State Consumer Disputes Redressal Commission
Icici Lombard Motor General Insurance ... vs Sh. Bharat Bhushan Dang on 7 December, 2023
Appeal No. ICICI Lombard Motor Gen. 07.12.2023
159 of 2017 Insurance Co. Ltd.
Vs.
Sh. Bharat Bhushan Dung
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Admission : 04.01.2018
Date of Final Hearing : 22.11.2023
Date of Pronouncement : 07.12.2023
First Appeal No. 159 / 2017
ICICI Lombard Motor Gen. Insurance Co. Ltd.
Registered office: Jinnath House, Keshabharo Khare Marg
Mahalaxmi, Mumbai 400 034
Branch office: Rajpur Road, Kandiholi Chironwali
Back Side of Madhuban Hotel, Dehradun
Through Authorised Signatory
Sh. Sidharth Jain
(Through: Sh. Yogesh Sethi, Advocate alongwith
an associate Sh. Chitradeep Rana)
.....Appellant
VERSUS
Sh. Bharat Bhusan Dung S/o Late Sh. Rampal Dung
R/o House No. 2, Ramniwas, Avdhut Ashram Road
Rishikesh, District Dehradun, Uttarakhand
(Through: Sh. Mahaveer Singh Negi, Advocate)
.....Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of The Consumer Protection Act, 1986 has been directed against the judgment and order dated 12.09.2017 passed by the learned District Consumer Disputes Redressal Forum, Tehri Garhwal (hereinafter to be referred as the District Commission) in 1 Appeal No. ICICI Lombard Motor Gen. 07.12.2023 159 of 2017 Insurance Co. Ltd.
Vs. Sh. Bharat Bhushan Dung consumer complaint No. 05 of 2016 styled as Sh. Bharat Bhushan Dung Vs. ICICI Lombard Motor Insurance, wherein and whereby the complaint was allowed.
2. The facts giving rise to the present appeal, in brief, are as such that the complainant had purchased a Truck bearing chassis No. 07333 and engine No. 18008 in the month of April, 2008 and it was insured from the opposite party - insurance company vide policy No. 3003/54016805/00/000 w.e.f. 28.04.2008 to 27.04.2009. After sometime, the insured vehicle was registered as UK07-CC-0255. The insured vehicle met with an accident due to technical defect at Chama - Rishikesh Motor marg nearby Chamba, wherein the driver of the said vehicle Sh. Dinesh Chamoli sustained severe injuries and became handicapped. The said driver has filed a case before the Workman Compensation Commissioner, Tehri Garhwal and the Workman Compensation Commissioner, Tehri Garhwal has passed an order on dated 31.07.2013 to pay compensation to the tune of Rs. 3,85,492/- to the driver of the vehicle Sh. Dinesh Chamoli, which was paid by the complainant on respective dates, i.e. 17.01.2014 & 24.02.2015. The said insured vehicle was properly insured with the opposite party and the opposite party denied the insurance of the vehicle, therefore, the complainant as the owner of the insured vehicle had to pay Rs. 3,85,492/- to the driver Sh. Dinesh Chamoli, whereas the liability of such payment rests upon the insurance company. The complainant has made several requests, orally as well as in writing, to pay the same, but in vain. Later on, the complainant sent a legal notice dated 19.09.2015 through his advocate, but inspite of the service of notice, the said payment of compensation of Rs. 3,85,492/- was not given to the complainant, therefore, the complaint was filed before the District Commission.
2Appeal No. ICICI Lombard Motor Gen. 07.12.2023 159 of 2017 Insurance Co. Ltd.
Vs. Sh. Bharat Bhushan Dung
3. The opposite party - insurance company has submitted its written statement alleging that the complaint is time barred and was filed after expiry of two years from the date from where the cause of action had arisen. It is also averred that the accident took place on dated 06.11.2008 whereas the complaint was filed on 15.03.2016, therefore on such account, the complaint was liable to be dismissed. It is also averred that the use of the insured vehicle was not done according to the terms and conditions of the policy, therefore, there was gross violation of such terms of the policy. It is further alleged that the driver of the insured vehicle was not having a valid and effective driving license, therefore, the Workman Compensation Commissioner did not pass any order against the opposite party. The complainant was held liable to pay compensation to the driver as owner of the insured vehicle, therefore, in the court of Workman Compensation Commissioner, the opposite party could not be ordered to pay the same to the complainant. Thus, the complaint has been submitted by the owner of the insured vehicle to recover the amount already paid by him vide order of Workman Compensation Commissioner. The complaint is liable to be dismissed due to violation of the terms and conditions of the insurance policy.
