Ld. Advocate(s)
For Complainant: Safikul Alam
For OP/OPs :Joydip Mitra
Date of filing of the case :19.07.2018
Date of Disposal of the case :21.03.2024
Final Order / Judgment dtd.21.03.2024
The concise fact of the case of the complainant is that the complainant Papiya Mondal is the owner of a vehicle(Truck) bearing Engine No.51C6343956, Registration No.WB-51B/0104 which had met with an accident on 19.10.2015. The said vehicle was insured by the OPs the Branch Manager, IFFCO-TOKIO Insurance Company Ltd and Manager, Service of his IFFCO-TOKIO General. After the accident the complainant filed written complaint to Katwa P.S. The benefit of the said policy was guaranteed benefit. The policy holder shall have the right to exclude and include from his coverage the comprehensive accident protection. The complainant informed to the OPs on 24.10.2015 that his vehicle met with an accident on 19.10.2015 and it was fully damaged . She also informed to the OPs about the written complaint to the P.S. The complainant also sent all documents to the OPs on 30.10.2015 but they did not do anything positive. They refused the claim without any investigation but they did not investigate into the said incident. The OP No.2 Manager, IFFCO-TOKIO General Insurance Company (GIC) Limited, Kolkata-700124. The OP No.2 took all the documents and also picture of the car at damaged condition and OP NO.2 also enquired and agreed to give Rs.9,50,000/- to the complainant for claim on 06.01.2016. OP No.2 obtained signature of the complainant in the said agreement but did not give any receipt . The OP No.2 informed the complainant that the challan of the car at the time of the accident was not right on 24.11.2016 for information of the road challan of the vehicle. The complainant filed complaint to the RTO, Nadia for correction of road challan on 24.11.2016. Complainant proved different annexure as challan dated 24.11.2016. The complainant purchased the said vehicle for the purpose earning her livelihood. The OP No.1 received the documents from the complainant on different dates but he did not give any answer to the complainant regarding her claim. The complainant sent a quotation of the said vehicle to the OPs which the OPs received . The complainant is a busy person went to the office on 23.12.2017 about her claim but the OPs did not pay any heed. So, the present case is filed. The cause of action arose on 23.12.2017 and continued till the filing of the case. The complainant ,therefore, prayed for an award for Rs.16,48,589/- towards insurance money, Rs.30,000/- towards compensation for mental pain and agony and litigation cost.
OPs contested the case. As per order no. 3 dated 21.08.2018 the case is running ex-parte against OP NO.1. OP No.2 contested the case by filing W/V wherein they denied each and every allegation of the complainant. The OPs challenged the case as not maintainable on the ground that there is no cause of action and it is bad for law. The positive defence case of OP No.2 in brief is that the OP NO.2 issued insurance policy in respect of vehicle no.WB-51B-0104 for the period 26.06.2015 to 25.06.2016. The complainant lodged a claim being no. 1-3 ZE3V3Q for the alleged accident dated 19.10.2015 without any document. OP No.2 deputed a Surveyor for assessing the loss and documents verification . As per the report of Surveyor and RTO, Nadia it is evident that National Permit was issued by the authority on 02.11.2015 with validity from 02.11.2015 to 01.11.2020. On 19.03.2016 the OPs issued a letter to the complainant stating that “We wish to draw your attention to section 149 (2) (a) (i) (a) of M.V Act 1988 and also the policy condition being used otherwise than in accordance with the limitation . The claim is assessed as not admissible”, as the alleged incident was held on 19.10.2015 and the validity of the permit was from 02.11.2015 to 01.11.2020 and the said letter was successfully delivered to the complainant on 22.03.2016 with proper acknowledgement. After receiving the repudiation letter the complainant abused the OP and threatened him. The present case is not maintainable as per section 24A of C.P. Act, 1986. So, the OP no.2 prayed for dismissal of the case with cost.
The respective disputed pleadings of the parties demand for ascertainment of the following points for proper adjudication of this case.
Points for Determination
Point No.1.
Whether the present case is maintainable in law in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The OP No.2 challenged the case as not maintainable on the ground that it is barred by section 24A of the C.P Act.
