MR. PRABODHA KUMAR DASH, PRESIDENT:-             

                      This C.C.Case No. 18/2020 taken up today for order. Heard Ld. Counsel for both the parties & perused the materials available on record. The Ops repudiated the Complainant claimed for suppression of facts. Being aggrieved by such deficiency the C.C.Case was filed.

 Brief fact

                       Complainant being unemployed youth to maintain his family purchased a Pickup Van in the year 2016 bearing Regd. No. OD-05-T-3558 by availing finance from Opno.3 & 4. The vehicle insured with OpNo.1 &2 the Insurance Company. Unfortunately when the vehicle moved from Kendrapara to Chandikhole at about 1.30 AM on 03/04/2018 on NH-5A faced an accident where by the vehicle damaged due to such accident . The driver Sushanta Kumar Singh sustained fatal injury on their bodies shifted to Kendrapara Medical & then to S.C.B. Medical, Cuttack. The injured driver Sushanta Ku. Sing interrogated on requisition sent for medical treatment by Sadar Police Station, Kendrapara as per the F.I.R. by vehicle owner. P.S. Case No. 105/2018 & G.R. Case No. 446/2018 registered. Police on requisition sent injured driver to medical & investigated, submitted case diary. On information OpNo.1 sent surveyor & relevant documents provided to Ops for settlement of Insurance claim & vehicle shifted by help of CRAIN in presence of 2^nd surveyor cum loss assessor of Op No.2 Dilip Kumar Mohanty and finally sent to authorized workshop of OP No.5 Rasmi Motor, Manguli, Cuttack. When the Complainant approached for release of claim-amount as repair cost the Op No. 1 &2 Insurance Company repudiated the claim by letter dtd. 12/07/2019 on a remark suppression of material facts. The Insurance Company repudiated claimed amount on reason that at time of accident someone the drived the vehicle not Susanta Ku.Singh the driver at time of accident so also complainant not submitted relevant documents.

For better adjudication we are framing issues & decide facts & laws involved.

1. Whether the complainant is a consumer within the C.P.Act,2019?
2. Whether the C.C.case No. 18/2020 filed within prescribed period of limitation?
3. Whether the insurance Company (Op No.1 & 2) committed deficiency in service for alleged repudiation of claimed amount of the Complainant?
4. Whether material available sufficient to decide who was the driver at times of accident?
5. Whether the Complainant entitled to reliefs shought for?
6. If entitle to what extent?

Issue No.1

               Complainant being unemployed youth purchased the four wheeler LMV goods carriage vehicle which is a Pickup Van for maintainability his livelihood by means of self employment as per the explanation (a) of Sec-(7) of C.P.Act-2019.

Issue No.2

               Accident occurred dt. 03/04/2018 & intimated to Op No.1 & 2 on same date, but the Op No.1 & 2 instead of payment of claim amount issued a letter on dt. 12/07/2019 to Complainant that he suppressed facts. As reveals from record, C.C.Case was filed on 2/3/2020 which was well within the prescribed period of limitation period of 2 years.

Issue No.3

               The Ops(Insurance) accepted premium amount for Insurance of the Complainant for which accepted significant insurance risk from the Policyholder by agreeing to compensate the Policy holder if a specified uncertain future event adversely affects the Policy holder. It is a contract of indemnity to compensate the insured himself & so also third party who sustained injury. It is the duty of the insurer to compensate the insured as well as third party. Repudiation of claim on silly ground & also delay for making payment of claimed amount is a clear violation of law, which defined under C.P.Act, 2019, Sec-2(11) of C.P.Act, which suffer from arbitrary action of Op No.1 & 2 which are short coming or inadequacy, nature and manner of performance which are required to be maintained also in addition to the act of OpNo.1 & 2 is omission, negligence which causes loss & injury to the Complainant. The Ops with holding claimed amount deliberately on irrelevant grounds are clear deficiency of Op No.1 & 2 on rendering service to the Complainant. In addition to such deficiency is an unfair trade practice.                                