4. The District Commission after hearing both the parties and after taking into consideration the pleadings and evidence available on record, passed the impugned judgment and order on dated 12.09.2017 wherein it is held as under:-
"f"kdk;rdrkZ Hkkjr Hkw'k.k Max dh f"kdk;r foi{kh chek dEiuh ds fo:) Lohdkj dh tkrh gSA foi{kh chek dEiuh dks vknsf"kr fd;k tkrk gS fd og {kfriwfrZ /kujkf"k :
3]85]492@& ¼rhu yk[k fiPpklh gtkj pkj lkS c;kuos½ f"kdk;r çLrqr djus dh frfFk 15-03-2016 ls okLrfod 3 Appeal No. ICICI Lombard Motor Gen. 07.12.2023 159 of 2017 Insurance Co. Ltd.
Vs. Sh. Bharat Bhushan Dung Hkqxrku dh frfFk rd cSad ds orZeku lk/kkj.k okf'kZd C;kt dh nj ls C;kt lfgr vnk djs rFkk ekufld o vkfFkZd {kfr ds :0 1]000@& ¼,d gtkj :i;s½ rFkk okn&O;; :0 1]000@& ¼,d gtkj :i;s½ vnk djsA"
5. Aggrieved by the impugned judgment and order, the present appeal has been preferred by the opposite party - insurance company as appellant alleging that the impugned judgment is illegal and is unsustainable in the eyes of law. The District Commission has exercised its jurisdiction with materially illegality and irregularity. It is contended that the impugned judgment is against the facts, law and merits of the case; the Commission below has miserably failed to appreciate the fact that the complaint filed by the respondent - complainant is time barred as per Section 24A of the Consumer Protection Act, 1986. It is further averred that the Commission below has also failed to appreciate the fact that the driver of the respondent
- complainant's vehicle was not holding a valid driving license and was not fit to drive. Therefore, there was a clear case of breach of terms and conditions. It is also averred that the appellant was never informed about the accident of the vehicle. It is also argued that the District Commission has failed to appreciate the fact that the appellant was not liable to pay the respondent - complainant the amount he was directed to pay to his own driver, as that falls squarely outside any agreement between the appellant and the respondent. On such ground, the appeal is liable to be allowed and the impugned judgment deserves to be set aside.
6. We have heard learned counsel for both the parties and have perused the records available before us.
7. It is an admitted fact that the insured vehicle bearing registration No. UK07-CC-0255 met with an accident on dated 06.11.2008 nearby P.S. 4 Appeal No. ICICI Lombard Motor Gen. 07.12.2023 159 of 2017 Insurance Co. Ltd.
Vs. Sh. Bharat Bhushan Dung Chamba at the motor marg leading to Chamba - Rishikesh Marg due to technical defect, whereby the driver of the vehicle in question Sh. Dinesh Chamoli got severe injuries and became handicapped. It is also an admitted fact that a case for compensation was filed by the driver of the insured vehicle before the Workman Compensation Commission and such court awarded compensation of Rs. 3,85,492/- to the driver directing the owner of the insured vehicle to pay the same. It is also conceded by both the parties during the course of arguments that relief seeking the recovery of the amount of Rs. 3,85,492/- paid in compliance of the order of the Workman Compensation Commission by the owner to the driver is demanded in the complaint case. After such payment of the amount to the driver of the offending vehicle by the owner as per the order of the Workman Compensation Commissioner, the owner of the insured vehicle filed a complaint before the District Commission below demanding such awarded amount from the appellant - insurance company as the insurer. The appellant had denied the contents of the complaint case alleging that the insured vehicle was not being used at that relevant time according to the terms and conditions of the insurance policy and the claim of the complainant was rejected by the appellant - insurance company, since the driver of the respondent - complainant had no valid driving license and he was found unfit to drive the vehicle. It is further argued by the appellant that the appellant was not liable to pay the amount which was paid to the driver according to the order of the Workman Compensation Commissioner because the respondent - complainant has failed to prove the relationship between the respondent and appellant as consumer and service provider.
