State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Amar Kumar on 29 March, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, CHANDIGARH
First Appeal No.796 of 2016
Date of institution:18.10.2016
Date of order reserved: 01.03.2017
Date of Decision: 29.03.2017
National Insurance Co. Ltd. having its Branch office at G.T.Road, above
LIC Building, Malout, Tehsil Malout, District Sri Muktsar Sahib.
Appellant/OP
Versus
Amar Kumar S/o Ved Prakash, Resident of H.No.587, Dashmesh Colony,
Malout, Tehsil Malout, District Sri Muktsar Sahib, Mobile No.9417722801.
Respondent/Complainant
First Appeal against the order dated
19.8.2016 passed by the District
Consumer Disputes Redressal Forum,
Sri Muktsar Sahib.
First Appeal No.796 of 2016 2
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Rajesh Verma, Advocate
For the respondent : Sh. S.K.Aneja, Advocate
Misc. Appl. No.2255 of 2016
In/and
First Appeal No.913 of 2016
Date of institution : 05.12.2016
Date of order reserved: 01.03.2017
Date of Decision: .03.2017
Amar Kumar S/o Ved Prakash, Resident of H.No.587, Dashmesh Colony,
Malout, Tehsil Malout, District Sri Muktsar Sahib, Mobile No.9417722801.
Appellant/Complainant
Versus
National Insurance Co. Ltd. having its Branch office at G.T.Road, above
LIC Building, Malout, Tehsil Malout, District Sri Muktsar Sahib.
First Appeal No.796 of 2016 3
Respondent/OP
First Appeal against the order dated 19.8.2016
passed by the District Consumer Disputes
Redressal Forum, Sri Muktsar Sahib.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. S.K.Aneja, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the appeals arising out of the order dated 19.08.2016 passed by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib (hereinafter referred as the District Forum) in consumer complaint No. 02 dated 12.1.2016 vide which the complaint filed by complainant was allowed and OP was directed to pay Rs.28,195/- to the complainant alongwith interest @9% per annum from the date of occurrence i.e. 29.5.2015 till realization with costs of Rs.2,000/-.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against respondent/opposite party (hereinafter referred as OP) on the First Appeal No.796 of 2016 4 averments that complainant got his vehicle Mahindra Balero Maxi truck registration no.PB30L-9574 insured from the OP in their office at Malout vide policy no.401006/31/04/6300000365 valid from 31.5.2014 to 30.5.2014, after paying a premium of Rs.12,590/-. However, on 29.5.2015 the vehicle met with an accident, FIR to that effect was got registered at Police Station, Gidderbaha. The complainant informed about the accident to the OP and also submitted the claim documents. She got repaired his vehicle from Malout after spending a sum of Rs.79,185/- for the repair of the vehicle. However, the OP vide letter dated 12.10.2015 repudiated the claim on the plea that driver Suraj Singh having driving licence no.PB5320130007912 issued by the Licensing Authority was not valid and effective driving license on the date of accident, whereas, the said driver was holding valid and effective driving license and the claim was illegally repudiated by the OP. Alleging deficiency in service on the part of OP, the complaint was filed before the District Forum seeking directions against OP to pay the claim amount alongwith compensation and litigation expenses.
3. Complaint was contested by OP, who filed their written reply taking preliminary objections that complaint in this form is not maintainable; the contract of insurance is based upon the principle of ubremma fide and both the parties are bound by the terms and conditions of the contract of insurance. However, the complainant violated the terms and conditions of the policy. On the date of accident the driver of the complainant Suraj Singh son of Rinku was not holding effective and valid driving license. He was having only a First Appeal No.796 of 2016 5 driving license of MCWG/LMV, which was valid for driving of non transport vehicle, whereas, the driver of the complainant was not authorized to drive the transport/goods vehicle. Therefore, claim was was rightly repudiated vide letter dated 18.10.2015 and that the complaint has been filed just to extract money from the OP. On merits, issuance of the policy was admitted. It was also admitted that after the accident intimation was received from the complainant. He lodged the claim it was processed and during investigation it was found that driver of the complainant was not holding a valid and effective driving licence. Therefore, the claim was rightly repudiated by OP vide letter dated 12.10.2015. There is no deficiency on the part of the OP. Complaint is without merit, it be dismissed.
