West Bengal

Birbhum

CC/107/2015

Alpana Sarkar, W/o Samarjit Sarkar - Complainant(s)

Versus

1. Regional Manager, Iffco Tokio Gen. Ins. Co. Ltd. - Opp.Party(s)

Monalisha Bandopadhya

23 Aug 2018

ORDER

Shri Biswa Nath Konar, President.

            The case of the complainant Alpana Sarkar, in brief, is that she is a businesswomen and to earn livelihood she purchased one Heavy Goods vehicle of TATA Motors Pvt. Ltd. bearing No. WB-47 0095. The said vehicle was duly insured under the O.P No. 1 and 2 Iffco-Tokio Gen. Ins. Co. for the period 13.01.14 to 12.01.15. O.P No. 3 Bhandaari Automobiles Pvt. Ltd. is the dealer of Tata Motor and Service Centre of the same. O.P No.4, SBI, Bolpur is Banker of the complainant.

            It is the further case of the complainant that on 11.03.2014 said truck met an accident, at Malda, wherein one tractor straight way collided the said truck. The truck was seriously damaged due to said accident. Driver and cleaner of the same were admitted to Malda Hospital and FIR was lodged before Malda P.S.

            It is the further case of the complainant that she got repaired the body of truck(Dala) by Sree Laxmi Body Builder, Raniganj at a price of Rs. 1,30,000/-. O.P No.3 Bhandaari Automobile also raised bill of Rs. 3,02,226/- for repairing of the vehicle and Rs. 56,582/- as workshop charge totaling Rs. 3,58,808/-. Ultimately she was to incurred expenses of Rs. 4,88,808/- and she submitted claim of Rs. 4,88,808/- before O.P Insurance Co.

            But they have paid only Rs. 3,81,259/- on 29.10.2014.

            It is the next case of the complainant that O.P No. 1 and 2 arbitrarily and whimsically deprived the complainant for her legitimate claim and act of the O.P No. 1 and 2 is nothing but deficiency in service.

            Hence, this case for directing the O.P No. 1 and 2 to pay Rs. 1,07,549/- as balance unpaid amount with compensation of Rs. 10,000/- as compensation for mental harassment and agony and damage of Rs. 3,60,000/- for non-plying of the truck.

            The O.P No. 1 Iffco-Tokio Gen. Insurance has contested the case by filing written version denying all material allegation of the complaint contending inter alia that the case is not maintainable and the complainant has no cause of action to bring this case.

            It is the specific case of O.P No.1 that after getting the intimation of the accident from the insurer, immediately one licensed independent Surveyor was appointed with a view to assess the loss, if payable as per terms, conditions, warranties and exclusions etc. as expressed in the policy without any delay. The Surveyor has conducted the survey and submitted the report before the O.P showing total loss amount at Rs. 3,81,259.79p and on the basis of the said report the O.P Insurance Co. made payment of Rs. 3,81,259.79p to the complainant and thus performed its duty as per procedure with an intention to render best and expeditious service to the complainant.

            It is the further case of the O.P No.1 that amount of compensation claimed by the complainant is not at all genuine, rather high and feverously excessive, abnormal and without any legal and equitable basis. As such the O.P No.1 is not liable to pay any amount to the complainant and the case is liable to be dismissed with cost.

            O.P No. 3 Bhandaari Automobile by filing written version submitted that they have received Rs. 3,58,808/- from the complainant as bills for parts and labour cost for repair of the accident vehicle.

            Is the further case of the O.P No.3 that in her complaint, the complainant made no allegation against the O.P No.3 and the present case related to Insurance claim in between the complainant and O.P No. 1 and 2 and the case is liable to be dismissed against the O.P No.3.

            O.P No.2 Iffco-Tokio Gen. Ins. Co. Durgapur and O.P No.4 State Bank of India, Bolpur have not filed any written version.

Considering the complaint and other materials on record with think following points are to be decided in this case.

1. Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service or unfair trade practice on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Alpana Sarkar has filed examination in chief. She has been crossexamined by contesting O.Ps. She has also field some documents. 

O.Ps have not filed any oral evidence but submitted some documents.

Heard argument of both sides.

Point No.1:: Evidently the truck in question i.e. WB 47/0095 was duly insured under O.P No.1 and 2 on payment of proper premium.

So, the complainant is a consumer u/s 2(1)(d)(ii) of the C.P. Act.

