West Bengal

Birbhum

CC/73/2016

SK Abdus Sattar, S/O SK Salamat - Complainant(s)

Versus

Manager, L and T Gen INS Co Ltd - Opp.Party(s)

Sanjit Kr Achatya

19 Jan 2024

ORDER

Shri Sudip Majumder- President-in-Charge.

            The complainant/petitioner files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that the petitioner/complainant, SK Abdus Sattar, S/o. SK Salamat, permanent resident of Vill. and P.O.- Sattore, P.S.- Panrui and Dist.- Birbhum, purchased an insurance policy being No. 9151060005884590000, dated 10/10/2015, for his tractor being No. WB-53-B-3986. The policy was valid from 10/10/2015 to 09/10/2016, IDV Rs. 3,84,.200/-.

            It is the further case of the complainant that on 30/10/2015 at about 10:00 A.M. the vehicle met with an accident near Sattore under P.S.- Panrui, District- Birbhum and the fact was duly intimated to the OP side as well as P.S.- Panrui.

            Thereafter, as per instruction of OP side, the complainant lodged an insurance claim being claim No. 93510600069116, along with Bill from Lakshmi Automobile, Rabindrapally, Suri, Birbhum. He incurred expenses of Rs. 1,18,961/- as cost of repairing and spent Rs. 4,500/- for bringing the vehicle from the spot of accident to repairing work shop by a break down car.

            The OP insurance company appointed their surveyor and repudiated the claim of the complainant vide their letter dated 17/05/2016 and mentioned as “With reference to your above mentioned claim under Commercial & Miscellaneous car package Insurance, we wish to inform you that we have received the papers and documents submitted by you for processing the claim. Going through the claim documents we regret our inability to honour the claim for further process because.

It is observed that the driver at the time of accident did not have valid driving license to drive a tractor. Also it is observed that there were 2 persons travelling in the vehicle at the time of accident, though the sitting capacity of the tractor is.1.

            The claim is this not admissible within he terms and condition of the policy.”

Hence, after finding no other alternative the complainant is compelled to file this case before this Forum/Commission for proper reliefs and he prayed the Commission:-

1. To pass order directing the OP No. 1 to pay Rs. 1,23,450/- as insurance claim for the tractor damaged.
2. To pass order directing the OP No. 1 to pay interest @ 18% p.a. on Rs. 1,23,450/- since the date of claim preferred till realization of the claim.
3. To pass order directing the OP to pay Rs. 30,000/- as compensation for mental agony and harassment of the complainant.
4. To pass an order directing the OP to pay Rs. 20,000/- as litigation cost.
5. Other relief/reliefs.

OP insurance company stated in their written notes on argument as:

1. That the said tractor, bring No. WB53B3986, is commercial vehicle with a seating capacity of one person. The insurance policy of the said tractor was within Commercial and Miscellaneous package policy. Thus, the vehicle in question was meant for commercial purpose. As such this complaint U/S-12 of the C.P. Act, is not maintainable as per the provision of law.
2. This case has been filed against this insurance company praying for relief. But this OP insurance company has its office at Mumbai, which is beyond jurisdiction of this court. That the complainant has filed this case which is barred for the want of jurisdiction and the same should be rejected on that scour alone.
3. That at the time of said alleged accident the vehicle was driven by Sk. Alenur, who was not having any valid driving license.

That the accident took place on 30/10/2015 but the driving license as filed by the compai9annt was issued on 27/11/2015 in the name of Sk. Alenur.

4. That the seating capacity of the said tractor is one as per registration certificate, however as per the investigation report, one Asif Hossain was travelling on the vehicle at the time of the vehicle and the same was admitted by the complainant in his cross as well.
5. The IRDA approved surveyor has assessed the loss to the tune of Rs 65,000/-.Thus the OP admitted the fact of accident OP did not agree to pay the entire claim as filed by the

complainant. As per their approved surveyor’s report the OP agreed to pay Rs. 65,000/- to the complainant.

            Complainant’s side submitted evidence-in-chief. Both the parties submitted written notes on argument. Some documents have als0o been filed by the complainant’s side and those are compared with the original ones. The OP insurance company did not file any evidence-in-chief in support of their case.

Thought, they filed some documents with firisti. Thereafter, respective Ld. Advocates for the OP No. 1 and the complainant made oral arguments in support of their case.

            In the instant case, the OP No. 2/UCO Bank is the necessary party to this case and the complainant has no claim against them. It appears from the case record that the case has already been directed to run exparte against OP No. 2 vide order No. 4 darted 20/09/2016.

            Heard Ld. Advocate for the complainant.

            Considered.

            Perused all the documents.

