West Bengal

Paschim Midnapore

CC/195/2017

Shri Indranil Ganguly - Complainant(s)

Versus

Future Generali India Insurance Co.Ltd. - Opp.Party(s)

18 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.                             

   Bibekananda Pramanik, President,

and

Sagarika Sarkar, Member.  

                               Complaint Case No.195/2017                                       

                                                      Shri  Indranil Ganguly,son of Late Bimal Kumar Ganguly,

                                                           resident of Mirzabazar, near Patnabazar Police Phari,

                                                                      P.O.Midnapore, Dist.Paschim Medinipur.

                                                                                                ……………….Complainant.

                                                                                               -Versus-

                                                   1) Mr.Soumya Bandyopadhyay,  Senior Executive Agency

                                                     Future Generali India Insurance Company Limited

                                                     2^nd Floor,MS Tower -1,KGP,  O.T. Road, Inda,                                                                        

                                                          Dist-Paschim Medinipur;

                                              2) The Branch Manager, Future Generali India Insurance Co. Ltd.,

                                           Chitrakoot Building (3^rd Floor),  230A, Acharchya Jagadish Chandra Bose Road

                                                     Kolkata-700020.

                                             3) Future Generali IndiaInsurance Company Limited, 6^th Floor.Tower-3,Indiabulls           

                                                Finance Centre,    Senapati  Bapat Marg,Elphinstone Road

                                                     Mumbai-400013,Maharashtra.

                                                                                                ……………..Opposite Parties.

              For the Complainant: Mr. Ranjit Kumar Chakraborty, Advocate.

              For the O.P.               : Mr. Pinaki Sengupta, Advocate.

                                                         

                                                                                         Date of filing:07/12/2017

Decided on: -18/05/2018

Contd……………….P/2

 

 

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ORDER

       Bibekananda Pramanik, President –This consumer complaint u/s-12 of the C.P. Act has been filed by the complainant Shri Indranil Ganguly against the above named O.Ps, alleging deficiency in service on their part.

                   Complainant’s case in brief is as follows :-

                    The complainant owns  an e-Rickshaw and before registration of the same, he insured his e-Rickshaw with the O.P.-Future General  India Ins. Co. Ltd. on 4.5.2016 vide Policy No.2016-V4427767-FCV and consumer I.D.No.23829225. Thereafter on 20.5.2016, the said e-Rickshaw of the complainant met with an accident and it was badly damaged. The said matter of accident and damage was duly informed to the O.P.-Insurance Co. at their branch office at Kharagpur. An inspection was held by the O.P. through it’s Inspector who suggested the complainant to make it repair and thereafter to place his claim to the O.P. The complainant then repaired his e-Rickshaw by incurring a sum of Rs.27,133/- and submitted his claim of Rs.27,133/- to the O.P. on 3.8.2016. The O.P .turned down the claim of the complainant on the ground that the driver of the e-Rickshaw did not have proper commercial driving license at the material time of accident. Thereafter, in spite of serving legal notice, the O.Ps. did not settle his claim. Hence the complaint, praying for directing the O.Ps.to make payment of Rs.27,133/- being the actual cost of repairing and for compensation  and litigation cost.

                O.Ps. have contested this case by filing a w/o. Denying and disputing the case of the complainant, it is the specific case of the O.Ps. that after getting  information regarding accident and damage of the e-Rickshaw of the complainant, they engaged an IRDA empanelled surveyor named Suman Kumar Bose and after inspecting the e-Rickshaw and on perusal of all documents, said surveyor assessed the loss at Rs.19,400/- only which cannot be payable due to violation of policy terms & conditions as the alleged driver of the said vehicle had no effective D.L. but he was only authorized to ply light motor vehicle at the relevant time of accident. It is stated that the said e-Rickshaw is used for commercial purpose  and the complainant took insurance policy as commercial motor insurance policy. One Arka Patra was the driver of the said e-Rickshaw and on perusal of his D.L. it was found that he was  authorized to drive light motor vehicle only. In view of that and since the e-Rickshaw was used for commercial purpose, so according to the O.Ps. they rightly repudiated the claim of insurance. O.Ps. therefore claim dismissal of the case with cost.

Contd……………….P/3

 

 

( 3 )

              To prove his case, the complainant has examined himself as P.W.1 by tendering a written examination- in- chief and during his evidence, few documents were marked as exhibit-1 to 5 respectively. On the other hand, O.Ps. have adduced no evidence.

                                                                 Points for decision

1. Is the case maintainable in it’s present form and prayer?
2. Is there any deficiency in service on the part of the opposite parties?
3. Is the complainant entitled to get the reliefs, as sought for ?    

