Dilip Kumar Bhagat, S/O – Parmanand Bhagat, Resident of Village – Namkum, P.O – Namkum, P.S – Namkum, District – Khunti, Pin - 835210 has filed this case against the opposite parties. The complainant contended in his complaint petition that he is the owner of a tractor and trailer. The registration number of tractor and trailer is JH01AE-2305 and JH01AE-3104 respectively. This tractor and trailer’s insurance was done by Bajaj Allianz General Insurance Company. The insurance policy number is OG-213528-181100000021. The insurance was done on 12/01/2021. The insurance policy was valid up to 11/01/2022 till midnight.
On dated 11/02/2021 the empty tractor bearing registration number JH01AE-2305 met with an accident at Kunjla village under Murhu Police Station. Due to hitting the tree, the tractor was badly damaged.
On the day of accident the complainant himself was driving the tractor. Due to accident, the tractor was seized by Murhu Police. A case was instituted by Murhu Police against the complainant on 11/02/2021 which case number is 16/21. The police charged these section 279/414/34 of IPC, 7/9 Jharkhand Minerals protection of illegal mining transportation and storage rule 2017 4(1)/54 of Jharkhand mines Mineral concession rule 204. The Murhu Police station has written in his FIR that due to the rush and negligence driving, the accident took place on 11/02/2021. Murhu police said that the tractor was loaded with sand. Complainant has further stated that Murhu Police referred the case to Civil Court Khunti. The complainant has stated that he took anticipatory bail from Session Judge Khunti. The anticipatory bail petition number is 38/021 dated 18/02/2021. On the anticipatory bail application, a direction was given to the complainant to approach the District Mining Officer, the concerned victim of the case for taking compensation/fine/royalty for illegal carrying of sand. The court has said that the state government has properly been compensated; the complainant stated that the Court has granted anticipatory bail.
The complainant has further stated that he has given petition to SDJM Court Khunti to release the tractor. The case was GR 404/2021 at SDJM court Khunti. On complaint application the court demanded report from Murhu Police. The investigation officer stated in his report, that motor inspector has enquired about the damaged tractor and he has no objection on releasing the tractor. Further the complainant has stated that the insurance of the tractor is valid till 11 Jan 2022, and the fitness of tractor is valid till 27/01/2022, all the documents are in favour of complainant. In the judgment of GR 404/2021 the court ordered to release the tractor and directed to the complainant neither sell the vehicle nor change the structure and colour of the vehicle.
The complainant has stated that the said vehicle was insured with Bajaj Allianz General Insurance Company Ltd. duly covered under a valid package of insurance having policy no OG-21-3528-1811-00000021 valid from 12/01/2021 to 11/01/2022 midnight. Further the complainant stated that due to accident the tractor was badly damaged and estimated cost of repairing is rupees 169833/- (Rupees One Lakh Sixty Nine Thousand Eight Hundred Thirty Three only). The said vehicle is still lying in the damaged condition.
The complainant has further stated that after accident, he approached the insurance company. The company denied paying the repairing cost. Since 11/02/2021 the date of accident, the said vehicle is not being plied. The complainant is suffering of loss at the rate of Rs. 15000/- (Rupees Fifteen Thousand only) per month – Rs. 180000/- (Rupees One Lakh and Eighty Thousand only) annually.
The complainant has claimed these amounts:-
Cost of Repairing - Rs. 169833/- (Rupees One Lakh Sixty Nine Thousand Eight Hundred and Thirty Three only)
Cost of Earning - Rs. 180000/- (Rupees One Lakh and Eighty Thousand only)
Compensation of mental harassment - Rs. 100000/- (Rupees One Lakh only)
Total amount - Rs. 449833/- (Rupees Four Lakh Forty Nine Thousand Eight Hundred Thirty Three only)
The cause of action arises on 11/02/2021. Complainant filed the case on 18/04/2022. The case was admitted on 26/04/2022. Notice issued to the opposite party on 29/04/2022.
