State Consumer Disputes Redressal Commission
National Insurance Co.Ltd. vs Satpal Katiyal on 6 April, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/14/317
Instituted on : 05.05.2014
National Insurance Company Limited,
Through : Divisional Manager,
Divisional office : Mobin Mahal, G.E. Road,
Raipur (C.G.) ... Appellant.
Vs.
Satpal Katiyal, S/o Late M.L. Katiyal,
Address : Harshit Vihar, Tatibandh,
Raipur (C.G.) ... Respondent
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri C.S. Pandey, for the appellant.
Shri Manoj Prasad, for the respondent.
ORDER
Dated : 06/04/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 27.03.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"), in CC/09/235. By the impugned order, the complaint of the appellant (complainant) has been allowed and appellant (O.P.) has been directed to pay within a period of one month a sum of Rs.2,14,956/- along with interest @ 12% p.a. from the date of filing of the complaint i.e. 29.06.2009 till realisaiton. The appellant (O.P.) has further been directed to pay a sum of Rs.25,000/- towards //2 // compensation for mental agony and Rs.2,000/- towards cost of litigation to the respondent (complainant).
2. Briefly stated, the facts of the case are that the respondent (complainant is owner of vehicle bearing registration No.C.G.04-JA- 2962. The respondent (complainant) obtained insurance policy No.150100/31/08/630003449 for the period from 19.05.2008 to 18.05.2009 from the appellant (O.P.) through his agent Nic Magma Fincorp Limited. The insured amount was Rs.11,45,262/-. On 31.12.2008, the said vehicle met with an accident near Baretha Ghat, Betul (M.P.) due to which the vehicle was damaged extensively. Due to accident, the block, head, turbo assembly, hub, turn table, wheel disk, chassis, spondel, steering, cabin, dash board, door, wiring loom, fuel pump of the vehicle were damaged. At the time of accident, the vehicle was being driven by driver Sunil Kumar. The matter was immediately reported to the appellant (O.P.) through its agent Nic Magma Fincorp Ltd. The appellant (O.P.) appointed Shri Patni as Spot Surveyor. He visited the spot and inspected the vehicle in question. On being instruction given by Shri Patni, the vehicle was taken to Shiv Shakti Diesel Workshop, Raipur for repairing work with the help of a vehicle bearing registration No.C.G.04-J-9618. The respondent (complainant) sent estimate of the repairing work to the appellant (O.P.) through his agent. The appellant (O.P.) instructed the respondent (complainant) to get the vehicle repaired. Thereafter, the appellant (O.P.) appointed Shri S.K. Sur as Surveyor for assessment of loss, who assessed the loss and gave his //3 // report. The appellant (O.P.) sent Shri H.D. Mehta, Surveyor for re- inspection of the vehicle. The vehicle was repaired by the repairer in which the respondent (complainant) incurred a sum of Rs.2,14,956/-. The cash memo and bills were submitted before the appellant (O.P.) through the agent of the respondent (complainant). The appellant (O.P.) disputed the fact that there is difference in the name of the driver of the vehicle in question and repudiated the claim of the respondent (complainant), hence the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in relief clause of the complaint.
3. The appellant (O.P.) filed its written statement and averred that the District Forum, Raipur has no jurisdiction to decide the matter. The insurance policy was issued from Kolkata office of the Insurance Company. The respondent (complainant) did not submit the relevant documents before the Insurance Company i.e. documents relating to the vehicle, driving licence of the driver, load challan, certified copy of first information report and the respondent (complainant) has also not given explanation regarding the difference in the name of the driver of the vehicle in question. The respondent (complainant) has suppressed the material facts, therefore, the complaint of the respondent (complainant) is dubious and he is not entitled to get any compensation from the appellant (O.P.) hence complaint is liable to be dismissed.
//4 //
4. After having considered the material placed before it by both the parties, learned District Forum has allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant) as mentioned in para 1 of this judgment.
5. The respondent (complainant) has filed documents. Annexure A-1 is copy of certificate of registration, A-2 is copy of the insurance policy, A-3 is copy of National Permit, A-4 is national permit for goods vehicle, A-5 is Certificate of Fitness, A-6 is supplementary estimate, A-7 is letter dated 28.02.2009 sent to M/s Magma Shrachi Finance Ltd. with bills, A-8 is letter dated 22.05.2009 sent by Shri N.K. Thakur, Advocate to the appellant (O.P.), driving licence of Shri Sunil Kumar.