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Op?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            In this case, the complainant purchased an insurance policy for his tractor vide policy No. 9151060005884590000, which was valid from 10/10/2015 to 09/10/2016. Thus, the complainant is a consumer under the OP insurance company and the OP insurance company is the service provider. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 is Rs. 20,00,000/-. OP No. 1/ HDFC Ergo General Insurance Company Limited (Erstwhile: L and T General Insurance Company Limited) has branch office which is situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

 

In this case, the cause of action arose from 30/10/2015 and the case has been filed on 29/06/2016 and as such it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 1986 and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant purchased an insurance policy for his tractor vide policy No. 9151060005884590000 date 10/10/2015, for tractor being No. WB-53-B-3986. The policy was valid from 10/10/2015 to 09/10/2016, IDV Rs. 3,84,200/-.

 The vehicle in question met with an accident on 30/10/2015 i.e. within the valid period of the said insurance policy. The complainant claimed Rs. 1,23,450/- as cost of repairing as it was shown in the bill of Mama Engineering Work printed. The amount of claim is also within the IDV i.e. within Rs. 3,84,200/-.

The OP insurance company stated in their W/V as well as W/N/A that the vehicle in question is used for commercial purpose. So, the complainant is not maintainable le as per C.P. Act.

In this context, Ld. Advocate for complainant argued and cited a ruling from Hon’ble NCDRC, which held “That a person, who takes an insurance policy to cover the envisaged risks, will not take the policy for commercial purpose. A policy is only for indemnification and actual loss; is not intended to generated profit.”

Further, Ld. Advocate for complainant argued and cited from Hon’ble Supreme Court in Ational Insurance Co. Ltd. Vs.- Harsolia Motors & Ors. (2023) CPJ 33 (SC):

“43. Applying the above principles in the present case, what needs to be determined is whether the insurance service had a close and direct nexus with the profit generating activity and whether the dominant intention or dominant purpose of the transaction was to facilitate some kind of profit generation for the insured or to the beneficiary and our answer is in the negative and accordingly we are of the view that the complaint filed by the respondent insured herein has no close or direct nexus with the profit generating activity and the claim of insurance is to indemnify the loss which the respondent insured had suffered and the Commission has rightly held that the respondent is a “consumer” under Section 2(1)

(d) of the Act, 1986.

44. We further reiterate that ordinarily the nature of the insurance contract is always to indemnify the losses. Insurance contracts are contracts of indemnity whereby one undertakes to indemnify another against loss/damage or liability arising from an unknown or contingent event and is applicable only to some contingency or act likely to come in future.

 

45. This Court in United India Insurance Company Limited v. Levis Strauss (India) Private Limited10 has held as under:

“53.A contract of insurance is and always continues to be one for indemnity of the defined loss, no more no less. In the case of specific risks, such as those arising from loss due to fire, etc. the insured cannot profit and take advantage by double insurance. Long ago, Brett, LJ in Castellain v. Preston [Castellain v. Preston, (1883) 11 QBD 380] said that : (QBD p. 386) “….. the contract of insurance … is a contract of indemnity.

… and that this contract means that the assured, in the case of loss … shall be fully indemnified, but shall never be more than fully indemnified.”” (emphasis added) 10 (2022) 6 SCC 1

46. Thus, it can be concluded that in the instant case hiring of insurance policy is clearly an act for indemnifying a risk of loss/damages and there is no element of profit generation and still what has been expressed by this Court is illustrative; it will always open to be examined on the facts of each case, as to the transaction in reference to which the claim has been raised has any close and direct nexus with profit generating activity.”

We find in Madan Kumar Singh (Dead) through L.R. Vs. District Magistrate, Sultanpur & Ors. (2009) 9 SCC 79 as: “He would be a consumer, even if he was to employ a driver for running the truck since even then he would have continued to earn his livelihood from it and of course by means of self-employment.”

Hence, we think that the case is maintainable.

The OP insurance company stated that OP insurance company situated in Mumbai, which is beyond the jurisdiction of this Commission.

In this context, Ld. Advocate for the complainant argued that the cause of action arise at Sattore, Dist.- Birbhum. As per Sec. 11(2) (c) of the C.P. Act, 1986 this Commission/Forum has territorial jurisdiction to entertain this case.

The OP insurance company also stated that at the time of accident the vehicle was driver by Sk. Alenur, who was not having any valid driving license. The accident took place on 30/10/2015 but the driving license was issued in the name of Sk. Alenur on 27/11/2015.

In this context, Ld. Advocate for the complainant argued that the driver Sk. Alenur was driving the said tractor and he was holding DL being No. WB 53LL/23591/13-14 which was issed on 30/03/2015 as learner’s license. As per Sec. 10 of the Motor Vehicle Act. The person who hold a learner’s license is entitled to drive the LMV (NT).

