SRI NILAKANTHA PANDA, PRESIDENT

            The Complainant has filed this complaint petition, U/s – 12  of Consumer Protection Act, 1986, (here-in-after called as the “C.P. Act - 1986”), on dated 22/12/2015, alleging a “deficiency-in-service” by the Ops, where, OP No.1 is the National Insurance Ltd., being represented through its Branch Manager, Balasore Branch, At. Zila School Road, Dist. Balasore and OP No.2 is being represented through its Divisional Manager, National Insurance Company Ltd, At/Po – Cantonment Road, Cuttack, Odisha.

            The factual matrix of this case is that, the complainant is the lawful owner of one Mahindra Bolero XL 2WD bearing RTO Registration No. OD-01-1604 which was appropriately insured with aforesaid Ops. It is stated that on dated 25/12/2014, while the vehicle in question was coming from Baripada to Balasore on NH-18, at about 10.30 PM, it was dashed with one container which was parked illegally on the Highway without giving any indicator, near village Ragdha, on account of one ox came in front of the vehicle.

            The vehicle of the complainant got damaged on its “left side”, as it dashed with the container on it’s “right side” by damaging its fuel tank of the container. One FIR was lodged at Betnoti Police Station bearing No.228 dated 26/12/2014. The driver of the said Bolero namely Prasad Pramanik has a valid driving licence on the date of accident. It is further averred that the vehicle in question was a commercial vehicle and its permit was valid from 10/11/2012 to 09/11/2017. The fitness of the vehicle was valid from 27/09/2014 to 26/09/2015 and tax was also paid for the period from 01/12/2014 to 31/12/2014. That meaning thereof, every thing was ok about the Bolero.

            That further the case of the complainant was that, the complainant has reported the accident and claimed before the aforesaid Ops. One surveyor was deputed by the Ops, who estimated the damage of the vehicle cost and hence the net loss was assessed at Rs.2,30,000/- vide his report dated 21/09/2015. The complainant produced all the relevant documents before the Ops for proper settlement of the claim, but surprisingly the Ops have repudiated the claim of the complainant on 03/11/2015 on the ground of “expire of authorization certificate” which is required when a vehicle goes to other states for commercial / tourist purpose. It is stated that the complainant is an unemployed and the vehicle in question was the only source to maintain his livelihood.

            The cause of action for filing of this case arose on 03/11/2015, when the Ops repudiated the claim of the complainant, vide their letter no 160000/Claims HUB/1981.

            Hence, this case. 

            That to substantiate his case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of RTO Registration certificate.
2. Photocopy of Insurance policy certificate.
3. Photocopy of FIR.
4. Photocopy of Driving licence of the Driver.
5. Photocopy of Permit, Fitness & Tax Receipt.
6. Photocopy of Surveyor’s report.  
7. Photocopy of Claim repudiation letter issued by Ops.

            That in the present case, Ops have made their appearance and filed their joint written version with in the stipulated time frame. In their written version, the Ops have not only challenged the cause of action to file the present case but also the maintainability of the case. They have denied the allegations as made out in the complaint petition.

            The Ops have stated, inter alia, that on 26/12/2014, the complainant intimated the OP No.1 over phone that his vehicle in question has met with an accident. Thereafter, OP No.1 appointed a surveyor to inspect the alleged vehicle at the “spot” and to take photographs of visible damages. On the same day, the Surveyor inspected the vehicle and took photographs & status report and submitted his report to the OP No.1 on 13/01/2015. On the same date, the complainant submitted his claim intimation letter before the OP No.1, who provided the claim form with a request to submit the same duly filled in and sign along with estimate of loss and relevant documents for taking of further course of action. That on the same day, the complainant produced the claim form before the OP No.1 along with all required vehicular documents along with copy of FIR. Thereafter, OP No.1 intimated the Regional Office for appointment of a Surveyor to survey the vehicle in question. One Surveyor was also appointed by the Regional Office for survey at S.R. Auto Care, Jaleswar and submitted his report to the OP No.1 on 25/09/2015 assessing the net loss @ Rs.2,36,000/-. Then, OP No.1 submitted the report of the Surveyor along with all papers relating to the vehicle in question to the Regional Office for its appropriate consideration. Thereafter, Regional Office deputed one investigator for collection of police papers, who submitted the same to the Regional Office on 12/10/2015. That upon verification of all the submitted documents, Regional Office was of the opinion that the vehicle in question was plying inter-state (West Bangla) at the time of accident and the authorization issued by the State Transport Authority, Odisha, Cuttack against the alleged vehicle has expired on 09/11/2013 i.e. much before the alleged accident. So, the complainant has no authority to ply the vehicle in any State on the date of alleged accident and sent message to OP No.1, inviting the complainant for submission of authorization which was valid on the date of accident. Thereafter, OP No.1 requested the complainant to submit the valid authorization issued by the competent authority against the vehicle, but the complainant did not submit the same for which Regional Office issued letter to the complainant on 03/11/2015, vide letter no 1981, requesting to submit the aforesaid document within 7 days of receipt of the letter. As the complainant did not submit the said document before the Regional Office, OP No.1 repudiated the claim of the complainant and intimated him vide letter dated 14/12/2015, vide letter bearing no 2495. It is further stated by the Ops that as the complainant has “not renewed the authorization” to ply the vehicle in the state of Odisha or in any other State on the date of accident and thus, the complainant has no right to ply the vehicle either in the State of Odisha or in any other State. Therefore, the claim of the complainant was repudiated as per terms and conditions of policy which does not constitute any deficiency of service on the part of the Ops. Hence, it is prayed that the complaint of the complainant may be dismissed with cost.