6. The appellant (O.P.) has also filed documents. OP 1 is letter dated 09.06.2009 sent by the appellant (O.P.) to the respondent (complainant), OP-2 is letter dated 09.06.2009 sent by the appellant (O.P.) to the respondent (complainant), OP-3 is letter dated 01.01.2009 sent by Sushil Kumar Alias Lala (Driver) to the Manager, OP-4 is Surveyor Appointment Letter, OP-5 is Motor Claim Form, OP-6 is Motor Spot Survey Report dated 03.01.2009 of Shri Shailendra Patni, Surveyor, Valuer & Investigator, OP-7 is profession feel bill of Shri Shailendra Patni, OP-8 is estimate dated 15.01.2009 of Shiv Shakti Diesel Workshop, Raipur, OP-9 is Surveyor Appointment Letter, OP-10 is Motor Survey Report dated 17.03.2009 of Shri S.K. Sur, Insurance Surveyor (Motor), OP-11 is Surveyor Appointment Letter, POP-12 is Re-inspection Report //5 // of Shri H.D. Mehta dated 23.03.2009, OP-13 is Survey Fee Bill, OP-14 is Certificate of Registration, OP-15 is Certificate of Fitness,, OP-16 is National Permit, OP-17 is National Permit for goods vehicle, OP-18 is letter dated 28.02.2009 sent to M/s Magma Shranchi Finance Ltd., OP-19 is letter sent to the appellant (O.P.), OP-20 is No Objection from Insured, OP-21 is letter dated 28.02.2009 sent to Magma Shrachi Finance Ltd, OP-22 to OP-33 are bill issued on different dates by various shops, OP-34 and 35 are invoice, OP-36 & 37 are bills, and Schedule of premium.
7. Shri C.S. Pandey, learned counsel appearing for the appellant (O.P.) has argued that there is contradiction in the name of the driver of the vehicle in question. At some places the name of the driver is mentioned as Sunil Kumar and at some places the name of the driver is mentioned as Sushil Kumar. The vehicle in question involved in accident is a heavy goods vehicle. The driver of the vehicle was not having valid and effective driving licence at the time of accident. He further argued that the respondent (complainant) did not give intimation regarding the accident to the appellant (O.P.) immediately and the respondent (complainant) had failed to supply the documents relating to the vehicle i.e. driving licence of the driver, load challan, certified copy of first information report and the respondent (complainant) has also not given explanation regarding the contradiction in the name of the driver of the vehicle in question., therefore, the respondent (complainant) is not entitled to get any compensation from //6 // the appellant (O.P.). The impugned order passed by the District Forum is erroneous and is liable to set aside.
8. Shri Manoj Prasad, learned counsel appearing for the respondent (complainant) has supported the impugned order and submitted that it does not call for any interference by this Commission. He further argued that the vehicle in question was being driven by Sunil Kumar. In some places the name of the driver is mentioned as Sushil Kumar, but the father's name of the driver is mentioned as Kamta Prasad. Even Shri S.K. Sur, who was appointed by the appellant (O.P.) as Surveyor has also mentioned the name of the driver as Sunil Kumar, in his report. It appears that at the time of accident, the vehicle in question was being driven by Sunil Kumar, and there is no contradiction regarding the driver of the vehicle in question. Driver Sunil Kumar was having valid and effective driving licence at the time of accident. He further argued that the loss assessed by the Surveyor is unnatural and unreliable, therefore, the District Forum, has rightly disbelieved in the Surveyor's report and awarded compensation to the respondent (complainant). The impugned order passed by the learned District Forum, does not call for any interference by this Commission.
9. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
10. It is true that in the instant case, the First Information Report has not been filed by the respondent (complainant), but the appellant (O.P.) //7 // did not dispute the said accident, as mentioned in the complaint. The appellant (O.P.) simply averred in the written statement that there is difference in the name of driver and the respondent (complainant) did not dispute the incident. Shri Sahilendra Patni, was appointed as Surveyor for conducting Spot Survey. It appears that the intimation regarding the accident was given by the respondent (complainant) to the appellant (O.P.). Driver Sunil Kumar alias Lala wrote a letter dated 01.01.2009 (OP-3) to the Branch Manager of the appellant (O.P.) in which the date of incident is mentioned as 31.12.2008. From the bare perusal of the document OP-3 it appears that the incident took place on 31.12.2008 and intimation regarding the incident was sent to the appellant (O.P.) on 01.01.2009 i.e. next day of the incident, which is without delay. It appears that the intimation regarding the incident was given to the appellant (O.P.) immediately.
11. So far as difference in the name of the driver is concerned, in the driving licence, the name of driver is mentioned is Sunil Kumar, S/o Kamta Prasad. Shri S.K. Sur, Surveyor was appointed as Surveyor by the appellant (O.P.), who mentioned in his report the name of the driver as Sunil Kumar S/o Shri Kamta Prasad. Merely mentioning the name of the driver in some places as Sushil Kumar, is not proper to disbelieve the claim of the respondent (complainant) and to repudiate the claim of the respondent (complainant), therefore, there is no contradiction in the name of the driver Sunil Kumar. On the basis of driving licence of driver Sunil Kumar and Report of Shri S.K. Sur, it appears that at the time of //8 // incident, the vehicle in question was being driven by Sunil Kumar and Sunil Kumar is known as Sushil Kumar alias Lala also, therefore, contradiction regarding the name of the driver is not fatal for the respondent (complainant). On the basis of the documents filed by both the parties, Spot Survey Report of Shri Shailendra Patni and Final Survey Report of Shri S.K. Sur, it is established that the name of driver of the vehicle in question is actually Sunil Kumar, who was driving the vehicle at the time of incident.
