Fact of the case of the Complainant in short is that – Complainant is the registered owner of a pickup vehicle having its Registration No.WB41D / 2643 and the said vehicle is being used by the Complainant exclusively for the purpose of earning his livelihood by means of self-employment.
The said vehicle was insured with the O.P. no.1 Insurance Company for the period 14-10-2013 to mid-night of 13-10-2014.
On 19-01-2013 the said vehicle while plying in between Bankura to Joypur met with an accident near Joypur at about 2-30 P.M. and the said vehicle was badly damaged on account of said accident. Thereafter, this Complainant made a G.D. Entry on 19-11-2013 to Joypur P.S. on 21-11-2013. This Complainant also intimated the fact of accident to O.P. no.1 along with relevant documents. Thereafter, Complainant in consultation with O.P. no.1 make arrangement for repairing of the said damaged vehicle and Rs.83,137/- was expended to repair the said vehicle. This O.P. Insurance Co. has not paid the amount of repairing despite of submission of claim along with bills. So, conduct of the O.Ps. are amount to deficiency in service. So, this Complainant has filed this complaint and prayed for reimbursement
of Rs.83,137/- as cost of repairing along with interest @ 12% P.M. on and from 10-01-2014.
This Complainant has also made further prayer for compensation amounting to Rs.3,50,000/- for mental agony, pain, harassments, etc. and also made further prayer for awarding Rs.50,000/- to him as cost of litigation and other reliefs.
This case is being contested by both the O.Ps. by filing W/V denying all the allegations as made in the petition of complaint contending interalia that the case is not maintainable. Complainant has got no cause of action.
The specific case of the O.Ps. are that after the intimation of claim the O.P. deputed licensed Surveyor to assess the loss and Rs.32,000/- was assessed by the said Surveyor in his report. Complainant does not come within the purview of the definition of Consumer. As such this case is not maintainable.
This O.Ps. also made request to this Complainant to submit Bills, Money Receipts, copy of Permit, etc. but this Complainant did not submit the said documents. As such, claim made by the Complainant was repudiated. Bills for repairing submitted by the Complainant were manufactured / forged one. So, Complainant is not entitled to any compensation and this complaint is liable to be dismissed.
Decision with reasons.
In this case Ld. Advocate for the Complainant argued interalia that the vehicle in question was purchased by Complainant and same is being used by the Complainant exclusively for the purpose of earning his livelihood by means of self-employment. So, this Complainant is a Consumer and this case is maintainable.
Ld. Advocate for the Complainant further argued that original bills, showing payment for repairing, were submitted to the O.Ps. despite that this O.P. repudiated the claim of the petitioner after killing times. The alleged accident was caused during the period of validity of Insurance Policy. So, this Complainant is entitled compensation and other reliefs as prayed for as a Complainant has been able to prove his case.
On the other hand, Ld. Advocate for the O.Ps. argued interalia that the vehicle is
a commercial vehicle. As such, this Complainant does not come within the purview of the definition of ‘Consumer’ as per provision of the C.P. Act. So, this Complainant is not maintainable.
Ld. Advocate for O.Ps. further argued that there was no deficiency in service on the part of the O.Ps.
As per Surveyor’s report the alleged damaged could be repaired at the cost of Rs.32,000/- but this Complainant has made claim exaggerated amount by submitting manufactured / forged bills. Copy of the Permit not submitted. So, according to him this Complaint is liable to be dismissed.
We have carefully heard the submissions made by the Ld. Advocate for the both sides. Perused the materials on record, it appears from exhibit that the vehicles in question was insured in the O.P. no.1 Insurance Co. for the period 14-10-2013 to 13-10-2014 mid-night. Alleged accident was caused on 19-11-2013. So, we hold that on the date of accident the vehicle in question had valid Insurance Policy. Moreover, this point has not been disputed by the O.P. Insurance Co. So we hold that O.P. no.1 indemnified insured Complainant to pay cost of repairing for causing damage of vehicle in question on the date of accident occurred during the validity period of Insurance Policy. In this case Ld. Advocate for the O.P. further argued that the fact of accident was not intimated to the O.P. Insurance Co. immediate after the accident but I find from exhibit – 2 that F.I.R. was lodged on 19-11-2013 to O.C., Joypur P.S. and the copy of F.I.R. was received by the Insurance Co. on 21-11-2013. Alleged accident occurred on 19-11-2013. So I find that immediate after two-days of the accident, the fact of accident was intimated to the O.Ps. Insurance Co. So, it cannot be said that there was inordinate delay in intimating the fact of accident to the Insurance Co. In this case I find from Para – 1 of the petition of complaint where it has been stated that the vehicle in question is used for the purpose of earning livelihood of Complainant and also for maintenance of his family members.
We also found that no witness from the locality has been examined by the O.P. to prove that the vehicle in question was not used by the Complainant for the
purpose of earning his livelihood by means of his employment. This O.P. has discharged his duty in this point by making mere denial. No documents have been filed by the O.Ps. to prove that the vehicle was being used not for the purpose of earning livelihood of Complainant; but exclusively for commercial / business purpose and Complainant was engaged in some other business professions or vocation. It has been observed by the Hon’ble Apex Court reported in (1997) 1 S.C.C. page 131 interalia that the explanation excludes from the ambit of commercial purpose in subclause of (i) section 2(1)(d) of the C.P. Act that goods purchased any by Consumer and used by him exclusively for the purpose for earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. It has also observed by the Hon’ble National Commission reported in 2015 (1) CPR page 760 (NC), interalia that commercial purpose does not include used by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.
