DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 23th day of February, 2018
C.D Case No. 86 of 2015
Pradeep kumar Barik
S/o Budhiram Barik
Vill: Itua
Po: Nuagaon Ichhapur
Ps: Chandabali
Dist: Bhadrak
……………………. Complainant
(Versus)
1. Branch Manager
The New India Assurance Co. Ltd.
Bhadrak Branch, kacheri Road
At/Po/Ps/Dist: Bhadrak
2. Sr. Divisional Manager,
The New India Assurance Co. Ltd.
Calcutta Divisional Unit- 511700
4- Mangalore lane, 2nd Floor,
Calcutta- 700001 (W.B)
3. Tapan Kumar sahoo
S/o Kalandi Charan Sahoo
Vill: Nauguruda
Po: Motto
Ps: Chandabali
Dist: Bhadrak
…………………………..Opp. Parties
For the Complainant: Sri G. Nath & Others
For the OP No. 1 & 2: Sri A. Chand
For the OP No. 3: Sri J. Bhoi & Others
Date of hearing: 07.09.2017
Date of order: 23.02.2018
SRI RAGHUNATH KAR, PRESIDENT
The complainant has filed this complaint against the O.Ps in respect of the deficiency of service caused by them against him. The complainant is the owner of a four wheeler pick up van (Dost) Ashok Leyland make bearing Regd. No. OD05D-5357 Chassis No. MB1AA22E5DRV50679 and Engine No. WDH-0268759 which was insured is with O.Ps company i.e. The New India Assurance Co. Ltd. which is wholly owned by the Govt. of India bearing Policy No. 55080131140100001927 covering the period w.e.f 01.08.2014 12 AM to 31.07.2015 11: 59 PM and for that policy the complainant had paid installment premium Rs 19,778/- to the OP company and accordingly the OP has issued certificate of insurance on commercial package vehicle policy in favour of complainant. The copy of said certificate is filed as Annexure- 1. The complainants vehicle is a commercial one and he had employed the OP no. 3 as driver to drive the said pickup van, while the OP no. 3 was coming from Kendrapara side towards Chandabali on 25.11.2014 at about 9 PM near Chandabali Bridge (Gammon Bridge) one the wheeler vehicle suddenly came in front side vehicle of complainant and flied away at a very high speed damaging the front glass, right side light & cover right side door, right side body and front of vehicle, door lock, head light front bumper, mirror, windshield glass front panel, radiator groove height, front suspension and other different parts of the vehicle of the complainant were also damaged by said accident. The complainants vehicle could not ply due to aforesaid damage. That on the same said date the driver of the vehicles of the complainant. OP No. 3 lodged F.I.R in Chandabali P.S I.I.C Chandabali P.S treated it as station diary and made the entry Vide S.D entry is flied here with as Annexure- 2.
At the time of driving the OP no. 3 had possessed an effective driving license issued by the competent authority in favour of him bearing D.L No. OR-22L996001758 and the D.L is remaining valid up to 04.12.2016 for transport vehicle and to 24.05.2023 for non transport. The copy of said D.L is filed as Annexure- 3. As such the OP have valid license at the time of accident. The complainant intimated to the OP about the damage of his vehicle due to an accident caused by a ten wheeler vehicle on 25.11.2014 and made claim for the aforesaid damage. The OP no. 1 told the complainant that the claim of complainant on his policy No. 550801 in respect of vehicle No. OD-05D5357 pick up van of the complainant will be processed after consulting the OP No. 2. Thereafter on 01.02.2015 the OP instructed the complainant to repair the vehicle in question. Since at Bhadrak the relevant parts of the vehicle were not available in garages, the OP No. 1 further instructed to get it repaired at Balasore and submit the estimate and accordingly the complainant obtained estimate list from Sanjibani Motors Pvt. Ltd. near N.H- 5 Modern Engineering Collage, Banaparta Kurusa Balasore on dt. 10.02.2015 for Rs 72,771/- including service tax and submitted it to the OP on 11.02.2015. The copy of said estimate is filed as Annexure- 4. Thereafter the OP no. 1 deputed authorized photographer to the Sanjibani Motors garage where the damaged vehicle of the complainant was kept for reparation and said photographer took the snaps of the damaged vehicle and thereafter instructed to the complainant to repair the vehicle and submit the expenditure bill. The OP No. 1 told the complainant to bear the expenditure of reparation of the vehicle and submit final bill and there after the bill amount will be sanctioned/credited to the Bank A/c of complainant bearing No. 1362010127332 of United Bank of India, Nalgunda Branch. The copy of pass book of complainant bearing said A/c No. is filed as Annexure- 5. Accordingly the complainant with help of OP no. 4 got the vehicle repaired by Sanjibani Motors Pvt. Ltd. at Kuruda, Balasore ans submitted bill amount Rs 61,751/- issued by Sanjibani Motors Pvt. Ltd. authorized dealer Ashok Leyland light vehicle Charampa, Bhadrak on dt. 23.02.2015. The copy of the said bill which is the final estimate of expenditure incurred for repairing the vehicle of the complainant is filed as Annexure- 6.
