DATE OF FILING: 9.12.2011.
DATE OF DISPOSAL: 15.12.2015.
Miss S.L.Pattnaik,President:
Deficiency in service against the Opposite Party is the grievance of the complainant.
2. Briefly stated, the case of the complainants are that the complainant No.1 Nibedeta Gouda is the legal married wife of late Susanta Gouda and complainant No.2 is the natural daughter of late Susanta Gouda who expired on the road accident on dated 20.01.2010, while he was travelling in his own Toyota Qualis vehicle from Bhubaneswar to Soroda. The deceased during course of his life time had purchased this Qualis vehicle bearing Regd. No. OR-02-W- 7288 which was insured with the IFFICO TOKIO General Insurance ltd, Company, Berhampur , Ganjam, the O.P. in this case with a purpose to indemnify any loss if any caused to the vehicle as well as to then 3rd parties by accident. On payment of premium and so also he also deposited extra premium for owner and driver for bearing any loss at the time of accident. On 20.1.2010 while the deceased along with other persons were returned to their village Surada, at about 3.00 A.M. near Khrapalli village the driver Manoj kumar Sahu made speed driving and could not control the vehicle as a result the vehicle fell down to a Canal and as a result the deceased Susanta Kumar Gouda sustained several grievous injuries on his person and expired. Subsequently the matter was immediately reported to the Gangapur Police station vide diary entry No. 01/20.1.2010. Being the legal heirs the complainants claimed before the O.P. several times but they did not heard and advise for case. Alleging deficiency in service on the part of the O.P. the complainants prayed to direct the O.P. to pay Rs.7,00,000/- towards compensation as well as Rs.50,000/- towards mental agony due to loss of love and affection in the best interest of justice.
Complainants in support of their case have filed several documents which are attached to the case record.
3. Notice was duly served on the Opposite party. S.R. back from him and the case was posted for appearance and version by O.P. The O.P. entered its appearance on Dt.13.3.2012 and controverted the claim of the complainant on the grounds that , the complainant case is not maintainable as he is not coming under the purview of the definition of consumer as defined to the C.P. Act because the vehicle was used for commercial purposes. Secondly, the Driving license of the driver is not valid and effective to drive the transport vehicle. Thirdly, the fitness certificate is also not effective on the dates and time of accident. Fourthly, the complainants have not made any intimation or any other correspondence before the O.P. Hence the allegation of deficiency of service does not arise in the present case. Fifthly, the insurance policy was not in force and effective on the relevant date of accident to cheque bounced. Therefore the O.P. prayed before this Forum to dismiss the case. In support of his case the O.P. also filed documents and decisions which are attached in the case record. The O.P. submitted that since in this case a series of disputed question related to fraud, complicated facts need to be adjudicated and for which examination and cross examination of witness and scrutinizastion of evidence at length are essential. Otherwise they are cannot be any proper adjudication and/ or just decisions in the matter. Hence Civil Court is the proper court to adjudicate the matter. The complainants have not approached witch clean hands and he has played fraud, has mislead has adhere to all frivolous activities, has deliberately suppressed the material evidence, has concealed the truth for the purpose of the claim. The complainant is not entitled for any relief. Hence the O.P. prayed to dismiss the complaint and pass suitable order with a direction to the complainant for payment of cost and damages towards the vexatious litigation against the O.P. in the interest of justice.
Heard from the side of the O.P. only and decided to dispose of the case on merit. . The complainant is absent on the dates of hearing. On perusal of materials available on record, the following issues are framed for proper adjudication of the case.
ISSUES.
- Whether the case is maintainable?
- Whether the Driving license of the driver is valid and effective to drive the transport vehicle?
- Whether the complainant is eligible to get her claim amount or the insured amount?