The opposite party no. 1 and 2 appeared before the commission on 12/08/2022 and filed their written statement. In their written statement, the opposite parties have stated that there is no deficiency in service of this opposite party Bajaj Allianz General Insurance Co. Ltd. U/S 2(6)(iii) & section 2(11) of the C.P. act 2019. Opposite parties have further stated that the complainant had taken a commercial vehicle package policy, bearing policy number OG-21-3528-1811-00000021 for vehicle bearing registration no JH01AE-2305, which was valid from 12 Jan 2021 00:01(Hrs) to 11 Jan 2022 midnight. The policy was insured of Rs. 213556/- (Rupees Two Lakh Thirteen Thousand Five Hundred Fifty Six only). As the complainant claimed the insurance money immediately, the claim was registered vide claim no OC-21-2406-1811-00000026. Company has sent reminder letters on 20/02/2021, 11/03/2021 and 19/03/2021 to the complainant to provide necessary document to process the claim. The terms and condition of the policy is that complainant duty is to inform about the accident immediately but he has delayed in giving the information about accident, herein was given only after three days (i.e) on 14/02/2021 from the date of accident. The complainant has not submitted police final form accepted by CJM and original copy of permit, repair estimate, towing bill, injury of driver as confirmed in claim form and vehicle and driver releasing order as demanded by the opposite party by letter dated 20/02/2021, 11/03/2021 and 19/03/2021. The claim of the complainant has been repudiated on 30/03/2021 due to non-submission of documents. The opposite party has further stated that during the material time the vehicle did not carry a valid permit which is necessary for commercial vehicles or transport vehicle. According to policy copy the insured vehicle is stated as transport vehicle and which fell within the definition of transport vehicle as prescribed under section 2(47) of the motor vehicles Act 1988. The opposite parties have further stated that the vehicle did not carry a valid permit at the material time of incident and was under direct violation of section 66 of Motor Vehicle Act 1988. The vehicle does not fall under the exceptions stated in section 66(3) of Motor Vehicle Act 1988. The opposite party further stated that in case of Puneet Kumar Vs National Insurance Co. Ltd. and others, the National Consumer Disputes Redressal Commission held that a goods carriage permit shall, subject to any condition that may be specified in the permit. Without a requisite permit a transport vehicle cannot be plied on the road even for the purpose of taking it to a workshop. Any such use of the vehicle without a permit will be in violation of section 66 of Motor Vehicle Act. It is therefore evident that by plying the truck at the time it met with an accident that complainant committed breach not only of the terms and conditions of the insurance policy but also contravened provision of section 66 of the Motor Vehicle Act which is punishable as an offence under the provision of said Act. The opposite party has stated that in a case Amrit Paul Singh and other Vs TATA AIG General Insurance Co Ltd. & others, the apex court held that permit is necessary for a transport vehicle; due to this reason Bajaj Allianz General Insurance Co Ltd. has rejected the claim. So the opposite party duly disposed the claim within the purview of terms and conditions.
The complainant has filed evidence on affidavit. In support of his claim complainant Dilip Kumar Bhagat presented himself as P.W – 1 and Vinod Kumar, S/O Kisto Ram Sakeen, Muhalla – Azad Road, P.O & P.S – Khunti, State – Jharkhand as P.W - 2. The complainant has stated that he is the owner of a tractor and trailer which registration number is JH01AE-2305 and JH01AE-3104. The tractor and trailer has insurance. The insurance policy number is OG-213528-181100000021 valid from 12/01/2021 to 11/01/2022 till midnight. On 11/02/2021 his vehicle (tractor and trailer) got accident at Kunjla village under the constituency of Murhu Thana. His vehicle got damaged. Due to accident, a case was instituted in Murhu Thana, which case number is 16/21. Complainant further stated that he approached Bajaj Allianz General Insurance Co. Ltd. and asked them to pay insurance money so that he could repair his damaged vehicle. Claimed amount is Rs. 440843/- (Rupees Four Lakh Forty Thousand Eight Hundred Forty Three only). That above said vehicle is the only source of income. The estimated cost to repair the vehicle is Rs. 169833/- (Rupees One Lakh Sixty Nine Thousand Eight Hundred Thirty Three only). On the date of accident, all the documents related with the vehicle like insurance policy, driving license was valid. On the day of accident any kind of minerals, sand was not plied by that vehicle. The complainant has further stated that from the vehicle he earns Rs. 15000/- (Rupees Fifteen Thousand only) per month. His vehicle is smashed so no income is earned by the vehicle. He has no other source of income.
