This case has arisen out of an application U/s 35 of the Consumer Protection Act, 2019.
The case of the petitioner is that his vehicle was duly insured with O.P vide Policy No:150701311910002832 & during subsistence of policy on 09.01.2020 at about 6:00 am when his vehicle standing at Pichhla within Karandighi P.S by left side of N.H.34, then one vehicle bearing No:NL01-AC/1958 coming from Dalkhola side dashed his vehicle on right side and his vehicle was damaged.
That petitioner submitted a written complaint with Karandighi P.S vide GDE No:437/20 dated 13.01.2020 and he informed the O.Ps that the said accident and they have appointed Surveyor Mr. Tamal Kr. Das who visited the spot & requested the petitioner to get the vehicle repaired within 07 days and accordingly he repaired the said vehicle at his own cost of Rs.1,72,540/- and it was intimated to the O.Ps but O.Ps repudiated petitioner’s claim through letter dated 01.12.2020 stating that the driver of the vehicle had no valid and effective DL to drive the transport vehicle.
That the petitioner sent a legal notice in the year 2021 & then on 12.05.2022 but O.Ps did not respond, thereby he is suffering from financial loss, mental pain and agony, so he prays for getting repair cost of Rs.1,72,540/-, compensation of Rs.1,50,000/- as financial loss, mental pain & agony and litigation cost of Rs.10,000/-.
O.Ps contested the case by filing W.V stating that petitioner filed a claim petition before NIC mentioning that one Sankar Rabidas was his paid driver at the time of accident, that petitioner’s vehicle is a commercial/transport vehicle vide No:W.B59A/2535, that they received status of DL of driver Sankar Rabidas, that driver’s DL was not valid on the date of accident because DL of driver Sankar Rabidas (transport) firstly renewed from 20.01.2017 to 04.10.2019 & thereafter renewed from 20.02.2020 to 19.02.2025, so at the time of accident driver had no any valid DL to drive transport vehicle & as per policy condition petitioner is not entitled to get any compensation from the Ins. Company, that accident occurred due to own negligence on the part of petitioner’s driver, that there is no deficiency of service on the part of the O.Ps but petitioner with ill intention filed this false suit so the case is liable to be dismissed.
Point for consideration is:-
- Whether there was any deficiency in service on the part of the O.Ps which gives rise cause of action to file the complaint and the petitioner is entitled to get the claim?
D e c i s i o n w i t h r e a s o n s
Undisputedly, the petitioner’s Commercial/Transport vehicle bearing No:W.B59A/2535 was duly insured with O.P.No:1 vide Policy No:150701311910002832 & during subsistence of policy on 09.01.2020 at about 6:00 am when his vehicle was standing at Pichhla within Karandighi P.S by left side of N.H.34, then one vehicle bearing No:NL01-AC/1958 coming from Dalkhola side dashed his vehicle on right side and his vehicle was damaged and the petitioner submitted a written complaint with Karandighi P.S vide GDE No:437/20 dated 13.01.2020 and he gave intimation to Insurance Company on 14.01.2020.
It is admitted that on receipt of Claim form O.P/Insurance Company appointed a Surveyor Mr. Tamal Kr. Das. Petitioner/P.W.1 in cross-examination stated that Surveyor came at spot and after survey asked him to repair the damaged vehicle from a garage. He stated that he does not produce any document to show that he has repaired the vehicle in a garage on being asked by the Surveyor. He stated further that neither he contacted the Officer of Raiganj Branch of Insurance Company nor procure any written letter/permission to repair the damaged vehicle.
Final reminder letter dated 01.09.2020 runs as: We appointed final Surveyor Mr. Tamal Kr. Das. But near about 09 months had been crossed, you do not complete your repairing work, not intimate our office the position of repairing work of your damage vehicle. Impliedly it is proved that the proposed repairing work was within the knowledge of Insurance Company. We thus find needless written permission of repairing the damaged vehicle.
Petitioner filed bills and vouchers:-
- As no case is made out, the petitioner is not entitled to get towing charges of Rs.3,500/- dated 09.01.2020, issued by Loknath Break Down Service
- Bill for Hard wood for Rs.20,220/-, dated 25.09.2020, prepared on the letter head of Chandrabali Sharma (Petitioner), Govt. Contractor and General Order Supplier signed by him (Proprietor), being not bill of garage, we find that the petitioner is not entitled to get said sum.
- Cash Memo No: 31 & 33 of Nandan Electric & Auto Parts dated 26.09.2020 for Rs.8,655/- & Rs.2,295/-, are find admissible.
- Repairing Charges of Ashok Body Builders dated 28.09.2020 of Rs.1,18,700/-, is find admissible.
- Invoice No:154 of Radha Glass House dated 29.09.2020 of Rs.4,200/-, is also find admissible.
- POS Invoice dated 12.10.2020 of Chakraborty Enterprise for Rs.14,970/- do not bear petitioner’s damaged vehicle No (as he owns several vehicles), is find not admissible.
We are of considered view that the petitioner may get Rs.1,33,850/- (Rs.8,655/- + Rs.2,295/- + Rs.1,18,700/- + Rs.4,200/-) towards repairing charges of the damaged vehicle, if not otherwise barred.
It is not disputed that the petitioner filed a claim petition before NIC (of its claim form) on 20.01.2020 (Exhibit-C). In Column 3 Driver Details- the petitioner mentioned name of Sankar Rabidas (paid driver) vide DL No:W.B5920090003388 valid up to 19.02.2025, authorized to drive LMV, LMV-TR.
