveals that the total Insured Declared Value (IDV) of the vehicle in question was fixed at Rs.18,60,000/- i.e. Rs.13,80,000/- for the vehicle and Rs.4,80,000/- for the Vehicle Trailer/Side cart. Not only as above, even in the Surveyor Report dated 06.08.2018, Annexure C-6, the sum insured has been mentioned as Rs.18,60,000/- and the premium paid has been mentioned as Rs.53,500/-. Under these circumstances, the District Commission fell into an error in awarding Rs.4,80,000/- terming it as IDV of the vehicle in question. As such, in view of peculiar facts and circumstances of this case, we are of the considered opinion that the appellant complainant is held entitled to an amount of Rs.5,98,500/- as assessed by the Surveyor in its report dated 06.08.2018, Annexure C-6 and that too alongwith interest, as the genuine claim has been repudiated by the insurance company, thereby, causing lot of mental agony, harassment and financial loss, to Harraj Singh Sidhu.
15. To strengthen his case, counsel for the appellant placed reliance on National Insurance Co Ltd. Vs. Amritharaj III (2012) CPJ 492 (NC); M.S. 10 Middle High School Versus HDFC ERGO General Insurance Co. Ltd., SLP No.31406 of 2017 (Supreme Court); Oriental Insurance Company Ltd. Vs. Zaharulnisha and others, Appeal (Civil) 3055 of 2008 (Supreme Court); and General Assurance Society Ltd. Vs. Chandumull Jain and another, 1966 AIR 1644 (Supreme Court) is concerned, it may be stated here that in National Insurance Co Ltd. Vs. Amritharaj's case (supra), the driver neither had undergone any special training to drive the vehicle carrying hazardous goods nor had got any endorsement on his driving licence as per Rule 9 ibid. In M.S. Middle High School's case (supra) the SLP was dismissed simply by holding that once there is a breach of condition of policy, the liability cannot be fastened on the insurer. In Oriental Insurance Company Ltd. Vs. Zaharulnisha's case (supra), accident took place due to rash and negligent driving of scooter (two wheeler) by one Ram Surat, who admittedly was not having a valid and effective licence and was having licence only for HMV. However, the facts of General Assurance Society Ltd. Vs. Chandumull Jain's case (supra) are completely different from that of the present case because in this case the questions which fell for determination were as to whether, condition no.10 qua fire policy was applicable to the facts of the case; whether the said condition was reasonable and whether the cancellation of the policy was valid or not. However, in the present case, as stated above, it has been fully established that the driver had undergone special training to drive a vehicle carrying hazardous goods and under those circumstances, in case, he did not get endorse his licence in that regard, is not such a fundamental breach, which will entitle the insurance company to repudiate the claim arising out after accident of such vehicle. As such, no help can be drawn by counsel for the appellant from National Insurance Co Ltd. Vs. Amritharaj's s; M.S. Middle High School's; General Assurance Society Ltd. Vs. Chandumull Jain's and Oriental Insurance Company Ltd. Vs. Zaharulnisha's cases (supra).
16. Keeping in view the above discussion, we are of the considered view that the impugned order passed by the District Commission needs modification. Resultantly, Appeal No.43 of 2023 titled as Harraj Singh Sidhu Vs. M/s National Insurance Company Limited is partly allowed. The order impugned stands modified and the respondent- M/s National Insurance Company Limited is directed as under:-
a. To pay the claim amount of Rs.5,98,500/- as assessed by the Surveyor in its report dated 06.08.2018, Annexure C-6, alongwith interest @9% p.a. from the date of repudiation of the claim onwards i.e. from 20.12.2018 within a period of 30 days from the date of receipt of a certified copy of this order, failing which, 11 thereafter the said amount shall carry penal interest @12% p.a. from the date of default till realization.
b. To pay compensation to the tune of Rs.50,000/- to the complainant- Harraj Singh Sidhu for causing him mental agony and harassment and also deficiency in providing service and also to pay him cost of litigation to the tune of Rs.20,000/- within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amounts shall carry penal interest @9% p.a. from the date of passing of this order till realization.
17. Consequently, Appeal No.91 of 2023 titled as National Insurance Company Limited Vs. Harraj Singh Sidhu is dismissed with no order as to cost, in this appeal only.
18. Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected file.
19. The files be consigned to Record Room, after completion. Pronounced.
19.07.2023 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(RAJESH K. ARYA) MEMBER Rg.
12STATE COMMISSION (Appeal No. 91 of 2023) Present:-
Dr.Swantantar Kapoor, Advocate for the appellant. Ms.Nilakshi Joseph, Advocate for respondent alongwith respondent in person.
Dated 19.07.2023 ORDER Vide our detailed order of even date, recorded separately Appeal No.43 of 2023 titled as Harraj Singh Sidhu Vs. M/s National Insurance Company Limited has been partly allowed and Appeal No.91 of 2023 titled as National Insurance Company Limited Vs. Harraj Singh Sidhu has been dismissed with no order as to cost.
(RAJESH K. ARYA) (JUSTICE RAJ SHEKHAR ATTRI)
MEMBER PRESIDENT
Rg.