The OP No.2 challenged the case as not maintainable and barred by limitation. Section 24A C.P. Act deals with provision regarding filing of the case which provide for inter-alia that no case is maintainable before the D.C.D.R.C. unless it is filed within the two years from the date of arising cause of action. In the instant case the cause of action is claimed to have arisen on and from 23.12.2017. They did not give answer regarding the complaint. The present case is filed on 19.07.2018 that is within the limitation period of two years. The OP could not specify any date as the actual arising of cause of action. However, the OP repudiated the claim on 19.03.2016 which was informed to the complainant on 22.03.2016. Complainant filed the case on 19.07.2018. It is claimed that the OP claimed that the claim was repudiated on 19.03.2016 and informed on 22.03.2016. It is claimed by the complainant that on several occasions he went to the office of the OP but they could not say anything about her claim.
Although, the OP claimed that they served notice upon the complainant about repudiation of the claim on 22.03.2016 yet there is nothing in the case record or in other words OP could not file any documents to establish that the notice was served upon the complainant on 22.03.2016 or that it was informed to him on that date.
Thus after considering all the materials in the case record the Commission is of the view that the case is not barred by limitation.
Accordingly, point no.1 is decided in favour of the complainant.
Point No.2&3.
Both the points are very closely interlinked with each other and as such these are taken up together for brevity convenience of discussion.
The complainant in order to substantiate the case proved the following documents in evidence in support of her affidavit in chief.
No.1 is the receipt issued by Deco World , Krishnagar towards total expenses paid for Rs.2530/- on 09.06.2015.
No.2 is the National Permit dated 13.08.2015 in the name of the complainant Papiya Mondal.
No.3 is the receipt dated 28.06.2015 in respective vehicle no.WB-51B-0104.
No.4 is the receipt issued by M.V Department , Krishnagar dated 09.06.2015 for Rs.1240/- towards registration fee.
No.5 is the estimate issued by Rakshit Enterprise dated 05.11.2015 for the disputed vehicle in the name of the complainant Rs.6,56,465/-.
No.6 is the purchase order dated 14.11.2015 issued by Rakshit Enterprise for Rs.608532/-.
No.7 is the Tax invoice in the name of the complainant issued by Rakshit Enterprise dated 12.10.2015 for Rs.3,19,459/-.
No.8 is the complaint to the O.C Katwa P.S dated 19.10.2015 by the complainant.
No.9 is the cash memo dated 02.01.2020 in the name of Papiya Mondal issued by K.M Electronic for Rs.7200/-.
No.10 is the certificate of registration of vehicle WB-51-0104 issued by RTO, Krishnagar, Nadia in the name of the complainant.
No.11 is the cash receipt for Rs.1,00,000/- dated 09.12.2015, Rs.1,00,100/- dated 10.12.2015, Rs.29,000/- dated 11.11.2015 from complainant by Rakshit and company.
No.12 is the receipt dated 22.08.2015 issued by M/S Mukherjee and Company for RS.1,15,000/- from the complainant.
No.13 is the Driving Licence in the name of Sujit Sikdar.
No.14 National Permit in the name of the complainant for vehicle WB-51B-0104 for the period 02.11.2015 to 01.11.2020.
It is the admitted fact that the disputed vehicle was insured with the OP.
The OP repudiated the claim on the ground that at the time of the accident the vehicle had no National Permit . The OP defended the case on the ground that National permit was issued by the competent authority on 02.11.2015 to 01.11.2020. But the alleged accident was held on 19.10.2015.
The complainant claimed that she had already applied for National Permit and as such she deposited fees with challan on 13.08.2015. From the said receipt it is found that Rs.5,000/- was charged for grant of new permit, Rs.2,500/- towards security fees Rs.1,000/- for home receipt authorisation, Rs.20/- for service fee and Rs.20/- for transaction fee.
Ld. Advocate for the complainant argued that the complainant had already taken all steps for obtaining National Permit before the occurrence of the said accident. She had already deposited money for obtaining the challan and as such the challan was passed by RTO after taking necessary fees. So, the complainant has no fault for issuance of the challan at a delayed stage.
The argument has reasonable force in as much as from the said challan it transpires the complainant deposited the required fees for obtaining challan on 13.08.2015 but the said accident occurred on 19.10.2015. Therefore, the defence plea that the accident occurred when the complainant had not National Permit for the said disputed vehicle is not acceptable.
