State Consumer Disputes Redressal Commission
Ms. Bani Sharma. vs New India Assurance Co. Ltd. on 30 October, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 299/2016
Date of Presentation: 16.09.2016
Order Reserved On : 13.07.2017
Date of Order : 30.10.2017
......
Bani Sharma d/o Shri Gulshan Kumar r/o Village Bharolian
Kalan Post Office Behdala Tehsil and District Una (Himachal
Pradesh).
...... Appellant/Complainant
Versus
New India Assurance Company Limited Branch Main Bazaar
(Above Canara Bank Building) Mehatpur District Una
(Himachal Pradesh) through its Branch Manager.
......Respondent/Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Rajan Kahol Advocate
For Respondent: Mr. Jagdish Thakur Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 23.08.2016 passed by Learned District Forum in consumer complaint No. 41/2014 title Bani Sharma Versus New India Assurance Company Limited.
1 Whether reporters of the local papers may be allowed to see the order? Yes. Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) Brief facts of Case:
2. Complainant Bani Sharma filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant is registered owner of vehicle No.HP-72B-1021. It is pleaded that vehicle of complainant was insured with opposite party vide insurance policy No. 36080231120100007577 w.e.f. 26.12.2012 to 25.12.2013. It is further pleaded that complainant after verifying driving licence of Mintu Singh and after obtaining physical driving test of Mintu Singh and after satisfying himself that driver was holding valid driving licence employed him as driver. It is further pleaded that on dated 22.05.2013 driver of complainant loaded cement sheets from Mehatpur District Una (HP) in vehicle and vehicle was approaching Baijnath (HP). It is further pleaded that second driver of vehicle namely Mohan Lal s/o Ramji Dass was also alongwith him. It is further pleaded that vehicle was driven by Mintu Singh. It is further pleaded that when vehicle reached near Radha Swami Satsang Veas ahead from Dhaliara at about 5:30 AM on dated 24.05.2013 then another vehicle having registration No. HR-55P-0715 which was driven rashly and negligently by its driver Jagroop came from Chintpurni side and hit vehicle No. HP-72B-1021. It is further pleaded that Mohan Lal sitting in the truck sustained grievance 2 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) injuries on his right leg and it is further pleaded that truck No. HP-72B-1021 was damaged. It is further pleaded that accident was reported to concerned police station and FIR No. 98 dated 24.05.2013 was registered in Police station Dehra District Kangra under sections 279, 337 IPC. It is further pleaded that complainant immediately informed opposite party and completed all codal formalities. It is further pleaded that opposite party on 23.09.2013 repudiated claim. It is further pleaded that opposite party committed deficiency in service. Complainant sought relief that opposite party be directed to release insurance claim of complainant alongwith interest till realization. Complainant also sought additional relief of payment of Rs.20000/- (Twenty thousand) on account of deficiency and negligence in service and complainant also sought additional relief of Rs.20000/- (Twenty thousand) as litigation costs and misc. expenditure.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant is not consumer as defined under Consumer Protection Act 1986. It is pleaded that complaint is not maintainable because vehicle was commercial vehicle and was used for commercial purpose at the time of accident. It is further pleaded that driver of vehicle No. HP-72B-1021 was not holding valid and effective driving licence to drive vehicle at the time of accident. It is further 3 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) pleaded that owner of vehicle violated terms and conditions of insurance policy intentionally. It is further pleaded that complainant did not complete all legal formalities despite repeated request. It is further pleaded that complainant has concealed material facts. It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in complaint.
5. Learned District Forum dismissed complaint.
Feeling aggrieved against order passed by learned District Forum complainant filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by the appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
4
Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) Findings upon point No.1 with reasons:
8. Complainant filed affidavit of Gulshan Kumar who is power of attorney holder of complainant. There is recital in the affidavit that complainant is registered owner of vehicle No.HP-72B-1021. There is further recital in the affidavit that vehicle of complainant was insured with opposite party vide insurance policy No. 36080231120100007577 w.e.f. 26.12.2012 to 25.12.2013.