Point No.2:: Total valuation of the case is Rs. 4,82549/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

            The O.P No.4 has office within jurisdiction of the Forum.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4:: Both points are taken up together for convenience of discussion as they are related to each other.

            The complainant Alpana Sarkar in her complaint and evidence stated that she is a businesswomen and to earn livelihood she purchased one Heavy Goods vehicle of TATA Motors Pvt. Ltd. bearing No. WB-47 0095. The said vehicle was duly insured under the O.P No. 1 and 2 Iffco-Tokio Gen. Ins. Co. for the period 13.01.14 to 12.01.15.

            Original Insurance policy certificate issued by the O.P No. 1 and 2 shows that vehicle in question was insured under O.P No. 1 and 2 for the period 13.01.2014 to 12.01.2015 on payment of premium of Rs. 38,972/- with the O.Ps.

            The complainant Aplana Sarkar in his evidence further stated that on 11.03.2014 said truck met an accident, at Malda, wherein one tractor straight way collided the said truck. The truck was seriously damaged due to said accident. Driver and cleaner of the same were admitted to Malda Hospital and FIR was lodged before Malda P.S.

            Copy of the Formal FIR, FIR and S/L show that one Samarjit Sarkar lodged a complaint before police alleging that on 11.03.2014 truck of his wife bearing No. WB 47/0095 met an accident at Simul Dhub on NH 34 in between Malda and Gajol where one sand loaded vehicle straight way collided their truck. Front portion of their truck was badly damaged and seriously injured driver and helper were brought to Malda Medical College and Hospital.

            The complainant in her evidence further stated that she got repaired the body of truck(Dala) by Sree Laxmi Body Builder, Raniganj at a price of Rs. 1,30,000/-. O.P No.3 Bhandaari Automobile also raised bill of Rs. 3,02,226/- for repairing of the vehicle and Rs. 56,582/- as workshop charge totaling Rs. 3,58,808/-. Ultimately she was to incur expenses of Rs. 4,88,808/- and she submitted claim of Rs. 4,88,808/- before O.P Insurance Co. But they have paid only Rs. 3,81,259/- on 29.10.2014.

            Original Tax invoice dt. 31.07.2014 shows that total bill at Rs. 3,02,226/- was issued by O.P No.3 Bhandaari Automobiles for repairing of the vehicle.

            Original Workshop Labour invoice dt. 31.07.2014 shows that bill of Rs. 56,582/- was issued by O.P No.3 Bhandaari Automobiles for labour charge of the repair of the vehicle. Money receipt dt. 23.05.2014, 04.11.2014 and 23.05.2014 shows that Rs. 50,000/-, Rs. 2,90,348/- and Rs 1,652/- were received by O.P No.3 Bhandaari Automobiles for repair of said vehicle. O.P No.3 Bhandaari Authomobiles in their W/V stated that they have received Rs. 3,58,808/- from the complainant for repair of the vehicle.

            We find that it is specific case of the O.P No. 1 that after getting information regarding accident of the vehicle immediately they appointed one licensed independent Surveyor.

            The Surveyor has conducted the survey and submitted the report before the O.P showing total loss amount at Rs. 3,81,259.79p and on the basis of the said report the O.P Insurance Co. made payment of Rs. 3,81,259.79p to the complainant.

            Admittedly the complainant received Rs. 3,81,259.79p on 29.10.2014 as compensation.

            It is the case of the complainant that she entitled to get remaining Rs. 1,07,549/- with other expenses and compensation.

            During hearing of Ld. Advocate/Agent of the O.Ps submitted that in the present case Surveyor was appointed by the O.Ps/Ins. Co. immediately and as per report the O.P Ins. Co. made payment of Rs. 3,81,259.79p to the complainant. But thereafter on receipt of such payment without protest the complainant has filed the present case which is liable to be dismissed.

            In support of his contention he cited copy of judgment passed in Revision petition No. 4713/2012(Haryana State Co-operative S&M Federation =Vs.= Iffco Tokio Gen. Ins. Co. Ltd) by Hon’ble National Commission.

            Where due to heavy rain in the night of 14/15^th June 2008 the wheat stock of the complainant got damaged. According to complainant Surveyor assessed that Rs. 24,24,710/- was to be paid to the complainant but the O.Ps paid only Rs. 4,72,263/- and did not pay the balance amount.

