State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Ramesh Chandra Punera on 26 June, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 38 / 2010
United India Insurance Company Limited
through Branch Manager
United India Insurance Company Limited
Pithoragarh Branch
......Appellant / Opposite Party
Versus
Sh. Ramesh Chandra Punera S/o late Sh. Bachi Ram Punera
Manoj Furniture House, Naya Bazar
Pithoragarh
......Respondent / Complainant
Sh. J.K. Jain, Learned Counsel for the Appellant
Sh. Aman Rab, Learned Counsel for Respondent
AND
FIRST APPEAL NO. 137 / 2011
Sh. Ramesh Chandra Punera S/o late Sh. Bachi Ram Punera
Manoj Furniture House, Naya Bazar
Pithoragarh
......Appellant / Complainant
Versus
United India Insurance Company Limited
through Branch Manager
United India Insurance Company Limited
Pithoragarh Branch, Pithoragarh
......Respondent / Opposite Party
Sh. Aman Rab, Learned Counsel for the Appellant
Sh. J.K. Jain, Learned Counsel for Respondent
Coram: Hon'ble Justice B.C. Kandpal, President
Smt. Kusum Lata Sharma, Member
Dated: 26/06/2012
ORDER
(Per: Justice B.C. Kandpal, President):
These two appeals arise out of the order dated 28.01.2010 passed by the District Forum, Pithoragarh in consumer complaint No. 17 of 2008. By the said order, the District Forum has partly 2 allowed the consumer complaint and directed the opposite party - insurance company to pay a sum of Rs. 4,93,300/- to the complainant within a period of one month from the date of the order, failing which the above amount shall be payable together with interest @6% p.a. from the date of filing of the consumer complaint till payment. The District Forum has also directed the insurance company to pay sum of Rs. 10,000/- to the complainant towards damages on account of deficiency in service made by them. Aggrieved by the impugned order, the insurance company has filed First Appeal No. 38 of 2010, thereby assailing the legality and propriety of the impugned order passed by the District Forum and whereas not being satisfied with the quantum of compensation awarded by the District Forum, the complainant has filed First Appeal No. 137 of 2011 for enhancement. Since both the appeals arise out of the same judgment and order, these are disposed of together by this common order.
2. Briefly stated, the facts of the case, are that the tanker No. UA05-4288 of the complainant was insured with the United India Insurance Company Limited for the period from 09.01.2008 to 08.01.2009. In the night of 16.03.2008, the said vehicle met with an accident at Vasan, Lohaghat. In the said accident, the driver Sh. Lachman Ram died. An FIR of the accident was lodged with the police and intimation was also given to the insurance company. At the time of accident, the tanker was carrying petroleum product (petrol and diesel) worth Rs. 3,35,549/-. The complainant received a sum of Rs. 1,80,000/- towards salvage value of the vehicle, but he was not paid the remaining loss of Rs. 6,20,000/-. The complainant completed all the formalities, but the insurance company did not settle the claim. Alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Pithoragarh.
33. The insurance company filed written statement before the District Forum and pleaded that the claim of the complainant was repudiated on 03.03.2009 on the ground that the driver did not have a valid and effective driving licence. It was also submitted that final survey was conducted by V.P. Singhal & Company, who vide their report dated 17.04.2008, have assessed the loss on net of salvage basis to the tune of Rs. 4,93,000/- and on the basis of the said report, the complainant has given his consent for sum of Rs. 4,93,300/- on 11.04.2008. It was also alleged that the on investigation, it was found that the driving licence of late Sh. Lachman Ram, the person driving the vehicle at the time of the accident, was not issued by the Licensing Authority, Ghaziabad and on the said basis, the claim of the complainant was repudiated and no deficiency in service was made.
4. The District Forum, on an appreciation of the material on record, partly allowed the consumer complaint vide impugned order dated 28.01.2010 in the above terms. Aggrieved by the impugned order, the insurance company has filed First Appeal No. 38 of 2010 and whereas not being satisfied with the quantum of compensation awarded by the District Forum, the complainant has filed First Appeal No. 137 of 2011 for enhancement.
