Sri Partha Kumar Basu, Member:

The complaint case is filed by one Karim Box Molla being the manager of the complainant organisation, a society namely Baruipur Thana Cooperative Agricultural Marketing Society Limited at Baruipur of South 24 Parganas against the OP being anInsurance company namely IFFCO Tokyo General Insurance Company Ltd. As no section is mentioned, so the complaint case is taken as filed u/s 35 of the Consumer Protection Act 2019.

It is the case of the complainant which avers on affidavit that they are the cooperative society engaged in the distribution of vegetables in the market for supply and sales for earning livelihood of it’s members for which a Bolero Maxi Truck number  WB95- 1321 is being used. On 30/10/2019 at around 7 am in the morning while during distribution of materials through this vehicle, it met with an accident by hitting another vehicle from the rear side. After the collision one person namely Iyarab Ali Molla got dropped from the vehicle and died on the spot. The vehicle in question also got damaged. A complaint was registered vide case number 1024 / 19 dated 01/11/2019 on the next day. An insurance claim was filed on 23/12/2019 before the insurance company at their toll free number with a claim number along with copies of the vehicle documents. Thereafter on 09/03/2022 a letter was received from the insurance company wherein the damages of vehicle claim and goods claim were repudiated. Under the circumstances the complainant was forced to spend Rs 91,940/- to restore the damaged vehicle in operating condition. This complainant files the instant petition for deficiency in services of the Insurer against non-payment of the Insurance claim along with compensation and cost. 

The complainant claimed Rs 91,940/- as cost of repair for the damaged vehicle, Rs.  1,50,000/- for loss of damaged goods, a compensation of Rs. 35,000/-for harassment and mental agony along with loss of business of Rupees 80,000/- and a cost of litigation of Rs. 10,000/- totalling to 3,66,940/-.

The complainant exhibited copy of the FIR along with the written complain, the copy of registration certificate, insurance certificate, death certificate, tax receipt. Letter of authority to driver to drive the vehicle, driving licence of the driver along with cost of the bill for claim and trade licence of the society in support of their claims

The Other side contested by filing the Written version.The OPs opposed the motion by adducing evidence that the complaint purchased the insurance policy for a period from 25/07/2019 to 24/07/2020 for the said vehicle and after considering the exclusions of the policy conditions that the complainants are aware about the policy conditions and filled upthe policy claim form to the opposite parties. Upon appointing the surveyor it is observed that the claim had been lately intimated on 23rd December 2019 though the actual loss had happened on 30th October 2019 and the delay in filing the claim on Insurance policy no M9166144 was discovered in the claim and condition number (1) of the policy schedule by which a notice was to be given to the insurance company on accidental loss or damage in the event of claim. It is also the case of the OPs that as per condition no (8) of the policy schedule due observance and fulfilment of the terms and conditions was to be complied with by insured and OP is not responsible for any consequent loss due to delay intimation.

The Opposite party also claims that the complainant filed the claim without filing the incident occurrence and without filing the details. It is alleged that the complainant did not share FIR copy with the surveyor for preparation of report.The main point of the OP is that one of the occupant was travelling on the cabin hood top which was illegal and it is contended that if someone sits on the place not authorised to be seated then the person would get disbalanced. In the event of an accidental breakdown the driver or employee of the insured vehicle should not be without proper precaution to prevent the damage or loss. On physical inspection it was found that the vehicle had a capacity for 2 occupants except the driver but it was carrying 4 passengers instead. Being a goods vehicle but at the time of accident carrying 4 passengers is not in accordance with law. The OPs also resisted the move by stating that no correct information was given by complainant to RTO regarding the occupancy of the vehicle as there was over sitting in the vehicle which resulted in asa cause of the accident. Due to above reasons the claim was repudiated.

No additional material fact came out from the exchange of questions and answers on the loss of damaged goods.

The final arguments were heard in full on 20/04/2024 when ld advocates of both sides advanced their arguments.

Point no 1

Whether the complainant is a Consumer or not ?