4. Before the District Forum, the parties led their respective evidence.
5. In support of his allegations, Ld. Counsel for Complainant tendered into evidence affidavit of complainant Ex.C-1, photocopy of Insurance Policy Ex.C-2, bill dated 27.10.2015 Ex.C-3, bills dated 26.10.2015 Ex.C-4 to C-7, bill dated 09.10.2015 Ex.C-8, bill dated 23.10.2015 Ex.C-9, photocopies of, letter dated 17.07.2015 Ex.C-10, letter dated 12.10.2015 Ex.C-11, RC Ex.C-12, Driving License Ex.C- 13, certificate of exemption Ex.C-14, application dated -4- 16.06.2015 Ex.C-15, Adhar Card Ex.C-16, Voter Identity Card Ex.C-17, FIR Ex.C-18 and closed the evidence on behalf of Complainant. On the other hand Ld. Counsel for OP tendered into evidence affidavit of Sh. Pardeep Narula, Branch Manager, NIC, Malout Ex.OP-1, attested First Appeal No.796 of 2016 6 copies of, insurance cover note Ex.OP-2, RC Ex.OP-3, DL of complainant Ex.OP-4, surveyor report of Sh. Pawan Kumar Pahwa Ex.OP-5, report of Sh. Dinesh Kumar Grover Ex.OP-6, letter dated 12.10.2015 Ex.OP-7, reply of complainant Ex.OP-8, notice dated 19.08.2015 Ex.OP-9, notice dated 06.08.2015 Ex.OP-10, notice dated 17.7.2015 Ex.OP-11, verification dated 12.06.2015 Ex.OP-12 & Ex.OP-13, FIR Ex.OP-14, dispatch register copies Ex.OP-15 to Ex.OP-17, then examined OPW-1 Gurmeet Pal, Ahlmad, SDM cum Licensing Authority, Malout who proved DL of complainant, relevant entry of Licensing register Ex.OP-18. Ld. counsel also tendered affidavit of Sh. Pawan Kumar Pahwa, Surveyor Ex.OP-19, copy of insurance Policy Ex.OP-20 and also examined OPW-2 Sh. Darshan Singh, Data Entry Operator, Office of DTO, Sri Muktsar Sahib who proved RC of vehicle Ex.OP-21. Then Ld. Counsel tendered photocopy of Vehicle Package Policy Ex.OP-22 and closed the evidence on behalf of opposite party.
6. After going through the allegations in the complaint, written version filed by OP, evidence and documents brought on the record, the complaint of the complainant was allowed by the District Forum as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appeal no.796 of 2016 filed by the appellant/OP with the prayer to set-aside the order passed by the District Forum, whereas, Appeal no.913 of 2016 has been filed by the complainant for enhancement of compensation.
First Appeal No.796 of 2016 7Appeal no.796 of 2016
8. We have heard the learned counsel for the appellant Sh.Munish Goel, Advocate and learned counsel for the respondent Sh.Manu Loona, Advocate.
9. It was argued by the counsel for the appellant/OP that the order passed by the District Forum is illegal, null and void and passed without appreciation of evidence on the record. Vehicle insured with OP is PB30L-9574. The OP has examined Darshan Singh, Data Entry Operator from the office of DTO Sri Muktsar Sahib, who stated that it is light goods vehicle and the same falls within the category of transport vehicle. The OP further examined Sh. Neeraj Kumar, Clerk from the office of Licensing Authority, who produced the record of licence no.PB5320130007912 issued in favour of Suraj Singh son of Rinku for the period from 22.7.2013 to 21.7.2033. This license is valid for MCWG-LMV/Car/Jeep and Motorcycle and tractor only, whereas, the vehicle being driven by the driver, met with an accident is a transport vehicle and the license was not having any endorsement of transport vehicle. The copy of the license has been placed on the record as Ex.C-13, which makes it clear that it does not have any endorsement of transport vehicle. The categorization of the vehicle has been under Section 10(2) of the Motor Vehicle Act 1988, which reads as under:-
10.(2) A learner's license or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-
First Appeal No.796 of 2016 8
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description.