                                                     Decision with reasons

    Point no.1:-

             Maintainability of this case has been questioned by the Ld. Lawyer of the O.P. at the time of hearing of argument on the ground that since the complainant purchased the e-rickshaw and used the same for commercial purpose, so in view of the provision of section 2(1)(d) of C.P. Act, he is not a consumer and as such the present complaint is not maintainable.  Ld. Lawyer for the O.P. submitted that in his cross-examination, PW-1 Indranil Ganguly, the complainant, has admitted that he is a businessman by occupation and at the relevant time of accident one Arka Pradhan had been running the e-rickshaw which had been used for carrying passengers and he pays salary to his said engaged driver.  As against this, Ld. Lawyer for the complainant submitted that although the vehicle in question was a commercial vehicle but the insurance coverage has no link with commerciality of use of the vehicle.  In support of such contention, Ld. Lawyer for the complainant has referred the decision of Hon’ble N.C.D.R.C. reported in  (2013) (IWBLR) (CPNC) 322.  We have gone through the said decision of Hon’ble N.C.D.R.C. and found that it has been held by the Hon’ble N.C.D.R.C. that a contract of insurance is a contract of indemnity and therefore there is no question of commercial purpose in obtaining coverage and claim of insurance cannot be repudiated on that ground.  So in view of the said decision of the Hon’ble N.C.D.R.C, it is held that the present complainant is a consumer under the provision of C.P. Act.

This point is accordingly decided in favour of the complainant.

Point nos.2 & 3:-

 Both the above points are taken up together for consideration.

 Admittedly the complainant insured his e-rickshaw in question with the O.P.-Insurance Co. and the occurrence of the accident and damage of the vehicle took place during the period of policy in question.  From the written version filed by the O.P.-Insurance Co. as well as

Contd……………….P/4

 

 

( 4 )

from the letter of repudiation (exbt.4) it appears that the O.P. repudiated the claim of insurance on the ground that from the driving license of the driver of the e-rickshaw, it was found that Arka Pradhan was authorized to drive light motor vehicle (non-transport) where as insured vehicle was e-rickshaw and was registered under commercial passenger carrying category.  On this score we find that light motor vehicle (LMV) has been defined in section 2(21) of the Motor vehicle Act to mean a transport vehicle of omnibus 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 kg.  So the said definition authorizes a driver to drive any of those vehicles the unladen weight of which does not exceed 7500 KGs.  The weight of an e-rickshaw is obviously does not exceed 7500 kg. and the O.P. also does not say that the weight of that vehicle was above 7500 kg. Admittedly the driver of the e-Rikshaw was authorized to drive a light motor vehicle having such a driving license. It was submitted by the Ld. Lawyer of the O.P. that there is no endorsement on the driving license of Arka Pradhan for driving a transport vehicle. In a ruling reported in  (2015) 3WBLR(SC)842, Hon’ble Supreme Court has been pleased to hold that there was no breach of any condition of any insurance policy as the driver failed to obtain endorsement for driving transport vehicle having possessing a valid driving license for driving light motor vehicle. From the said ruling, we find that in S. Lyyapan (Supra), Hon’ble Supreme Court held that merely because the driver did not get  any endorsement in the driving license to drive commercial vehicle, the insurer is not liable to pay compensation.  Here in the present case before us we find that the driver concerned had a valid license to drive Light Motor Vehicle  unladen weight of which shall not exceed 7500 kg. So, in view of the said decision of Hon’ble Court and the discussion made above, we are of the view that the driver concerned in this case was duly authorized to drive the e-Rikshaw in question and the O.P.-Company was not justified in repudiating the claim of insurance in question. Complainant is therefore entitled to get compensation for damage of his vehicle under the policy.

                About the extent of damage, complainant has stated that he has incurred a sum of Rs.27,133/- for repairing of his damaged vehicle and he has submitted an invoice bill (exhibit-3) in support of his such claim. No person of that service point, who issued the bill, has been examined in this case. On the other hand, we find from the written version of the O.P. that their empanelled surveyor Sumon Kumar Bose assessed the loss of the damage of the vehicle at Rs.19,400/-.  So in view of such assessment by an IRDA empanelled surveyor, engaged by the O.P, the complainant is entitled to get the said amount of Rs.19,400/- as repairing cost under the

Contd……………….P/5

 

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 policy in question from the O.P.-Insurance co.  That apart, the complainant is also entitled to get compensation for mental pain and agony and for an award of litigation cost.                                         

                             These two points are accordingly decided in favour of the complainant.           

     All the points are accordingly disposed of.

     In the result, the complaint case succeeds in part.

                                             Hence, it is,

                                           Ordered,

                                          that the complaint case no.195/2017  is allowed in part on contest with cost against the O.P.-Insurance Co. Ltd.  O.Ps are directed to pay jointly or severally a sum of Rs.19,400/- with interest @ 8% p.a. from the date of filing the complaint till payment and to pay a sum of Rs.3,000/- as compensation and Rs.2,000/- as litigation cost to the complainant within a month from this date of order i.d. 9% p.a. shall carry over the awarded amount as penalty in favour of Legal Aid Fund.

                               Let plain copy of this order be given to the parties free of cost.

  Dictated and Corrected by me

              Sd/-B. Pramanik.                    Sd/- S. Sarkar                   Sd/-B. Pramanik. 

                 President                                   Member                             President

                                                                                                        District Forum

                                                                                                     Paschim Medinipur