NATIONAL INSURANCE COMPANY LTD. Vs. RAM KRISHAN

JUDGEMENT

(1.) - The present revision petition has been filed against the judgment dated 6.5.2010 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla ('the State Commission') in Appeal No. 217 of 2009.

(2.) The facts of the case as per the respondent/complainant are that respondent was the owner of vehicle No. HP 35-B-0128 which met with an accident on 5.8.2005 and sustained huge loss in the accident. The respondent paid premium of Rs. 10,638 for the insurance of the said vehicle. The respondent was issued policy on 16.9.2004 which was valid from 16.9.2004 to 15.9.2005. After the accident of the said vehicle, he completed all the formalities and applied for the payment of own damage claim before the petitioner/opposite party, but the claim was illegally and wrongly repudiated by the petitioner vide letter dated 31.7.2006 which act on its part amounts to deficiency in service. The respondent had employed Shri Gopi Chand as his driver who was holding a valid and effective driving license at the time of the accident, further the insurance value.of the vehicle at the time of accident was to the tune of Rs. 3,70,500. The respondent had served the opposite party with legal notice dated 8.9.2006 to make the payment of own damage claim but nothing has been done. Earlier the respondent filed complaint for redressal of his grievance before the Consumer Forum at Chandigarh which was withdrawn with liberty to file a fresh one as the said Forum was not having the territorial jurisdiction to decide the matter. With these allegations, the respondent has sought a direction to the petitioner to pay Rs. 3,70,500 plus interest at the rate of 24% per annum, Rs. 50,000 on account of deficiency and mental agony and Rs. 11,000, as litigation expenses.

(3.) The petitioner resisted the complaint by filing reply and raised preliminary objections that there was no deficiency in service on the part of the petitioner and as such the complaint was not maintainable, and the claim was duly processed, investigated and assessed and when the same was not found to be genuine the same was repudiated after due application of mind and the decision in this regard was duly communicated to the complainant vide registered letter dated 31.7.2006. The claim had been repudiated after due application of mind and as per the terms and conditions of the policy as the driver Shri Gopi Chand was not competent and entitled to drive LTV vehicle on the date of accident. The respondent had not come to this Forum with clean hands. That disputed and complicated questions of fact and law involved in the case cannot be adjudicated by the Forum in a summary procedure and that the complaint is time barred. The respondent had informed the petitioner No. 1 vide letter dated 18-8.2005, which was received on 29.8.2005, that the vehicle had met with an accident on 5.8.2005. The respondent had informed that Shri Gopi Chand @ Mahinder was the driver of the vehicle at the time of the accident. On receipt of the information, the petitioner wrote to the respondent vide letter dated 9.9.2005 to submit the estimate of repair and the driving license of the driver. The petitioner appointed Shri R.S. Chandhoke as Surveyor and Loss Assessor to assess the loss. Letters dated 21.12.2005 and 30.1.2006 were written to the respondent to co-operate with the surveyor in assessing the loss. Thereafter, the surveyor had given an interim survey report dated 23.2.2006. The surveyor had submitted the final report assessing the net liability to the time of Rs. 3,04,000 on net of salvage value and the respondent had given his consent. The respondent had submitted the driving license of Shri Gopi Chand driver which on checking was found to be issued on 31.12.2001 and endorsed for motor cycle LMV, LTV and in the license against column of date of birth, no date is written. The first information report 61/2005 was lodged in Police Station Anni and a criminal case under Sections 279,337 and 338, Penal Code had been filed against Gopi Chand @ Mahinder and the driver had given his license No. 892/Anni issued by R.L.A Anni dated 13.9.2004 authorising the holder to drive LMV (non-transport) with effect from 13.9.2004 to 12.9.2007 and the date of birth in the said license was recorded as 18.7.1986. Hence, Gopi Chand was possessing two driving licenses, thus the same was in violation of the provisions of the Motor Vehicles Act. Rests of the allegations were denied being wrong. The petitioner prayed for dismissal of the complaint.