State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Karamjit Singh on 10 January, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.852 of 2019
Date of institution : 26.12.2019
Date of decision : 10.01.2020
United India Insurance Co. Ltd., Divisional Office, near Dr. Kalra, Ist
Floor, Verka Chowk, Talwandi Sabo, Bathinda, through its Regional
Office i.e. United India Insurance Company, 136, Feroze Gandhi
Market, Ludhiana, through Shama Arora Mittal, Assistant Manager
(Legal), United India Insurance Company.
....Appellant/Opposite Party
Versus
Karamjit Singh, aged about 42 years, S/o Sukhdev Singh, R/o H.No.B-
5, 387, near Ramgarhia Gurudwara, Barnala (wrongly mentioned in
headnote of appeal as 'Bathinda').
....Respondent/Complainant
First Appeal against the order dated
16.10.2019 of the District Consumer
Disputes Redressal Forum, Bathinda.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellant : Sh. Munish Goel, Advocate JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT Misc. Application No.2724 of 2019 (Delay) This application has been filed for condonation of delay of 26 days in filing the appeal.
Heard.
First Appeal No.852 of 2019 2For the reasons recorded in the application, the delay in filing the appeal is condoned, subject to costs of ₹3,000/- to be deposited in Consumer Legal Aid Account of this Commission, within 30 days of receipt of certified copy of order; failing which the same shall be recovered as arrears of land revenue.
Main Case The instant appeal has been filed by the appellant/opposite party against the order dated 16.10.2019 passed by District Consumer Disputes Redressal Forum, Bathinda (in short, "the District Forum"), whereby the complaint filed by the respondent/complainant, under Section 12 of the Consumer Protection Act, 1986, was partly accepted with ₹10,000/- as cost, directing the opposite party to pay ₹92,603/-, along with interest at the rate of 9% per annum with effect from 07.03.2018 till payment.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the Complaint
3. Brief facts, as averred in the complaint, are that the complainant owns a Nissan Sunny Car No.PB-03-Z-0089; which he got comprehensively insured with opposite party, vide Insurance Policy (Package Insurance) No.2004063117P111130434. The said insurance policy was valid from 05.11.2017 to 04.11.2018 for the IDV of ₹4,05,000/-. The said car met with an accident near Reliance Petrol Pump, Rampura Phul on 11.12.2017, while a cow came in front thereof; as a result of which front side of the car hit that cow. The vehicle went out of control and its front lower portion hit the footpath. First Appeal No.852 of 2019 3 At the time of said accident, the complainant was driving the car and was having valid and effective driving licence to drive the same. The claim was immediately lodged with the opposite party and the car was shifted from Rampura Phul to M/s AVC Motors Nissan, Authorized Service Centre at Bathinda, for estimates and repairs. ₹2,000/- were paid as towing charges. The car, in question, was repaired under the instructions and supervision of the opposite party and its surveyor Er. Dinesh Kumar Goyal. The original estimates, Tax Invoice and receipts were supplied to the opposite party, through Surveyor. The complainant paid ₹1,46,940/- as repair charges to the said Service Centre from his own pocket. However, neither the claim was paid nor copy of survey report was supplied to the complainant, despite his repeated visits and requests. The surveyor, being servant of Insurance Company, gave favourable report to it. Later on, the complainant received letter dated 07.03.2018 under RTI application from the opposite party, vide which his claim was illegally rejected, on the ground that the driving licence was not valid. The complainant never committed any breach of the insurance policy. Alleging deficiency in service on the part of the opposite party, the complainant approached the District Forum, seeking following directions to it:
i) to pay ₹1,46,940/- to the complainant on account of loss to the car;
ii) to pay ₹2,000/- as shifting/towing charges;
iii) to pay ₹50,000/- for the mental agony and pain suffered by him;
iv) to pay interest at the rate of 18% per annum from 11.12.2017 till payment;First Appeal No.852 of 2019 4
v) to pay ₹50,000/-, as litigation expenses. Defence of the Opposite Party
4. Upon notice, the opposite party appeared before the District Forum and filed reply to the complaint, raising legal objections that the complaint was not maintainable. The complainant intentionally violated the terms and conditions of insurance policy, as he was not having legal and valid driving licence at the time of alleged accident.