            To substantiate their case, the Ops have relied on the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of Certificate of insurance-cum-policy schedule.
2. Photocopy of Written intimation letter dated 26/12/14 of the complainant to OP No.1.
3. Photocopy of Motor claim intimation dated 14/01/15 of the complainant to OP No.1.
4. Photocopy of Clam form.
5. Photocopy of R.C. Book.
6. Photocopy of Smart Card. 
7. Photocopy of Fitness certificate.
8. Photocopy of Permit No.702-G-2012.
9. Photocopy of Authorization No.1878/2012.
10. Photocopy of Survey report.
11. Photocopy of Final survey report.
12. Photocopy of Police papers.
13. Photocopy of Mail dated 30/09/15 of Regional Office to OP No.1.
14. Photocopy of Letter dated 03/11/15 of Regional Office to complainant.
15. Photocopy of Letter dated 14/12/15 of OP No.2 addressing to complainant.  

            That in view of the above averments of parties, the points for determination in this case are as follows: -

(i)         Whether the complainant is a consumer or not?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the OPs?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the Complainant is entitled to? 

F  I  N  D  I  N  G  S

            That first of all it is to be ascertained as to whether the complainant is a “Consumers” or not. From the averments of the pleadings of the complainants & document produced on behalf of the complainants vide above mentioned Annexures vis-à-vis the documents as submitted by the Ops, it is undisputedly admitted that the complainant is the lawful owner of the impugned vehicle bearing Registration no OD-01-1604 and has a valid Insurance coverage made with the Ops. There is also no dispute regarding the validity & payment of insurance premium. Therefore, the complainant is well covered under the previews of definition of “Consumer” as defined under the provisions of the Consumer Protection Act, 1986.

            That to arrive at conclusion, weather, there is a “Cause of Action” arose / lies on the part of the O.P, it is seen on the face of the record & it was also made out that on 25/12/2014, the alleged vehicle of the complainant was met with a road accident in between Baripada & Balasore and the vehicle was got damaged for which the complainant submitted a claim-form before the Ops. There was a good exchange of documents between the parties of this case, but at last the Ops without considering all the factors & merit have finally repudiated the claim of the complainant on dated 03/11/2015, Where from it is considered that, there from the cause of action considered to arose.

            That it is evident from the version of the complainant that, the complain / claim of the complainant in question, could not be rectified / removed / sorted out, although after submission of several related documents on demand, lastly the complainant got disappointed on and after dated 03/11/2015 (Date of Repudiation). It is also a fact that the complainant belongs to the territorial jurisdiction of this commission, hence it is determined that the present case filled is within the permitted scope of the CP Act, hence it is maintainable under this Act.