Issue No.4

               As per averment of the Complainant the driver was Susant Kumar Singh at the time of accident. The driver sustained injury and sent for treatment at SCB, Medical College, Cuttack. FIR was lodged by owner Hemant Kumar Singh in Sadar Police Station, Kendrapara rescue the driver and sent for treatment on requisition. Police submitted case diary & G.R Case was registered bearing No. 466/2018. We gone through the FIR, Case Diary, Final Firm, Driving Licenses of driver, permit, injury report. In case diary all the person under CrPC 161 statement stated before Police that, the person drived & injured was Susant Ku. Singh, police submitted chargesheet that, the driver at the time of accident was Susant Ku. Singh. On perusal of medical examination, injury certificate it is found the driver Sushant Ku. Singh injured severally, multiple injury on his person and also grievous and on perusal of DL which is annexed with final form which belongs to Sushant Ku.Singh S/o- Chakradhar Singh, DOB- 11.03.1984 vehicle Class-LMV date of issue 28.12.2017 valid till dt. 10.03.2034. The OpNo.1 & 2 questioned the validity of DL of the driver that, he has only LMV valid till dt. 10.03.2034 but have no TRANS. Such contention mitigated by the executive order Transport Commissioner-cum-Chairman, state Transport Authority, Odisha Cuttack dt 21.04.2018 issued to all RTO’s all over Odisha on subject of clarification regarding issue of Driving License to drive Light Motor vehicles (Transport). In Civil Appeal No. 5826 of 2011- Mukund Devagan Vs. Oriental Insurance Company Ltd., where Honbl’e Apex Court held if a driver is holding license to drive vehicle of such class without any endorsement to that effect. Further no vehicle other than category(Transport & non-transport) mentioned above in required to obtain transport endorsement in the driving license to drive commercial vehicle in respect of following vehicles.

1. xxx
2. xxxx
3.  Light motor vehicle(good/passenger).
4. xxxxx

                    As per  such judgement of Honbl’e Supreme Court, the Govt. of India issued letter for amendment of MVAct-1988 wherein no endorsement of TRANS required to drive a driver having valid DL of LMV. So the contention raised by the (Ops) Insurance Company the driver has no TRAINs, not acceptable to this Commission. The Ld. Counsel behalf of Op silent about such notification and applicability to just decision of the case in hand. The Complainant produced the notification annexed to record. Hence the endorsement not required for a claim case. The Plea taken by Ops are not acceptable to the Commission.

Issue No.5

             The Complainant submitted repair expenses incurred Rs. 2,68,436/- which was paid by the Complainant & purchased doors & other parts which are necessary for a vehicle to run and replaced from a automobile shop on dt. 02.12.2018 amounting to Rs. 75,000/-(receipt annexed). In addition to Rs. 5,500/- express as Crain charges for displacement of damaged vehicle to authorized centre for repair on dt. 26.05.2018 (Receipt Annexed). Hence, the total expenses paid by the Complainant for repair of vehicle is Rs. 3,48,936/-. So, the Complainant entitle to the price paid for the repairing of vehicle from the date of claim dt. 03.04.18 with @18% interest till its realization in addition to it Rs. 1,00,000/- for mental agony & Rs. 10,000/- for litigation cost.

            It is contended by the OpNo.2 that, the Complainant not disclose any Policy Number insured by the Complainant can’t be believable by this Commission. The statement submitted by OpNo.2 is clear-cut callousness and it is only to avoid claim settlement which the Complainant is legally entitled to.

            The contention of  Op No.1 & 2 that, the Complainant insured not informed and submitted claims details are false & not tenable where the Ops admitted they sent surveyor for assessment of loss. Complainant filed money receipt of all expenses without any paper filed by Op No.1 & 2. When we apply evidence Act S-3 proved, the OpNo.1 & 2 failed to mitigate the expenses by adducing evidence or report of any Surveyor. When there is a clear evidence the same should be accepted without any ambiguity. No reasonable doubt in mind of prudent man. In C.C decided case of Honbl’e NC 2018(i) CPR 270 in Meera Dhuria Vs ICICI Lombard General Insurance in Revision petition. It was held:- Once initial onus has been discharged by Insurance Company, it is duty of complainant to prove whether driver of vehicle had a valid and effective driving license. When the Complainant produced the Civil appeal case decided by Honbl’e Apex Court that LMV not required Transport endorsement and also effective notification of central Govt. the onus on Op No.1 & 2 shifted but Ops failed to provide any case law to dispute the same. The Complainant case well established by exhibiting RC Book, DL, Permit, Insurance Policy, Case Diary, Chargesheet, Medical report in our opinion it clearly indicated the act of OpNo.1 & 2 was in vague & confusing one & just harassment to the Consumer.

                                                           O R D E R

                           It is directed that, the Op No.1 &2 shall pay actual expenses incurred by Complainant as receipt exhibited Rs. 2,68,436/- + 75,000+5500= Rs. 3,48,936/- from the date of claim dt. 03.04.2018 with an interest @18% P.A till its realization. Further the Op No.1 & 2 liable to pay Rs. 1,00,000/- for mental agony already undergone during last 4 years delay with litigation cost of Rs. 10,000/- which is just & proper. All the above amount shall be payable to the Complainant within a period of one month from the date of receipt of this order and accordingly the C.C.Case is allowed on contest.

                     Issue extract of the order to the parties for compliance.

                     Pronounced in the open Court, on this the 19th day of October,2022.            

                              I, agree.

                               Sd/-                                   Sd/-       

                           MEMBER                             PRESIDENT