State Consumer Disputes Redressal Commission
Tarun Mohindru vs Oriental Insurance Company on 27 October, 2010
H
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA-9.
FIRST APPEAL No.376/2009.
RESERVED ON 21.10.2010.
DECIDED ON 27.10.2010.
In
the matter of:
Shri Tarun Mohindru son of Shri Manohar Lal Mohindru,
R/o House No.189/1 Mandi, Tehsil Sadar, District Mandi, Himachal Pradesh.
Appellant.
Versus
The Oriental Insurance Company Limited, through its
Divisional Manager, Vidya Bhawan Palace Colony/Hospital Road, Mandi, District Mandi, Himachal
Pradesh.
Respondent.
Honble Mrs. Saroj Sharma, Presiding
Member.
Honble Mr. Chander Shekhar Sharma, Member.
........
Whether approved for reporting? Yes.
For the Appellant:
Mr. Dheeraj Kanwar, Advocate.
For the Respondent: Mrs. Anupama Sharma, Advocate vice Dr. Lalit Kumar Sharma, Advocate.
........
O R D E R:
( Per Mr. Chander Shekhar Sharma, Member).
This appeal is directed against the order passed by District Forum, Mandi in Consumer Complaint No.262/2008, dated 05.09.2009, whereby the complaint of the appellant was dismissed by holding that the appellant had failed to establish charge of deficiency against the respondent.
2. Factual matrix giving rise to the complaint are that the appellant who is registered owner of HMT tractor No.HP-33A-7306 had got it insured with the respondent vide insurance policy Annexure C-2 from 21.10.2006 to 20.10.2007. The said tractor met with an accident on 24.05.2007 at a place known as Dhar near Banjar, District Kullu, where it was sent for work of contract by the appellant.
Driver of tractor had died in the said accident. Thereafter FIR was lodged with the police. Further averments in the complaint are to the effect that tractor had been damaged and sustained loss to the tune of Rs. 50,625/-.
3. Thereafter the claim was lodged with the respondent alongwith all requisite documents including estimate and it was also pleaded in the complaint by the appellant that he was told by the respondent that since it will take some time to process and settle the claim and as such the tractor be got repaired at his own and he was assured to settle and pay the claim afterwards. Thereafter he got the tractor repaired from M/s Palam Tractors and Spares, Nerchowk and an amount of Rs.50,625/- was spent upon the repair and thereafter original bills and documents were handed over to the respondent, but neither the claim was settled, nor the amount was paid and vide Annexure C-10 dated 11.12.2007 the claim of the appellant was repudiated on whimsical and arbitrary grounds.
4. It was also averred in the complaint that while the appellant had employed Shri Pawan Kumar deceased as driver in the tractor, then he had seen his licence and after accident his licence could not be traced out despite search by the appellant and as such it could not be produced to the respondent.
5. In this background complaint under Section 12 of Consumer Protection Act, 1986 was filed for deficiency of service on the part of respondent.
6. Respondent in the said complaint contested and resisted the complaint and its plea was that there is no deficiency of service on its part as the complainant had violated the terms and conditions of insurance policy since the tractor was used for the purpose of other than, limitation as to use as two gratuitous persons were travelling in the said tractor and even the driver who was driving the said tractor at the relevant time was not having any driving licence and even copy of driving licence and full particulars thereof driver were also not supplied to the respondent, despite writing of various letters to the appellant which clearly suggests that Shri Pawan Kumar was not holding any driving licence and as such the respondent is not liable to indemnify the appellant.
7. Appellant had also filed rejoinder to the complaint, wherein he had reiterated the stand as taken in the complaint and controverted the facts stated in the reply filed by the respondent.
8. Brief summary of evidence led by both the parties in the present case in nutshell is; the appellant in support of its case has filed his own affidavit besides afiavit of Shri Surender Madan and placed reliance upon documents Annexures C-1 to C-10 which are copies of RC, insurance policy, estimate of bills and letter of repudiation dated 11.12.2007 sent by the respondent to the appellant.
9. Respondent in support of its case has filed affidavit of its Senior Divisional Manager Shri B.S. Negi, Shri Sanjay Vaidya and Shri M.L. Gupta both Automobiles Engineers besides affidavit of Shri D.P. Sharma Surveyor and placed reliance upon documents Annexures R-1 to R-8 which are insurance policy, spot surevey, loss assessment report, investigation report and various letters sent by the respondent to the appellant and letter of repudiation dated 11.12.2007 and photographs Annexures G-1 to G-25.
Appellant has also filed rejoinder wherein the stand taken in the complaint was reiterated.
