MR. PRABODHA KUMAR DASH, PRESIDENT:-                  

                        Complainant’s vehicle burnt by short circuit. The Ops insurer repudiated claimed damages out of which this C.C.Case filed before this Commission for adjudication.

Brief Facts:-

                        Complainant purchased a Goods Carriage Trailer vide Regd. No. OD-29E-9729 by availing finance from OpNo.2 & duly insured under OpNo.1, New India Insurance Co.Ltd.(the insurer). The vehicle being engaged in carrying goods from Paradeep to Raigad caught fire due to short circuit & burnt and the same intimated to OP No.1 as well as local Fire Station, Jute mill, Raigad. The fire authority received their charged from the Complainant & lodged F.I.R. about the incident before Raigad Police Station. The burnt vehicle have valid insurance coverage under OpNo.1 at the time of the said incident i.e, from dt. 13.07.2021 to 12.07.2022 and the said vehicle caught fire on dt. 13.11.2021 within the valid period of Insurance Policy. The same was insured for Rs. 26,00,000/- at a premium of Rs.48,682/-. The claim submitted by the Complainant before OpNo.1 & the same repudiated by OpNo.1 on the ground that one of the driver had no valid license at the time of short circuit fire of the vehicle. Being aggrieved by such illegal, arbitrary inaction of OpNo.1 the Complainant suffered irreparable loss, for redressal of the same the Complainant filed the present C.C.Case.

Before determination we framed the following issues.

1. Whether the Complainant is a consumer under C.P.Act, 2019?

 Whether the C.C.Case has filed within the period of limitation?

2. Whether the vehicle caught fire by short circuit having valid insurance policy at the date of fire?
3. Whether repudiation by insurer coming under deficiency of service?
4. Whether repudiation for invalid driving license, can the OpNo.1 repudiate the same ?
5. Whether the burnt vehicle damaged due to fire cause irreparable loss which the Op No.1 is liable to compensate under the Policy?
6. Whether the Complainant is entitle to the reliefs claimed, if yes, to what extent ?    

                   Heard Ld. Counsel for the Complainant and OpNo.1. Perused the documents/materials available on record. Scrutinized all the annexures attached to the record. Though the Op No.2, the financier sufficiently noticed but did not file written version hence the same has set ex-parte during the hearing.

Issue No. 1:-

                  The Complainant filed claim settlement before OpNo.1 on dt. 13.11.2021 with an estimated damage of Rs. 31,85,217/- for the short circuit damage by fire on dt. 13.11.2021 & the C.C.Case was field on dt. 30.07.2022 is well within the prescribed period of limitation of C.P.Act, 2019. Insurance claim for the damage of the vehicle of the Complainant amounts to a tune of Rs.31,85,217/- which is below Rs. 50 Lacs within the  pecuniary jurisdiction of this Commission. On question of whether the Complainant is a consumer or not is well defined under Sec-2(7) of C.P.Act,2019. The same objection filed by OpNo.1 to dispose the C.C.Case on preliminary point. This Commission found no sufficient material against the Complainant to decide she is not a consumer under the C.P.Act, 2019. This Commission disposed the I.A. filed by the Complainant not to take coercive action against the OpNo.2. The OpNo.2 did not appear but OpNo.1 filed a petition for dismissal of the C.C.Case that the Complainant is not a consumer under the Preliminary point. During the proceeding the Op No.1 could not produce relevant evidence such as other vehicle was running by the Complainant except the present one to show that the present vehicle has not been used for livelihood but for the  commercial purpose. Further the Op No.1 failed to produce the materials to decide the Complainant is not a consumer. If this Commission while undergoing the definition of Sec-2(7)(i) wherein it was specifically described the person who buys  any goods for its own use or the user with prior approval of original buyer is said to be a consumer. Explanation appended to the same sections prescribed commercial purpose, which does not include used by person of goods brought and used by him exclusively for the purpose of earning his livelihood by means of self employment. On this issue the Complainant filed consolidated amended complaint petition regarding the word consumer which was added subsequently and the copy supplied to OpNo.1 for objection, the Op No.1 objected the same but failed to substantiate with appropriate materials against the Complainant, for which the same issue decided in favour of the Complainant while deciding the amendment petition.  This Commission considered while allowing the same the nature & character will not change and no prejudice will cause to both the Ops. Complainant being an unemployed lady for arranging her livelihood purchased the vehicle in question financed by Op No.2 and engaged someone as “caretaker” can’t be called as a vehicle used for commercial purpose. So in our considered view the Complainant is a consumer within the ambit of C.P.Act,2019.

Issue No. 2:-

                  The Complainant’s vehicle No. OD-29-E-9729 duly insured under OpNo.1 valid from 13/07/2021 to 12/07/2022 and the damage due to short circuit occurred on 13/11/2021  when the policy was in force on the date of fire.