There is further recital in the affidavit that complainant after verifying driving licence of Mintu Singh and after obtaining physical driving test of Mintu Singh and after satisfying himself that Mintu Singh was holding valid driving licence employed him as driver. There is further recital in the affidavit that on dated 22.05.2013 driver of complainant loaded cement sheets from Mehatpur District Una in the vehicle and vehicle was approaching Baijnath (HP). There is further recital in the affidavit that second driver of vehicle was Mohan Lal s/o Ramji Dass. There is further recital in the affidavit that when vehicle reached near Radha Swami Satsand Veas ahead from Dhaliara at about 5:30 AM on dated 24.05.2013 then another vehicle having registration No. HR-55P-0715 which was driven rashly and negligently by its driver Jagroop came from Chintpurni side and hit vehicle No. HP-72B-1021. There is further recital in the affidavit that vehicle was damaged 5 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) extensively. There is further recital in the affidavit that Mohan Lal sitting in the truck sustained grievance injuries. There is further recital in the affidavit that matter was immediately reported to police station Dehra District Kangra and FIR No. 98 dated 24.05.2013 was registered under sections 279, 337 IPC. There is further recital in the affidavit that complainant immediately informed opposite party and completed all codal formalities and filed insurance claim with opposite party. There is further recital in the affidavit that complainant repaired the vehicle from authorized workshop and spent Rs.75337/- (Seventy five thousand three hundred thirty seven) as repair charges and spent Rs.75000/- (Seventy five thousand) on refabrication of body of truck and also spent Rs.6500 (Six thousand five hundred) as recovery charges. There is further recital in the affidavit that in all complainant spent Rs.157137 (One lac fifty seven thousand one hundred thirty seven) on repair and maintenance charges.
9. Opposite party filed affidavit of Ram Kishan Senior Divisional Manager. There is recital in the affidavit that complaint is not maintainable as vehicle in question was commercial vehicle and was used for commercial purpose at the time of accident. There is further recital in the affidavit that driver was not holding effective driving licence at the time of accident. There is further recital in the affidavit that owner 6 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) of vehicle violated terms and conditions of insurance policy and violated provisions of Motor Vehicles Act. There is further recital in the affidavit that complainant did not approach Forum with clean hands and suppressed material facts. There is further recital in the affidavit that claim of complainant was repudiated by opposite party as per survey report. There is further recital in the affidavit that vehicle was insured with opposite party w.e.f. 26.12.2012 to 25.12.2013 subject to terms and conditions of insurance policy. There is further recital in the affidavit that owner of vehicle did not verify driving licence of driver Mintu Singh. There is further recital in the affidavit that complainant did not take physical test of driver. There is further recital in the affidavit that opposite party deputed surveyor Shri Raj Kumar and also deputed independent surveyor namely Amar Pal Singh.
10. Opposite party filed affidavit of Jyoti Prakash annexure R-2 in evidence. There is recital in the affidavit that deponent was deputed Surveyor by New India Assurance Co. Limited qua obtaining verification of driving licence issued in the name of Mintu Singh from licensing authority/DTO Hoshiarpur. There is further recital in the affidavit that Mintu Singh was competent to drive vehicles in the category of MCWG/LMV/Transport only. There is further recital in the affidavit that licence was valid w.e.f. 03.07.2009 to 7 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) 16.09.2015 for transport vehicle. There is further recital in the affidavit that original driving licence was issued in the name of Mohan Singh s/o Nazar Singh and was not issued in the name of Mintu Singh s/o Talbir Singh. There is further recital in the affidavit that deponent submitted driving verification report to the insurance company. There is further recital in the affidavit that report was duly signed by DTO Hoshiarpur.
11. Opposite party filed affidavit of Satish Kumar surveyor in evidence. There is recital in the affidavit that deponent was deputed surveyor by New India Assurance Co. Limited for re-inspection of vehicle No. HP-72B-1021 and deponent had inspected vehicle and submitted inspection report dated 27.08.2013 to the insurance company.
12. Opposite party filed affidavit of Amar Pal Singh surveyor and loss assessor. There is recital in the affidavit that deponent was deputed by New India Assurance Company Limited to assess loss of vehicle No. HP-72B-1021. There is further recital in the affidavit that deponent checked and inspected the vehicle and assessed loss to the tune of Rs.130149/- less excess clause of Rs.1000/- subject to terms and conditions of insurance policy. There is further recital in 8 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) the affidavit that deponent has submitted survey report dated 02.08.2013 with the insurance company.
13. Opposite party also filed affidavit of Raj Kumar surveyor and loss assessor. There is recital in the affidavit that deponent was deputed by New India Assurance Company for spot survey of vehicle No. HP-72B-1021. There is further recital in the affidavit that deponent visited spot and checked vehicle and conducted spot survey of vehicle and submitted sport survey report dated 29.05.2013 to insurance company.
