BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.63/2018
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.)-President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc Former Dy
Director, FCS & CA - Member
Mr.Jabbar Hussain - Complainant
S/O Md.Kasim Ansari,
Vill-Bamgaon, Biswanath Chariali,
Pin -784176, Dist: Sonitpur,Assam
-vs-
I) National Insurance Company Ltd. - Opposite party
Guwahati Branch
Appearance:
Learned advocate Debajit Kalita, Bedomita Deb for the complainant .
None appeared for the opp. party
Date of filing written argument:- 4.3.2021
Date of oral argument:- 30.3.2021
Date of judgment: - 20.4.2021
JUDGMENT
1) This is a complaint filed by one Jabbar Hussain under Section 12 of the Consumer Protection Act,1986 claiming compensation for loss and injury caused by the opp.party National Insurance Company Ltd. The claim was made for an amount of Rs.12,00,000/- for dishonour of legitimate claim of the complainant by opp.party and also for financial loss and mental agony etc.
2) The brief history of the case is that petitioner purchased insurance policy dtd. 26.11.2015 in respect of a vehicle called Maruti Ertiga LDI BS-IV with engine No. D13A1939928 and Chassis No. MA3FLEB1S00128853 with registration No. AS12 L-2260. The premium was paid for the amount of Rs. 16,504/-by the complainant . But during validity of the policy the said vehicle met with an accident on 6.12.2015 thereafter on 3.8.2018 the present complaint was filed by the complainant after refusal of the claim by op.party.
3) After filing of the complaint the opp.party initially appeared and thereafter have not turned up nor filed w.s. and accordingly case proceeded exparte. Case of the complainant has been supported by filing an affidavit exhibiting as many as 8 no.s of documents along with policy schedule , certificate of registration and driving license etc.
4) According to the complainant the cause of action arose with opp.party on 14.12.2016 denied to honour the claim of the complainant on some irrelevant ground. Here the complainant referred Ext.7, the letter from the opp.party which has been addressed to the claimant . Mr. Jabbar Hussain and 3 points has been mentioned in the aforesaid letter which are as below.
I) As per General Exceptions 3(a)of the policy “The company shall not be liable under this policy in respect of 3…any accidental loss damage and / or liability caused sustained or incurred whilst the vehicle insured herein is… being used otherwise than in accordance with the Limitations as to use” In this instant case the vehicle was insured as a Pvt.Car but was used for hire purpose when the policy does not cover use of the vehicle for Hire or Reward.
II) The claim was intimated to the insurer after an inordinate delay of about 45days . As per policy condition 1,” Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim” which was not complied with.
III) Vehicle was registered with seating capacity of 7 including driver. At the time of accident there were 9 people on board the vehicle. Three persons died and five injured in the accident. Hence it is seen that the vehicle was overloaded which violates the provision of the M.V.Act.
For the above reason, claim was repudiated and opp.party absolved themselves from any liability arising out of the claim
5) Under the above circumstances the claimant submits that the vehicle was duly registered at Tezpur on 19.12.13 and it was driven by one Sudip Dutta Choudhury who was having valid driving license and testified Ex.2 & 3 and supporting documents and the above facts . The complainant stated in the petition that on 6.12.15 the accident took place at Borpat Gaon under Salonibari police out post under p.s. Tezpur. The police report has been testified as Ext.4. The police report reveals the fact that the vehicle of the complainant collided with another tripper vehicle at Balipara and as per police report the accident took place due to rush and negligent driving of the tripper drive and said report reveals that Ertica vehicle was completely damaged . The report further reveals that there were 7 major individual and 1 two year child at the time of accident. The complainant have testified Ex.5 M.V.I. report and also testified Ext.6 the final report submitted by the police dtd. 24.1.2017. Under the said circumstance the complainant tried to pursue the matter with opp.party , but op.party had done nothing which has caused great financial loss and mental agony to the complainant.
6) We have gone through Ex.8 testified by the complainant dtd. 10.1.2018 addressed to the opp.party which a letter for re-consideration of the repudiation or mentioning the fact that over-loading cannot a ground for repudiation of the claim. Referring a case law Om Prakash –vs- Reliance General Insurance , in which Apex court held- “ if the reason for making a claim is satisfactory explained , such claim cannot be rejected on the ground of delay. However the aforesaid letter addressed to the opp.party vide Ext.A referred the fact that over-loading also cannot be sole ground in the proceeding.
7) After due consideration of the materials on record as stated above by supporting documents from Ext.1 to Ext.8 we found that opp.party have not contested the proceeding nor filed written statement to contradict the aforesaid claim made by the petitioner. Moreover the original claim made in the complaint petition is for Rs.12,00,000/- inclusive of damage and mental harassment , agony etc. The complainant have nowhere mentioned about the value of the vehicle, but on close scrutiny of the policy documents i.e. Ext. 1 in the form of Annexure , we found that the insured value of the vehicle was recorded amounting to Rs. 5,61,374/-. As such , if the insurance company need to pay anything for the insured vehicle for the amount will be as per policy schedule.
8) Here, we have taken due consideration of the fact that the complainant was pursuing the matter with the opp.party for re-consideration of the repudiation order as referred on Ext.8 which may caused certain amount of delay in making the claim in appropriate time . The delay referred in repudiation letter may also be nullified as already be discussed referring to a judgment by the complainant side.
9) Secondly, so far the reason of repudiation about over-loaded the vehicle is concerned , it is found that the repudiation letter is contradictory with the policy regarding over loading of the vehicle and it is established by the police report that there were only 7 adult and 1 children .
10) Third point raised in the repudiation letter is that the vehicle was used for hire which has not been established in any way by the opp.party and there is no iota of evidence in respect of the fact that vehicle insured was used for hire etc.
11) For the reason stated above we are of the opinion that the repudiation letter issued by the opp.party is not based on fact and cannot be accepted for the reason of rejection of the claim made by the complainant . In the result the claim petition is allowed . The opp.party is directed to make the payment of insured amount amounting to Rs. 5,61,374/- (Five lacs sixty one thousand three hundred seventy four)only as per policy documents with interest @ 4% from the date of filing the petition till realization and also to pay compensation for harassment and mental agony amounting to Rs. 1,00,000/- (one lac)only and also to pay the cost of proceeding amounting to Rs.10,000/-(ten thousand)only . The opp.party need to pay the entire decretal amount within 45 days from the date of judgment failing which opp.party had to pay an interest @ 12% per annum from the date of judgment till realization on the entire decretal amount.
Given under our hand and seal of the District Commission, Kamrup, this the 20th day of April / 2021.
(Md J.Islam) (Smt A.D Lahkar) (Shri A.F A Bora)
Member Member President
Dictated and corrected by me
(Shri A.F.A Bora)
President,
District Consumer Commission, Kamrup.
Typed by me
(Smt Juna Borah)
Stenographer, District Consumer Commission, Kamrup.
