OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.102/09
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Md.Jamatul Islam - Member
Sri Kandarpa Sarma - Complainant
Son of Sri Rajani Kanta Sarma
Resident of Village Sajee,
P.O.Dagaon,
District –Kamrup,Assam.
Pin 781101
-vs-
1) National Insurance Company Ltd., -Opp.parties
Beltola Branch Office, Basistha Rd,
Maidamgaon,Guwahati-781028
District –Kamrup (Assam)
Having its registered office at 3, Middleton Street ,
Post Box No. 9229, Kolkata-700071.
2) The Branch Manager,
National Insurance Company Ltd.,
Beltola Branch Office, Basistha Rd,
Maidamgaon,Guwahati-781028
District –Kamrup (Assam)
Appearance-
Learned advocates Mr. Gautam Chamuwa for the complainant and Learned advocate Ms. Rita Das Mazumdar for the Opp.Parties.
Date of argument- 6.12.18
Date of judgment- 14.12.18
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Sri Kandarpa Sarma against National Insurance Company Ltd., Beltola (Guwahati) branch and its branch manager was admitted on 23.9.09 as a proceeding u/s 12 of Consumer Protection Act,1986 and notices were served upon them, and they also filed their joint written statement. The complaint filed his evidence on affidavit on 22.6.2010 and he was cross-examined by the counsel of Opp.Party No.1 & 2, and thereafter one Smti Daisy Goswami filed evidence for the opp.parties and she was cross-examined by the counsel of the complainant side. Thereafter, Ld.advocate Mr.Gautam Chauhan filed written argument for the complainant and Ld advocate Ms.Rita Das Mazumdar for the opp.parties, but on the date of hearing of oral argument, none of the parties was found. Hence, we deliver the judgment today, which is as below-
2) Gist of the pleading of the complainant is that his vehicle bearing Registration No.-AS-25-A 7787, which was insured with the opp.parties (National Insurance Company Ltd) vide policy No. 200110/31/07 /6300001697 (effective from 27.9.07 to 26.9.08), had met with an accident on 13.11.2007 and the vehicle was duly inspected by MVI of DTO Office, Kamrup on 19.11.2007; and Kamalpur P.S. investigated the matter vide Kamalpur P.S. case No. 279/304(A) I.P.C. and issued a report dtd. 16.12.2007 to him; and he also informed the opp.party about the accident; and the latter got the vehicle which was kept at Changshari Out Post surveyed appointing a surveyor. On 20.11.07, the damaged vehicle was towed to Biswakarma Body Builder, Baihata Chariali on payment of towing charge of Rs.3,500/-, and the said garage gave an estimate of repairing to the tune of Rs.1,81,871/- and also gave supplementary estimate of repairing of Rs.58,489/-. He purchased parts of value of Rs. 28,131/- and Rs.20,301/- vide Invoice No. 2072 and 2073 dt.1.2.2008 from Bhagirath Motors, A.T.Road, Guwahati; again he purchased parts of value of Rs.26,526/- vide Job No. 1850 dt.16.2.2008 from Surya Diesels, Tokoubari (Guwahati) and also purchased one Excise Express-Battery for Rs. 9,700/- vide Invoice No. 5950 dt.20.2.2000 from Mitali Motor, A.T.Road (Guwahati). He paid Rs.1,43,000/- to Biswakarma Body Builder as repairing charge vide receipt dtd. 27.2.2008 . Thenafter he, vide letter dtd.29.2.08, requested Branch Manager , Opp.Party No.2 to send surveyor for final survey . Thereafter, he lodged a claim with the opp.parties which was registered by the opp.parties as claim No. 200100/31/07/63/70000051 and then one Sri Dinesh Mudiar, the investigator of the opp.parties investigated the documents filed by him by visiting Biswakarma Body Builder, but the opp.parties repudiated his claim informing him vide letter of OPp.Party No.2 Ref.No.200110/Motor CL/BKB/GDD/08/74 dtd.31.3.2009 stating that D/L No. 7574/94/TNS is false one as DTO Tuensung, Nagaland reported that there is no record of said driving licence, from their end. OPp.Party No.2 informed him also that he is the owner of the vehicle but not the driver and the name of the driver is Ratul Kumar S/O M.R.Kumar of vill- Tipkuchi Bejera , District Kamrup and his driving licence vide No. F-1372-97-12-EZ dt.30.10.07 issued by D.T.O. Kamrup, was valid upto 30.10.2010. He then consulted with his advocate and requested Opp.Party No.2 to return the documents he had submitted to them , but Op.Party No.2 vide letter dated 9.7.09 ( Rgd. Post letter) informed him that it is not permissible to return any original documents once submitted to them. Their driver, Sri Ratul Kumar was having valid D/L which was effective upto 30.10.10 i.e. he had valid driving licence at the time of the accident , but the opp.party did not consider the said matter and so, contention of the opp.parties is absolutely not sustainable in the eye of law. The opp.parties harassed him more than one and half years by not setting his claim , but finally repudiated his claim arbitrarily and thereby they committed deficiency of service towards him . Such illegal repudiation order put him in tremendous mental agony and it also caused harassment to him and so he is entitled to get Rs.50,000/- from the opp.party as compensation. He claims Rs.2,80,658/-, out of which Rs. 2,30,658/- is the principal amount which he had incurred as cost of repairing charge of his vehicle and remaining amount of Rs.50,000/- is towards compensation on account of causing mental agony and harassment etc.; and he is also entitled to get interest @ 12% p.a. on Rs.2,30,658/- from the month of March ,2008 as he paid the said amount from 20.11.2007 to 27.2.2008 which comes to Rs. 41,518.44 and the total claim amount becomes Rs.3,22,176.44/-.
