IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum,
Sonitpur, Tezpur
Smti S.Bora
Member
District Consumer Disputes
Redressal Forum,Sonitpur
Sri P.Das
Member
District Consumer Disputes
Redressal Forum, Sonitpur
CONSUMER COMPLAINT NO.10/2018
1.Sri Ganesh Prasad : Complainants
S/o Late Kedar Prasad
Vill: Sundarpur, Biswanath Chariali
Dist:Sonitpur (Assam)-784176
Vs.
1.Cholamandalam MS General Ins. Co. Ltd. : Opp. party
Dare House,2nd Floor,No.2 N.S.C Road
Chennai-600001
2. The Branch Head
Cholamandalam MS
GIC Ltd.,Opp. S.B Deorah College
Bora Service, Ulubari, Guwahati-781007
3. The Branch Manager Intermediary
Cholamandalam MS GIC Ltd. at IndusInd Bank,
Main Road,Tezpur.
1.The Manager, : Proforma Opp. party
Gulf Ashley Motor Ltd., Barjhargaon,Tezpur HPO
Dist:Sonitpur, Assam-784001
Appearance:
Mr. A. Goswami with Mr. A. Kar, Advocates : For the Complainant
Mr. Sudesh Kr Singh, Advocate : For the Opp. partyNo.1 & 2
Mr. Biswajit Paul, Adv. & Smt. Dipali Gogoi, Adv. : For Opp.party No.3
Date of argument : 25-01-19, 28-01-19, 04-03-19
27-03-19, 01-04-19
Date of Judgment : 17-04-2019
JUDGMENT
- The facts leading to the complaint, in brief, are that complainant procured the vehicle in question, which is a tipper of Ashok Leyland make from proforma opp. party No.1, through financial assistance of opposite party No.3. The registration number of the vehicle is NL 02 N 6418. The financier Bank, having tie-up with the Insurance Company, i.e.,opposite party No.1 and 2, itself generates the insurance policy from its system instantly on behalf of the principal insurer and has accordingly been generating Insurance Policies of the vehicle. During the subsistence of the third year renewed policy which was in force w.e.f 26-04-2016 to 25-04-2017, the vehicle met with an accident on 01-05-2016 at a place Pabhoi Road under the Biswanath Chariali P.S. Accordingly, Police drew G.D entry No.64 dtd 03-05-16 followed by inspection of the vehicle by MVI, Sonitpur, Tezpur, and submission of report dated 03-05-2016 by the MVI. Complainant reported the incident to the financier and the insurer over phone and accordingly as instructed, complainant garaged his damaged vehicle at the premises of Proforma Opp.party No.1 as the dealer & workshop situated at Barjhargaon, Tezpur. The servicing centre of proforma opp. party No.1 submitted its estimate for repair. But the insurer, by its letter dated 08-09-2016 intimated the complainant about repudiation of the claim on ground of belated information of occurrence and thereby breach of policy conditions. Vehemently denying such ground of repudiation resorted to by the opp. party , Insurance Company, the complainant is therefore, before the Forum alleging gross deficiency in service on the part of the opp. party Insurance company praying a total relief of Rs.18,22,631/- which includes IDV of the vehicle at Rs.12,33,765/- as on the date of damage, Rs.4,75,000/- as loss of business for the period 01-07-2016 to 01-03-2018 for 19 months @ Rs.25,000/- P.M and Rs.98,866/- for compelling renewal of Insurance Policy for two years 2016-17 and 2017-18 @ Rs.46184 & Rs.52,682/- respectively by the opp. party despite knowing fully well that the damaged vehicle has been lying with proforma opp. party since after the incident and gradually heading towards dilapidation to be an item of scrap value.
- Opposite party Insurance Company contested the case by filing written version. Asserting that the ground of repudiation has rightly been adopted, the opposite party has denied any deficiency on its part and has prayed for dismissal of the complaint with cost.
- Complainant has tendered his sole evidence-in-chief on affidavit exhibiting several documents thereunder. Opposite party Insurance Company has examined its Management Trainee (Legal) of its Regional Office at Guwahati, on affidavit.The witness has proved two documents viz. Ext-A & B. Although the Opposite party No.3 has failed to file written version but has examined its State Legal Coordinator on affidavit who proved two documents marked Ext-A & C. Witnesses on either sides were cross-examined.