            Before delve into the merits of the case matter and to arrive at the conclusion, it is required to be decided how far the complainant is able to substantiate his case with regard to the “deficiency” in services attributed against on the part of the OP, weather, there is “any relief” as may be entitled to the complainant, the following points, as stated by the complainant, are to be addressed collectively in pursuance to the documentary evidence as submitted. They are addressed as under: -

            First of all, let us scan the important documents filed by both the parties. From the Annexure-1 of Op & Annexure-2 of complainant, the certificate of Insurance Policy, it clearly made out that the vehicle of the complainant bearing Registration No. OD-01-1604 was insured with the Ops and was valid from 27/09/2014 to 26/09/2015. It is an admitted fact that the vehicle in question met with an accident on 25/12/2014 at about 10.30 PM, in between Baripada & Balasore. It is also an admitted fact that the complainant intimated the fact about accident of his vehicle to the OP No.1 on dated 26/12/2014, as admitted by the Ops vide Annexure-2. Annexure-3 & 4 reveals that the complainant submitted the motor claim intimation and claim form before the OP No.1 dated 14/01/2015, which was received by the OP on dated 15/01/2015. That the Annexure-5(1-3) of the complainant revels, the permit, the fitness and the road permit tax receipt, shows that permit in respect of a tourist vehicle was valid from 10/11/2012 to 09/11/2017 in the areas including the State of “Odisha” and “West Bengal”, along with other States. Similarly, the Annexure-5(2) of complainant shows, fitness of the vehicle was valid from 27/09/2014 to 26/09/2015 and Annexure-5(3) shows road tax was paid for the period covering from 01/12/2014 to 31/12/2014. The Annexure-6 of complainant is the final survey report as submitted by the appointed surveyor appointed by the OP, bearing dated 21/09/2015, wherein it is found that net loss has been assessed at Rs.02,30,000/-. The Annexure-7 of complainant is the show cause letter issued by the Ops in favour of the complainant regarding repudiation of the claim. Further, Annexure-5 & 6 of the Ops are the R.C. Certificate and Smart card in respect of the vehicle in question. Annexure-7 of the OPs is the fitness certificate (vide Annexure-5-2 of Complainant). The Annexure-8 of OPs is the “Permit” in respect of a tourist vehicle (vide Annexure-5-1 of Complainant) and Annexure-9 of OPs is the “Authorization” bearing No.1878/2012 which was valid throughout the territory of India effective from 10/11/2012 to 09/11/2013 (Both documents contains same 30 numbers of “State” to ply Vehicle). Annexure-10 of OPs is the survey report dated 13/01/2015 submitted by Er. Sarit Kumar Dash. Annexure-11 of OPs is the final survey report, wherein net loss was assessed at a higher value of Rs 6,000/- above the report as submitted by complainant vide Anx-6, at Rs 2,36, 000/-. Annexure-12 (1 to 26) of OPs is the police papers. Annexure-13 of OPs is a letter issued by Regional Office to OP No.1. Annexure-14 & 15 of OPs are the letters issued by regional Office to the complainant regarding submission of authorization pertaining to the permit bearing No.702-G-2012.    

            From the above documentary evidence, it is crystal clear that the complainant is the rightful / legal owner of the vehicle bearing Registration No. OD-01-1604 which was found to be insured under the Ops vide Annexure-2 of Complainant & Annexure-1 of OPs. Further, it is seen from Annexure-5 series of complainant so also from Annexure-7 & 8 of OPs that fitness of the vehicle in question was valid from 27/09/2014 to 26/09/2015 and tax was paid for the period covering from 01/12/2014 to 31/12/2014. Further, the permit in respect of a tourist vehicle issued U/s 88(9) of Motor Vehicles Act issued by the State Transport Authority, Orissa, Cuttack shows that, it was issued in favour of the complainant in respect of the alleged vehicle and the period of validity was from 10/11/2012 to 09/11/2017 and it was valid for the States of Andhra Pradesh, Arunachal Pradesh, Assam, Bihar, Chhatisgarh, Chandigarh, Karnataka, Madhya Pradesh, Maharashtra, Mizoram, Manipur, Meghalaya, Nagaland, Orissa, Punjab, Pondicherry, Rajasthan, Tamil Nadu, Uttar Pradesh, Uttaranchal & West Bengal.

            That on the other hand, the Ops have challenged that on the date of accident i.e. on 25/12/2014 the insured vehicle had been to Devkund of Mayurbhanj, Odisha from Rohini located in the State of West Bengal carrying tourists and was returning from Devkund to Rohini carrying those tourists. Therefore, the vehicle in question was “plying inter-state” at the time of accident, but on verification of the authorization No.1878/2012 issued by the State Transport Authority, Odisha, Cuttack against the alleged vehicle was found expired on 09/11/2013 i.e. much before the accident. So, the vehicle in question has got no right to ply either in the home State Odisha or any other State at the time of accident.