3) The pleading of Opp.Party No.1 & 2 is that there is no cause of action for filing the complain; this forum has no jurisdiction to try this instant complaint. The complainant violated policy condition regarding driving licence of the driver and as such, it is not permissible to settle the claim of the complainant. The driver did not have a valid and effective driving licence and the complainant violated policu condition allowing the driver who was not having valid and effective driving licence. The renewal of fake driving licence does not cure the inherent defect of driving licence. As such, by repudiating the claim of the complainant, they have not committed deficiency of service towards the complainant and in result, rebutting the complaint is liable to be dismissed.
4) We have perused the pleading as well as evidence of the parties and it is found that it is both side’s admitted fact that the vehicle of the complainant Sri Kandarpa Sarma, vehicle No. AS-25 A-7787 (TATA Bus) which was insured with Opp.Party No.1 (National Insurance Co.Ltd.) vide policy No. 200110/31/07/6300001697 which was effective from 27.9.2007 to 26.9.2008, had met with an accident on 13.11.2007 and the complainant duly informed Opp.Party No.1 about the accident and the latter deputed a surveyor to survey the said vehicle at Changsari Police Outpost and the surveyor surveyed the vehicle accordingly and submitted report to them; and that complainant lodged a claim with Opp.Party No.1 requesting Opp.Party No.1 to pay him Rs.3,22,176.44 stating that he incurred expenditure Rs.2,30,658/- in repairing his vehicle after the said accident and he claims Rs.50,000/- as compensation for causing harassment to him and Rs.41,518.44 as interest from March,2008 to 31st Aug.2009 @ 12% per annum and that after accident, the complainant repaired the said vehicle from his own pocket and that the opp.party repudiated the claim of the complainant on the alleged ground that the complainant violated policy condition allowing the vehicle to be driven by a person who did not have valid and effective driving licence. Thus, it is established that the vehicle of the complainant had met with an accident on 13.11.2007 and got badly damaged and the complainant got the vehicle repaired through Biswakarma Body Builder, Baihata Chariali, by paying the repairing charge as well as purchasing spare parts from his own pocket and that he purchased spare parts from Bhagirath Motors, A.T.Road, Guwahati, Surya Diesels, Tokoubari, Guwahati and purchased one Exide Express Battery from Mitali Motors, A.T.Road, Guwahati.
5) From evidence of the complainant as well as exhibited documents , it is seen that the complainant paid Rs.1,43,000/- to Biswakarma Body Builder, Baihata Chariali on 27.2.2008 as repairing charge of the vehicle which is seen from Ex.12 and he had purchased spare parts from Bhagirath Motors, A.T.Road, Guwahati, paying Rs. 48,432/- vide Invoice No.2072 and 2073 dtd. 1.2.2008 which is proved by Ex.8 & 9; he also purchased spare parts from Surya Diesels, Tokoubari, Guwahati paying Rs.26,526/- which is proved by Ex.10 (Job No. 1850 dtd. 16.2.2008); and he also purchased one by Exide Express Battery from Mitali Motors, A.T.Road, Guwahati, which is proved by Ex.11 (Invoice No. 5950) dtd.20.2.2008 and he paid Rs. 3,500/- to Biswakarma Body Builder as towing charge. Thus, it is established that the complainant had spent Rs.2,30,758/- in repairing his vehicle after the accident which includes repairing charge as well as cost of purchasing the spare parts. He has spent Rs.84,158/- in purchasing spare parts. It is seen from the record that the vehicle was not a brand new vehicle at the time of accident and hence he will get 50% of total cost of spare parts which is Rs.42,074/-, but there will be no deduction from the amount spent as repairing charge. Hence his entitlement would be Rs. 1,85,074/- only as reimbursement of repairing cost. If it is found that the complainant has not violated any policy condition and he would also be entitled to compensation for causing harassment to him as well as cost of proceeding.
