Order-18.
Date-12/05/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant purchased insurance policy for his vehicle bearing No.WB-25B5885 TATA 10 Wheeler vehicle for the period from 29-05-2014 to 28-05-2015 from the OP with all valid document having policy No.231520076091760000. It is specifically mentioned that on 13-11-2014 at 6 a.m. the said vehicle met an accident on the highway of Narayanpur, Dist – Malda with loaded of Tea at the time of coming from Gouhati to Kolkata and after accident the incident was informed to the OP Company and also Claim Manager and Branch Manager of the Insurance company within 7 to 9 a.m. Complainant deputed the stop surveyor Mr. Joyram Das for spot survey at Maldah and after the spot survey complainant removed the vehicle from spot and carried away the goods by another vehicle and shipment upon the said vehicle which faced accident and the damaged vehicle was carried away to Barasat through breakdown van for repairmen.
The spot survey was donw by surveyor Joyram Das at Malda and on 25-11-2014 garage survey done by Mr. Rajat Gupta at Barasat and on 27-11-2014 third survey was done by Mr. Gupta after dismantle the vehicle and on 04-12-2014 final survey was done by Mr. Gupta with all replace salvage goods and ordered the complainant to run the vehicle on road.
For repairment of the vehicle complainant spent Rs.1,41,500/- and after several physical visit to insurance company and letter for the payment of claim bill till dated already eleventh months passed after the accident but they did not made any payment in spite of valid document and genuinity and finally on 10-02-2015 complainant lodged the compliant to the Jt. Secretary, Consumer Affairs Department, 11A, Mirza Ghalib Street, Kolkata – 700 087 and four times they have been called for to attend Tripartite Meeting but the OP Insurance company neither attend any meeting nor submitted any written version on the issues. So, it is proved that OP is not willing to make the payment and their only interest is only to sell the insurance policy but not repayment of claim. So, in the above circumstances, complainant has prayed for redressal.
On the other hand, OP by filing written statement submitted that the entire allegation of the complaint is false. Fact remains policy was issued subject to certain terms and condition as incorporated ion such policy of insurance and truth is that in case of releasing any claim arising out of accident involving a motor vehicle. The first and foremost criteria is that the person driving the vehicle is required to possess a valid and effective driving license at the time of alleged accident by virtue of which such person is authorized to drive that particular class of vehicle and at the time of intimation of claim over toll free number the name of driver was stated to be Dalim Sk. but from load challan submitted by complainant along with other document pertaining to the aforesaid claim, one copy of lorry challan in respect of said vehicle of the complainant also supports that Dalim Sk was the driver but complainant could not provide any driving license of said Dalim Sk. even after sending several reminders to him but subsequently complainant reported that another person was the driver but in support of that there is no document. Further it is submitted that as per own document of the complainant surveyor was appointed and the damages was assessed with the net liability of the OP to the tune of Rs.13,300/- only. But even if for the sake of argument it is assumed though not admitted that the complainant is at all entitled to any claim i.e. only Rs.13,300/- but not more than that. Moreover it is submitted that the vehicle has a permissible carrying limit of 15850 kg. but the load challan of the vehicle showed that the said vehicle was carrying tea bags weighing 16151 Kg. which is beyond the permissible limit and that such excess loan was a contributory factor in the vehicle overturning into a ditch and for violation of the terms and condition of the policy actual claim could not be released. But all other allegations are false and fabricated for which the OP has prayed for dismissal of this complaint.
Decision with Reasons
On proper study of the complaint and the written version and also considering the first information regarding accident as reported by the complainant was registered and details of the accident as per processing was noted and at that time name of driver Dalim Sk. was reported for which it was reported by toll free number which is recorded accordingly. Another factor is that the lorry challan, filed by the complainant also speaks that Dalim Sk. was the driver having license No.WB 25200001491799778/15 and also proved that the said vehicle carried a weight of 16151 Kgs.
