This appeal is directed against the final order of Ld. D.C.D.R.F, Siliguri dated 04/07/2019 in reference to CC/59/S/2016. The fact of the case in nutshell is that the appellant/complainant Suresh Kr. Sinhal registered a consumer complaint before the Ld. Forum on 25/05/2016 to the effect that his TATA Medium goods vehicle (truck) bearing registration no. WB73A 8465 duly covered insurance from National Insurance Co. by paying annual premium while sum insured with Rs. 04,29,840/- met with an accident in the night of 30/07/2011 between 2:00 to 4:00 hrs. while coming from Sikkim near Paglajhora when the driver Kiran Raj lost the control of the steering and the vehicle fell down in the river Teesta. On hearing this news, the truck owner Suresh Kr. Sinhal went to Sevoke Police outpost under Kurseong P.S on 01/08/2011 for reporting the falling down of the vehicle with its driver and missing of the vehicle along with the driver. Then the officer posted in that place advised him to make efforts to trace out the missing vehicle and driver. The complainant on 03/08/2011 again came to the Sevoke Police Post and registered a GD bearing no. 49 dated 03/08/2011. The complainant approached a rafting team for tracing out the vehicle and the driver and the rafting team could not trace out the missing vehicle and its driver. The complainant/appellant requested the SPO, Darjeeling for registering a regular case over the said incident but his approach was ignored. Then he registered a formal FIR before the Ld. A.C.J.M, Kurseong while his FIR was recorded under Section 156 (3) Cr.P.C. and it was sent to the police for investigation. The investigation was conducted by ASI, Mojammel Hossain who submitted the final report in the shape of FRT. The complainant/appellant approached the Insurance Co. for reimbursement of the lost truck while the Insurance Co. did not entertain his claim and for that reason, he has approached before the Ld. Forum, Siliguri by registering a consumer complaint against Senior Additional Manager and Chairman of National Insurance Co. and Commercial Investigation Bureau which was appointed by the Insurance Co. for investigation on the incident. The OP no. 1 and 2 that is National Insurance Co. had submitted the written statement contended inter alia that the instant case was not at all maintainable for law of limitation and also contended that complainant was failed to submit the necessary documents regarding acceptance of FRT filed by the Kurseong P.S and also has failed to prove that he was carrying business of trucks for his livelihood on account of self-employment. Ld. Forum after recording the evidences and hearing both sides has finally determined the dispute and adjudicated the matter to the score that the alleged accident could not be proved by the complainant beyond reasonable doubt and the truck business of the complainant was related to commercial activities and for that reason, his prayer of deficiency of service was turned down. Ultimately, the consumer complaint case was dismissed on contest.
Being aggrieved with this order of Ld. Forum this appeal follows on the ground that the process of adjudication and the finding of the Ld. Forum was misconceived, not vested in law and liable to be set aside. The appeal was admitted in due course and notice of appeal was served upon the respondent NIC who has contested the case through legal representative Mr. B. Maitra. The case of the appellant is conducted by Ld. Advocate P. D. Dalmia.
D e c i s i o n s W i t h R e a s o n s
During the course of the hearing of the appeal, it is revealed that Ld. Forum opined that the proof of accident of the vehicle was not established beyond doubt as because the complainant side has failed to produce proper documents to prove as to why the vehicle and the driver were not traced out even after searching by a rafting team over the river Teesta. This averment on the part of the Ld. Forum is not at all acceptable as because Ld. Forum has traced over the report of Commercial Investigation Bureau where it was categorically held the incident of falling of insured vehicle into the Teesta river appears to be genuine one. And the said investigating authority advised in the report to the insurer to get the FIR registered in the concerned P.S and to submit the final police report for the exact cause of the lost vehicle. This report was prepared on 24th March, 2012 while the insurer S.K. Sinhal registered the FIR for the accident through the Ld. Court u/S 156 (3) of Cr.P.C. on 01/03/2015. Now the question is why the insurer was too late to register a formal FIR about after three and a half years from the date of accident while the accident took place in the night of 30/07/2011but the FIR was registered on 01/03/2015. There is no explanation on the part of the complainant as to why the complainant/insurer has waited for long three and a half years or more time for registering the regular FIR where the investigating wing of NIC advised him on 24/03/2012 to register a FIR and to submit the investigation report from the end of police in due time. The complainant/appellant in his consumer complaint categorically mentioned in para 19 that the Insurance Co. after supplying the copy of report of investigating agency since 20/04/2012 was demanding from him for submitting the FRT after registering a regular police case about the accident of the truck and its driver. But curiously enough the complainant/appellant had waited for further 3 years and more for registering a regular FIR and such delays on the part of the appellant are not well explained and, in this regard, no latches on the part of the Insurance Co. could be reflected. The complainant/appellant himself was reluctant to register a regular FIR over the alleged accident of his truck.