14. Opposite party also filed affidavit of Rajinder Mohan Chauhan surveyor in evidence. There is recital in the affidavit that deponent was deputed by New India Assurance Co. Ltd. for obtaining driving licence verification report of driver namely Mintu Singh s/o Talbir Singh. There is further recital in the affidavit that deponent moved application for obtaining verification report of driving licence and there is further recital in the affidavit that original driving licence was issued in the name of Mohan Singh s/o Nazar Singh and was not issued n the name of Mintu Singh s/o Talbir Singh.
15. Submission of learned advocate appearing on behalf of complainant that driver Mintu Singh s/o Talbir Singh was holding valid and effective driving licence at the time of accident and insurance company is liable to indemnify 9 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) damage of vehicle sustained by complainant is decided accordingly. State Commission perused registration certifiate of vehicle No. HP-72B-1021. As per registration certificate vehicle was registered as heavy goods vehicle and unladen weight of vehicle was 7300 Kgs. and laden weight of vehicle was 16200 Kgs. State Commission has also perused driving licence of Mintu Singh annexure R-22 placed on record. Driving licence was renewed in the name of Mintu Singh s/o Talbir Singh on dated 03.07.2009 and driving licence was valid for transport vehicle till 16.09.2016 and was valid for non-transport vehicle till 09.05.2026. Licence was valid for MCWG vehicle, LMV vehicle and transport vehicle.
16. It is proved on record that vehicle involved in the accident was insured with insurance company w.e.f 26.12.2012 to 25.12.2013. It is also proved on record that vehicle was insured for own damage and third party liability. It is also proved on record that insurance company has received premium from complainant qua own damage of vehicle and qua third party liability. It is also proved on record that insurance company appointed Shri Rajinder Mohan Chauhan surveyor and Rajinder Mohan Chauhan has submitted driving verification report annexure R-21. There is recital in the report that original licence was issued in the name of Mohan Singh s/o Nazar Singh. There is further 10 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) recital in the report that original licence was not issued in the name of Mintu Singh s/o Talbir Singh. Shri Rajinder Mohan Singh has also filed affidavit annexure R-6 placed on record to this effect. Driving licence verification report submitted by Rajinder Mohan Singh and affidavit filed by Rajinder Mohan Singh are trustworthy, reliable and inspires confidence of State Commission. There is no reason to disbelieve the driving licence verification report and affidavit filed by Rajinder Mohan Chauhan surveyor. There is no evidence on record that Rajinder Mohan Chauhan surveyor has hostile animus against complainant at any point of time.
17. Even opposite party has filed driving licence verification report submitted by Jyoti Prakash surveyor. Even Jyoti Prakash has mentioned in the report that original licence was issued in the name of Mohan Singh s/o Nazar Singh and was not issued in the name of Mintu Singh s/o Talbir Singh. Insurance Company also filed affidavit of Jyoti Prakash in evidence and Jyoti Prakash has also mentioned in the affidavit that original licence was issued in the name of Mohan Singh s/o Nazar Singh and was not issued in the name of Mintu Singh s/o Talbir Singh. Driving licence verification report submitted by Jyoti Prakash and affidavit filed by Jyoti Prakash are trustworthy, reliable and inspires confidence of State Commission. There is no reason to 11 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) disbelieve the driving licence verification report and affidavit filed by Jyoti Prakash surveyor. There is no evidence on record that Jyoti Prakash surveyor has hostile animus against complainant at any point of time.
18. Complainant did not file any counter report in order to prove that original licence was issued in the name of Mintu Singh s/o Talbir Singh. Even complainant did not file affidavit of Mintu Singh s/o Talbir Singh in rebuttal. Driving licence verification report submitted by Jyoti Prakash annexure R-19 and Driving licence report submitted by Rajinder Mohan Chauhan annexure R-21 and affidavits filed by Jyoti Prakash and Rajinder Mohan Chauhan remained unrebutted on record.
19. Complainant did not file affidavit of Mintu Singh s/o Talbir Singh in order to rebut driving licence verification reports submitted by Jyoti Prakash and Rajinder Mohan Chauhan. No reason assigned by complainant as to why complainant did not file affidavit of Mintu Singh s/o Talbir Singh in order to rebut driving licence reports submitted by Jyoti Prakash and Rajinder Mohan Chauhan. Hence adverse interference is drawn against complainant. Sole affidavit of complainant that original licence was issued in the name of Mintu Singh s/o Talbir Singh is not sufficient to rebut driving 12 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) licence verification report submitted by Jyoti Prakash and Rajinder Mohan Chauhan because Jyoti Prakash and Rajinder Mohan Chauhan have personally visited transport office Hoshiarpur and personally checked record of driving licence. On the contrary complainant did not personally check the original licence issued by licensing authority.
