West Bengal

Siliguri

CC/2013/34

SMT. NEELAM MAHATO, - Complainant(s)

Versus

H.D.F.C. ERGO GENERAL INSURANCE, - Opp.Party(s)

10 Jul 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 34/S/2013.                DATED : 10.07.2015.       

 

 

BEFORE  PRESIDENT           : SRI BISWANATH DE,

                                                          President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS                  : SMT. PRATITI BHATTACHARYYA                  

                                                          & SRI PABITRA MAJUMDAR.

 

 

COMPLAINANT             : SMT. NEELAM MAHATO,

                                                            W/O Dudhnath Mahato,            

                                                                          R/O Netaji Road, Santoshi Nagar,

                                                                          Burdwan Road, P.O. & P.S.- Siliguri,

                                                                          Darjeeling. 

 

 

O.Ps.           1.                  : H.D.F.C. ERGO GENERAL

 INSURANCE,                   

  having its Regd. Office at Ramon House,

  H.T. Parekh Marg,

  169, Backbay Rectamation,

  Mumbai – 400 020.

           

2.                     : H.D.F.C. ERGO GENERAL

  INSURANCE

                                                                          Siliguri Branch,

                                                                          situated at Station Feeder Road,

                                      P.O. & P.S.- Siliguri, Dist.- Darjeeling.

 

                                                3.                     : H.D.F.C. Bank, Siliguri Branch,

  situated at Station Feeder Road,

                                      P.O. & P.S.- Siliguri, Dist.- Darjeeling

                                                                                                                                                                       

FOR THE COMPLAINANT        : Sri Sanjeev Kumar Singh, Advocate.

 

FOR THE OP No.1 & 2             : Sri J. P. Pawa, Advocate.

 

FOR THE OP No.3                            : Sri Tapas Ch. Bhattacharya, Advocate.

 

__________________________________________________________________________________________________________________________________________________

 

J U D G E M E N T

 

 

Mr. Biswanth De, Hon’ble President

 

 

          The complainant’s case in a nutshell is that the complainant purchased a Cab vehicle bearing number WB-76-7508.  The vehicle is commercial vehicle.  The vehicle was hypothecated to H.D.F.C. Bank Ltd.,

 

Contd……P/2

-:2:-

 

 

Siliguri with HPA and installment was paid regularly.  She used her vehicle for commercial purpose to earn her livelihood.  She paid Rs.19,390/- to OP No.2.  The policy no. was 2311200160681200000 for commercial vehicle. 

It is further case that OPs intentionally wrote on the said insurance policy as Private Car Package Policy in place of Commercial Car Package Policy.

The vehicle faced an accident on 18.08.2012 in which vehicle was damaged.  The estimated cost for repairing vehicle was given at Rs.3,35,661/- by Khokan Motors Works Pvt. Ltd. 

The complainant submitted claim petition along with the aforesaid quotation of Khokan Motors claiming Rs.3,35,661.66/-.

Surveyor was appointed by the OP No.2 for assessment of liability.  The surveyor reported that vehicle was registered for commercial use and taxi and the subject insurance policy is “Private Car Package Policy”.  Due to such mis-match work order for issuing repair work could not be issued i.e., insurance claim was not allowed.  Reason is that the commercial vehicle of the complainant was insured with Private Car Package Policy.  The complainant’s case is that the OPs intentionally refused to pay the insured claim taking their own mistake as a sword of protection.  The mistake became known by the complainant when claim was repudiated by OPs.  Hence, this complaint has been filed for getting repairing cost and compensation under law. 

The OP No.1 and OP No.2 have filed the written version denying inter-alia all the material allegation of claimant.  The positive case of the OP is that said policy was insured by them on 25.11.2011 and the same was valid till 24.11.2012 towards the said vehicle bearing No.WB-76-7508 of the insured as the “Private Car Package Policy” on the basis of relevant documents viz Hypothecation agreement between the Financer of said vehicle i.e., “HDFC Bank Ltd.” and the complainant insured, wherein the said vehicle was classified as a ‘Private Car Package Policy’.  Moreover, the

 

Contd……P/3

-:3:-

 

premium amount as received by the said OPs from the complainant was also towards insurance of the ‘Private Car Package’.  The complainant never requested the OPs to make correction on the policy from 05.12.2011 till 18.08.2012, a conversion of same to commercial policy.  The complainant’s case is resisted by the OPs that to same money the complainant purchased Private Car Package Policy in lieu of Commercial Car Policy. 