Issue No. 3:-

                  The Complainant insured her vehicle under OpNo.1 to indemnify for future uncertain event & accepted consideration amount Rs. 48682/- as premium to safeguard the Complainant from damage. “Service” as described under sec-2 sub(42) service of any description available to users includes Insurance. Non-payment of Insurance claim & so also repudiation of claim during subsistence of valid policy and also having sufficient material i.e, report of fire officer, Police & so also report of insurer, surveyor is deficiency in service, coming under Sec-2(11) of C.P.Act, 2019. The OpNo.1 failed to perform prescribed duties and omission of such duties coming under deficiency in service.

Issue No. 4:-

                  The Complainant being the owner insured his vehicle under the Op No.1(insurer) for indemnify the owner in case of future damages cause to the vehicle, the vehicle caught fire from the short circuit. The same cause of damage not connected to the skill of driver out of running the vehicle, further the driver not committed any fault while driving on the road. Therefore the insurer should not repudiate the claim fixing liability on driver where his action/duties not connected with the damage of the vehicle. As per the surveyor’s report undoubtedly demonstrated that the vehicle got extensively damaged in the incident of fire and the owner informed concerned area fire authority extinguished the  fire by appropriate payment, report lodged before the area police station. The driver belongs to state of Bihar namely Bigan Kumar and his address DORA Chhapra, Po- Jamalpur Muzaffarpur & DL No. BR0620190213460. DL Govt. of Bihar valid till 05.02.2026 as transport & validity till 02.08.2039 non-transport the complainant being a woman having no knowledge about the driving license could not verify the same being satisfied with the skill and experience of the driver. It is not possible on part of a woman to scrutinize the authenticity or validation of a license of Bihar Govt. therefore such precution could have been taken then the Op has no case to repudiate. The owner exercised its knowledge a person of ordinary prudent man & seen the license of driver and also satisfied with the skill of the driver for driving the vehicle but due to absence of special skill/knowledge about the license she could not able to know about it was genuine or otherwise.

                  We have gone through a recent Judgement of Honbl’e Supreme Court in Nirmala Kothari vs United Insurance Co. Ltd. in Civil Appeal 1999/2000 of 2020 where it was held that “If the driver produces a license which on the face of its looks genuine, the employer is not expected to further investigate into the authenticity of the license unless there is cause to believe otherwise”.

                    The Supreme Court has held that, the Insurance Company cannot repudiate the claim of vehicle owner merely because the driver was possessing a fake license. The onus always on Insurance Company to prove that the insured did not take adequate care and caution to verify the genuineness of the license or was guilty of willful breach of the condition of the Insurance Policy.

                   In National Insurance Co.Ltd. vs Swaran Singh & others 3(SCCPP341) Para 110,(iii) where it was held that mere absence fake or invalid driving license or disqualification of driver at relevant time, are not in themselves defence available to the insurer against either the insured or the third parties to avoid its liability towards the insured & 3^rd parties.

                The owner being a woman did not believed otherwise. It would be unfair to place high onus on the insured to make enquires with RTOs all over the Country to ascertain the veracity of the driving license.

Issue No. 5:-

                  The sum assured of vehicle is Rs. 26,00,000/- the loss assessor estimate Rs. 18,98,500/- but the Complainant claimed damage for repairing as Rs.31,85,217/- additional mental agony for Rs. 2,00,000/- and litigation cost Rs. 2,000/-.

Issue No. 6:-

                  We have seen the surveyor’s report filed by Op no.1 on dt. 11.02.22 wherein it was estimate to a tune of Rs. 18,98,500/-, but the Complainant vehicle burnt completely & her estimated damage was Rs. 31,85,217/- as produced as per valuation of a service station namely Trupti Automotives before whom the said vehicle kept for repairing. The sum assured of the vehicle was Rs. 26,00,000/-. It is desirable to grant relief as per sum assured because of the vehicle completely damaged due to fire by short circuit and it just & proper the insurer indemnify as per the contract of policy insurance.

                                                                                        O R D E R

                     After thoughtful scrutiny of relevant materials exhibited on record, this Commission considered view that the OpNo.1(insurer) shall pay the Complainant sum assured Rs. 26,00,000/- with @12% interest from date of claim till its realization. There shall be Rs. 1,00,000/- for mental agony suffered for non-settlement of claim & Rs. 5000/- as litigation cost. Further the Op No.1 shall pay the above amount within one month from receive of this order, failure of which the OpNo.1 shall liable for execution under Sec-72 of C.P.Act. 2019.

                      Issue extract of the order to the parties for compliance.           

       Pronounced in the open Commission, on this the 21^st day of December,2022.          

                              I, agree,

                               Sd/-                                        Sd/-

                           MEMBER                             PRESIDENT