Issue No. (i) Regarding this issue learned counsel for the O.P. raised objection on the maintainability of the case challenging the status of the complainant that he is not a consumer and since the complainant availed the service of the insurance Company for commercial purpose. The case is not maintainable. After perusal of the policy we found that the policy is a commercial vehicle certificate of insurance policy taken by an individual i.e. in the name of the deceased person in this case. The agreement was entered into and the consideration i.e. premium was paid by the deceased and then only the policy was issued. Accordingly the Consumer Protection Act, 1986 if service is to be rendered at price, then it comes under the definition of consumer. On this point we relied on the decision of Hon’ble National Commission, reported in 2005 (1) CPJ 26 (NC), Harsolia Motors versus National Insurance Company where it was held that “ Petitioner has to be treated as a consumer qua Insurance Company providing insurance cover for his vehicle even if it was being used for commercial purpose. Even if the vehicle is being used for commercial purpose, the vehicle had been insured against accident and the insurance covered by itself cannot be directly related to the generation of profit and hence the insurance Company have been accepted to insured the vehicle cannot be allowed to repudiates the claim on the ground that it was being used for commercial purpose. The purpose of insurance is to be indemnify the loss of insured. Loss cannot be equated with profit. Hence dispute of insurance is different from dispute for commercial purpose.
ISSUE NO. (ii)Regarding this issued the O.P. raised objection that the present case the insured allowed the driver Manoj Kumar Sahu, to ply the vehicle. The driver has obtained a license to drive private vehicle (LMV) and the said driving license is not authorized to drive the above alleged transport vehicle. The insured knowingly allowed the driver to drive the above alleged transport vehicle is a violation of the provision of the Motor vehicle Act and violation of the condition of the Insurance Policy. Hence the present claim is not maintainable against this O.P. and the same is liable to be dismissed. In support of this contention, the O.P. has filed a citation of Oriental Insurance Co. ltd. Versus Smt. Kamala Soni and others 2012 (1) T.A.C. 523 (Chhattisgarh H.C.) (D.B). On perusal of the record, it appears that, the driver who was driving the vehicle was having valid driving license for light motor vehicle. Sub section -21 of Section 2 of the Motor vehicle Act defines “Light Motor vehicle “as follows: - “Light Motor vehicle” means a transport vehicle or Omni Bus, the gross vehicle weight of either of which or a motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 Kilograms. From the aforesaid definition it is manifest that the “light motor vehicle” includes a transport vehicle the weight of which should not exceed 7500 kilograms. Hence the O.Ps contention is not sustainable in this regard.
ISSUE No. (iii) Whether the complainant is eligible to get his claim amount or the insured amount. It appears from the record that the vehicle met with an accident on 20.1.2010 within the validity of the policy period. As the policy was valid from 15.1.2010 to 14.1.2011 as evident from the policy for an amount of Rs.2, 70,000/- . Besides as per motor vehicle Act, any motor vehicle plying on the public place must have a valid insurance policy. This document is available in the case record. The deceased also a registered owner of the vehicle and he had insured the same with the O.P. The deceased was paid the premium before the O.P. and obtained a valid insurance policy which covers the period of liability from 15.1.2010 to 14.1.2011. The accident occurred on 20.1.2010 as because valid insurance covered in the vehicle and out of the accident the vehicle sustained a heavy damage and insured was died. The complainants claimed have to be made by the O.P. The allegation of the O.P. that the fitness certificate was not valid at the time of accident is not sustainable because there is nothing in the record to suggest that the plying of the vehicle without fitness had contributed to the accident and it had not been established by the O.P. That the fitness of the vehicle had any nexus with the cause of the accident. Another allegation that the complainants have not made any intimation or any other correspondence before the O.P. Hence the allegation of deficiency in service does not arise in the present case which is not sustainable in the instant case. Because the Forum holds that although the complainant did not intimated about the accident of the vehicle but when the notice was received by this Forum. Every Opportunity was there before given to the O.P. to settle the matter but he has not done so. So it is arbitrary and unreasonable. Thus the complainant deserves to get the insured amount.
Under the above circumstances we have observed that there is a deficiency in service against the O.P. towards the complainant, since the O.P. without proper verification and without any valid ground refused the claim and as such they are liable to the insured amount as well as mental agony and harassment to the complainant.
O R D E R
In the result the complaint case is allowed on merit against the O.P. The O.P. is here by directed to pay the insured amount of Rs.2,70,000/- (Rupees Two lakhs seventy thousand) only along with interest @ 6% per anuum from the date of filing of the case i.e. 9.12.2011 to the complainants for realization of amount . The O.P. is also to pay Rs.2000/- towards cost of the litigation. The above order by complied within 30 days from the date of receipt of this order failing which the awarded amount will carry 9% interest per annum till payment is made. The case is disposed of accordingly.
Compliance of the order be made within one month from the date of receipt of this order.
The order is pronounced in the open Forum today on 15th December 2015.
Copies of the order be furnished to the parties free of cost.
