ADVOCATES WHO APPEARED IN THIS CASE
For the Complainant : Mr. R. Goswami
Mr. I. Borooah
For the respondents : Ms. S. S. Choudhury
Date of Argument : 11–11–2016
Date of Judgment : 06-12-2016
D. K. Mahanta, Member
In brief, the facts and circumstances which led to the filing of the instant complaint petition are that the above named complainant is the owner of the truck bearing Registration No.AS-22-C-2188 that was purchased under hire purchase agreement with State Bank of India, Dhemaji Branch. The vehicle was insured with Oriental Insurance Company Ltd. under Policy Number 322801/31/2013/3122 effective for the period starting from 13-14 hours of 30-10-2012 to midnight of 29-10-2013. The said truck was utilised by the complainant as a goods carrying transport vehicle on a commercial basis and the bank loan was reportedly used to be repaid from the income earned there from. The further version of the complainant is that on 09-03-2013 at around 04-15 a.m., his aforementioned vehicle met with an accident at Naoboisha, and in the said mishap, complainant’s truck was badly damaged. On 10-03-2013, the complainant duly informed his insurer about this incident vide Ex-2. He also reportedly obtained an estimate from the authorized dealer M/S Himatsingka Auto Enterprises, Banderdewa, Arunachal Pradesh, regarding the cost of repairing of his accident involved automobile and the same was assessed to be around Rs.17,00,980-00 inclusive of Rs.15,55,980-00 towards cost of parts and another Rs.1,45,000 as labour cost for repairing of the vehicle.
As the estimated cost of repairing of Rs.17,00,980/- was more than the 75% of the IDV of the truck of Rs.19,00,000/-, the complainant requested the insurer to settle the claim on total loss basis as per terms and conditions of the insurance policy. The prayer for settlement at total loss basis was substantiated by the complainant by submitting the estimation of two workshops of North Lakhimpur namely, M/S Rubul Automobiles and Gurdev Workshop, who were unequivocal in their opinion that the cost of repairs of the damaged vehicle would exceed the value of the new vehicle.
The truck owner reportedly requested the respondent Insurance Company several times verbally as well as in writing, to settle his claim at the earliest as he was under pressure from the bank to repay his loan. In due course, the insurer appointed a surveyor to assess the damage of the complainant’s accident involved truck.
However, the Insurance Company ultimately repudiated the claim set up by the complainant on the plea that the original driving licence of the truck driver Bishnu Bora shown to have been issued from the office of the D.T.O., Indore, was a fake licence. Under the above circumstance, the complainant has filed the instant complaint petition claiming a total sum of Rs.34,97,964/- from the respondent Insurance Company under different heads.
In their written statement, the respondents have chiefly contended that the complainant used his vehicle for commercial purpose and as such, he is not a consumer as defined under the Consumer Protection Act. It is also the pleading of the Insurance Company that as their investigator Sri Anil Laddha raised doubt about the genuineness of the original driving licence of the truck driver Bishnu Bora issued from the office of D.T.O., Indore, they requested the complainant several times to provide the original driving licence of the truck driver for verification but the complainant failed to produce the said document and for this reason, the claim in respect of the complainant’s truck was repudiated. On the basis of the pleadings of the parties, the following issues were framed for adjudication.
- Whether there is any cause of action against the opposite party to file this complaint ?
- Whether the complainant is entitled to receive compensation in absence of a valid and effective driving licence ?
- Whether the complainant is entitled to receive any compensation from the opposite party in violation of the terms and condition of policy ?
- Whether the complainant is a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986, when the vehicle was used for commercial purpose ?
- Whether there was any deficiency of service on the part of the opposite parties ?
- Whether the letter dated 21-12-2013 marked as Annexure-H was at all a document which could be relied upon for coming to a conclusion that the driving licence was fake and on that ground repudiate the claim of the complainant ?
In the instant case, the complainant has examined himself as the sole witness from his side. On the other hand, one witness has been examined by the respondents. We have heard the learned counsel for the parties. We have also carefully perused the evidence on record.
DECISION AND REASONS THEREOF
ISSUE NO. 1
The complainant has alleged that he is entitled to receive the claim in respect of his truck bearing Registration No. AS-22-C-2188 that was damaged in a road accident on 09-03-2013 because, his aforementioned vehicle during the relevant time was admittedly insured with the respondent Insurance Company but the insurer has improperly repudiated his claim. On the other hand, it is the contention of the respondent insurer that the claim set up by the complainant has been rightly repudiated as the original driving licence of the truck driver Bishnu Bora shown to have been issued from the office of the D.T.O., Indore, was detected to be a fake licence. The respondents have also contended that as the complainant used his vehicle for commercial purpose, he is not a consumer as defined under the Consumer Protection Act.