Furthermore, the surveyor noticed the mismatch and declined to issue work order.  The OPs appointed the surveyor who conducted the survey. 

OP No.3 filed written version and contended that there was an agreement to purchase vehicle for the private use, as such loan was sanctioned for vehicle.  This OP No.3 is not insurance company as such is not liable to pay any compensation. 

Complainant has filed the following documents :-

1.       Xerox copy of Registration Certificate in the name of complainant.

2.       Xerox copy of Insurance Policy being No.231120016060681200000.

3.       Xerox copy of Formal F.I.R.

4.       Xerox copy of estimate of Khokan Motors Works Pvt. ltd.

5.       Xerox copy of report of Insurance Surveyor & Loss Assessor Mr. Vernon Ivan Maynard Dillen. 

 

OPs have filed the following documents :-

1.       Copy of the “Surveyor’s final Report” dated 20.12.2012.

2.       Copy of the “Letter” dated 15.10.2012. 

 

Points for decision

 

If the complainant is able to prove his case of negligency and deficiency in service by the OPs.

 

Decision with reason

 

To prove the allegation the complainant has filed evidence in chief and other Registration Certificate and Insurance Certificate.

Contd……P/4

-:4:-

 

Every case or complaint has its own merit.  Genesis of case, causes of institution, antecedent of case, fact leading to case, circumstances under which complainant compelled to institute this case before this Forum and status and education of complainant must be considered.

Similarly, circumstances, of OP which to be considered.   

PW No.1 the complainant has stated on oath that she purchased the vehicle for her livelihood.  The loan was sanctioned by HDFC Bank Ltd.  The complainant was registered owner of vehicle No.WB-76 7508.  The vehicle is a commercial vehicle and that the prefix number of her vehicle is WB-76 which itself is a number of commercial vehicle only.  The complainant also stated that he paid Rs.19,390/- to OP No.2 for insurance of her commercial vehicle as commercial package policy.  Accordingly, payment of Rs.19,390/- has been paid by complainant for the policy No.2311200160681200000.  She also stated that she filled up and submitted the commercial vehicle insurance form for insuring the said vehicle as commercial car package policy, and same was accepted by OP No.2.  The OP No.2 issued the policy.  On the face of the policy it is written, “Private Card Package Policy” and the complainant came to know this fact only after the accident took place and after 18.08.2012.  Afterwards, she filed claim form showing estimated cost, but the OP/insurance company repudiated the same. 

The certificate of registration itself shows that the Registration No. of the vehicle is WB-76 7508, Class of vehicle Maxi CAB, and other description, hypothecation with HDFC Bank Ltd., Siliguri and the insured policy shows on the face of the policy certificate as Private Car Package Policy and the amount of money was paid Rs.19,390/-. 

On the other hand the OP/Insurance Company admitted all the contents of registration certificate and insurance policy and submitted that to avoid more payment the complainant insured his commercial vehicle by Private Car Package Policy and it is also contended by the Insurance Policy that such fact of Private Car Package Policy became noticed by the insurance company OP No.1 after perusing the report of

 

Contd……P/5

-:5:-

 

surveyor.  The surveyor did not issue any work order.  But surveyor has estimated the cost amount which is less than the amount claimed by the complainant in her claim before the insurance company. 

The complainant has filed Written Notes on Argument, wherein her main contention is that she purchased the vehicle for commercial purpose for her livelihood.  She took loan and vehicle was registered as stated above.  She submitted claim petition as per quotation of one, Khokhan Motors, but the OPs repudiated the claim on the ground of Private Car Package Policy.  It is argued on behalf of the complainant in the argument that the no. of the vehicle is WB-76/7508 which implied that the said vehicle was commercial vehicle and was being used as commercial purpose as taxi.  The OP No.2 intentionally has issued the Private Car Package Policy and the complainant is a consumer and as such her petition may be allowed as per claim. 

It is also respectfully argued by the complainant’s advocate that the complainant is a layman and she does not know ABC of law of Insurance Policy.  Obviously it is not a general conduct of a man like that woman to be well informed regarding the contents of the policy, and it is also human conduct of a layman to know search every corner of a document, and the OP company is responsible for issuance of incorrect spelling certificate Private Car Package Policy. 

On the other hand ld advocate of the OPs argued that it is apparent on the face of the record that the complainant got Private Car Package Policy.  He also stated regarding animas condition of the complainant at the time of taking insurance policy nothing can be stated.  But fact is that the complainant did not notice such error till the stage of claim arose. 