Let us look back towards the Act. U/s 2(7) (ii) of the Consumer Protection Act 2019, "Consumer" means any person who—

“hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

 Explanation.—For the purposes of this clause,—

(a) the expression "commercial purpose" does not include use by a

person of goods bought and used by him exclusively for the purpose of

earning his livelihood, by means of self-employment;

Again as per the C.P Act 2019, U/s 2 (31) (iv) the definition of a "person" includes “ a co-operative society”

In this case as it is a cooperative society, hence covered as a consumer under the Act. Also as the cooperative members are working for earning their own livelihood therefore, the complainant is a consumer under the scopes and the meaning of The C.P Act 2019

Hence point no 1 is decided in favour of the complainant.

Point no 2 and 3

Both points are taken up together for the sake of brevity and to avoid repetitions.

The main points of disputes are centring around the alleged delay intimation and  overloading being higher number of occupants in the vehicle during the material point of time of accident.But it is conspicuous from the exhibited ‘certificate of registration’ that the seating capacity of the vehicle is 4 (four) and it is admitted fact of the OPs that the passengers including driver has not exceeded the said capacity. The only rebuttal that the OP Insurance company makes is that the deceased passenger was riding on the hood/top of the vehicle at the time of accident. But there is no cogent proof in support of such claim in the form of evidence. Mere affidavit or surveyors report is not carrying much of evidentiary value as because a human can tell lie but not a document.

Also the delay in filing claim is not much of a violation and not beyond IRDAI rules on limitation period and quite justified as per factum of the case of this cooperative organisation which involved some time span requirement to file claim/intimation etc. being there a major accident, casualties and being it a cooperative society requiring organisational formalities. .

In a similar case as per the Reportable Judgement of the Hon’ble Supreme Court of India in Civil Appeal no.  4758 of 2023 arising out of SLP (CIVIL) no. 25256 of 2018 in the matter of Ashok Kumar, The Appellant (s) Versus New India Assurance Co. Ltd. the Respondent(s) in recent Judgement of 2023 the Hon’ble SC has set aside the Order of NCDRC dated 24.01.2018 in RP no 3415 of 2016.

By the said judgment, the NCDRC had reversed the concurrent judgments of the DCDRC and SCDRC where the Fora while allowing the original complaint had directed the Insurance Company. The paragraphs of the referred judgment of the Apex Court (Reportable) is very much applicable in the instant case, which runs as follows-

“to indemnify the Claimant on non-standard basis to the extent of 75% of the sum assured. The brief facts are that alleging respondent was delaying the settlement of the claim and, as such, committed deficiency in service. The complainant submitted all the relevant papers/forms with the opposite party. The Insurance Company had appointed agency to investigate the matter who recommended repudiation of the claim. On the ground of negligence in not safeguarding the said vehicle properly. Which is in contraventions and violations of the terms and conditions of the subject insurance policy when the Co. is not liable to pay any claim. It was contended that the intimation of the theft was given to the Insurance Company after six days, Therefore it was argued that Condition No.1 of the insurance policy was violated. Apart from this, violation of Condition Their point about the delay of six days in intimation was brushed aside by referring to the Circular Ref: IRDA/ HLTH/ MISC/ CIR/ 216/ 09/ 2011 dated September 20th, 2011 issued by Insurance Regulatory Development Authority (for short “IRDA”), which stated that even if there was a condition in the policy regarding delay in intimation, the insurer cannot take it's shelter to repudiate the claim, which is otherwise proved to be genuine.”

Again going further,

“the State Commission recorded that Condition No.1 of the Insurance policy applied only to occurrence of an accident and not to theft cases. Insofar as Condition No.5 was concerned, it was held relying on the judgments of this Court in National Insurance Company Limited vs. Nitin Khandelwal, [(2008) 11 SCC 259] and AmalenduSahoo vs. Oriental Insurance Company Limited, [(2010) 4 SCC 536] that even if there was a breach of that clause, the claim could not have been repudiated in toto and, applying the yardstick in AmalenduSahoo (supra), 75% of the claim as the admissible amount, on non-standard basis, was awarded. Holding thus, the State Commission dismissed the Appeal of the Insurance Company”.