            The complainant filed a consumer case before Dist. Forum for recovery of balance amount with interest and cost.

            On the other hand it was the case of the O.P Ins. Co. that Sr. Supervisor assessed the claim at Rs. 4,86,410/- and D.D of Rs. 4,72,381/- was sent to the petitioner by them in full and final settlement of the claim.]

            So, there was no deficiency in service and the case was liable to be dismissed.

            The Dist. Forum allowed the case.

            On Appeal Hon’ble State Commission has been pleased to hold that D.D of Rs. 4.72,263/- was sent to the complainant by the O.P towards the full and final settlement of the claim. Admittedly the complainant had received the amount in full and final settlement and therefore no further cause of action arose in favour of the complainant to reopen its claim. If the complainant is not agreed with the payment of Rs. 4,72,263/-, then the D.D could have been returned.

            Hon’ble State Commission pleased to allow the Appeal and set aside the order of the Dist. Forum.

            On Revision Hon’ble National Commission has been pleased to dismiss the revision and conformed the order passed by the Hon’ble State Commission.

            Admittedly in the present case the complainant received Rs. 3,81,259/- on 29.10.2014 and the present case was filed on 03.08.15 i.e. about 9 months after receipt of payment.

            There is nothing to show the complainant received the said amount with protect by sending any letter/notice to the O.Ps.

            So, in view of the facts and circumstances stated above and materials on record we are constrained to hold that above cited ruling is applicable in the present case and it may be concluded that the complainant received the said amount without raising any objection, which tantamounts to receive of the said amount on full and final settlement and she is not entitled to get any further compensation.

            We find that the complainant claim Rs. 3,60,000/- for non-plying of the truck.

            But she has not filed any document to show her actual loss.

            More so, in view of the above citied ruling the complainant is not entitled to get any further compensation in this case.

            During hearing of argument Ld. Advocate/Agent of the complainant in support of their case submitted a copy of the Judgement passed in Civil Appeal No. 49-50/2016 (Lakshmi Chand =vs.= Reliance Gen. Ins.) by Hon’ble Supreme Court of India.

            In the said case the complainant was owner of Tate Motor Goods Carrying vehicle, which was covered under valid insurance of O.P/Insurance Co. with risk cover at a tune of Rs. 2,21,153/-. On 11.02.2010 said vehicle met an accident and police started FIR U/s 279/337/304A/427 IPC.

            The complainant incurred Rs. 1,64,033/- for repair of said vehicle. O.P/Insurance Co. appointed a Surveyor who assessed the damaged caused to the vehicle at Rs. 90,000/-. The Surveyor in his report mentioned that 5 passengers were travelling said vehicle at the time of accident though as per reg. certificate seating capacity was only 1+1=2 and on the basis of report of the Surveyor claim of the complainant was repudiated.

            Accordingly the complainant lodged a consumer case claiming Rs. 1,64,033/- for deficiency in service before District Forum.

            The District Forum allowed the case awarding upto 75% of the claim as non-standard basis with interest with observation that if the number of persons travelling in the vehicle at the time of accident did not have a bearing on the cause of accident, then the mere carrying more persons in the vehicle would not disentitle the complainant from getting compensation.

            On Appeal Hon’ble State Commission has been pleased to allow the Appeal and dismissed the complainant case observing that the terms of contract of insurance law have to be strictly followed.

            On Revision Hon’ble National Commission has been pleased to dismiss the Appeal by confirming the judgement passed by Hon’ble State Commission.

            On Appeal Hon’ble Apex Court has been pleased to allow the Appeal and restore the order passed by District Forum with observation that though the burden of proof was upto O.P/Insurance co. to prove that the accident occurred due to over loading of passengers in the goods carrying vehicle but they did not adduce any such evidence and the accident was in fact caused due to rush and negligent driving of vehicle by the driver of the vehicle.

            But on perusal of the said judgement we find that said case relates to violation of policy condition of insurance by carrying excess passengers but the present case relates to receipt of compensation (in part) without raising  any objection which tantamounts to receive of the same on full and final settlement. So, this ruling is not applicable to the present case.

            Accordingly we have no other alternative but to hold that the complainant has failed to prove her case and the case is liable to be dismissed.

Thus both points are decided against the complainant.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 107/2015 be and the same is dismissed on contest against the O.Ps without any order as to cost.

            Copy of this order be supplied to the parties each free of cost.