P.W – 2 Vinod Kumar has supported the statements and claim of complainant and said that on the day of accident, the vehicle was empty, the vehicle was been driven by the owner himself. The driving license of complainant was valid. The tractor was not carrying sand.
Complainant has filed these documents which are as follows:-
- Photo copy of FIR of Khunti police dated- 11/02/2021.
- Application of complainant to Thana Prabhari Khunti dated- 11/02/2021.
- Certified copy of the judgment of SDJM Khunti dated – 12/04/2022.
- Photo copy of estimate slip of new India tractor work shop bill of supply Khunti dated- 19/03/2021.
- Photo copy of certificate of registration Jharkhand state dated- 26/03/2019.
- Photo copy of certificate of registration Jharkhand state dated- 01/04/2010.
- Commercial vehicle package policy certificate cum policy schedule.
- Photo copy of Aadhaar card of complainant.
The opposite parties have produced (1) Transcript of Proposal for Commercial Vehicle Package Policy, (2) Commercial vehicle package policy certificate cum policy schedule and (3) commercial vehicle package policy (POLICY WORDINGS). According to these documents opposite parties have stated that an insurance policy was signed by the complainant, period of insurance was from 12 Jan 2021 to 11 Jan 2022 midnight. The complainant has submitted written notes of argument. In his written argument he has stated that his vehicle tractor and trailer bearing registration number JH01AE-2305 and JH01AE-3104 met with an accident at Kunjla village near Murhu Police station on 11/02/2021 having insurance policy valid from 12 Jan 2021 to 11 Jan 2022 midnight. On the alleged date of accident the vehicle was empty. On complainant claim the insurance company declined to pay repair cost. Insured has not done any delay in giving information to the insurance company. He has given information on 14/02/2021 only three days after accident, as due to the period of pandemic created by Covid–19, but FIR was lodged on the same day i.e on 11/02/2021.
On the basis of pleading of the parties following issues have been framed in this case:-
- Whether the case is maintainable or not?
- Whether the complainant has valid cause of action for filing the case?
- Whether the case comes under the consumer protection act?
- Whether there is any deficiency in service by the part of opposite party?
The complainant has submitted written notes of argument. In his written argument he has stated that vehicle tractor and traller bearing registration no JHOIAE 2305 and JHOIAE – 3104 met with an accident at Kunjla village near Murhu police station on 11/02/2021 having insurance policy valid from 12/01/ 2021 to 11/01/2021 midnight. On the alleged date of accident the vehicle was empty. On complainant’s claim the insuraunce company declined to pay repair cost. Insured has not done any delay in giving information to insurance company has given information on 14/02/2021 only three day after accident as due to the period of pendemic created by covid- 19 but FIR was lodged on the same day ie. 11/02/2021.
Findings
Issue no- 1, 2, 3, and 4:- These are the main issues to be decided in between the parties. Hence these issues are taken up first for consideration and decision thereoff.
It is the case of the complainant that he has filed these claims for damage of tractor and trailer bearing registration No. – JH01AE-2305 and JH01AE-3104 cause in an accident on 11/02/2021 at vill – Kunjla under Murhu Police station. On this accident, Murhu police registered a case in the Murhu Police Station on 11/02/2021. The Case No. at Murhu Police Station is 16/21. The tractor and trailer was insured with Bajaj Allianz General Insurance Company Ltd. the insurance was covered under a valid package of insurance having policy No. OG-213528-181100000021, valid from 12/01/2021 to 11/01/2022 till midnight. On the day of accident the complainant himself was driving vehicle. The vehicle was badly damaged due to accident. The complainant has claimed Rs. 169833/- (Rupees one lakh sixty nine thousand eight hundred thirty three) before the insurance company for damage repair. The insurance company has not given any amount for repairing the vehicle. On the day of accident, the Murhu police seized the vehicle. Learned SDJM court Khunti has released the vehicle on 02/07/2021 bearing Case No. GR 404/2021.
