West Bengal

Birbhum

CC/163/2015

Abdul Sahid Khan, S/O Sattar Khan - Complainant(s)

Versus

Manager, Cholamandalam Gen INS Co Ltd - Opp.Party(s)

Sanjit Kr Acharya

31 Aug 2022

ORDER

Smt. Sukla Sengupta-President.

            The fact of the case in brief is that the complainant Abdul Sahid Khan has filed this petition of complaint U/S 12 of the C.P. Act 1986 as amended update alleging interalia that being a resident under the jurisdiction of this Forum/Commission is the owner of vehicle being Engine No. DXPZ 109768, Chassis No. MBIG 3DYCIDPXH 4562, Registration No. WB-53B-3135 with the financial assistance of the OP No. 2.

            It is further case that the complainant purchased insurance policy being No. 3379/00957404/000/0 for the aforesaid vehicle that the vehicle was covered under the aforesaid policy on and from 28/10/2014 to 27/10/2015 IDV Rs. 13,03,875/-.

            It is further stated that the complainant purchased the aforesaid policy from the OP No. 1 and the OP No. 2 is the financer of the vehicle and as such the complainant is a consumer and the Ops are running there business under the jurisdiction of this Forum/Commission.

            It is further stated that the vehicle unfortunately on 10/05/2015 met an accident at 3.30 am at Gopalpur under P.S. Dubjrajpur, Dist. Birbhum. The matter was informed to the Dubrajpur P.S. immediately after the accident and thereafter insurance company. The insurance company deployed surveyor to examine the vehicle and instructed the complainant to submit estimate cost of repair along with claim form.

            That thereafter the complainant took the vehicle to Murid Motor Works, at G.T Road Panagarh Bazar for repair and the repairing cost of the vehicle was of Rs. 5,25,000/-.

           It is further stated that thereafter the complainant submitted the bill in respect of the repair work of the vehicle to the OP No. 1 insurance company and visited the office of the OP No. 1 with a request to settled the claim but they did not pay any heed to the request of the complainant and the claim was not settled.

            It is alleged by the complainant that the OP members did not settle the claim of Rs. 5,25,000/- along with interest for the insured vehicle rather they harassed him on several occasions and caused his mental pain and agony.

            Hence, the instant case is filed by the complainant with a prayer to pass an order directing the OP No. 1 to pay sum of Rs. 5,25,000/- as insurance claim for the damaged vehicle being Registration No. WB-53B-3135 and to pass an order directing the OP No. 1 to pay interest @ 18% on Rs. 5,25,000/- since June 2015 till realization of the claim along with litigation cost of Rs. 10,000/- and other relief or reliefs.

            As per complainant’s case cause of action arose on 10/05/2015 at Gopalpur under P.S. Dubrajpur, Dist. Birbhum.

            The OP No. 1 has been contested the petition of complaint filed by the complainant denying all the material allegations leveled against it. The OP No. 1 Cholamandalam MS General Insurance Company Limited has been contested the case by filing a written version denying all the material allegations leveled against it.

            It is the case of the OP No. 1 that the complainant has no locus standi to file this case and the case is not tenable in Law U/S 12 of the C.P. Act 1986 as such the complaint petition is liable to be dismissed with cost.

            It is also OP No. 1’s case that the case is barred by limitation it is false and frivolous one. The complainant has no cause of action to file this case.

            It is also stated by the OP No. 1 that no such accident on 10/05/2016 at about 3.30 am at Gopalpur under P.S. Dubrajpur within the Dist. Birbhum.

            It is further stated that initially the name of the driver was Faruk Ansari but as per investigation report at that material point of time of the alleged accident the helper of insurance vehicle Ali Hussain Ansari was the driving the vehicle who had no driving license to drive the vehicle nor he was authorized to drive and the vehicle was unlawfully driving which violating the terms and conditions of the policy. From the photograph it is found that the vehicle was majorly damaged from the right side which was the driver seat and which was forward the fact that the helper Ali Hossain Ansari was driving the vehicle at the material point of time of the alleged accident. And the owner had full knowledge in respect of the incident that at the relevant point of time the vehicle was driving not by the actual driver Faruk Ansari but by Ali Hussain Ansari the helper and the owner intentionally have miss represented the name of the driver to the OP to get compensation unlawfully. Thus the claim was duly repudiated by the OP vide latter dated 13/01/2016 which was sent to the complainant by registered post.

            It is further case of the OP that though the claim is not at all payable and admissible but still the OP appointed IRDA licensed surveyor, Mr. Ashok Kumar Khanuja to assess the loss for the damaged vehicle and as such, after proper assessment, the surveyor assessed the loss amounting of Rs. 2,23,210/-. Without admitting the liability, the OP submits that the claim has been settled on nonstandard basis and as per agreement between insured and financer, payment of Rs. 1,35,000/- has already  been made to the financer, Indusind Bank and there are no latches on the part of the answering OP No. 1 or that there was deficiency in service on the part of the OP as such the petitioner is not entitled to get any relief as prayed for and the petition of complaint is liable to be dismissed.

