IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/180/2017
Date of Filing: 31.10.17 Date of Final Order: 17.01.19
Complainant: Mafijul Sk.
S/o Khodabox Sk.
Vill-Kalla, Po-Nabdurga, PS-Burwan
Dist-Murshidabad, Pin-742168
-Vs-
Opposite Party: General Manager,
Magma HDI General Insurance Company Ltd.
register office at Magma House,
24 Park Street, Kol-16
Agent/Advocate for the Complainant : Sri. Partha Majumdar
Agent/Advocate for the Opposite Party : Sri. Nilabja Datta
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Mafijul Sk. (here in after referred to as the Complainant) filed the case against The General Manager, Magma HDI General Insurance Company Ltd. (here in after referred to as the OP) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant purchased one Ashok Leyland Diesel Truck being engine No. DDPZ116752 and chassis No. MB1KACHD9HPDY5801 from Shree Automotive Pvt. Ltd. on 30.04.17. Thereafter, the vehicle was insured with effect from 04.05.17 to 03.05.18 being policy No. P0018400002/4103/100333 under the OP and the vehicle was registered being No.WB57C7066 on 17.05.17. On 18.05.17 the Complainant deposited Rs.500/- as application fee for new permit of the said vehicle and deposited a sum of Rs.8,540/- for grant of new national permit. On 31.05.17 the vehicle met an accident at
Vimbar 2 No Anchal under Phansidewa Police Station, District Darjeeling and the vehicle was damaged. The matter was informed to the IC, Bidhannagar and started M.A. Case being No. 8/2017. The matter was informed to the OP on 01.06.17 and the OP deputed surveyor for assessing the loss/damage. The Complainant repaired the vehicle on payment of Rs.3,92,050/- but the OP repudiated the claim on 01.08.17 without assigning any cogent and valid reason. The cause of action arose on and from 01.08.17. The Complainant has prayed for a direction upon the OP for making payment of Rs.3,92.050/- along with interest @ 18% per annum till realization of the amount ,compensation of Rs.2,50,000/- for mental pain and agony and Rs.25,000/- for litigation cost.
The OP contested the case by filing written version on 21.02.18, contending that the complaint case is not maintainable as the Complainant has no cause of action to file the case. The OP has admitted that the truck being No.WB57C/7066 was insured with the OP. It is pertinent to mention that the coverage of insurance is a contract under certain terms and conditions agreed and entered in between the Insured and the Insurer and therefore, in the event of breach of terms and conditions of the ‘’Contract of insurance’’ the OP is not liable to indemnify the loss of the Complainant.
It is the specific case of the OP that the Complainant had no valid permit to ply the said vehicle and that matter has not been intimated to the OP so that the OP took any step towards settlement of the matter. The claim of the Complainant is false and frivolous. The OP prays for dismissal of the complaint with cost.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
1. Isthe Complainant a consumer under the provision of the CP Act, 1986?
2. Has this Forum jurisdiction to entertain the complaint?
3. Has the OP any deficiency in service, as alleged?
4. Is the Complainant entitled to get any relief, as prayed for?
Point No.1
The Ld advocate for the Complainant has submitted that the Complainant is a consumer as he hired the services of the OP.
Admittedly, the Complainant insured his vehicle under the O.P.
On careful consideration, we find that the Complainant is a consumer in terms of section 2 (I )(d) (ii) of the C.P. Act, 1986.
Point No.2
The Ld advocate for the Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum. In reply, the Ld. Advocate for the O.P. submits that this Forum has no jurisdiction to entertain the complainant.
On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint.
Point Nos. 3&4
The Ld. Advocate for the Complainant submits that the Complainant hired the services of the OP and the insurance policy was valid during the period of accident (Annexure-2). It is contended that the ground for repudiation (Annexure-8) is baseless. He submits that the claim of the Complainant cannot be turned down on the plea that permit was not valid. He draws our attention to the downloaded copy of decisions passed by the Hon’ble Apex Court in Appeal No.(Civil) 6178/2004 dated 21.09.04 and special leave to appeal No. (c) 31406/2017 dated 22.11.17 t. He submits that the Hon’ble Apex Court has held in Appeal No.(Civil) 6178/2004 that ‘it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall be attached, as a part of the security. If necessity arises thae Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured. The appeals are disposed of with the above observation. There will be order as to costs.’’
