Geeta Bhatia vs ORIENTAL INSURANCE COMPANY LIMITED

THIS is an appeal against order of learned District Consumer Disputes Redressal. Forum-II, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 3.11.2006 in complaint case No. 465 of 2006 : Mrs. Geeta Bhatia v. The General Manager, Oriental Insurance Company Limited and Another.

BRIEFLY the complainant''s case is that she is the owner of Bajaj Motorcycle bearing registration No. GH03H-7976. Her son Sahil Bhatia had gone to Sector 19 market on the motorcycle on 3.5.2006 to purchase some domestic articles. He parked the motorcycle in the parking place and went for making the purchases. On his return, he found the motorcycle lying flat having been hit by some vehicle. The son of the complainant brought the motorcycle to the house and intimation was given to Senior Divisional Manager of Oriental Insurance Company Limited (for short hereinafter to be referred as Insurance Company) on 4.5.2006 as the vehicle was insured with the OPs for one year from 9.8.2005 upto 8.8.2006. The OPs deputed a Surveyor to inspect the damaged motorcycle and advised the complainant to have the same repaired. The complainant got the motorcycle repaired from authorised dealer M/s. Partap Autos India Pvt. Limited and the bill for the repairs amounted to Rs. 4,231.69. The Surveyor had asked the complainant to give photocopy of the driving licence but the same was not produced because on 30.1.2006, the complainant''s son had been challaned by the police and they had taken away the driving licence. The Surveyor then asked the complainant if there was any other licence of any other family member for any other type of vehicle saying that there would be difficulty to verify the driving licence of Mr. Sahil from the police or Court and the same be given to him. The complainant gave the licence of her husband. The Surveyor kept a photocopy of the licence of her husband Mr. M. K. Bhatia for L.M.V. which was valid upto 7.6.2010. It has further been stated in the complaint that the photocopy of the expired driver''s licence of her husband for scooter/motorcycle has been attached as Annexure A-7 and this expired licence of scooter/motorcycle had been renewed after making the payment of late fee of Rs. 15 along with Rs. 85 as application fee and Rs. 115 as card fee i.e. a total of Rs. 215. A photocopy of the renewed licence of Mr. M. K. Bhatia for M.C.W. is attached as Annexure A-9 to the complaint. It has been averred that the Surveyor had told the complainant that it was only a formality and photocopy of licence for L.M.V. of the husband of the complainant would suffice. Despite all this, the OPs - Insurance Company repudiated the claim vide their letter dated 29.5.2006 on the ground that the driver of the vehicle was not holding a valid driving licence. The complainant has, therefore, filed this complaint praying for directions to the OPs to pay Rs. 4,231.69 along with compensation for harassment to the tune of Rs. 2,000 and litigation charges of Rs. 4,000 along with interest @ 18% per annum. The version of the OPs is that the complaint is totally false, concocted and frivolous. It has been stated that Annexure A-l is fabricated, which shows that the motorcycle was parked in Sector 19 market on 3.5.2006 whereas the intimation of accident received by the OPs mentions that motorcycle met with an accident on 4.5.2006 in Sector 19 market and interestingly both Annexures A-l and R-l are signed by the husband of the complainant. As per the OPs, it is a straight case of accident while the husband of the complainant was riding the motorcycle and not of the motorcycle being hit by some other vehicle in the parking lot. It has further been stated that the husband of the complainant when asked by the Surveyor to give his driving licence (referred to as the ''L'' ) showed his driving licence, which authorised him to drive Light Motor Vehicle only and he was not authorised to drive M.C.W. i.e. two-wheeler. The Surveyor obtained the photocopy of the said driving licence and the same is annexed as Annexure A-6 with the complaint. It has been emphasized that the repudiation of the claim was justified. It has also been stated by the OPs that the motorcycle was taken to the workshop of M/s. Partap Autos India Private Limited on her own by the complainant and not on the advice of the Surveyor as stated in the complaint and the Surveyor inspected the motorcycle in the said workshop. In the survey report, it has been clearly mentioned that the driving licence of the husband of the complainant had expired on 28.7.2003 and it had been renewed only on 26.8.2006 whereas the accident had taken place on 4.5.2006 on which date, the husband of the complainant did not possess a valid and effective driving licence and the same violated the policy condition and, hence, the claim of the complainant was not payable.

In their analysis of the complaint, the learned District Forum has referred to para 4 of the affidavit of the Surveyor and has reproduced the same as under: "That during the course of survey, the husband of the complainant, namely, Mr. M. K. Bhatia had conceded that he was driving the motorcycle at the time of the accident and that he did not possess a valid and effective driving licence for driving two wheeler (MCW) . The complainant through her husband took the motorcycle to the workshop without the knowledge and advice of the deponent. By no stretch of imagination can the motorcycle get damaged the way it did, if some vehicle was to hit the motorcycle in the parking area of Sector-19 as alleged. In fact, concededly, the accident took place when the husband of the complainant was driving the motorcycle, on 4.5.2006. The husband of the complainant had also shown to the deponent, the letter of intimation of accident dated 5.5.2006, which shows that the accident took place in Sector-19, Market."

THE learned District Forum has laid emphasis on the conclusion of the Surveyor''s report, which states, "THE damages are inconsistent with the reported cause of accident and are fresh in nature". THE learned District Forum came to the conclusion that the version of the complainant was wholly false. Consequently, the complaint was dismissed, as there was no merit in the same. Aggrieved by the impugned order, the complainant has filed this appeal. The appeal having been taken on board, record of complaint case was summoned from the District Forum and notices were sent to the respondent/OPs.