From the above petitions, written version, evidence, documents and arguments it transpires that the complainant purchased the vehicle.  Bank sanctioned the loan.  The vehicle was insured.  Required money was paid by the complainant.  The insurance company issued insurance certificate.  The complainant used the vehicle as commercial vehicle to earn her livelihood. 

 

Contd……P/6

-:6:-

 

Both sides are in unison that all things are correct but only error apparent on the fact of the record is Private Car Package Policy.  The intention of the complainant is clear and inspires confidence in the mind of this Forum that the complainant being a layman on this subject has done something up to her mental capacity as a woman.  On this era and she is making effort to maintain her family by taking the recourse of a commercial vehicle.  Such entrepreneurship of a woman deserves praiseworthy in all respect. 

Material does not show any doubt regarding her conduct that she would adopt any unfair means to less her cost towards the vehicle because she has taken loan from the bank with interest and with self confidence that loan will be repaid.  So on this point, the argument advanced by the ld advocate of OPs that complainant took this Private Car Package Policy by Rs.19,390/- to less her expenditure with regard to the commercial package policy.  But document of the OP does not show the amount of commercial amount.

The argument of OPs that the complainant took insurance policy of private vehicle by giving Rs.19,390/- to lessen the cost of expenditure is not tenable.  

So, after a great deal of deliberation over the documents, conduct and present economic condition of our society, the material on record is sufficient to inspire confidence in our mind that the OPs have done negligence and caused deficiency in service by issuing a certificate of Private Car Package Policy in favour of the complainant and thus the insurance company is liable for neglect and deficiency in service with the complainant.  As such the complaint is allowed.

Now, let us fix the quantum of compensation. 

The complainant at the first time placed claim before the OPs/insurance company as per quotation given by Khokan Motors Works Pvt. Ltd.  After that the insurance company appointed surveyor and the surveyor surveyed the vehicle and neat loss value as assessed by the said surveyor on the basis of the repaired vehicle at the tune of Rs.1,91,346/-.

 

Contd……P/7

-:7:-

 

  So, the complainant of course is entitled to get this amount as the vehicle was insured (admitted position).

The OP/Insurance Company had duty to pay the damage as soon as they got the claim, but that has not been done.  In spite of delaying has been caused in different pretext causing deficiency of service to the complainant, who earns his livelihood by this vehicle.  So, the complainant is entitled to get compensation of Rs.50,000/- for mental pain, agony and harassment. 

The complainant is also entitled to get litigation cost.  If the OP would have given the amount, the complainant would not come before this Forum.  So, it is the OP Insurance Company who has compelled the complainant to come before this Forum for claiming compensation.  So, the OP must give litigation cost to the complainant from whom OP has been taken money as insurance policy.  So, the complainant is entitled to get litigation cost of Rs.5,000/- and other professional fees of Rs.5,000/- totalling Rs.10,000/-.

In the result, the case succeeds.

Hence, it is

                     O R D E R E D

that the Consumer Case No.34/S/2013 be, and the same is hereby allowed on contest.

The complainant is entitled to get repairing charges of Rs.1,91,346/- for her damaged vehicle from the OP Nos. 1 & 2, along with interest @ 9 % per annum from the date of institution of this case, till full payment.

The complainant is further entitled to get Rs.50,000/- from the OP Nos. 1 & 2 for her mental pain, agony and harassment. 

The complainant is further entitled to get Rs.10,000/- for litigation cost including other professional fees from the OP Nos. 1 & 2. 

The OP Nos. 1 & 2, who are jointly and severally liable, are directed to pay Rs. 1,91,346/- by issuing an account payee cheque in the name of the complainant for repairing charges of her damaged vehicle within 45 days of this order. 

Contd……P/8

-:8:-

 

 

The OP Nos. 1 & 2 are also directed to pay Rs.50,000/- by issuing an account payee cheque in the name of the complainant for her mental pain, agony and harassment within 45 days of this order.

The OP Nos. 1 & 2 are further directed to pay Rs.10,000/- by issuing an account payee cheque in the name of the complainant for litigation cost including other professional fees within 45 days of this order.

The OP Nos. 1 & 2, who are jointly and severally liable, are further directed to pay interest @ 9% per annum from the date of institution of this case, till full payment, by issuing an account payee cheque in the name of the complainant within 45 days of this order. 

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.