DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D. Case No. 20 of 2011
Ramgopal Mahapatra, S/o. Jayadev Mahapatra, aged about 47 years, R/o. village / P.O./P.S. Ullunda, District – Subarnapur.
………… Complainant
Vrs.
National Insurance Company Ltd. Represented through its Senior Divisional Manager, Sambalpur Divisional Office, Nayapara, District - Sambalpur
…… Opp. Party
Advocate for the Complainant …………. Sri B.B.Bidyadhar
Advocate for the O.Ps. …………. Sri P.K.Purohit
Present
1. Sri S.C.Nayak, President
2. Smt. S.Mishra Lady Member
Date of Judgement Dt.23.9.2015
J U D G M E N T
By Sri S.C.Nayak, P.
This is complainant’s case alleging deficiency of service on the part of the O.P.
The factual matrix of this case as culled down from the complaint petition is that in order to facilitate his business the complainant purchased a Mini Truck as a means of livelihood for self employment. The vehicle was registered and insured with the National Insurance company.
On 13.2.2010 the vehicle met with an accident while driver Dilip Padhan was driving the vehicle, who was having a valid driving license. The vehicle was damaged. The insurance company was informed and vehicle was inspected under instruction of the official of the company it was repaired and bill submitted. The insurance company on vague grounds repudiated the bill. Therefore there has been deficiency of service by the O.P. Therefore the complainant has claimed Rs.2,58,720/- towards repairing charges, mental harassment and unfair trade practice.
The O.P. has filed written version. According to it the vehicle was insured as a goods carrying commercial vehicle and the same was issued with certain condition, limitation
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warranty and exclusion in violation where of the insurer cannot be made liable to pay any claim. The O.P. avers that Mr. Kwaljit Singh was deputed for spot Survey and claim form was issued to the O.P. with a request to submit them duly filled with estimates of repair and documents. Complainant was reminded with Regd. Letter dt.30.10.2010 to submit the documents within 15 days failing which it will be presumed that complainant has nothing to submit. This letter was received on 1.11.2010. So the claim was closed as NOCLAIM on 25.11.2010. The complainant submitted the claim form on 13.11.2011 and by that time the complainant also intimated that he has repaired the vehicle without giving a chance to the O.P. to assess the loss. On receipt of claim form the O.P. again examined the documents and ascertained that at the time of accident the vehicle was carrying passengers and tax was not paid. So the O.P. sent a letter on 12.5.2011 mentioning their inability to reopen the file. After getting information, the insurance company collected police paper. Verification of the D.L. was done and papers related with G.R. case was also collected. After collecting the information, the insurance company could learnt that one Prabhudatta Dang had filed a report before police and on his report police submitted charge sheet. From the report of the F.I.R. and charge sheet it is ascertained that the vehicle was transporting passenger and near about 50 passengers were traveling in the said vehicle. Further it was ascertained that driver Dillip Pradhan was driving the vehicle. The O.P. avers that although the vehicle was insured for goods carriage commercial vehicle the complainant has used the vehicle for commercial purposes which is clear violation of policy Exception No.3(a). On verification it was found that the driver Dilip Padhan was not having a valid D.L.
Further the O.P. avers that the forum lacks territorial jurisdiction to decide the dispute. The vehicle is a commercial vehicle and the complainant is not a consumer. It is also averred that the spot surveyor Kawaljit Singh inspect the vehicle but he never told the O.P. to get it repaired and submit bill without final assessment of the vehicle. Hence the O.P. claims that there has not been any deficiency of service by the O.P. and as such this complaint case be rejected.
We have heard the learned counsel for the parties and perused the materials on record. On the pleadings of the parties and submissions made at the bar the following points fall for determination by the Forum :-
i). Is the complainant a Consumer ?
ii). Does this Forum have jurisdiction to decide the lis ?
iii). Is the repudiation of the claim of insurance justified ?
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The learned counsel for the O.P. vehemently contends before us that the complainant is not a consumer. Citing para 2 of the complaint petition learned counsel contends that since the complainant has purchased the vehicle to facilitate his business, he is not a consumer. We are not at all impressed by the submission of the learned counsel in as much as in the said para the complainant has also stated that he has purchased the vehicle as a means of livelihood for self employment. There is nothing on record to come to a conclusion that the complainant has other sources of income also. At least the O.P. has not filed any such evidence. So we are of the considered opinion that the complainant is a consumer within the meaning of C.P.Act, 1986.