MR. J. S. Yadav, Advocate appeared on behalf of the appellant/complainant whereas MR. G. S. Ahluwalia, Advocate represented the respondent/OPs. Mr. J. S. Yadav, Advocate, learned Counsel for the appellant/complainant reiterated that the accident had taken place when the motorcycle was parked in the parking lot of Sector 19 Market and, therefore, the repudiation of the claim on the basis of invalid and ineffective driving licence is irregular. He further submitted that mention of an accident in Annexure R-l does not necessarily mean that the accident had taken place while the motorcycle was being driven. He emphasized that even hitting of a stationary vehicle by another vehicle constitutes an accident and this is what precisely happened in the case of the appellant/complainant. He also submitted that the driving licence of the husband of the appellant/complainant was given to the Surveyor on his asking because the licence of the son of the appellant/complainant had been confiscated by the police on 30.1.2006. Reiterating that the motorcycle was not being driven by the husband of the appellant/complainant and it was hit while it was stationary in the parking lot, the learned Counsel for the appellant/complainant prayed that the complaint be allowed and the impugned order be set aside. Mr. G. S. Ahluwalia, Advocate, learned Counsel for the respondent/OPs submitted that the parking lot of Sector 19 market is quite a congested place and had the accident taken place there, vehicles, other than that of the appellant/complainant, would have also been damaged but there is no mention of damage to any other vehicle in the complaint. He emphasized that the accident had taken place while the husband of the appellant/complainant was driving the motorcycle and the driver did not have effective and valid driving licence as his driving licence to drive M.C.W. had expired on 28.7.2003 and had only been renewed on 26.8.2006 i.e. much after the date of accident i.e. 4.5.2006. He also emphasized that Annexures A-l and R-l are giving contradictory account of the accident, as also the date of the accident mentioned in both is different. Thus, it is proved beyond doubt that the accident had taken place while the husband of the appellant/complainant was driving the motorcycle in question on 4.5.2006 and since, he did not have a valid driving licence at the time of accident, it was a violation of terms and conditions of the insurance policy and, thus, the claim has been rightly repudiated. He emphatically submitted that the impugned order is just, fair and legal and it should be upheld.

WE have gone through the evidence on record as well as the impugned order and have heard the learned Counsel for the parties.

THE main issue in the complaint is the manner in which the accident took place. The contention of the appellant/complainant is that the motorcycle was hit when it was parked in the parking lot of Sector 19 market while the contention of the respondent/OPs is that the motorcycle had met with an accident at the time when it was being driven by the husband of the appellant/complainant. There is also variation in the dates of accident. Whereas the appellant/complainant states that the accident had taken place on 3.5.2006 as intimated in Annexure A-1, the version of the respondent/OPs is that it had taken place on 4.5.2006 as stated in Annexure R-l. There is nothing on record by way of evidence placed by the appellant/complainant to prove her version that the accident had taken place while the motorcycle was parked in the parking lot of Sector 19 market. There is no version of any independent witness to corroborate the case of the appellant/complainant in this regard. The version of the respondent/OPs that the accident had taken place while the complainant''s husband had been driving the vehicle is also not supported by any cogent evidence. It is, therefore, the Surveyor''s report, which indicates the manner of the accident and the damage caused to the vehicle, which is of great relevance in coming to the conclusion where the accident had taken place when the motorcycle was stationary or had taken place when the motorcycle was in motion.

A perusal of the survey report indicates that at para 10, the Surveyor had given the cause of accident as stated by the appellant/complainant in Annexure A-l i.e. that the motorcycle was hit by another vehicle when it was parked in the parking lot of Sector 19 market. However, the detailed assessment of the loss indicates that there was extensive damage to Seat cowl, Rear RH indicator, Speedometer assembly, Handle bar, Mudguard, Headlight dome, Leg Guard, Front Wheel Disk, Lower Tee, Side Stand and Brake Pipe. It has been categorically stated by the Surveyor in his conclusion that the loss is inconsistent with the reported circumstances of the accident.

A perusal of Annexures A-l and R1 brings out the contradiction in the stance taken by the appellant/complainant both with regard to the date of the accident as well as the manner of the accident. It is also pertinent to mention that had the accident taken place in the parking lot, the incoming vehicle, which might have hit the vehicle of the appellant/complainant, have come at a very slow speed and, therefore, any accident at that speed could not have caused very extensive damage to the vehicle. In the context of this accident, it is also worth noting that the reported confiscation of the driving licence of the son of the appellant/complainant had taken place on 30.1.2006 whereas the accident had taken place after more than four months. It is quite abnormal that the challan of the complainant''s son had not been decided for such a long period and his driving licence was not returned to him. There is also nothing on record as to with which Police Station or the Court the licence of the son of the appellant/complainant was lying at the time of accident. It is also worth mentioning that the complainant''s family appears to be an educated family. For such a family, to produce the driving licence of a person who was not involved with the accident for settling the claim is quite illogical and unconvincing. In view of the foregoing discussion, we are of the considered view that the appellant/complainant has failed to establish by cogent evidence or logic that the vehicle of the appellant/complainant had been hit while it was parked in the parking lot of Sector 19 market. From the evidence on record and in particular the survey report, it is quite apparent that the damage caused to the vehicle could have only taken place when the vehicle was in motion and was being driven. Thus, finding the version of the respondent/OPs about the accident to be true, we are of the clear view that the repudiation of the claim by the respondent/OPs for the reason that the driver was not holding effective driving licence for driving two-wheeler is justified.

CONSEQUENTLY, the appeal is dismissed being devoid of substance and the impugned order dismissing the claim is upheld being just, legal and fair. In view of the peculiar circumstances of the case, the parties are left to bear their own costs of litigation. Copies of this order be sent to the parties free of charge. Appeal dismissed.