We have carefully gone through the entire materials available on record inclusive of the written argument filed by the parties.
Points for Determination
i)Whether there was deficiency in service on the part of the opposite party insurance company as alleged?
ii)Whether the Complainant is entitled to get relief / reliefs as prayed for ?
DECISION ON THE POINTS WITH DISCUSSIONS
- At the outset of our discussion, we want to record that the learned advocate for the opposite party Insurance Company has incorporated some extraneous matters in the written argument for consideration which however, did not find their place on record. The opposite party neither in the written version nor in the evidence of D.W.1 Sri Nilim Kalita stated about Annexure-1, Annexure-2 and Annexure-3, as stated in the written argument.
- On the otherhand,the evidence of D.W.2, Sri Sounak Mukherjee for the opposite party No.3, cannot be taken into consideration inasmuch as –(i) the opposite party No.3 failed to submit any written version and (ii) during cross-examination of the Complainant opposite party No.3 failed to bring any material or put any suggestion to justify its right to adduce any evidence.
Now, let us proceed to discuss the Points on merit.
- The opposite party Insurance Company repudiated the claim only on the ground that intimation of the accident that occurred on 01-05-2016 was given belatedly on 21-06-2016. According to the Insurance Company the Complainant violated the condition No.1 and 9 of the Policy.
- Learned advocate for the opposite party has submitted that the vehicle was insured and the Policy was issued with condition that in the event of any accident, intimation must be given to the Company and the Police as well in writing immediately.
- Learned advocate has drawn our attention to the judgment of the Hon’ble Apex Court passed in New India Assurance Co. Ltd. Vs Trilochan Jane (reported in IV(2012)CPJ 441. In the said judgment, the Hon’ble Supreme Court elaborately discussed the meaning of word “immediately”.
- Forwarding his argument, learned advocate relying on several decisions rendered by the Apex Court, submitted that issuance of Policy is a matter of contract between the parties and each party is bound by the terms and conditions of the contract. There must be strict compliance with the terms and conditions of the contract and no exception or relaxation can be given on any ground. It is not open for the Court to add, delete or substitute any words. Here in the instant case, the Complainant has breached the fundamental condition of the Policy by not giving intimation of accident immediately and is therefore, not entitled to get any amount from the Insurer under the Policy, learned advocate asserted.
- According to the learned counsel, Complainant has failed to prove his claim that due intimation was given to the lender Bank without delay. He
preferred to quote the evidence in cross-examination of the Complainant which reads as follows :-
“I now do not remember the date of accident. Initially my son informed the Bank and then to the Insurance Company about the accident. It was informed on the date of occurrence itself. Asish Gupta is the name of my son who has not adduced evidence in the instant case. My son had informed the Bank and Insurance Company about the accident over phone in my presence”
- Learned counsel for the opposite party, justifying the claim of the opposite party that no intimation was given on the date of occurrence has given emphasis on the fact that the date of occurrence being celebrated as ‘May Day’, all offices and the Banks remained closed throughout India.The Complainant, without assigning any reason, failed to examine his son as witness. He continued to argue that even if for argument sake it is believed that the son of the Complainant had called and informed about the incident, then also the Complainant is unable to give or provide the token number which is generated after a complaint is lodged.
- Ld. advocate has placed reliance on several judgment passed by the Hon’ble Apex Court including one that in Civil Appeal Nos.1217 (M/s Sonell Clocks and Gifts Ltd. Vs The New India Assurance Company Ltd.)decided on August,21,2018 and submitted that the Hon’ble Apex Court dismissed the appeal preferred by the Complainant on the ground of delayed intimation of the loss.
- The Hon’ble Apex Court vide para 27 of the judgment, rejected the claim of the appellant that genuine claim of the appellant ought not to be rejected on technical ground, keeping in mind that the Consumer Protection Act is a beneficial legislation warranting liberal construction, observed as under–
“That contention cannot be taken forward at the instance of the appellant who has failed to fulfill the threshold stipulation contained in Clause 6 of the general conditions of the policy and for which reason must suffer the consequence. It is not a technical matter but sine qua non for a valid claim to be pursued by the insured, as agreed upon between the parties”.