Hence the complainant has sought for the reliefs as follows:-
1. The OP No. 1 & 2 be directed to pay the claim amount Rs 61,751/- incurred for repairing for vehicle damaged in accident.
2. The aforesaid O.Ps be directed to pay Rs 10,000/- towards compensatory interest.
3. The said O.Ps be directed to pay Rs 10,000/- towards office visit & other expenditure.
4. The said O.Ps be directed to pay Rs 10,000/- towards mental agony and Rs 5,000/- towards cost of the litigation.
The complainant has filed some documents (Xerox copies) as follows:-
1. Policy schedule cum certificate of insurance- Anx- 1- 1 sheet.
2. Experience certificate issued in favour of Tapan Kumar Sahoo on 26.11.2014- Anx- 2- 1 sheet.
3. Indian Union Driving License, Odisha State on 14.12.2016 Vide Vadge No. 8- Anx- 3- 1 sheet.
4. Estimate of Sanjibani Motors in favour of Pradeep Kumar Barik on dt. 10.02.2015- Anx- 4- 1 sheet.
5. Denting cabin and door panel- Anx- 5- 1 sheet.
6. Final Estimate of Sanjibani Motors Pvt. Ltd.- Anx- 6- 1 sheet.
7. Details of the customer-1 sheet.
8. New India Assurance dt. 30.03.2015- Anx- 7- 1 sheet.
On the other hand the OP No. 1 & 2 have filed their written version as follows.
That the complaint is not maintainable due to lack of cause of action. The complaint has no cause of action and barred for non-joinder of necessary parties like Bajaj Alliance & General Insurance Company. The complainant suppressed the material facts and liable to be dismissed for limitation. The O.Ps have also challenged the complainant that he is not a consumer and deficiency of service. The O.Ps also denied the allegations made by the complainant. The complainant while signing the proposal form did not disclose in column No 6 that the vehicle met with an accident in the previous proceeding the year and on the other hand took NO CLAIM BONUS of 20% while insuring the vehicle with this opposite party. The complainant has violated NCB Rule GR- 27 of Indian Motor Tariff and condition No. 8 of commercial vehicle pertaining to Motor Policy and as such the claim is devoid of merit for consideration. The said clause of NCB Rule GR- 27 of Indian Motor Tariff specifically deals in exact verbatim as follows. This OP has performed his duty and obligation enshrined in the IMT by informing the previous owner. The opposite party categorically alleges that after lodging of claim by this complainant with this OP it came to the knowledge from IIB portal that the complainant has received a claim of Rs 13,500/- from the previous insurer for the damage incurred during the preceding year. It is further allegation that had the complainant truthfully declared the above fact of previous claim from Bajaj Allianz General Insurance Co. Ltd. he would have not been entitled for 20% NCB. In the above backdrop the claim of the complainant has been rightly repudiated on 30.03.2015 to save the Government exchequer from frivolous and unjust claim.
In view of the above written version the case of the complainant is liable to be dismissed. The O.Ps have filed the following documents (Xerox copies).