As per Sec. 4(3), 7(2), 10(3) and 149(2) of Motor Vehicles Act, 1988-Learner’s License-“From perusal of various provisions of the Act it becomes evident that a person holding learner license is a person duly licensed to dive a vehicle in terms of the Act and the Rules made thereunder-Insurer cannot refuse to pay claim of third party on the ground that person driving the vehicle was in possession of learners license and as such was not competent to drive the vehicle-Conditions attachjed to a learner’s license are statutory conditions and he comes under the purview of “duly licensed” under the Act and Rules.”

That the OP insurance company further alleged that the driving license was not valid for the class of vehicle as well. The drive was authorized to drive motor cycle with gear and LMV (non transport) whereas the vehicle in dispute was tractor (commercial).

 That here the vehicle is a tractor and its laden weight is 2000 kg and as per laden weight the tractor is LMV. That as the driver was holding a learner’s licenses to drive the vehicle LMV (NT) he is entitled to drive the tractor.

The OP insurance company further alleged that as per investigation report, one Asif Hossain was travelling on the vehicle at the time of accident and the same was admitted by the complainant in his ceros as well. But, the vehicle has a capacity of one seat. Hence, there is violation and terms & condition as per Motor Vehicle rules.

In this context, Ld. Advocate for the complainant argued that Sk. Ashique Hossain was not travelling with the driver Sk. Alenur he was beside the vehicle to help Sk. Alenur to give direction in respect of cultivation and as such it cannot be said that the complainant violated term and condition of the policy.

Ld. Advocate for OP insurance company also cited some rulings in support  of their case.

Ld. Advocate for the complainant files 3(three) invoice in respect of incurred expenses as cost of repairing of the vehicle in question as:

Lakshmi Automobile, Suri

Invoice No.                                   Date                                        Amount (Rs.)

LA/Spare/2015-16/470                       16/11/2015                              41,233

LA/Spare/2015-16/471                       16/11/2015                              59,728

LA/S. Charge/2015-16/11                   16/11/2015                                8,000

                              Expenses as tochen charges                                  +4,500

                              Incurred total expenses                                         1,13,461/-                                                                                                       

            However, the IRDA approved surveyor has assessed the loss to the tune of Rs. 65,000/-.

            In the instant case OP insurance company admitted the fact of accident. But, OP insurance company failed to explain the actual reason for reducing the claim of the complainant.

On the other hand the complainant filed evidence-in-chief and written notes on argument. OP insurance company did not file any evidence in support of their case. Only written version and written notes on argument have no value unless the contents thereof are established by evidence.

            The petitioner has proved the receipt amounting to Rs. 1,13,461/- granted by Mama Engineering Work as repairing cost. The OP insurance company could not negate it anyway. So, the claim of the petitioner stands.

            From the above discussion, this Commission is of the view that the OP insurance company’s stand not to agree to pay the entire cost of repairing as claimed by the complainant and cause shown by the OP side for repudiation of the said claim is baseless and vexatious one.

It is proved beyond all reasonable doubts that the aforesaid act of the OP insurance company is amounting to deficiency in service as per Sec. 2(1) (g) of C.P. Act, 1986 as well as unfair trade practice as per Sec. 2(1) (r) of the C.P. Act, 1986.

Hence, from the above discussion it is proved that the complainant could be able to prove her case beyond all reasonable doubts.

Point No. 4:

From the documentary evidence as available in the case record it is crystal clear that the complainant is the beneficiary of the said policy.

Also in this case, it is proved that there is deficiency in service on the part of the OP members.

Hence, the complainant is entitled to get relief or compensation as prayed for.

Thus, all the points are decided in favour of the complainant.

Complaint is sufficiently stamped and proved beyond all reasonable doubt.

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% p.a. from the date of filing of this case.

            In our opinion, 9% interest on insurance claim is enough as relief in forum of compensation. Hence, additional relief in form of compensation should not be awarded to the petitioner.

Hence, it is,

            O R D E R E D,

                                        that the instant C.F. Case No. 73/2016 be and same is allowed on contest with cost.

The OP No. 1/ HDFC Ergo General Insurance Company Limited (Erstwhile: L and T General Insurance Company Limited) is directed to pay Rs. 1,02,115/- (One lakh two thousand one hundred fifteen only) to the complainant as calculated in the next page:

Total expenses incurred for the damage vehicle                     Rs. 1,13,461

            Less: Depreciation @ 10% p.a. thereon                      -Rs.     11,346

                                                                                                  Rs. 1,02,115/- along with interest thereon @ 9% p.a. calculating on and from 29/06/2016 (i.e. from the date of filing of this case) till realization.

          The OP is also directed to pay Rs.5,000/- (Five thousand only) as cost of litigation to the complainant/petitioner.

The entire decree will be complied by the OP No. 1/ HDFC Ergo General Insurance Company Limited (Erstwhile: L and T General Insurance Company Limited) within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

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