5. We have heard the learned counsel for the parties and perused the record.
6. The main dispute is whether late Sh. Lachman Ram, who was driving the vehicle at the time of the accident, was holding a valid and effective driving licence or not. The photocopy of his driving licence has been placed on record (Paper No. 49 on the record of First Appeal No. 38 of 2010). The said driving licence was issued by Licensing Authority, Motor Vehicle Department, Haldwani in favour of Sh. Lachman Ram on 21.04.1979 and the same was renewed for the 4 period from 30.08.2006 to 29.08.2009. The accident in question took place on 16.03.2008. On the said driving licence, there is endorsement of Licensing Authority, Ghaziabad, authorizing the licence holder for carrying petroleum products. Learned counsel for the insurance company submitted that the Licensing Authority, Ghaziabad has stated that no such driving licence was issued by them. In the letter dated 14.10.2008 of Mack Insurance Auxiliary Services Pvt. Ltd. (Paper No. 46), it has been written that the driving licence report on Form 54 is given by Licensing Authority, when the driving licence is being issued from the same Licensing Authority. In the present case, as stated above, the driving licence of the driver was issued by Licensing Authority, Motor Vehicle Department, Haldwani and the same was valid on the date of the accident and hence the fact that the Licensing Authority, Ghaziabad has not given the particulars on Form 54 and has stated that no such driving licence was issued by them, does not make the driving licence invalid or fake, for the reason that the driving licence of the driver late Sh. Lachman Ram was issued by the Licensing Authority, Motor Vehicle Department, Haldwani and not by the Licensing Authority, Ghaziabad.
7. That so far as the authorization to carry petroleum products is concerned, specific endorsement in the driving licence of the driver late Sh. Lachman Ram has been made by Licensing Authority, Ghaziabad, so as to authorize him to carry petroleum products and the insurance company has not produced any evidence to show that no such endorsement was made by Licensing Authority, Ghaziabad or that the said endorsement made in the driving licence is fake or forged. This apart, late Sh. Lachman Ram, the driver of the vehicle at the time of the accident, had undergone training for safe transportation of hazardous goods from Indian Training Institute of Hazardous Goods Transportation, Ram Nagar, Roorkee and a certificate to this effect (Paper No. 45 on the record of First Appeal No. 137 of 2011) 5 has been issued in his favour by the said institute on 18.02.2008, certifying that he has completed three days refreshing course from 16.02.2008 to 18.02.2008 under the provision of OISD - 154 course module No. 5.4.6 and Rule 9 of Central Motor Vehicle Rules, 1989 for safe transportation of hazardous goods. Thus, it can not be said that the driver late Sh. Lachman Ram was not having a valid and effective driving licence to drive the vehicle in question and the plea to that effect taken by the insurance company, has rightly been rejected by the District Forum.
8. Learned counsel for the insurance company has cited a decision of the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Prithvi Raj; I (2008) CPJ 33 (SC). In the said case, it was proved by the evidence produced on record that no licence was issued by the Licensing Authority and it was held that the insurance company is not liable to pay any amount. In the instant case, as has been stated above, the insurance company has not produced any evidence to show that the driving licence in question was not issued by the Licensing Authority, Motor Vehicle Department, Haldwani or that the same is a fake one. Learned counsel also cited a decision of Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in the case of H.C. Sharma Vs. National Insurance Co. Ltd.; [2009] 4 CPR 27, wherein it has been held that where driving licence held by driver at the time of the accident was fake, the insurance company was justified in repudiating the claim. In the present case, it has not been proved by the insurance company that the driving licence held by the driver late Sh. Lachman Ram was fake. Therefore, the case laws cited by the learned counsel for the insurance company, do not help the cause of the insurance company.
9. That so far as the quantum is concerned, the complainant has given his consent for sum of Rs. 4,93,300/- after deducting sum of 6 Rs. 14,000/- towards excess clause on 11.04.2008 and the consent letter is on record (Paper No. 40 on the record of First Appeal No. 38 of 2010). The said amount of loss was assessed by the surveyor in their report. The District Forum has awarded the amount, as has been consented by the complainant. Therefore, it can not be said that the District Forum has awarded excessive amount of compensation. The interest awarded by the District Forum @6% p.a. and damages of Rs. 10,000/- is also justified. Therefore, the appeal filed by the insurance company bearing First Appeal No. 38 of 2010 being devoid of merit, is liable to be dismissed.
10. That so far as the appeal filed by the complainant for enhancement bearing First Appeal No. 137 of 2011 is concerned, as stated above, the complainant has given his consent for sum of Rs. 4,93,300/- and the said amount has been awarded by the District Forum in his favour. This apart, there is nothing on record to prove that the loss assessed by the surveyor was incorrect or on the lower side and the complainant has suffered loss in excess of the amount assessed by the surveyor. Therefore, we do not find any justification to enhance the amount of compensation and the appeal filed by the complainant for enhancement is also liable to be dismissed.
11. For the reasons aforesaid, both the appeals are dismissed. No order as to costs.
12. Let the copy of the order be kept on the record of First Appeal No. 137 of 2011.
(SMT. KUSUM LATA SHARMA) (JUSTICE B.C. KANDPAL) K