The alleged driving licence produced by him before the surveyor was valid for MCWG and LMV-TR from 17.05.2013 to 16.05.2016 and for Non-transport and tractor from 17.05.2013 to 19.03.2026. Therefore, since the complainant was not holding a valid and effective driving licence to drive the said car, so he is not entitled to any claim. No deficiency in service on the part of opposite party was established. Since the claim of the complainant has been duly got investigated, verified and scrutinized from competent persons, so the decision of the Insurance Company is final and valid and the same cannot be challenged before the District Forum. Complicated questions of facts and law are involved in complaint; which can be decided only by the Civil Court. Moreover, there is specific Arbitration Clause in the policy and, as such, the District Forum had got no jurisdiction to entertain and decide the complaint. The complainant concealed true/material facts and did not approach the District Forum with clean hands. The requisite documents were not produced, along with the complaint and, as such, he was debarred from producing any more document. On merits, facts regarding ownership of the car of complainant and issuance of insurance policy were stated to be matter of record. First Appeal No.852 of 2019 5 Lodging of the claim by the complainant on 18.12.2017 was admitted. However, it was pleaded that the insurance was subject to terms and conditions of the policy. It was further pleaded that driving licence for LMV-TR was valid only for the period 17.05.2013 to 16.05.2016 and, as such, the complainant was not competent to drive the car at the time of accident on 11.12.2017. It was further pleaded that the car was got repaired under the instructions of the complainant and not surveyor Er. Dinesh Kumar Goyal. It was denied that he spent ₹1,46,940/- on the repairs of the car. However, it was pleaded that surveyor Er. Dinesh Kumar Goyal assessed the loss as ₹93,603/- less Excess Clause of ₹1,000/- and less salvage value ₹1,950/-. Thus, the net loss assessed was ₹90,653/-. However the opposite party observed that the said report was not showing correct value, as it was showing more/high loss of car. After considering the same, it was found that the loss could have been assessed only as ₹80,757/-, less Excess Clause of ₹1,000/- and further less salvage value ₹1,950/-, i.e. ₹77,807/-. However, since the complainant was not having valid driving licence to drive the car at the time of accident, so no liability can be fastened to it. The claim of the complainant was repudiated, vide letter dated 07.03.2018, and he was intimated about it, vide registered post letter dated 08.03.2018. It was also pleaded that the complainant never demanded copy of survey report nor the opposite party ever refused to supply the same. However, the insurance policy, along with relevant documents, was duly sent to the complainant at the relevant time. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed.
First Appeal No.852 of 2019 6Evidence of the Parties and Finding of the District Forum
5. The complainant, in support of his claim, tendered into evidence his affidavit dated 05.07.2018 Ex.C-1, along with copies of documents i.e. certificate cum insurance Ex.C-2, R.C. Ex.C-3, D.L. Ex.C-4, receipt Ex.C-5, Invoice Ex.C-6, receipt Ex.C-7 and letter Ex.C9.
6. The opposite party, in support of its defence, tendered into evidence affidavit of Baldev Singh dated 24.08.2018 Ex.OP-1/1, No Claim Letter Ex.OP-1/2, motor survey report Ex.OP-1/3, re-inspection report Ex.OP-1/4, photographs Ex.OP-1/5, consent letter Ex.OP-1/6, motor claim form Ex.OP-1/7, verification reports Ex.OP-1/8 & Ex.OP- 1/9, driving licence Ex. OP-1/10, verification details Ex.OP-1/11 to Ex.OP-1/13 and policy Ex.OP-1/14.
7. The District Forum, after going through the record and hearing learned counsel for the parties, partly allowed the complaint, vide impugned order. Hence, this appeal.
Contentions of the Parties
8. We have heard learned counsel for the appellant/opposite party at the time of admission of the appeal and have carefully gone through the record.