12. We have perused the driving licence of Sunil Kumar in which under the head Description it is mentioned that Sunil Kumar is licensed to drive throughout India, Light Vehicle Motor PVT., Medium goods vehicle, Heavy Transport Vehicle and Heavy Passenger Vehicle.
13. In the case of S. Iyyapan vs. M/s United India Insurance Company Ltd. and another (Civil Appeal No.4834 of 2013) decided on 01.07.2013, Hon'ble Supreme Court, has observed thus :-
"16. In the case of National Insurance Company Ltd. vs. Annappa Irappa Nesaria alias Nesaragi and Others, 2008 (3) SCC 464, the vehicle involved in the accident was a matador having a goods carriage permit and was insured with the insurance company. An issue was raised that the driver of the vehicle did not possess an effective driving licence to drive a transport vehicle. The Tribunal held that the driver was having a valid driving licence and allowed the claim. In appeal filed by the insurance company, the High Court dismissed the appeal holding that the claimants are third parties and even on the ground that there is violation of terms and conditions of the policy the insurance company cannot be //9 // permitted to contend that it has no liability. This Court after considering the relevant provisions of the Act and definition and meaning of light goods carriage, light more vehicles, heavy goods vehicles, finally came to conclusion that the driver, who was holding the licence duly granted to drive light motor vehicle, was entitled to drive the light passenger carriage vehicle, namely, the matador. This Court observed as under :
"20. From what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle". The light motor vehicle continued, at the relevant point of time to cover both "light passenger carriage vehicle" and "light passenger carriage vehicle"
and "light goods carriage vehicle". A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well."
18. Reading the provisions of Section 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person, who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation as awarded from the insurer. It is for the insurer to proceed against the insured //10 // for recovery of the amount in the event there has been violation of any condition of the insurance policy.
19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside."
14. In Bajaj Alliance General Insurance Co. Ltd. Vs. Ashok Kumar Dhruv & Others, 2013 (3) C.G.L.J. 332, Chhattisgarh High Court has observed thus :-
"6. Admittedly, the offending vehicle was a light motor vehicle; was used at the time of accident, as passenger carrying vehicle. To drive the said vehicle, a licence to drive transport vehicle is required under the provision of Motor Vehicles Act. As per evidence adduced in this case, the driver was possessing licence to drive Light Motor Vehicle as well as Heavy Goods Vehicle. Therefore, it cannot be said that he was disentitled to drive a transport vehicle. The Supreme Court, in the case of Oriental Insurance Co. Vs. Zaharulnisha & Ors. AIR 2008 SC 2218, in a case where the offending vehicle was a Scooter and the Scooter driver was not holding any licence to drive the Scooter and was holding licence to drive Heavy Motor Vehicle, has held that the driver was not possessing valid and effective driving licence. However, the facts of the present case are different. In the instant case, the driver of the offending vehicle was possessing to drive light motor vehicle as well as licence to drive heavy goods vehicle, and therefore, in the opinion of this Court, when a driver, who apart from holding driving licence to drive light motor vehicle, also //11 // holds a licence to drive Heavy Goods Vehicle, is entitled to drive light motor vehicle (transport vehicle)."
15. From bare perusal of driving licence of driver Sushil Kumar. It appears that driver Sunil Kumar, was competent to drive Light Vehicle Motor PVT., Medium goods vehicle, Heavy Transport Vehicle and Heavy Passenger Vehicle, therefore, he is also competent to drive Heavy Goods Vehicle. It appears that at the time of accident, driver Sunil Kumar was possessing valid and effective driving licence to drive the vehicle in question.
16. Now we shall examine whether the Survey Report of Shri S.K. Sur, is reliable ?
17. The report of the Surveyor, is a reliable document and it cannot be brushed aside until and unless it is rebutted by cogent and reliable evince. The report of the Surveyor should be given due weightage.
18. In the instant case, Shri S.K. Sur, was appointed as Surveyor and Loss Assessor and he gave his report dated 17.03.2009 (OP-10) in which he assessed the net loss to the tune of Rs.8,150/-. The respondent (complainant) filed estimate and bills of Chhattisgarh Electricals, Ramdoot Motor Parts, Raipur Automobiles Satnam Radiators, Calcutta Disposal, Kamal Motor Garage, Jahu Motor Body Works etc. The bills filed by the respondent (complainant) are more reliable than the Report of Shri S.K. Sur, Surveyor. On the basis of above bills, it appears that //12 // the loss assessed by the Surveyor is much less than the actual expenditure incurred by the respondent (complainant) in repairing of the vehicle in question, therefore, report of the Surveyor is not reliable. On the basis of the documents submitted by the respondent (complainant), the District Forum has awarded a sum of Rs.2,14,956/-, which is reasonable, just and proper .
19. In view of above discussions, we are of the view that the finding recorded by the learned District Forum, is reasonable and does not suffer from any infirmity, irregularity or illegality and does not call for any interference by this Commission.
20. Therefore, the appeal filed by the appellant (O.P.) being devoid of any merits deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar) (D.K.Poddar)
President Member Member
/04/2015 /04/2015 /04/2015