The rival disagreements raised by the parties demonstrate that there are substantial questions which need examination and decision on merit.
Issue No.1 is accordingly, decided in affirmative.
ISSUE NO. 4
The plea of the respondents, that since the complainant used his truck for commercial purpose as a goods carrying transport vehicle, by appointing a driver, he is not a consumer as defined under the Consumer Protection Act cannot be accepted in view of the decision of the National Consumer Disputes Redressal Commission rendered in the case of M/S Harsolia Motors –vs- National Insurance Company Ltd. [I (2005) CPJ 26 (NC)]. In the said case, it has been held as follows :
“Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.
In this view of the matter, a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit.”
As a result, we are of the considered view that the complaint filed by the appellant / complainant is maintainable before the Consumer Fora because a contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining the insurance coverage of his vehicle. Accordingly, this issue is answered in positive.
ISSUE NO. 2,3,5 & 6
All these issues are interrelated and therefore these are taken for decision collectively.
In his deposition, the complainant has corroborated the story of his complaint petition as referred in the foregoing paragraphs. According to his rendition, before appointing as the driver of his truck, he duly verified the driving licence of his driver Bishnu Bora from the office of D.T.O., Dhemaji. He however admitted that he had no knowledge that the original driving licence of the truck driver was issued from the office of D.T.O., Indore, and thereafter, it was renewed in the Dhemaji D.T.O. office. According to the complainant, as directed by the insurer, he also obtained a certificate from the office of D.T.O., Dhemaji (Ex-11) about the genuineness of the driving licence of his truck driver and submitted the same to the respondent Insurance Company on 29-10-2013.
As against this, D.W.-1 has stated in his testimony that the claim of the truck owner has been repudiated on the basis of the report (Ex-H) of their investigator Sri Anil Laddha. On perusal of the said document it appears that according to the insurance investigator, some employee of the Indore D.T.O. office told him that the said Driving Licence No. 65763 / 93 had not been issued from their office.
As the author of Ex-H (insurance investigator Anil Laddha) has not been examined as witness, the authenticity of the said report cannot be accepted in its face value. Otherwise also, the said information about the licence in question being fake, is purely based on nothing but hearsay account because, the employee who reportedly informed the insurance investigator that the licence was counterfeit, has not been examined as witness by the Insurance Company.
D.W.-1 also admitted that the said investigator Sri Laddha had not obtained any written confirmation from the D.T.O., Indore, that the original licence of the truck driver Bishnu Bora shown to have been issued from the office of the D.T.O., Indore, was a forged licence. This witness appearing for the insurer also acknowledged that the claim of the complainant truck owner had been repudiated without there being any confirmation from the D.T.O., Indore, that the original licence of the truck driver was a fake licence. The testimony of D.W.-1 further reveals that the insurer had not received any written affirmation from the D.T.O. office of Dhemaji that the present driving licence of the truck driver was a fake licence. This witness has also admitted that without any confirmation from the concerned D.T.O., the respondent Insurance Company does not repudiate an insurance claim on the plea of fake licence. The testimony of D.W.-1 thus makes it obvious that the insurer decided to reject the claim of the complainant truck owner without there being any report from either D.T.O. Indore or D.T.O. Dhemaji that the licence of the truck driver Bishnu Bora was a counterfeit document.
The further version of D.W.-1 is that their surveyor has assessed the loss suffered by the complainant as follows : (1) On repairing basis Rs.18,70,000/-, (2) On total loss basis Rs.16,73,500/- and (3) On net of salvage basis Rs.14,73,500. In view of the above circumstances, we award Rs.14,73,500/- on net of salvage basis towards the loss suffered by the complainant. The complainant has claimed Rs.5,00,000/- as compensation for the mental agony / harassment suffered by him due to non settlement of his claim by the respondent Insurance Company. In our considered opinion, taking into consideration of the state of affairs of the case in hand, grant of Rs.50,000/- on this head will meet the ends of justice. Complainant will also be entitled to litigation cost which is assessed at Rs.20,000/-. In the result, it is held that the complainant will be entitled to receive the following amounts to be paid by the respondents:
- Loss assessed on net of salvage basis : Rs. 14,73,500-00
- Compensation for mental harassment : Rs. 50,000-00
- Cost of litigation : Rs. 20,000-00
Total : Rs. 15,43,500-00
The complaint filed by the complainant is thus stands allowed. It is ordered that the respondents would be required to pay to the complainant a sum of Rs.15,43,500-00 along with interest @8% from the date of filing of the complaint petition i.e. w.e.f. 04-06-2015 till the date of payment.