For transport vehicle, there is a separate category, whereas, light motor vehicle is a separate category introduced w.e.f. 14.11.1994.
10. Before the District Forum counsel for the OP had referred the Judgment "Smt. Seema Garg Vs. Oriental Insurance Co. Ltd." in Revision Petition No.579 of 2013, wherein it was observed by Hon'ble National commission that a person holding a licence for LMV only cannot drive the transport vehicle. Whereas, the District Forum relied upon the judgment of Hon'ble Supreme Court of India decided on 01.07.2013 passed in Civil Appeal No.4834 of 2013 titled as "S. Iyyapan Vs. M/s United India Insurance Co. Ltd. and another" 2013(3) RCR (Civil) 654, wherein it was observed by the Hon'ble Supreme Court of India as under:-
(i) Insurance Company cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but was driving commercial vehicle.
(ii) It is the statutory right of a third party to recover the amount of compensation so awarded from the insurer - it is for the insurer to proceed against the insured for recovery of First Appeal No.796 of 2016 9 the amount in the event there has been violation of any condition of the insurance policy.
This judgment has been referred under the Motor Vehicle Act. Under the Motor Vehicle Act, in case there is violation of any terms and conditions of the policy, the insurance company cannot avoid the payment of their policy, but has a right of recovery the same from the insured. Similar order has been passed by the Hon'ble Supreme Court of India in above said appeal. Therefore, this order is not applicable to the facts and circumstances of the present case because it is not a third party case, it is a case of own damage claim. Therefore, the District Forum has wrongly relied upon this judgment to give the claim to the complainant. During the Course of arguments, counsel for the appellant/OP was unable to comment how the judgment of Hon'ble Supreme Court of India, 2013(3) R.C.R.(Civil) 654 is applicable to the facts and circumstances of the present case. In case the driver of the complainant on the date of accident was not having a valid and effective driving license then it amounts to breach of policy's terms and conditions and in case the complainant has breached the policy's terms and conditions then he is not entitled to any claim, therefore, the order passed by the District Forum is not justified and is liable to be set-aside.
11. Sequel to the above, we accept the appeal and the impugned order passed by the District Forum is set-aside. Consequently, the complaint filed by the complainant is dismissed as claim is not payable on account of breach of policy's terms and conditions.
First Appeal No.796 of 2016 10Appeal no.913 of 2016 MISC. APPLICATION NO. 2255 OF 2016
12. There is delay of 58 days in filing the appeal. It has been stated in the application that due to procedural requirements in the office of the appellant, there is delay of 58 days in filing the appeal, which is not intentional. Keeping in view, the contentions as stated in the application and that the delay is just 58 days and that matter should be heard on merits, the delay of 58 days in filing the appeal is hereby condoned.
On merits
13. This appeal has been filed for enhancement of compensation. However, in view of findings given in appeal no.796 of 2016 that the complaint filed by the complainant has been dismissed on account of breach of policy's terms and conditions, then question of any enhancement does not arise or the appeal filed by the appellant/complainant is dismissed in limine.
14. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
15. Order be communicated to the parties as per rules. Copy of this order be placed on F.A.No.913 of 2016.
16. The appellant in F.A.No.796 of 2016 had deposited an amount of Rs.17,000/- with this Commission at the time of filing the appeal. This amount along with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed First Appeal No.796 of 2016 11 cheque/demand draft after the expiry of 90 days, from the date of despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
(Gurcharan Singh Saran)
Presiding Judicial Member
March 29, 2017. (Surinder Pal Kaur)
Rs Member