Again further,

We find the present case, on facts, completely different as there is no breach of Condition No.1 because the intimation to the police was immediate. There have been concurrent awards by the District Forum and State Commission on non-standard basis by applying Nitin 26 Khandelwal (supra) and Amalendu Sahoo (supra). Hence, the order will in no manner assist the respondent-Company. 18) In Amalendu Sahoo (supra), this Court noticed the guidelines issued by the New India Assurance Co. Ltd. in settling claims on non-standard basis. The guidelines read as under:-Sl. No. Description Percentage of settlement (i) Under declaration of licensed carrying capacity. Deduct 3 years’ difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher. (ii) Overloading of vehicles beyond licensed carrying capacity. Pay claims not exceeding 75% of admissible claim. (iii) Any other breach of warranty/condition of policy including limitation as to use. Pay up to 75% of admissible claim.” The above guidelines were followed by this Court in Amalendu Sahoo (supra) as is clear from para 14 of the said judgment. The District Forum and the State Commission have rightly applied Amalendu Sahoo (supra) to the facts of the present case and awarded 75% on non-standard basis. 19) Nitin Khandelwal (supra) and Amalendu Sahoo (supra) lay down the correct formula that where there is some 27 contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct. We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the table set out in para 14 of Amalendu Sahoo (supra) is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim. 20) For the aforesaid reasons, the Appeal is allowed. We set aside the judgment of the National Commission and restore that of the District Forum as affirmed” 

Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure involving loss of human life, is liable under law of torts to be compensated for the injury suffered irrespective of any negligence or carelessness on the part of the managers of such cooperatives. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability casted on such person is known, in law, as strict liability. It differs from the liability which arises on account of negligence or fault in this way i.e. the concept of negligence comprehends that foreseeable harm could be avoided by taking reasonable precautions. If the complainant did all that which could be done for avoiding the harm, cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in case of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. In the case in hand of strict liability, the complainant parties had even to welcome the death.

In view of such stipulation it can be said that in the instant case the responsibility was casted upon the Insurance company to give insurance coverage and to compensate the sufferer. But in this case in hand the Complainant on several occasions requested the Insurer to give reliefs, but to no effect and under compelling circumstances the Complainant had to approach before the Court of Law. Therefore we are of the view that there was deficiency in service on the part of the OPs.

There is no cogent proof about the counter estimation of the damaged vehicle for restoration a s all the repair items are not included. Also there is no contradiction in the Surveyor’s report on factual part, except denial on law points, that is untenable based on abovesaid discussions.

From the facts and circumstances and materials on record, more particularly, relying upon the evidence on record, it is palpably clear that the OPs could not keep their promise and as such, they are deficient in rendering services towards a consumer.

In view of the above, the complainants are entitled to get relief as prayed for and we are inclined to hold that the complainants are entitled to get the insurance claims in respect of the damagesalong with appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the OPs to deliver service. We hold that there is deficiency in service on the part of the Opposite parties. In resultant, the Complaint case succeeds.

Hence, it is

                                                         Ordered

That the complaint case no. CC/107/2021 be and the same is allowed on contest by Ops with cost of Rs. 10,000/-.

The OPs are hereby directed, jointly and/or severally, to provide 75% of admissible claim of Rs. 91,940/- on non-standardbasis.

The OPs are also liable,jointly and/or severally, and are directed to pay a compensation of Rs. 25,000/- (Rupees Twenty Five Thousand) only to the complainants for deficiency in services, mental pain and agony suffered by the complainants.

The OPs are also liable, jointly and/or severally, and are directed to pay litigation cost of Rs. 10,000/- (Rupees Ten Thousand) only to the complainants.

All the abovesaid compliances and payments in terms of this order will be made by the OPs to the complainants within Sixty days from this day I/D a simple interest @ 9% per annum will get accrued till the date of actual compliance.

If the Opposite party fails to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution as per due course of law.

Let a plain copy of this Order be provided to both the parties free of cost as per CPR.

  That the final order will be available in the following website www.confonet.nic.in.

   Dictated and corrected by me.  

               Member