8. We have perused the complaint whereas nothing has been alleged in the complaint that what was the deficiency in service on the part of the appellant - insurance company. After perusing the entire contents of the complaint, it is proved that the complaint was filed mere to obtain the 5 Appeal No. ICICI Lombard Motor Gen. 07.12.2023 159 of 2017 Insurance Co. Ltd.
Vs. Sh. Bharat Bhushan Dung compensation amount paid by the owner to his driver. Thus, the complaint may be termed as recovery suit.
9. It is also pertinent to mention that if the respondent - complainant was directed to pay the compensation of Rs. 3,85,492/- to his driver by the Workman Compensation Commissioner, then in such circumstances, the respondent - complainant should file a petition before its appellate authority to rectify the order alleging that the vehicle was insured at the time of accident and the driver was having a valid and effective driving license, therefore, the compensation should be fastened towards the insurer of the vehicle. The other contentions raised on behalf of the appellant are as such that the complaint was time barred and the driver of the vehicle was not holding a valid and effective driving license and such fact was ignored by the District Commission.
10. We have perused the impugned judgment wherein the District Commission has clearly held, which is reproduced as under:-
"foi{kh dh vksj ls nwljk vk/kkj f"kdk;r fujLr djus dk vk/kkj ;g fy;k x;k fd mDr nq?kZVukxzLV okgu pkyd fnus"k peksyh ds ikl nq?kZVuk dh frfFk dks oS/k MªkbZfoax ykbZlsUl ugha Fkk vkSj pkyd okgu pykus ds fy, l{ke ugha FkkA bl lEcU/k esa f"kdk;rdrkZ }kjk Jheku vk;qDr Jfed {kfriwfrZ] }kjk ikfjr okn la0&09@2009 fnus"k peksyh cuke HkkjrHkw'k.k Max esa ikfjr fu.kZ; fnukafdr&31 tqykbZ] 2013 nkf[ky fd;k x;k gS ftlesa okn fcUnq la[;k&4 D;k nq?kZVuk dh frfFk dks okgu pkyd ds ikl leLr dkxtkr ¼vkj0lh0@ijfeV@fQVusl@chek vkfn½ oS/k Fks vkSj okgu pkyd ds ikl oS/k MªkbZfoax ykbZlsUl Fkk\ oknh 6 Appeal No. ICICI Lombard Motor Gen. 07.12.2023 159 of 2017 Insurance Co. Ltd.
Vs. Sh. Bharat Bhushan Dung }kjk okgu ls lEcfU/kr çLrqr vfHkys[kksa ds vuqlkj okgu la0&;w0ds0&07&lh0lh0&0255dk iathdj.k çek.k i= esa okgu dk pSfll la0&373088CRZ207333 batu uEcj 697TC 55CRZ118008 dj Hkqxrku fnukad&30-06-2008 okgu dk fQVusl 02 ebZ] 2010 rd oS/k] eky;ku ijfeV la0& PPUC37384 vkWy mRrjk[k.M ds fy, gS rFkk ijfeV dh oS/krk fnukad&06-05-2008 ls 05-05-2013 rd gSA foi{kh la0&2 chek dEiuh dks vknsf"kr fd;k x;k Fkk fd og chek doj uksV dk fjdkMZ muds ikl miyC/k u gksus dk fyf[kr i= U;k;ky; dks çLrqr djs fdUrq muds }kjk ,slk dksbZ i= U;k;ky; esa çLrqr ugha fd;k x;kA ftlds QyLo:i mDr frfFk ij okgu dk chek lacfU/kr dksbZ Li'V vfHkys[k okgu ekfyd }kjk nkf[ky u djus ds dkj.k bldk mRrjnkf;Ro okgu ekfyd ij fu/kkZfjr fd;k x;kA mDr nq?kZVuk dh frfFk fnukad&06- 11-2008 dks mDr okgu ls lEcfU/kr lHkh vfHkys[k chek dks NksM+dj vU; vkj0lh0@ijfeV@fQVusl nq?kZVuk dh frfFk ij oS/k gksuk ik;k x;kA MªkbZfoax ykbZlsUl la0&1463T@_f'kds"k@2005 20-12-2005 dh Nk;kçfr çLrqr dh x;h Fkh ftlesa fnus"k peksyh pkyd dk ykbZlsUl fnukad&20-12-2005 dks tkjh gS rFkk fnukad 19- 12-2008 rd ds fy, oS/k gSA okgu pkyd fnus"k peksyh dk MªkbZfoax ykbZlsUl nq?kZVuk dh frfFk ij oS/k gksuk ik;k x;kA"
11. As per the finding of the District Commission, the driver of the offending vehicle was possessing the valid driving license at the relevant time of accident. So far as the insurance policy of the vehicle in dispute is concerned, as per the finding of the District Commission it is proved 7 Appeal No. ICICI Lombard Motor Gen. 07.12.2023 159 of 2017 Insurance Co. Ltd.