20. No satisfactory explanation is given as to how original licence issued in the name of Mohan Singh s/o Nazar Singh was subsequently converted in the name of Mintu Singh s/o Talbir Singh. It is well settled law that one driving licence cannot be issued in the name of two different living persons. It is also well settled law that driving licence is always issued personally to individual during life time of individual subject to renewal of driving licence from competent authority of law. It is also well settled law that personal driving licence issued in the name of living person cannot be transferred to any other living person during the lifetime of holder of licence. No order of competent authority is placed on record for converting the driving licence issued in the name of Mohan Singh s/o Nazar Singh to Mintu Singh s/o Talbir Singh.
21. It is well settled law that illegal renewal of licence would not become valid licence if the original licence is ipso- 13 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) facto defective in nature. See 2013(2) CPJ 220 NC titled United India Insurance Company Ltd. & Anr. Versus Sangram Singh Yadav. Also see 2013(2) CPJ 588 NC titled New India Assurance Company Ltd. Versus Shri Ram Investment Ltd. & Anr. See 2015(4) CPJ 451 NC titled United India Insurance Company Ltd. Versus Delhi Dhulia Road Carrier. Also see 2016(3) CPJ 54 NC titled Hem Raj Versus United India Insurance Company Ltd. Even Complainant did not file her affidavit personally before learned District Forum and affidavit was filed by Gulshan Kumar who is power of attorney holder of complainant. It is held that Gulshan Kumar has filed affidavit on the basis of derived knowledge.
22. Submission of learned advocate appearing on behalf of complainant that after verifying the driving licence of Mintu Singh s/o Talbir Singh from concerned authority and after obtaining physical driving test of Mintu Singh and after satisfying herself complainant employed Mintu Singh as driver in the vehicle and on this ground appeal be allowed is decided accordingly. In the present case complainant Bani Sharma has not filed her personal affidavit to the effect that complainant verified driving licence of Mintu Singh s/o Talbir Singh personally from concerned authority and took physical driving test of Mintu Singh personally before employing Mintu 14 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) Singh as driver in the vehicle. There is no evidence on record in order to prove that Gulshan Kumar power of attorney holder of complainant was present when Bani Sharma employed Mintu Singh as driver. Shri Gulshan Kumar has filed affidavit on the basis of derived knowledge. It is held that affidavit filed by Gulshan Kumar power of attorney holder of complainant on the basis of derived knowledge is not sufficient to rebut affidavit filed by Jyoti Prakash and Rajinder Mohan Chauhan.
23. It is well settled law that damage claims are sought qua 'Own Damage" of vehicle and qua 'Third Party Claims'. It is well settled law that law laid down qua 'Third Party Claims' would not ipso-facto apply on 'Own Damage' claims because 'Own Damage' claims of vehicle and 'Third Party Claims' of vehicle are entirely two different concepts under law. See 2016(II) CPJ 326 NC New India Assurance Co. Limited Versus Deepak Jyoti Sharma. It is held that rulings given in 'Third Party Claims' are not res-integra in 'Own Damage Claims'.
24. Submission of learned advocate appearing on behalf of insurance company that original licence was issued in the name of Mohan Singh s/o Nazar Singh and thereafter original licence was changed in the name of Mintu Singh s/o 15 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) Talbir Singh without any order of competent authority and on this ground appeal filed by complainant be dismissed is decided accordingly. In view of proved facts that original license was issued in the name of Mohan Singh s/o Nazar Singh and in view of the fact that subsequently original licence was renewed in the name of Mintu Singh s/o Talbir Singh without any order of competent authority of law and in view of the fact that complainant did not file affidavit of Mintu Singh s/o Talbir Singh in rebuttal State Commission is of the opinion that it is not expedient in the ends of justice to interfere in the order of learned District Forum. Point No.1 is decided accordingly.
Point No.2: Final Order
25. In view of findings upon point No.1 above appeal is dismissed. Driving licence verification report submitted by Jyoti Prakash surveyor and loss assessor annexure R-19, Driving licence verification report submitted by Rajinder Mohan Chauhan surveyor and loss assessor annexure R-21 and affidavits filed by Jyoti Prakash and Rajinder Mohan Chauhan will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be 16 Bani Sharma Versus New India Assurance Co. Ltd. (F.A. No.299/2016) consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 30.10.2017.
*GUPTA* 17