10. We have heard learned counsel appearing for the parties at length.
11. Mr. Dheeraj Kanwar learned counsel for the appellant argued that in the present case, accident had occurred due to brake failure and there is no evidence on record to prove that gratuitous passengers were travelling in the tractor and as per him two gratuitous passengers which were allegedly found travelling at the time of accident in the tractor, they were not the sole contributor for the alleged accident. As per him the owner had taken test drive at the time of deployment of Shri Pawan Kumar driver and then he deployed him after ascertaining the fact that he was holding a valid driving licence which was shown to the appellant and now since the licence had been lost during the accident which could not be traced, and as such it could not be produced to the respondent and the damage which was caused to the tractor as a result of accident for that he had submitted the bills to the respondent and as such repudiation of claim submitted by the appellant to the respondent is not legally warranted and is arbitrary. In the alternative he had also laid stress on the point that this case may be settled on non-standard basis by awarding 75% of the amount as assessed by the Surveyor. Learned counsel for the appellant relied upon the decisions of Honble Apex Court in cases titled as Jitendra Kumar versus Oriental Insurance Company Limited and another (2003) 6 Supreme Court Cases 420 and in case titled as Amalendu Sahoo versus Oriental Insurance Company Limited II (2010) CPJ 9 (SC) and of Honble High Court of Himachal Pradesh in case titled as National Insurance Company Limited versus Smt. Mahendri Devi and others Latest HLJ 2009 (HP) 422.
12. There is no dispute about the legal proposition laid down in the decision of Apex Court and of this Commission relied upon by the learned counsel for the appellant, but the facts of the present case are quite distinguishable.
Appellant in the present case could not prove on record that the driver of the vehicle was having any licence authorizing him to drive the vehicle in question at the relevant time as in the present case driver was not having any licence at all, but cases relied upon by the appellant relate to the cases where driver was not having any valid licence and even the facts are also distinguishable. Moreover, this is not a case of third party claim, but the case of damage caused to the tractor in accident and even the negligence is attributed to the driver.
13. Mrs. Anupama Sharma, learned counsel appearing for respondent has supported the order of the District Forum below and she has vehemently argued that since no licence of Shri Pawan Kumar deceased driver of tractor who was driving the tractor at the relevant time had produced by the appellant to the respondent despite various communications sent to him in the matter and the gratuitous passengers were also found travelling in the vehicle which fact is evident from the contents of FIR, as such since there was fundamental breach of terms and conditions of policy, as such the claim of the appellant was rightly repudiated.
14 After hearing learned counsel for the parties at length and going through the record of the case, we are of the considered view that there is no force in the present appeal and it deserves to be dismissed. Reason being that in the present case this fact is clear from the evidence on record that the copy of driving licence of driver Shri Pawan Kumar deceased was not produced nor particulars were even submitted to the respondent and even it was not recovered from the spot by the police.
15. Even if as per plea of the appellant that the driving licence was lost in the accident and was not traceable, even then secondary evidence should have been led for proving the fact that driver of the vehicle was having a valid licence for driving the said vehicle when accident had occurred. Even as per evidence on record viz. contents of FIR dated 24.05.2007 lodged in Police Station, Banjar, this fact is clearly evident that two persons besides the driver were sitting in the tractor at the time of accident as the FIR had been lodged even by one of the occupant of tractor namely Shri Hira Lal, who had attributed negligence on the part of driver at the time of accident. Hence for want of production of secondary evidence in the present case which could have been produced by the appellant to support his plea regarding the fact that the driver was having a driving licence at the time of accident, it can be presumed that driver of the vehicle was not having any licence to driver the tractor at the relevant time and as such, there is fundamental breach of terms and conditions of insurance policy, as such repudiation of claim of the appellant was legally justified. Even this case also cannot be settled on non-standard basis as the Honble Apex Court had also deprecated the settlement of cases in case of fundamental breach of terms and conditions of policy where the drivers are not having any valid licence, as in this case there is no iota of evidence on record to prove the fact that the driver of tractor was holding any driving licence at the time of accident which was mandatory as per Section 3 of Motor Vehicles Act, 1988 and also as per terms and conditions of insurance policy. Our view is also supported by a decision of Honble Apex Court given in case titled as National Insurance Company Limited versus Meena Aggarwal IV (2009) CPJ 25 (SC) and decision of this Commission given in case titled as New India Assurance Company Limited versus Vipin Kumar III (2009) CPJ 78.
16. No other point was urged.
17. In view of aforesaid discussion, facts and circumstances of this case and legal position explained above, we uphold the impugned order dated 05.09.2009 passed by District Forum, Mandi in Consumer Complaint No.262/2008 and consequently the present appeal is dismissed, leaving the parties to bear their own costs.
18. Office is directed to send a copy of this order to the parties free of cost as per rules.
SHIMLA 27.10.2010.
( Saroj Sharma ) Presiding Member.
(Chander Shekhar Sharma) Member.
*dinesh*