- Countering the contention raised by the learned counsel for the opposite party, the learned counsel for the Complainant, placing reliance on the decision of the Hon’ble Apex Court in Civil Appeal No.2703 of 2010 (arising out of SLP(C) 11227/2009) Amalendu Sahoo vs. Oriental Insurance Co.Ltd. decided on March,25, 2010- submitted to consider the claim of the Complainant on non-standard basis.
We have gone through the judgments rendered by the Apex Court referred by the learned counsels for the contesting parties.
- The case of Amalendu Sahoo was decided by a bench of two judges, while the case of M/s Sonell Clocks and Gifts Ltd., was decided by a bench of three judges.
Thus we are bound to follow the judgment passed in M/s Sonel Clocks and Gifts Ltd.
- Here in the instant case the Complainant failed to prove by adducing evidence that notice in writing to the Company was given immediately after the occurrence, as required under condition No.1 of the Policy.
- Thus in the light of the decision of the Hon’ble Apex Court in M/s Sonell Clocks and Gifts Ltd., we are constrained to accept the claim of the opposite party. But to decide the Point of deficiency in service, we are to consider the claim of the Complainant that the terms and conditions of the Policy were not supplied by the opposite party Insurance Company along with the Policy Certificate.
- True, the opposite party, as it reveals from the orders dtd 18-03-2019, 25-03-2019 and 27-03-2019, fails to produce copy of the terms and conditions of the Policy till 27-03-2019. On 27-03-2019 the opposite party was directed to produce the terms and conditions of the Policy within six days as the same was found to be a most vital document to decide the matter in controversy between the parties. Ultimately, the opposite party could produce the document only on 01-04-2019. The case record and submission of the learned advocate appearing for the opposite party before this Forum on 18-03-2019, clearly demonstrate that the opposite party Insurance Company failed to supply the terms and conditions of the Policy to the Complainant along with the Policy Certificate.The opposite party is duty bound to supply all the vital documents to the Policy holder at the time of initiation of Policy. Failure of the opposite party to supply the vital document in our considered opinion, amounts to deficiency in service.
- The opposite party Insurance Company in the written argument at para 22 stated-
“That this Opposite party without admitting its liability states that surveyor has assessed net liability of this insurer to the tune of Rs.2,11,143/- It is further stated that with respect to payable liability of the insurer, amount as per survey report has to be considered as surveyor is qualified and expert in making assessment considering depreciation,salvage and excess as per terms and conditions. It is further stated that surveyor is a person who assess the liability and does not have right to admit the claim, the right of admissibility of claims always rest with this Insurer”.
- On the otherhand, Complainant has submitted estimate of repair of Rs.7,77,635/- ( Rs.6,17,085/- for parts + Rs.1,60,550/- for labour charges)only vide Ext-10. Ext-10 remains unchallenged in cross-examination.
- Taking into view all the materials before us, we hold that justice would meet both ends if we assess the compensation at Rs.5,00,000/- (Rupees Five Lakhs)only for deficiency in service.
Resultantly, both the Points are decided in favour of the Complainant.
- Having regard to the discussion made above, we are also of the opinion that the Complainant is entitled to get a lump sum amount of Rs.10,000/- (Rupees Ten thousand)only as cost of litigation.
O R D E R
Consequently, the complaint stands allowed. Opp.party Insurance Company is directed to pay compensation of Rs.5,00,000/- (Five Lakhs) only
to the Complainant along with litigation cost of Rs.10,000/-(Ten thousand) only. Opp. party Insurance Company is directed to comply with the judgment and award within 30(thirty) days of receipt of copy of the judgment and order. Failing which shall entail interest @9% per annum on the amount of compensation from the date of this judgment and order till full and final recovery.
Given under our hands and seal of this Forum this 17th day of April, 2019.
Dictated and corrected by:
(A.DEVEE) (A. DEVEE)
President President
Dist.Consumer D. R Forum District Consumer Disputes Redressal Forum
Sonitpur,Tezpur Sonitpur,Tezpur
We agree:- ( Smt S. Bora) (Sri P.Das)
Member Member ,