            The OP No. 2 has contested the petitioner of complaint by filing a written version denying all the material allegations leveled against it. It is the case of the OP No. 2 that the complainant has no cause of action to file this case. The case is barred by principle of estopell, waiver and acquisance and is not maintainable in its present form and law.

            It is further stated by the OP No. 2 that the case is barred by limitation and bad for non-joinder and mis-joinder of necessary parties. It is admitted by the OP No. 2 that the complainant is a debtor of the Ops. So, he cannot claimed himself as a consumer under C.P Act 1986.

            It is further stated that the OP No. 2 had not ever agreed to render or rendered any service to the complainant thus the complainant is not a consumer. Thus the case is liable to be dismissed.

            It is the further case of the OP No. 2 that the complainant obtaining loan and hypothecation of the vehicle with Ops has entered into and Loan-Cum-Hypothecation arbitration closed where by parties to the agreement mutually agreed to disputes by referring to same to the arbitrator but the complainant cannot be allowed discard the terms of agreement entered between the complainant and the Ops.

            It is the further case of the OP No. 2 that the Op financer of the vehicle and the complainant entered into a Loan-Cum-Hypothecation agreement with the OP No. 2 by virtue of the agreement and as per close No. 13.5 of the Loan-Cum-Hypothecation agreement if any insurance claim arise during hypothecation period, then said amount will be realized by the financer up to obligation of the complainant. So, if the complainant entitled to get any insurance claim then the OP No. 2 has no objection for the same.

            In view of the above stated pleadings following issues are framed:

1. Whether the complainant has any cause of action to file this case?
2. Whether the case is barred by limitation or not?
3. Whether the complainant is a consumer within the ambit of C.P Act 1986?
4. Whether the Ops are the service provider and whether there is any deficiency of service on the part or not?
5. Whether the complainant is entitled to get the compensation as prayed for?
6. To what other relief or reliefs is the complainant is entitled to get?

                Decision with reason.

            All the issues are thus taken up together for convenience of discussions and to avoid unnecessary repetitions.

            It is the case of the complainant that he purchased an insurance policy being No. 3379/00957404/000/0 for the aforesaid vehicle being Engine No. DXPZ 109768, Chassis No. MBIG 3DYCIDPXH 4562, Registration No. WB-53B-3135 which he purchased with the financial assistance of OP No. 2 said vehicle was covered under the aforesaid policy from 28/10/2014 to 27/10/2015 IDV Rs. 13,03,875/- the complainant purchased the aforesaid policy from the OP No. 1.

            It is the further case of the complainant that the Ops have carried there business within the jurisdiction of this Commission along with other cases in India unfortunately the vehicle in question met an accident on 10/05/2015 at 3:30 am under P.S. Dubrajpur, Dist. Birbhum immediately after the accident the matter was informed to the Dubrajpur P.S. and the insurance company.

            So, it is the argument of the complainant that he purchased the insurance policy for the vehicle in question being No. WB53B3135 from the OP No. 1 and the said policy was valid on and from 28/10/2014 to 27/10/2015 from which it is revealed that the complainant is a consumer under the Ops and the OP insurance company is the service provider of the complainant and as such complainant is a consumer within the ambit of the C.P. Act 1986.

            From the fact and circumstances, documents filed by the complainant and the evidence on record of both parties. It is revealed that the vehicle met an accident on 10/05/2015 and the complainant has filed the case in the end of the 2015 i.e. on 28/12/2015 from which it is proved that the instant petition of complainant has been filed by the complainant within the statutory period and thus the same is not barred by Sec. 24(A) of the C.P. Act.

            From the evidence on record it is also proved that admittedly the complainant is the owner of the vehicle in question and the insurance policy being No. 3379/00957404/000/0 was in forced on the date of alleged accident.

            During the course of argument Ld. Advocate for OP No. 1 drew the attention of this Forum/Commission to the RTI Report dated 02/12/2015 given by O.C. Dubrajpur P.S. wherein it is mentioned that deceased Ali Hussain Ansari being the helper/Khalasi of the offending dumper being No. WB 538/3135 was in the driver seat, who had no authorized driving license. So, the complainant has violated the terms and conditions of the policy in question and is not entitled to get the compensation/claim as prayed for Ld. Advocate for the OP also filed to unreported case laws observed by the Hon’ble NCDRC in support of his say. Wherein it has been held by the Hon’ble NCDRC that as the time of accident the person who was driving the vehicle had no valid driving license then the complainant would not get the compensation as prayed for.

            In the instant case it is the claim of the complainant that admittedly he is a consumer under the OP No. 1 insurance company and it is also admitted fact that his vehicle being No. WB 53B-3135 being a damper met an accident on 10/05/2015 and badly damaged during the accident. Then he is entitled to get the compensation as prayed for.