9. Learned counsel for the appellant has vehemently contended that the complainant was not holding a valid and effective driving licence at the time of accident. The driving licence produced by him was valid for MCWG and LMV-TR for the period 17.05.2013 to 16.05.2016. It was further valid for driving non-transport vehicle for the period 17.05.2013 to 19.03.2026. The car of the complainant was First Appeal No.852 of 2019 7 Nissan Sunny bearing Registration No.PB-03-Z-0089. However, the driving licence for driving LMV vehicle expired on 16.05.2016. Therefore, the driving licence of the complainant was not valid and effective at the time of the accident and, as such, the claim of the complainant was rightly and legally rejected on valid grounds. It has been further contended that the complicated questions of law and facts are involved in the complaint, which could not be decided by the District Forum in summary procedure and only the Civil Court is competent in this regard. Further, due to existence of Arbitration Clause in the insurance policy, the matter was liable to be referred to be arbitrator. The District Forum failed to appreciate these facts and passed a wrong order. Thus, there are sufficient grounds for issuing notice of the appeal to the respondent/complainant and for deciding the appeal on merits.
Consideration of Contentions
10. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellant/opposite party.
11. First of all, we would like to deal with the plea of the appellant/opposite party raised in the reply as well as grounds of appeal that the complaint could not be decided by the District Forum, due to involvement of complicated questions of law and facts therein.
12. This matter is no more res-integra. The Hon'ble Supreme Court in case "Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi", 2002 (2) CPC-640, held that under the Act, the Hon'ble National Commission is headed by a retired Judge of the Hon'ble Supreme First Appeal No.852 of 2019 8 Court and the State Commission is headed by a retired High Court Judge. Similarly, the District Forums are headed by retired District/Additional Session Judge or the person of legal background having equivalent experience and, as such, they are competent to decide the complicated issues of law or facts. It is expected of them to decide the cases on merits, on the basis of prima facie evidence on the record.
13. Similarly, in Shiv Kumar Agarwal v. Arun Tonden & Anr., 2007 (2) CPC 129 (NC), it was observed by the Hon'ble National Commission in Para No.5 as follows:
5. We heard the learned Counsel for the petitioner and perused the material on record. Like before the State Commission, the learned Counsel for the petitioner argued before us that this case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary procedure adopted by the Consumer Fora.
After seeing the complaint, written version as also the judgments of the Hon'ble Supreme Court in the case of Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi , and other catena of judgments, we are of the view that Consumer Forum, which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. The Consumer Protection Act, 1986 under Section 13 provides for calling for expert evidence, if necessary.
14. In view of the ratio of laid down in the authorities discussed above, the Consumer Forums are being presided by the competent senior judicial authorities and they are capable of dealing with even complex questions. Accordingly, the plea of the appellant in this regard is rejected.
First Appeal No.852 of 2019 9
15. So far as the other plea of the opposite party regarding existence of Arbitration Clause in the insurance policy is concerned, it is relevant to mention here that the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., also held that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. v. Aftab Singh) filed against the said order of the Hon'ble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated 13.02.2018 was also dismissed by the Hon'ble Supreme Court, vide order dated 10.12.2018. Consequently, the existence of an Arbitration Clause in the insurance policy, if any, is not a bar to resolve this dispute by the Consumer Forum. Accordingly, the plea of the opposite party in this regard is also rejected.
16. Now, coming to merits of the case, admittedly, the car, in question, was got insured by the complainant with the opposite party, vide insurance policy Ex.C-2, for the period 05.11.2017 to 04.11.2018. It was damaged in an accident on 11.12.2017. The car was got repaired from M/s AVC Motors Nissan, Authorized Service Centre at Bathinda. The claim lodged by the complainant was repudiated by the First Appeal No.852 of 2019 10 opposite party, vide letter dated 07.03.2018, on the ground that the complainant was not having valid and effective driving licence at the time of accident. The plea of the opposite party is that driving licence produced by the complainant was valid for MCWG and LMV-TR for the period 17.05.2013 to 16.05.2016. It was further valid for driving non- transport vehicle for the period 17.05.2013 to 19.03.2026. Thus, the driving licence for driving LMV vehicle expired on 16.05.2016.