From perusal of the application of the complainant, written statement of the Opposite party and arguments made on their behalf, I find that the following facts are admitted fact in the present matter –
- Complainant is the owner of the Tractor no JH01AE-2305 and Trailer’s no JH01AE-3104 respectively.
- Tractor was insured with Bajaj Allianz for the period from 12.01.2021 to 11.01.2022 midnight.
- Tractor made an accident on 11.02.2021 during the period for which the vehicle was insured.
As the vehicle is insured while it meets with an accident, the common rule is that the insurance company shall admit the claim of the insured. In the present case the insurance company has denied the claim of the complainant on two score –
- There was a delay on the part of the complainant in making the claim before the insurance company.
- While the tractor made an accident it was plying without permit.
From perusal of record it appears that the accident took place on 11.02.2021 and claim was made on 14.02.2021. It manifests that claim was made after three days. On this point the submission of the applicant is that due to the period of pandemic created by Covid-19 there was delay in giving information to the insurance company but FIR was lodged on the same day that is on 11.02.2021.
From the above submission of the complainant, I find that whatever delay was from the side of the applicant in filing the claim has been satisfactorily explained and, therefore, on this score O.P insurance company cannot deny the claim of the applicant.
So far the “permit of the vehicle” is concerned, it has been submitted on the behalf of the applicant that tractor is not the public transport vehicle as for the tractor there is no need of permit. In support of his contention it has been forcefully submitted by learned lawyer of the applicant that during “release process of this vehicle the police had submitted in the court that applicant possesses all the valid paper regarding the tractor therefore it may be released in his favour.” Further it has been submitted by the learned lawyer that considering the above police report the court was also pleased to release the vehicle in his favour. Further it has been submitted by the learned lawyer that neither the police nor the court demanded any permit for the tractor, which supports his contention that for tractor no permit is required.
Though it has been submitted by and on behalf of the O.P that for tractor permit is essential but no provision of law in support of this contention has been submitted before the court.
In view of this fact we are of the view that the denial of the claim on the part of the O.P on the ground of permit is not sustainable.
Further on the point of actual amount of the claim, from perusal of record I find that neither party has established it properly. Applicant has submitted an estimate repair cost given by New Indian Tractor Workshop showing the cost of repairing Rs. 169833/- (Rupees one lakh sixty nine thousand eight hundred thirty three only). But from perusal of this estimate I do not find that anything mentioned in this estimate that it was given only for such repairing of the tractor which needed in view of the aforesaid accident. Further applicant has not examined the person in court who has given this estimate. Under such situation it cannot be found out that all the repairing cost shown in the estimate are corresponded with that accident.
Further on the other hand, though no survey report has been submitted from the side of the O.P, but from the para 32 of the written statement of the O.P, it has been submitted by the insurance company that his surveyor conducted survey and assessed the damage to the extent of the Rs. 62260/- (Rupees sixty two thousand two hundred sixty only) subject to the terms and conditions of the insurance. The statement of the O.P reflects that they accept the claim of the applicant to the extent of the claim of Rs. 62260/- (Rupees sixty two thousand two hundred sixty only). But as neither the surveyor was examined in the court nor the survey report was produced before the court. The above submission of O.P may not be accepted totally accurate as regard to the repair cost.
In view of the above discussion we find and hold that the objection of the O.P is not sustainable in the eye of the law and applicant is entitled to get relief as there is deficiency in service on the part of the O.P.
Thus from the above discussion we come to conclusion that complainant has valid cause of action for filing the case and this case is maintainable and this case comes under the purview of consumer protection act and there is deficiency in service on the part of the O.P.
Hence these issues are decided in favour of complainant and against the Opposite Party.
Therefore it is
ORDERED
That opposite party is directed to pay Rs. 80000/- (Rupees eighty thousand only) for repairing and Rs. 20000 /- (Rupees twenty thousand only) for mental agony and litigation cost, total Rs. 100000/- (Rupees one lakh only) to the complainant within 60 days from the date of this order and if the opposite party doesn’t give the amount within stipulated period the opposite party shall be liable to pay interest on entire amount at the rate of 8% per annum from the date of order till final payment. In case of non- compliance the complainant shall be entitled to get the order executed through process of the law.
Supply free copy of this order to the Complainant and send copy of this order to the Opposite Party through registered post.