So, in view of the above facts & circumstances and discussions made, we find that as per explanation of section 2 (1)(d) of C.P. Act, 1986 that this Complainant can be said that the vehicle in question is used by Complainant exclusively for the purpose of earning of his livelihood by means of self-employment. So, we hold that this Complainant is a ‘Consumer’. Moreover, it has been observed by Hon’ble National Commission in (2013) 1 WBLR (CPNC) page 324 with C.P. Act 1986 – section 2 (1) (d)(i) – Consumer Insurance of Commercial Vehicle covered section 2(1)(O) – Service – Insurance cover for Motor Vehicle – Vehicle used for commercial purpose – Insurance coverage has no link with commerciality of use of the vehicle – damage of vehicle – Insurance claim cannot be repudiated. In view of observation of Hon’ble National Commission reported in 2016 (1) CPR 166 (NC)) that onus of proof has also lies on O.P. that Complainant had not purchased vehicle in question for the purpose of his livelihood but for commercial purpose.
In view of above facts & circumstances we are inclined to hold that Complainant has been able to discharge his initial burden of proof that the vehicle in question is used exclusively for the purpose of earning his livelihood.
In view of the above observations of the Hon’ble National Commission this O.P. Insurance Co. cannot avoid it’s liability in paying cost of repairing of vehicle in question to Complainant / insured on the ground that the vehicle in question is used for commercial purpose by Complainant.
Accordingly we hold that this case is maintainable.
In this case Ld. Advocate for the Complainant argued that this Complainant has expended Rs.83,137/- for repairing of vehicle in question and he submitted bills to the O.Ps. for reimbursement ; but O.P. no.1 declined to pay the same.
On the other hand Ld. Advocate for the O.Ps. argued that the author of the bills has not been examined and contains of the bills have not been proved. Original bills have not been filed. So, this Complainant is not entitled to re-imburse any amount of alleged cost for repairing of vehicle as claimed.
Ld. Advocate for the O.P. further argued as per report of the Surveyor the loss due to accident was assessed at Rs.32,000/-. In reply Ld. Advocate for the Complainant argued with original bills have been submitted to the office of the O.Ps.
I have carefully heard the submission made by the Ld. Advocate for the both sides. It appears to us that it is not disputed that vehicle in question was damaged in case accident. It is also not disputed that vehicle was repaired by Complainant at his own cost. Dispute is only on the point of amount expended for repairing, claimed by Complainant.
Perused the materials on record it appears that this Complainant has claimed Rs.83,137/- for cost of repairing of the vehicle in question. No author of the bills has been examined. The Mechanics who repaired the vehicle have not been examined. No explanation has been given for their non-examination. Though the author of the bills and the Mechanic who repaired the vehicle are very material witness in this case. Anyway we find that the causing damage of the vehicle in question in accident is not disputed. Moreover, damage was assessed by the Surveyor in his report to the tune of Rs.32,000/-. So, it can be presumed from submission of Ld. Advocate for O.P. that Surveyor examined the vehicle and estimated the cost of repairing of the
vehicle damaged to the tune of Rs.32,000/-. Surveyor report has not been admitted into evidence. Surveyor has not been examined. Only Sri Arkadeep Sarkar, Legal Officer of the O.P. Insurance Co. has been examined. On perusal of the materials on record we hold that estimate of cost for repairing as Rs.32,000/- by Surveyor prima facie proves that the vehicle in question was badly damaged in the case accident during the valid period of Insurance Policy. But Complainant has not been able to satisfy us by proving / establishing documents to prove that Rs. 83,137/- was expended for repairing of the vehicle in question.
On the other hand O.P. Insurance Co. also has not been proved by submitting cogent evidence that the cost of repairing of damage of vehicle in question was to the tune of Rs.32,000/- only.
It has been observed by Hon’ble National Commission reported in 2016 (1) CPR page 883 (N.C) that Insurance Company cannot repudiate a bonafiede claim. It has also been observed by Hon’ble State Commission in 2016 (1) CPR 798 (NC) that if there is some lacunae in proposal form insurance claim relating to motor vehicle should be settled on non-standard basis.
After considering the above facts & circumstances and materials on record we are of the opinion that interest of justice would be served if cost of repairing of the damaged vehicle in question is assessed to the tune of Rs.50,000/- then none would be prejudiced.
In view of the circumstances we hold that this Complainant is entitled to Rs.50,000/- as a Cost of Repairing of the vehicle in question.
After considering the other materials available in the case record if Rs.4,000/- is assessed as Compensation for mental pain and agony and harassment then none would be prejudiced.
We also assessed Rs.1,000/- as a Cost of Litigation.
Accordingly, the Complaint succeeds.
Hence, it is
Ordered
That the Complaint No.53 of 2014 be and same is hereby allowed on contest.
The Complainant do get Rs.50,000/- (Fifty thousand) only as Cost of Repairing of the damaged Vehicle in question.
Complainant is also do get Rs.4,000/- (Four thousand) only as Compensation for his mental pain and agony.
Complainant do also get Rs.1,000/-(One thousand) only as Cost of Litigation.
In total Rs.50,000/- + 4,000/- + 1,000/- = Rs.55,000/- are hereby awarded as a Cost of Repairing, Compensation and Cost of Litigation in favour of Complainant.
O.Ps. are hereby directed to pay the entire awarded amount mentioned above by thirty (30) days from the date of receipt of the copy of Judgement to this Complainant; failing which the entire amount will carry interest @ 9 % p.a. after the expiry of period of 30-days from the date of receipt of copy of Judgement till its full realization.
Let a plain copy of this Judgement be given to both sides free of cost.