We know very well that basic conception of Consumer Protection Act lies upon the doctrine of equity where the consumer who claims the relief under the umbrella of Consumer Protection Act must come with clean hands. But here, in this case, the complainant/appellant has not come in clean hands to approach his redressal before the Ld. Forum in due time. In this context, the complainant/appellant has referred a judicial decision reported in 1 (2004) CPJ 175 where Hon’ble State Commission Chhattisgarh has opined in appeal no. 463 of 2003 that where no criminal offence is made, it is not mandatory for complainant to lodge police report. In the decision, the Hon’ble State Commission finds that in that particular accident no criminality was there, only the vehicle of the owner was damaged and for that reason there was no requirement to have any police report before obtaining the insurance relief. But here, in this particular case, the criminal offence has clearly made out as because the complainant in his consumer complaint clearly and categorically mentioned that on the said dreadful night, the driver lost the control of the vehicle. And for that reason, the vehicle was fell down into the river. Here such accident was held due to rash and negligent driving on the part of the driver and certainly the provisions of sec 279 of I.P.C attracts the cause of accident. Moreover, the complainant has mentioned in the memo of appeal that on the basis of GD entry dated 03/01/2011 the ASI Mojammel Hossain filed a final report in the shape of FRT which was produced by the insurer before the Insurance Co. but the said document has not produced before the Ld. Forum and before the appellant stage. Moreover, the coy of order sheet to prove the acceptance of FRT has been produced by the part of the appellant during the course of hearing the appeal. Rather the equitable relief cannot be provided to a person as because the maxim delay defeats equity has negated the claim of the complainant in this particular case. So, after considering all the valuable arguments canvassed by the Ld. Counsels of both sides, this Commission comes to an opinion that some portion of the order of Ld. Forum in adjudicating this consumer dispute does not appear to be irregular or suffer from any gross error.
In this case, we have already discussed the various defects and faults of the complainant’s case. On the other hand, the factual proposition of the case and exact provisions of law also to be determined in this particular case before adjudicating the dispute in a proper way. The alleged accident took place in the night on 30/07/2011. At first, the accidental report was diarized by the insurer in the shape of GD entry no. 49 dated 03/08/2011. And within very few days of that GD the intimation was sent to the insurance company with necessary particulars and claim petitions for reimbursement of the sum assured in this accident coverage which was submitted in a proper way. Insurance Company could not release the claim on the ground that the alleged accident was not proved by any police investigation report. Insurance company also appointed a investigating agency who after thorough investigation came to a conclusion that the accident of the truck was genuine one but it should be ratified by a report from the police in the shape of final report. It was communicated to the complainant/insurer on 20/04/2012 by the insurance company asking him to lodge FIR before the concerned police station and submitted the FRT. Now the question is whether the limitation period should be counted in this particular case since the date of communication of the said letter dated 20/04/2012. If we go through the letter of insurance company dated 20/04/2012 there was no mentioning that if the FRT would not be submitted within a particular date, the policy claim would have to be repudiated after expiry of the said stipulated date. So, there is no final repudiation till now on the part of the insurance company in this particular insurance claim. And for that reason, there is ground to presume that cause of action to lodge the consumer complaint till now continuing. So, in every aspect if we consider that there was tremendous latches on the part of the complainant and there was severe draw backs in the particular case of the complainant, then also we cannot deny his protected relieves in this particular case in view of the provisions of Consumer Protection Act, 1986.
Ld. Forum in its final decision came to a conclusion that the complainant/insurer at that particular point of time was the owner of two other trucks besides the accidental vehicle and which was established from the documents and for that reason, Ld. Forum came to a conclusion that he is not the consumer as per Section 2 (1) (d) of CP Act, 1986. That findings of Forum is also not appreciable one in the eye of law as because as per RT rules, every vehicle should be covered with first party and third party insurance before plying on the road and for that reason, the vehicle owners has the bounden duty to obtain the insurance coverage of his vehicle as per IRDA rules and as per provisions of Section 3 of the Insurance Act. So, an insured who takes the insurance policy cannot trade or carry on any commercial activity with regard to the insurance policy taken by him under Section 3 of the Insurance Act, 1938, no person is authorised to carry a business of insurance unless he obtains a certified copy of registration from the insurance recovery and development authority. Hiring of services of the insurance company by taking insurance policy by the insurer who are carrying on commercial activities cannot be held to a commercial purpose. The policy is taken for reimbursement or for indeminity for the loss which may be suffered due to various perils. There is no question of trading or carrying on commerce in insurance policies by the insured. May be that insurance coverage is taken for commercial activity carried out by the insured. Ld. Hon’ble National Commission in the case of Shri Mookambika Spinning Mills Vs. New India Insurance Co. Ltd. and in the case of Harshelia Motors Vs. National Insurance Co. Ltd. has taken the said view. So, after considering all aspects of this case, we have come to a conclusion that the final order of Ld. Forum suffers from irregularity in the eye of law and it should be set aside for the interest of justice. On the other hand, the Insurance Company had no serious latches on their part in this particular case as because they have provided sufficient time to the complainant/insurer to have a registration of FIR and to produce the FRT before consideration of his case but the complainant could not produce FRT of this case and before obtaining the acceptance of FRT, he has lodged this consumer complaint. So, the order should be delivered in this particular case keeping in mind, all the very aspects of this case.
Hence it is ordered: -
That the final order of Ld. D.C.D.R.F, Siliguri dated 04/07/2019 in CC/59/S/2016 is hereby set aside. The respondent Senior Additional Manager and Chairman of National Insurance Company as respondent no. 1 and 2 are hereby directed to pay the sum assured of the policy to the tune of Rs. 04,29,840 after adjustment of all necessary charges as per IRDA rules within 45 days from the date of receiving the copy of order of this appeal. Failing which 8 per cent per annum as interest will be carried on over the awarded money.
Let the copy of this order be handed over to the parties of this case free of cost and the same be communicated to the Ld. Concerned Forum through e-mail.