It is further found that the complainant pleaded that she went to the office of the OP on 23.12.2017 despite she being an aged lady unable to run but the OP did not entertain the claim. So, she filed the case.
Ld. Advocate for the complainant also argued that cause of action runs continuously. Being deprived of her claim she filed the present case.
Since the complainant categorically stated that she went to the office of the OP on 23.12.2017 by affidavit and the said evidence could not be discarded, so filing of the case on 19.07.2018 is well within the limitation, even if it is presumed that notice of repudiation of claim was served on 23.03.2016.
It is the admitted fact that the OP appointed a Surveyor for assessing the loss who ultimately assessed the total loss of Rs.3,84.200/-.
The OP did not file the report of the assessor . So, prima facie it is found that the assessor found the claim of the complainant as genuine and not barred under any provisions of law and as such he assessed the loss for the said amount.
So, for the sake of argument if it is presumed that the claim of the complainant is not genuine , in that case also the complainant is entitled to get the actual loss assessed by the assessor of the OP.
Ld. Advocate for the complainant referred to one decision reported in volume II (2022) CPJ 40 (UK) wherein it was held that Surveyor recommended for settlement on total loss basis. Registration certificate does not reveal that it was private vehicle or commercial vehicle. Appellant could not repudiate the claim.
The said case law squarely applies here in as much as in the instant case the OP has taken the defence plea that said vehicle was a commercial vehicle. However, the complainant categorically pleaded that he used to run the vehicle for her livelihood .
In another case law reported in volume IV (2023) CPJ 54 (SC) referred by the complainant it was held that even in user of goods other than person who buys goods is also consumer. Repudiation of claim is deficiency in service .
The case law is applicable here. Ld. Advocate for the complainant also referred to another decision reported in volume IV (2023) CPJ 238 (HP) wherein it was held that if there is breach of policy including the limitation then also insurance company to pay 75% of admissible claim. Repudiation of genuine claim amounts to unfair trade practice.
The said case law also applied here and relied on.
Ld. Defence Counsel relied on two decisions. 1st one, is that in a decision reported in volume III (2016) CPJ 62 (NC) it was held that the view taken by Hon’ble Supreme Court for driving a vehicle without registration shall equally apply to case of driving a transport vehicle without the requisite permit , both being offences punishable under the M.V Act. So, the complainant cannot be reimbursed even on non-standard basis.
The said case law does not apply since in the instant case, the dispute is mainly regarding not having valid permit on the relevant time. Previously it has been found that the permit was applied within due time.
Ld Defence Counsel also referred to another decision reported in volume I (2014) CPJ 597 (NC) wherein it was held that insured vehicle was being plied without a route permit and fitness certificate So, it violated the basic condition of the insurance policy. So, the claim cannot be sustained.
The said case law does not help the OP because like previous ground it was found that the challan for permit was duly issued by the appropriate authority and as such the complainant fulfilled the necessary conditions for obtaining the permit at the relevant time.
Thus taking into consideration the entire facts and circumstances of the case in the light of the evidence adduced by the complainant vis-a-vis the observation made in the foregoing paragraph, the Commission is of the view that the complainant successfully proved the case upto the hilt.
The OP files the final Survey report by Surveyor Anuj Dutta Roy dated 05.03.2016 wherefrom it is found that the surveyor assessed the loss as total amount payable for Rs.3,84,200/-. So, the complainant is entitled to get the said loss assessed by the surveyor.
Accordingly, point no.2&3 are answered in affirmative and decided in favour of the complainant.
Consequently, the complaint case succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/91/2018 be and the same is allowed on contest against OP No.2 and ex-parte against OP No.1 with cost of Rs.5,000/- (Rupees five thousand). The complainant Papiya Mondal do get an award for a sum of Rs.3,84,200/- (Rupees three lakh eighty four thousand two hundred) towards insurance claim, Rs.10,000/- (Rupees ten thousand) towards mental pain and agony and Rs.5,000/- (Rupees five thousand) towards cost of litigation against the opposite parties. The OPs are jointly and severally liable to pay that award money to the complainant within 30 days from the date of passing the final order failing which the entire award money shall carry an interest @8% p.a. from the date of passing the final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