Vs. Sh. Bharat Bhushan Dung that the respondent - complainant could not file the insurance policy cover note and other relevant documents alongwith proposal form before the Workman Compensation Commissioner, therefore, it cannot be said that the respondent - complainant's vehicle was validly insured with the insurance company. When the vehicle was not insured as per the finding of the District Commission, therefore, it cannot be held that the insurance company was liable to pay the compensation of the insured vehicle to its registered owner.
12. Learned counsel for the appellant has further contended that the District Commission has ignored the fact that the complaint was time barred. It is true that the accident of the vehicle in question took place on dated 06.11.2008 and a claim to this effect might be filed either before the MACT or before the Workman Compensation Commission and the driver had opted to file the claim case No. 9 of 2009 before the Workman Compensation Commissioner wherein the Workman Compensation Commissioner has passed the order dated 31.07.2013. It is apparent that when the accident took place, i.e. on dated 06.11.2008, and from such date two years have expired for filing the consumer complaint. Learned counsel for the respondent has contended that the payment of Rs. 3,85,492/- was lastly paid by the respondent on dated 24.02.2015, so the cause of action has arisen to the respondent on dated 24.02.2015.
But we are not of the same view because if the respondent thought that he had a right to file the complaint before the Consumer Commission, then such complaint should be filed within two years from the date when the cause of action has arisen. The complaint has clearly transpired that the complaint was filed in the year 2016, which was even filed after expiry of two years from the date of passing of the order by the Workman Compensation Commissioner. So, on such basis, we are of the considered 8 Appeal No. ICICI Lombard Motor Gen. 07.12.2023 159 of 2017 Insurance Co. Ltd.
Vs. Sh. Bharat Bhushan Dung opinion that the consumer complaint filed by the respondent was time barred and it was not entertainable in the District Commission.
13. Learned counsel for respondent and learned counsel for the appellant both have contended that the proper remedy was to file a writ petition or other petition for setting aside the order dated 31.07.2013 of the Workman Compensation Commissioner before the Hon'ble High Court.
14. Learned counsel for the respondent has stated that this Commission be pleased to grant some time to file the writ petition before the Hon'ble High Court.
15. We are of the view that if the writ petition or other proceeding is legally entertainable and is not time barred, then the respondent is at liberty to file the same before the Hon'ble High Court or the other competent court to get relief against the order dated 31.07.2013 of Workman Compensation Commissioner.
16. Thus, after the discussion hereinbefore held we are of the definite view that the District Commission has not passed the impugned judgment properly in accordance with the mandate provisions of law; the District Commission has exceeded its jurisdiction which was vested in it by law and has exercised its jurisdiction with material illegality and irregularity, hence the impugned judgment is liable to be set aside.
17. Accordingly, the appeal is allowed. Impugned judgment and order dated 12.09.2017 passed by the District Commission, Tehri Garhwal is hereby set aside. The respondent - complainant is at liberty to file the writ petition or the legal proceeding before the Hon'ble High Court for getting proper remedy, if any. No order as to costs of the appeal.
9Appeal No. ICICI Lombard Motor Gen. 07.12.2023 159 of 2017 Insurance Co. Ltd.
Vs. Sh. Bharat Bhushan Dung
18. Statutory amount deposited by the appellant be returned to the appellant.
19. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this judgment be sent to the District Commission concerned for record and necessary information.
20. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 07.12.2023 10