            That on perusal of Annexure-9 of OPs, the Authorization No.1878/2012, it is found that the same was rightly expired on 09/11/2013. It was a “Tourist Permit or National Permit”. The Ops have emphatically urged that when the Authorization in respect of the vehicle in question has already been expired on 09/11/2013, the complainant had no right to ply the same at all. But, at the same time, the Ops have also omitted to urge that the vehicle in question had been rightly authorized by the State Transport Authority, Orissa, Cuttack to ply in the States of West Bengal & Orissa including that of the other States and Union Territories across the country which was valid from 10/11/2012 to 09/11/2017 (vide Annexure-8 of OPs & Annexure-5-1 of Complainant), which is a valid Permit bearing No.702-G-2012 issued in respect of a tourist vehicle U/s 88 (9) of Motor Vehicles Act, 1988, to ply interstates as mentioned therein. That upon comparison of the both of documents, supra, it observed that both the documents were issued by the same Authority on the same date, under different rules, which does not restrict the compliment to ply the said vehicle in between West Bangla & Odisha, upon expire of form No 47, bearing no 1878/2012. 

            Furthermore, the above, it is an admitted fact that the vehicle in question met with road accident near Ragadha under the jurisdiction of Betnoti Police Station in the district of Mayurbhanj coming under the State of Odisha. For the purpose, this commission feels that, authorization for “National Permit” is not at all mandatory, as emphatically challenged by the Ops citing Annexure-9, as because, Annexure-H & Annexure-5 clearly shows that the vehicle in question was appropriately authorized by the competent authority to ply in the State of Orissa and that of West Bengal amongst other States and Union Territories as mentioned therein in the said permit, that too it was valid from 10/11/2012 to 09/11/2017. Thus, it can safely be concluded that on the date of accident the vehicle in question has got a valid authorisation to ply, between the impugned states. Therefore, issuance of letter dated 30/09/2015, 03/11/2015 & 14/12/2015 by the Ops in favour of the complainant for production of authorization vide Annexure-13, 14 & 15 has got no evidentiary value at all and basing on those documents, repudiation of the claim of the complainant is found to be arbitrary and illegal. Thus, it is held that the deficiency in service clearly attributes against the Ops and hence, both the Ops are jointly and severally liable to pay the compensation basing on the final survey report dated 21/09/2015 vide Annexure-11 of OPs.  

            So now, from the above analysis made in the foregoing paragraphs and upon careful consideration of all the materials available in the case record vis-a-vis submission made by both complainants & OPs, this Commission is of the unanimous opinion that, the present case is maintainable and the Ops are found to be deficient in performing their service towards the complainant & the O.Ps have not adjudicated their dispute properly before the Commission. There is no solution arrived by the O.Ps for the loss sustained / suffered by the Complainant incurring out of deficiency on the part of O.Ps, which legally termed as deficiency-in-service by the O.Ps Therefore, the complainants is entitled to get the relief as sought for in the complaint petition.

            Hence, it is ordered –

O   R   D   E   R

            Having regard to the judgement reflected above, the Complaint Petition of the instant Complainant bears merit and hence allowed on contest against O.Ps. That this Commission is of the unanimous opinion that there is a gross deficiency on the part of the O.Ps. Hence, the O.Ps are hereby set jointly liable for its gross deficiency of service. Hence, the O.Ps are hereby directed to: -

1. That upholding the first prayer of the complainant, the OPs are hereby directed to pay the complainant a sum of Rs 02,30,000/- as loss & damage as claimed by complainant (lessor Amount than final survey report of O.Ps), along with 09% interest P.A., from the date of repudiation i.e. 03/11/2015 till actual date of payment .
2. That upholding the second prayer of the complainant, the OPs are hereby directed to pay the complainant a sum of Rs 50, 000/-, as mental agony.
3. That upholding the third prayer of the complainant, the OPs are hereby directed to pay the complainant of Rs 20, 000/-, as litigation cost as incurred by the complainant.

            All the aforesaid ordered amounts will be paid by the O.Ps to the complainant within 45 days from the date of receipt of this order.

            That, deferment in any manner / mode / reason / step thereof, for compliance of this order, as directed above, the O.Ps, shall carry out with an additional penal interest @ 12.00% P.A., upon Order No. 1 to 3, payable by the defaulter O.Ps to the complainant.

            In case of failure by any of the O.P/s to comply any of the orders as mentioned above, within the aforesaid stipulated time frame, the complainant is at liberty to realize the same from the O.Ps as per the prevailing law.

            Pronounced in the open Court of this Commission on this day i.e. the 5^th day of November, 2024 given under Signature & Seal of the Commission.