6) Now, the moot question is that whether complainant violated condition of policy by allowing a person to drive the vehicle on the date of accident who did not have valid and effective driving licence. The complainant states in the complaint as well as in evidence that on the day of accident, his driver Sri Ratul Kumar, S/o Late M.R.Kumar of village , Tipkuchi Bejera , District Kamrup had valid driving licence which is F-137297 –K-EZ dtd. 31.10.2007 which was issued by D.T.O.Kamrup, but opp.party side states that the said driving licence is not a valid driving licence, but they are not saying what way the said driving licence was invalid. D.W.1 , Smti Daisy Goswami states that the said driving licence was invalid as their investigator found that the original driving licence was seemed by D.T.O.Tuensung, Nagaland, but the said authority gave a report that there was no record in their end to the effect that the said original driving licence was issued from their end. But the opp.party side has not examined the DTO, Tuensang, Nagaland and their surveyor Sri Jayanta Madhab Dutta as witness to prove that fact, and therefore, the report of the surveyor Sri Jayanta Madhab Dutta, which is Ex.E can not be accepted as proved and so his report can not be believed. Therefore, we hold that the plea of the opp.party that the original driving licence of the driver of the complainant, which is D.L. No. 7574 /94 TNS, had not been issued by D.T.O. Tuensung, Nagaland stands not proved.
7) The complainant states in his evidence that the driver of his vehicle had valid driving licence vide No. F-1372-97-K-EZ dtd. 30.10.2007 and that was issued by D.T.O.Kamrup, which was valid from 30.10.2010. This fact is not denied by the opp.party, but they say that the original driving licence was not issued by D.T.O. Tuensung, Nagaland, which they have failed to prove. In such situation, we must hold that the original driving licence which seems issued by D.T.O. Tuensung, Nagaland had actually been issued by the said authority, and on the basis of said driving licence, the D.T.O.Kamrup issued Driving Licence No.1372-97-K-EZ dtd. 30.10.2007; and that is why the Driving Licence No.1372-97-K-EZ dtd. 30.10.2007 which the driver of the complainant was possessing at the time of driving the said vehicle on the day of accident is a valid driving licence. Therefore , we hold that the complainant had not violated any condition of the insurance policy . So, we hold that the repudiation order is quite illegal and the opp.parties committed deficiency of service by repudiating the claim of the complainant and in result, we hold that the opp.parties are liable to pay Rs.1,85,074/- to the complainant as re-imbursement of repairing cost of his vehicle, Secondly, the op.parties are found to have put the complainant in mental agony and caused harassment to him by illegally repudiating his claim . Therefore, op.parties are liable to pay atleast Rs. 10,000/- to the complainant as compensation for causing harassment and mental agony to him .They are also liable to pay another amount of Rs.20,000/- as cost of the proceeding having due to repudiating claim of the complainant by the opp.parties arbitrarily and illegally, the complainant became compelled to prosecute them before this forum by incurring handsome amount for that pursuit. The complainant is also entitled to interest on the principal amount (the cost of repairing) @ 6% per annum from the date of filing the complaint (23.9.09) till full satisfaction of the award.
8) Summing up our discussion as above, we hold that the complainant has a strong cause of action against both the opp.parties, which, he has succeeded to prove. Accordingly, the complaint against the op.parties is allowed on contest and they are directed to re-imburse of Rs.1,85,074/- to the complainant against the cost of repairing of his vehicle done by him alongwith interest @6% per annum from 23.9.2009 till full satisfaction of the award ; and they are also liable to pay Rs.10,000/- as compensation for causing harassment and mental agony to him as discussed above, as well as Rs.20,000/- as cost of the proceeding, to which, both the opp.parties are jointly and severally liable. They are directed to pay the awarded amount within 45 days , in default, other two amounts also shall carry interest at the same rate to be calculated from today till full satisfaction of the award.
Given under our hands and seal on this 14th Dec. ,2018.
(Md. Jamatul Islam) (Md. Sahadat Hussain) Member President