            It is also the argument of the complainant that in the report of S.S.K.M Hospital Kolkata the deceased Ali Hussain Ansari has been mentioned as helper and after the accident police arrested the driver of the offending vehicle Faruk Ansari, and sized his driving license.

            So, as per complainant’s case undoubtedly Faruk Ansari, having the authorized D/L for Playing Heavy vehicle with the permission of the complainant is/was the driver of the vehicle in question. But it is the question whether at the time of the alleged accident he was plying the offending vehicle or not.

            Ld. Advocate for the complainant further argued that the RTI report given by O/C Dubrajpur P.S. has no basis and the OP No. 1 has tried to cast cloud in the mind of the Forum/Commission just to avoid the claim of the complainant when already they have paid Rs. 1,35,000/- to the loan account of the OP No. 2 Indusin Bank (Financier) as per survey report of their surveyor. But on a close scrutiny of the documents as submitted by the complainant along with the petition of complainant as Annexure 1,2 and 3 it is found that in charge sheet it is mentioned, that during investigation it  is/was revealed that at the time of alleged accident Ali Hussain Ansari since deceased was the driver of the offending vehicle. For such reason the O/C Dubrajpur sent in RTI report that at the time of alleged accident Ali Hussain Ansari was in the driving seat. From the PM report of Ali Hussain Ansari we got that he received severe injury on his head, chest and other part of his person during the accident. Admittedly the driving side of the vehicle badly damaged during the accident.

            From which it can be held that as the deceased was in driving seat at the time of alleged accident so the received such type of injuries death and succumbed to such injuries.

            From the unchallenged evidence of the P.W.1 it is also proved that Faruk Ansari is/was the authorized driver of the offending vehicle and he has driving license which was sized by the police during investigation as shown from the seizure list of Durbrajpur P.S. GR Case No. 85/2015 dated. 11/05/2015. It is also revealed that Ali Hussain Ansari had no D/L to ply the vehicle in question. He was the Khalasi/helper of the vehicle.

           

During the course of argument Ld. Advocate for the OP argued that it is the case of the complainant who is seeking relief before this Forum, then he must come with clean hand and prove his case beyond doubt.

            I am also of same view with the Ld. Advocate for the OP No. 1 that when the question raised about the genuienity of the claim and when the OP insurance company raised question that the authorized driver was not driving the vehicle at the time of the alleged accident and deceased Ali Hussain Ansari who was plying the vehicle at that time being the helper had no authorized D/L to ply the vehicle then what prevented the complainant to produce Farook Ansari as witness to unveil the truck?  Actually the complainant tried to suppress the actual fact. as helper before the doctor of S.S.K.M so it was mentioned as helper.

            In the medical report of Ali Hussain Ansari as issued from S.S.K.M Hospital, it is mentioned that he being a helper was going on by the vehicle.

            It is not the duty of the attending doctor to investigate about the status of a severely injured person rather the doctor will try his level best to save the life of the injured patient.

            Usually the Dr. mentioned the status of the injured as per description of the patient party.

            In the instant case the Dr. rightly mentioned the injured person as helper because it was described in such manner to him.

            But during investigation by police it is revealed that at the time of alleged accident the vehicle was plying by the deceased Ali Hussain Ansari, and the complainant has suppressed that fact by saying that Faruk Ansari was plying the vehicle.

            It was well within the knowledge of the complainant that if the fact could come out that Ali Hussain Ansari being the helper having no authorized driving license was driving the vehicle at the time of accident then due to cause of violation of the terms and conditions of the rules of Insurance Policy he will not get the claim.

            So, relying upon the police report (charge sheet) and other circumstantial evidence this Commission/Forum has no hesitation to opine that the complainant failed to prove his case beyond the shadow of all reasonable doubt that at the time of alleged accident the deceased Ali Hussain Ansari being the helper was plying vehicle by the actual driver Faruk Ansari not by the deceased Ali Hussain Ansari being the helper without having any authorized D/L in place of actual driver Faruk Ansari.

            Rather he tried to suppress the actual fact that the helper Ali Hussain Ansari was plying the vehicle at the time of accident in place of the actual driver Faruk Ansari and he did not come before this Forum/Commission with clean hand.

           

From the conduct of the complainant it is proved that he violated the terms and conditions of the rule of insurance policy. Under such circumstances we are not in a position to accept the argument of the Ld. Advocate for complainant and to consider the matter favorably to the complainant.

            So, in view of the discussions made above this Commission/Forum is of view that the complainant failed to prove his case beyond reasonable doubt and he is not entitled to get the relief as prayed for.

            The case is properly stamped.

            The issues are thus decided accordingly.

Hence, it is,

            O R D E R E D,

                                    that the instant C.C. Case No. 163/2015 be and same is dismissed on contest without any cost against the OP members.

            Let a copy of this order be given/handed over to the parties to this case free of cost.