Anyhow complainant tried to say that Bipul was the driver but in the complaint there is no such assertion that Bipul had been driving the vehicle at the relevant time. On the contrary, document as produced by the complainant and also the First Information as sent to toll free number it is clear that driver was Dalim Sk. not Bipul Biswas. Practically when the complainant failed to produce the driving license of Dalim Sk. the complainant switched over and stated the name of Bipul Biswas as driver but practically from the NVI Report and also from the first information of the complainant to the toll free number in support of that complainant himself reported the driver name is Dalim Sk. at the time of accident when that is the fact then it is clear that Bipul Biswas was not the driver at the relevant time and it is proved from the load challan and complainant has not denied the load challan. Further driver was injured due to said accident and invariably Dalim Sk. was insured for which injury report was not being produced by the complainant only on the ground that if it is produced then in that case the claim shall be rejected and fact remains that complainant has violated the terms and condition of the policies.
Another factor is that OP in three occasions sent surveyor for assessment of loss and from the surveyor’s report it is found damages was caused due to sustain damages, front bumper found pressed, left side of cabin found pressed, rear portion of left side flap of load body found dismantle and real portion right side flat loadbody found also dismantle. Front left side grille found pressed, front I-Beam bend and front both side main spring leaf found broken and 2nd spring leaf found broken and truth is that surveyor assessed loss Rs.13,300/- and in all occasions the assessment was sent though it was inspected by two separate surveyors and after thorough study of the report of the surveyor it is clear that surveyors submitted their report properly after proper inspection and in all the occasions complainant was present but did not raise any objection before assessment. So, total assessment loss was Rs.13,300/- and more than that complainant is not entitled to get and this Forum cannot go beyond the surveyor’s report when there is no allegation against the surveyors’ report. Another factor is that complainant has miserably failed to prove by any cogent evidence that Dalim Sk. was not the driver but on the contrary from the report of the MVI who held inspection on the spot after incident and also first information report received by the toll free number and further road challan of the complainant driver was Dalim Sk. and it is evident from the police report driver sustained injury but that injury is not disclosed and no driving license of Dalim Sk. as driver is also produced whatever it may be the Dalim Sk. was the driver at the time of accident and in fact, his driving license was not produced by the complainant for verification and might be driving license of Dalim Sk. was not valid for which complainant switched over and another name of driver was mentioned but in support of that there was no document rather the document which was produced by the complainant it is proved that Dalim Sk. was the driver when that is the fact then complainant is not entitled to any claim for violation of the terms and condition of the policy because it is held decided by the Hon’ble National Commission and Supreme Court that it is the duty of the insured to produce valid driving license for getting claim against accident and if it is not produced in that case any sort of repudiation or rejection by the OP is always just and bona fide. In view of the above and also relying upon the ruling reported in 2010 (2) CPJ 237 and 2015 CPJ 100 we are convinced to hold that in absence of driving license of the driver not provided by the complainant to the insurance company the complainant cannot claim any benefit of the insurance. Further relying upon the ruling reported in 2009(1) TAC (717) the judgment of the Hon’ble Apex Court we are convinced to hold that OP has absolutely no liability to pay the complainant for the alleged accidental loss of the said vehicle for want of valid license of Dalim Sk. and for violation of the Section 3 and 5 of Motor Vehicle Act 1988 and as per terms and condition of the policy of the insurance it is the duty of the owner to take care that his vehicle has been driving by the duly licensed person and no person is entitled to drive any public vehicle unless valid driving license at the time of alleged accident was there. But in the present case complainant adopted an unfair practice and supplied the name of another person who was not the driver at the relevant time and considering the unethical act of the complainant and also non-production of the driving license of the actual driver Dalim Sk. along with claim application we are convinced to hold that the claim was no doubt refused by the OP insurance company rightly and it is legal and justified for which the present complaint fails.
Hence,
Ordered
That the case be and the same is dismissed on contest against the OP but without any cost.