He prays for a direction upon the OP for settlement of the claim of the Complainant and a direction to make adequate compensation and to pay litigation cost to the Complainant.
In reply, the Ld. Advocate for the OP submits that the Complainant had no valid permit on the date of alleged accident. It is argued that the OP is not bound to settle the claim of the Complainant as there was no valid permit of the vehicle. He argues that the decisions referred by the Ld. Advocate for the Complainant are not at all applicable in the present case as the said decisions are the decisions of the Hon’ble Apex Court in connection with 3rd party risks. He contends that there is no contract between the Complainant and the OP that the OP would make payment on any damage/loss even the Complainant has no valid document. He prays for dismissal of the complaint with cost.
We have gone through the written complaint, written version, evidence and documents submitted by Complainant.
Admittedly the Complainant is the owner of vehicle No. WB57C7066 and it was insured vide policy No. P0018400002/4103/100333.
Admittedly, the insurance policy was valid on the date of alleged accident i.e. on 31.05.17 (Annexure-C). The OP has repudiated the claim of the Complainant on 01.08.17 on the ground of that permit copy submitted by the Complainant was not valid at the time of loss i.e. 31.05.17 (Annexure- 8). It is not the case of the Complainant that he had valid permit at the time of the alleged accident i.e. on 31.05.17. Now the question is whether the Complainant is entitled to get his claim settled in spite of the fact that he had no valid permit of his vehicle on 31.05.17.
The Ld. Advocate for the Complainant has filed downloaded copy of 2 decisions of the Hon’ble Apex Court in connection with motor vehicle accident cases. With due regard to the decisions as deferred by the Ld. Advocate for the Complainant, we think that the said decisions are not at all applicable for the present case. In case of third party risks , the insurer is to satisfy the claim first with option and liberty to recover the amount from the Insured.
For the present case we have relied on a decision of the Hon’ble National Commission in Kalyan Singh Chauhan vs National Insurance Co. Ltd on 20.05.2014 in Revision Ptn No. 1823 of 2012. The Hon’ble National Commission has been pleased to refer a number of decisions of the Hon’ble Apex Court in the following manner : “ In the matter of G.K. Kothainchiar vs United India Insurance Co. Ltd., the three member Bench of the National commission after analyzing the law laid down by the Hon’’=ble Apex Court in the matters of Oriental Insurance Co. Ltd vs Sony Charian II (1999)CPJ 13 (S.C.) , New India Assurance Co. Ltd.,Simla vs Kamla and others (2001) 4 SCC,342, Jitendra kumar vs Oriental Insurance Co. Ltd. (2003) 3 SCC 287, National Insurance Co. Ltd., Chandigarh vs Nicolletla Rohtagi & others (2002) 7 SCC 454, B.V. Nagraju vs Oriental Insurance Co. Ltd. (1996) 4 SCC 647 held thus : “ From the settled law quoted above it is apparent that the Insurance Co. can repudiate the claim of the Insured in case where there is breach of condition/ conditions and the breach is fundamental on material, so as to vitiate the Insurance Contract’’ , The Hon’ble National Commission allowed the Revision by dismissing the Complaint as the Insurance Co. repudiated the claim on the ground that the Petitioner was plying the vehicle on a public place in violation of the terms and conditions of the policy. On a careful consideration we find that the OP has rightly repudiated the claim of the Complainant on the plea that there was no valid permit at the time of loss of the vehicle. We find that there is no deficiency in service on the part of the OP and the Complainant is not entitled to get any relief.
Reasons for delay
The Case was filed on 31.10.17 and admitted on 08.11.17. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders..
In the result, the Consumer case fails.
Fees paid are correct. Hence, it is
Ordered
that the complaint case No. CC/180/2017 be and the same is hereby dismissed on contest against the OP without cost.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President.
Member President.