17. Admittedly, the car, in question, is a Light Motor Vehicle as defined in Section 2 (21) of the Motor Vehicles Act, 1988, which reads as under:
"light motor vehicle" means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kilograms."
The above reproduced definition of 'light motor vehicle' also includes transport vehicle, a motor car or tractor or road roller, the unladen weight of which does not exceed 7500 kilograms. Definition of 'transport vehicle' is given in Section 2 (47) of the Motor Vehicles Act, which reads as follows:
2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;
There is no definition of 'non-transport vehicle' in the Motor Vehicles Act, 1988. At the most, the vehicles, other than transport vehicles, can be said to be non-transport vehicle. Admittedly, the unladen weight of the car, in question, is 1027 kgs. as per Registration Certificate Ex.C-
3; which is below 7500 kgs. and, as such, it comes under the category of 'light motor vehicle'. Therefore, the car, in question, is also a non-First Appeal No.852 of 2019 11
transport vehicle. Perusal of copy of licence of the complainant Ex.C-4 shows that it was valid for driving a non-transport vehicle till 19.03.2026. Earlier, the licence was valid for MV.GV/MCWG Transport and Tractor; which was issued on 11.07.2013. Subsequently, it was got renewed and was made valid till 19.03.2016 for driving non-
transport vehicle. The Hon'ble Supreme Court in case "Mukund Dewangan v. Oriental Insurance Co. Ltd.", 2017 (IV) CPJ 13 (SC); which has been relied upon by the District Forum in the impugned order, minutely discussed the various provisions of the Motor Vehicles Act, 1988 and categorically held in Para No.46 (relevant portion) as under:
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-
amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.First Appeal No.852 of 2019 12
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
From the ratio of the aforesaid authority of the Hon'ble Supreme Court, it is clear that holder of a driving licence to drive class of 'light motor vehicle' as provided in Section 10 (2) (d) read with Section 2 (26) of the Motor Vehicles Act, 1988 is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or road-roller, the unladen weight of which does not exceed 7500 kg. Similarly, transport vehicles, whose unladen weight do not exceed 7500 gms., are also not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994. Similar proposition of law was laid down by the Hon'ble Supreme Court in "Sant Lal v. Rajesh & Others" Civil Appeal Nos. 8395-8396 of 2017 (Arising out of S.L.P. (C) Nos.35534- 35535 of 2013), decided on 03.07.2017.
18. In view of the law laid down in the above noted cases, since there is clear endorsement on the licence, Ex.C-4, that the same valid for non-transport vehicle up to 19.03.2026, so the licence of the complainant was valid and effective at the time of accident to drive the car, in question, which is a light motor vehicle/non-transport vehicle. First Appeal No.852 of 2019 13
19. Now, coming to point of loss suffered by the car, in question. As per Invoice Ex.C-6 issued by AVC Motors Nissan, the complainant spent ₹1,46,940/-. However, it also needs to be mentioned that the opposite party deputed surveyor to assess the loss suffered by the car, in question. The surveyor gave report Ex.OP-1/3, assessing the loss to the extent of ₹92,603/-. It was held by the Hon'ble National Commission in "D.N. Badoni Vs. Oriental Insurance Co. Ltd." (2012) (3) CLT 64 that the report of the surveyor has significant evidential value, unless it is proved otherwise. The consumer, in order to show that the report of the surveyor be not made basis of the claim, is required to contradict the same. However, in the present case, the complainant failed to discard the said survey report, by not leading cogent and convincing evidence against it. Therefore, the District Forum rightly placed reliance on it and awarded the amount, as assessed by the surveyor in his report. We do not find any reason to differ with the findings recorded by the District Forum. The appeal is false and frivolous. However, we refrain ourselves to impose costs upon the appellant for filing the same.
20. In view of our above discussion, there is no ground or justification for issuance of notice of appeal to the respondent/ complainant and, as such, the appeal is dismissed in limine.
21. The appellant had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The respondent/complainant may approach the District Forum for the release of the above amount and the District First Appeal No.852 of 2019 14 Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (MRS. KIRAN SIBAL) MEMBER January 10, 2020.
(Gurmeet S)