1. Letter to Arun Kumar Chand on 13.08.2015 issued by New India Assurance Company Ltd. Anx- A- 1 sheet.
2. Package policy – Anx- B- 2 sheets.
3. Registration certificate- 1 sheet.
4. Registration certificate particulars- Anx- C-1 sheet.
5. Certificate cum policy schedule- Anx- D- 1 sheet.
6. Letter to Balasore DO- Anx- E- 1 sheet.
7. Policy schedule cum certificate of insurance- Anx- F- 1 sheet.
8. Letter to Pradeep Kumar Barik on 26.11.2014- Anx- G- 1 sheet.
9. Claim history report- Anx- H- 1 sheet.
10. NCB conformation letter on 31.07.2014- Anx- I- 1 sheet.
11. Indian Motor Tariff- 3 sheets.
The OP No. 3 has filed his written version as follows. The OP No. 3 has admitted in his written version that he is the driver of the four wheeler pickup van, Ashoke Leland made bearing Regd. No. OD05D5357, chaises No. MBIAA22E5DRV5069 and engine No. 0268759. He has been working since 31.07.2013 till dt. 05.01.2016. The alleged vehicle was accidented on 25.11.2014 while he was the driver. He has already admitted and corroborated the complaint story. He has also sought for the reliefs as per the complaint. He has further admitted that the claim of the complainant is right, legitimate, legal and authenticated. The complainant should be awarded according to his claim. He has prayed for the allowing of the complaint. He has filed the Xerox copy of a document which is certificate cum policy schedule.
OBSERVATIONS
We have already perused the complaint as well as the documents of the complainant, we have also perused the written version’s and documents filed by all the O.Ps. It is admitted fact that the averment made in the Para No. 1, 2 & 3 of the complainant. The complainant is the owner of a four wheeler pickup van (Dost) Ashoke Leland make bearing Regd. No. ODO5D-5357 Chassis No. 22E5DRB50679 and Engine No. WDH-0268759 which was insured with O.Ps Company. Both the parties have admitted with regard to the insurance with the Company of OP No. 1 & 2. Both the parties have also admitted the occurrence or the accident which caused the savior damaged the vehicle. The insurance was valid as well as the DL of OP No. 3 are varied during the date of accident. When on 25.11.2014 the complainant made claimed for the aforesaid damaged the OP No. 1 replied to the complainant his claim would be settled after consultation with the OP No. 2. On 01.02.2015 the OP No. 2 instructed to the complainant to vehicle in question. Accordingly the complainant obtained the estimate list from Sanjibani Motors Pvt. Ltd. near NH- 5, Engineering Collage, Kurusa, Balasore on 10.02.2015 for Rs 72,771/- but subsequently the complainant repaired the vehicle in Sanjibani Motors at Kuruda at submitted bill Rs 61,751/- but the OP No. 2 made abnormal delay to disbursement of the bill amount in favour of the complainant and finally he refused to pay the entire amount to be complainant on 30.03.2015. The said letter has been annexed as Annexure- 7. Further in the said letter the OP No. 1 stated that the complainant is not entitled to the claim amount. As previously he had availed the claim amount in an another accident. The written version filed by the OP No. 1 & 2 vehemently opposed citing some provisions of law denying the claim amount of the complainant. The OP No. 3 who is the driver of the said vehicle has corroborated the facts of the complainant and supported the complainant.
On 05.09.2017 the complainant & OP No. 1 & 2 had filed a petition having settled the claim amicably that the said O.Ps would pay Rs 40,000/- to the complainant as full and final payment by OP Insurance Company Ltd. But at the time of hearing of the petition neither party appear before this Forum and pressed the same. As such when the exact copy of the order was send to the petitioner by Regd. post for appearance in person on 06.12.2017, the complainant appeared in person and denied to settle the dispute as per the petition filed on 05.09.2017.
In this contest the complainant was supposed to play hide and seek with this Forum. Hence we have held that the complainant is entitled to relief according to the compromise petition filed by both the parties. The said petition was although rejected but it was agreed by both the parties. Filing a petition considering the facts before the learned Forum and denying the same after being absent 5 subsequent dates in the Forum and latter on 06.12.2017 by the complainant is a fallacy committed by him. So the complainant is entitled the relief what he has conceded the O.Ps also were agreed to pay Rs 40,000/- to the complainant described in the compromise petition. Hence the complainant is entitled to the amount Rs 40,000/- as full and final payment. Hence it is ordered;
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The complaint be and the same is allowed on part against the O.Ps on contest. The OP No. 1 & 2 are here by directed to pay Rs 40,000/- to the complainant as his full and final payment of insured amount. The OP No. 1 & 2 are also directed to pay the said amount within 30 days on receipt of this order failing which the OP No. 1 & 2 will be liable to pay 9% interest along with the final payment.
This order is pronounced in the open Forum on this day of 23th February, 2018 under my hand and seal of the Forum.