O.P/Insurance Company filed a petition before Transport Department, Uttar Dinajpur regarding the status of DL of driver Sankar Rabidas & got reply dated 25.11.2020 that driver’s DL was not valid on the date of accident because DL of driver Sankar Rabidas (Transport) firstly renewed from 20.01.2017 to 04.10.2019 and thereafter, renewed from 20.02.2020 to 19.02.2025 (Exhibit-B). It shows Vehicle Class 1 LMV-date of issue 10.12.2009 Catg NT, 2 LMV-TR date of issue 10.12.2009 Catg TR Validity details:Non-Transport:05.10.2016 to 04.10.2036, Transport: 20.02.2020 to 19.02.2025.
Ld. Advocate for the petitioner referred judgment of Karnataka High Court in MFA No:2624 of 2016 (MV) RE:Chennakeshava Vs K. Babi & Ors, where judgment of Hon’ble Supreme Court in the case of Mukund Dewangan Vs Oriental Ins. Co. Ltd reported in (2017) 14 SCC 663 referred, it was held that license to drive LMV includes license to drive transport vehicle. The driver holding license to drive LMV can drive all the vehicles including transport vehicle. Consequently, defence case that at the time of accident driver had no any valid DL to drive transport vehicle (petitioner’s vehicle) do not stand.
Petitioner’s specific case is that at the time of accident dated 09.01.2020 the driver was not driving the vehicle but it was standed/parked by the left side of N.H.34 & dashed by another vehicle. The O.P alleged that how said car went there without the driver? May be the car was driven by said driver Sankar Rabidas who parked the vehicle on the left side of N.H.34, not in a parking lot, but at the time of accident the vehicle was standed & we find no negligence on his part. The only deficiency on the part of petitioner is to not to file final report/charge sheet in connection with his G.D.E dated 13.01.2020. Though Ld. defence Advocate argued that as petitioner has not seen the accident the driver ought to have been examined but we are of opinion that the accident caused to a standing vehicle, so needles to examine the driver, who was neither in the vehicle nor saw the accident.
Ld. Advocate for petitioner referred another judgment of Supreme Court of India in Civil Appeal No:1999-2000 of 2020 in RE: Nirmala Kothari Vs United India Ins. Co. Ltd, Madurai Bench of Madras High Court in RE: CMA (MD) No:211 of 2018 & CMP (MD) No:3295 of 2018 in RE: Parameshwari & Ors Vs United India Ins. Co. Ltd & Uttarakhand High Court 2009 (2) UAD 479 in RE: Charan Singh Vs National Ins. Co. Ltd & Ors where case of National Ins. Co. Ltd Vs Swaran Singh & Ors (SCC) Section 149 (2) (a) (ii) was discussed.
Ld. Advocate for the Insurance Company referred citation of Madras High Court [2021] Acci. C. R. 54 (Mad) RE: National Ins. Co. Ltd Vs P.M. Moideen @ Mohammed & Ors which held that when DL is not renewed, it amounts to not possessing DL. A judgment of Hon’ble Supreme Court reported in 2020 SCC Online SC 769 [Beli Ram Vs Rajendrar Kumar & Anr] =[2020] Acci. C.R. 995 SC was referred where it has held that when a tortfeasor failed to renew the driving license within 30 days of expiry of driving license, as per the provision of the Motor Vehicles Act, the Insurance Company is not liable to pay compensation, as owner of the vehicle has committed breach of terms of policy by entrusting the vehicle to a person not possessing a valid driving license. The Hon’ble Apex Court considered judgment reported in (2020) 4 SCC 49 [Nirmala Kothari Vs United India Insurance Company Limited] (referred by complainant noted hereinabove) which has been distinguished & pointed that right which has to be protected, is of victim and not owner of vehicle.
The Insurance Company sent final reminder dated 01.09.2020 asking the petitioner to intimate the position of repairing works of his damage vehicle within 07 days from the receipt of the letter, and file was closed by letter dated 15.09.2020 due to non-compliance. It appears that the petitioner sent a written application to the Insurer for re-opening the claim, on the grounds stated therein, received by Raiganj Branch of Insurance Company on 15.10.2020. In spite thereof the Insurer repudiated petitioner’s claim by letter dated 01.12.2020, the ground for repudiation i.e driver’s clause as per general exclusion of the policy condition do not stand as discussed above, consequently, such repudiation amounts to deficiency in service on the part of the Insurer.
Under above facts and discussion we are of the opinion that the judgments referred by the complainants are in respect of claim of 3rd party/victim, but this case relates to/between 1st party/petitioner & 2nd party/Insurer, not fit for compensation under the Consumer Protection Act. We are also of the opinion that the judgments referred by the O.P/Insurance Company are not applicable as the accident occurred to a stationery/standed vehicle. Therefore, we find that the petitioner is entitled to get Rs.1,33,850/- for repairing charges of his damaged vehicle but he is not entitled to get any amount towards compensation and litigation cost for non-submission of Charge Sheet/Final Report & non-compliance of Insurer’s query in time.
In the result the case succeeds.
Hence, it is
O R D E R E D
that the C.C-37/2022 be and the same is allowed on contest against the O.Ps.
We do direct O.P.No:1&2 to severally & jointly pay Rs.1,33,850/- within 01 month from the date of order, failing which it will carry interest @6% p.a till final realization and the petitioner will be at liberty to recover the same through execution.
Let a copy of this order be given to the parties free of cost.