The O.P. has averred in his written version that the Head Office of the O.P. is at Calcutta and Divisional Office is at Sambalpur. The O.P. does not have any branch office in the district of Subarnapur. So according to the O.P, this forum lacks territorial jurisdiction to decide the lis. In the instant case the cause of action has arisen in the district of Subarnapur as the accident took place within the district of Subarnapur. Further more the O.P. is also carrying its business in the district of Subarnapur. So we are of the considered opinion that this Forum has got territorial jurisdiction to decide the lis.
Now it is to be seen whether there has been deficiency of service by the O.P. or not. After getting the information, the O.P. has deputed his surveyor to the spot who issued claim form to the complainant, with a request to submit them duly filled with estimate of repairs and documents. Complainant was reminded with Regd. Letter dt.30.10.2010 to submit t he documents within 15 days. This letter has been received by the complainant on 1.11.2010. Copy of the letter alongwith A.D. Receipt is on record. As there was no response from the side of the complainant, the claim was closed as NOCLAIM. The complainant submitted the claim form only on 13.1.2011. So there has been negligence from the side of the complainant.
However, on receipt of claim form the O.P. again examined the documents and on examination it was found that the vehicle was carrying passenger. So the O.P. sent letter on 12.5.2011 intimating their inability to reopen the file. After receiving information the insurance company collected information that one Prabhudatta Dang has filed a report before the police and on his report police submitted charge sheet. From the F.I.R. and charge sheet it is ascertained that near about 50 passengers were traveling in the said vehicle. So there has been violation of policy condition. Mr. B.B.Bidyadhar, learned counsel for complainant strenuously
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submitted that F.I.R. is not a substantive piece of evidence. We fully agree with this submission of the learned counsel as whatever Prabhudatta Dang has stated before the police cannot be treated as gospel truth.
However, fact remains that Driver Dilip Pradhan was driving the vehicle it is not disputed from either side. This driver is not having a valid driving licence as ascertained from the letter of District Transport Officer, Patna vide letter No.4009 of 2015/11, learned counsel for the complainant submitted that the claim has been closed as NO CLAIM on 25.11.2010, when the letter of D.T.O., Patna was not in existence. On this the learned counsel for the O.P. submitted after getting information regarding the accident the O.P. inquired about the validity of the D.L. But there was some delay in getting the documentary evidence. Be it as it may that the driver Dilip Padhan was not having a valid D.L. is not in dispute.
During the course of argument learned counsel for the complainant submitted that the complainant believed the D.L. to be genuine as there was no scope for him to enquire to the validity of the D.L. This plea has not been taken by the complainant in his complaint petition and such a plea is taken for the first time during hearing. So we are not in a position to give any credence to this submission. The learned counsel further submitted that the letter of the D.T.O. has been created for this case and it does not contain letter No. and date. Upon verification of the document we find that it contains letter no which is 4009 and date has been given dt.20.6.2011. So we believe this document to be genuine. In the aforesaid factual scenario we are of the opinion that the citations relied on by the learned counsel can not be made applicable to this case.
In the case of M/S.M.R..H. Associates through its Partners Mr. Haresh Kumar Honda – Petitioner Vrs. National Insurance Company Ltd. – Respondent – reported in 2015(1) C.P.R. 137 the Hon’ble National Commission has held that absence of valid and effective driving licence shall be a serious violation of statutory requirements under M.V.Act, and conditions of policy.
We would have settled the claim on non standard Bais. But it is trite law that in the absence of valid driving licence the claim cannot be settled on Non-standard Bais. It has been held by the Hon’ble National Commission in the case of National Insurance Company Ltd. Vrs. Santosh Kumar reported in 2013 (4) C.L.T. 128 (NC) that if complainant was not possessing valid driving licence at the time of accident the complainant is not entitled to get any compensation.
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For the reasons stated above we are left with no option but to dismiss the complaint.
In the result this complaint case is dismissed leaving the parties to bear their own cost.
Dated the 23rd day of September 2015
Typed to my dictation
I agree. and corrected by me.
Smt. S.Mishra Sri S.C. Nayak
Lady Member President
Dt.23.9.2015 Dt.23.9.2015
