DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: WEST TRIPURA : AGARTALA

 

 

CASE   NO:   CC- 44 of  2023

 

 

Smt. Malina Rani Dey,

W/O- Late Manik Lal Dey,

41, Master Para, Udiapur Town,

P.O. & P.S. R.K. Pur, 

District- Gomati Tripura,

Pin- 799120. ...........Complainant.

 

 

 

-VERSUS-

 

 

 

1. National Insurance Company Ltd.,

 

 

2. Divisional Manager,

 

 

3. Branch Manager,

R.K. Pur, Central Road,

 

 

 

 

 

 

 

   __________PRESENT__________

 

 SRI GOUTAM DEBNATH

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA. 

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA, AGARTALA.

 

SRI SAMIR GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA. 

 

C O U N S E L

 

For  the  O.Ps : Sri Samrat Kar Bhowmik,

    Sri Ezekiel L. Darlong

 

 

 

 

 

 

F I N A L    O R D E R

1. This case is filed U/S 35 of the Consumer Protection Act, 2019 by Smt. Malina Dey of Udaipur, Gomati Tripura against the O.Ps, namely (1)Senior Branch Manager, National Insurance Company Ltd., Agartala, West Tripura, (2) Divisional Manager, National Insurance Company Ltd., Agartala, West Tripura, (3)Branch Manager, National Insurance Co. Ltd., R.K. Pur, Gomati Tripura alleging deficiency in service on the part of the O.Ps.

1.1 The case of the complainant in short is that the complainant being a resident of Gomati Tripura had been living with her only son, Pradip Kumar Dey(Since deceased). That the deceased son of the complainant  was the owner of the motor cycle of model Hero Super Splendor bearing registration No- TR -03-F-6670 which was insured with the O.P. Insurance company. 

1.2 The deceased son of the complainant met with an accident on 02.12.2019 at about 7.00 P.M. at Beltali, Udaipur due to collision with a by-cycle rider which rushed  negligently dashing the said motor cycle of the deceased son of the complainant. As a result of which he sustained grievous injuries on his body and was taken to the Gomati District Hospital and later on due to his serious condition he was referred to AGMC & GBP Hospital on the same night of 02.12.2019. Multiple operations were done but unfortunately died on 19.12.2019. U.D case was registered with the GBP TOP, Agartala vide U.D case No. 11 dated 19.12.2019.

1.3 Ejehar was made before the O/C, R.K. Pur P.S. on 18.01.2020 for proper investigation of the accident. On 18.03.2020 complainant made a complaint before the O/C, R.K. Pur P.S. for registering FIR against the By-cycle rider namely Nantu Sukladas, S/O- Manmohan Sukladas of South Matabari, P.O. Matar Bari, Gomati Tripura with whom the accident occurred. FIR was registered in R.K. Pur P.S.  vide No. 40 of 2020 and final report was submitted on 30.09.2020. 

1.4 The said vehicle was insured with the O.P. Insurance company valid from 11.03.2019 to 10.03.2020. The complainant approached the O.P. Insurance Company on 19.02.2020 but the staffs of the O.P. No.2 informed that the claim can be considered after receiving certified copy of FIR and Report of the police.

1.5 Advocate notice was was issued on 03.03.2022 and in reply to the said notice O.P. stated that “As the accident took place about more than two years ago i.e., on 02.12.219 and we are not informed in time, due to breach of policy condition we regret to inform you that now the claim is not payable.”    

1.6 It is also stated that the complainant earlier filed case against the O.Ps vide No. CC-374/2022 and that case was dismissed for default vide order dated 25.01.2023 by the Learned Commission. 

1.7 Hence, this case.

 

2. The O.Ps filed written objection denying the allegations as leveled by the complainant in her complaint petition and stated that Insurance company has not yet received any report from the concerned Police Station U/S 158(6) of M.V. Act nor any information of the alleged accident as per Section 134(c) of the MV. Act and it is clear violation of the mandatory direction of Motor Vehicle Act which absolves the insurer from any liability. The Insurance company is not liable to indemnify any loss or damage sustained by the Policy holder if policy condition is violated during the validity of the policy period and breach of policy condition especially relating to the driving license, permit and use of the vehicle shall entitle the O.P. Insurance company to avoid the liability as per section 149(2) of M.V. Act.

 

3. Complainant submitted evidence on affidavit and  documents.

3.1 The O.P. declined to adduced any evidence. 

 

4. Hearing argument the following points are taken up for discussion and decision:-

 

5. We find no merit in the submission as well as the written argument preferred by the Insurance company that the case is barred U/S 158(6) of the M.V. Act. Breach of duty by the Police Station can't bar a claim in a genuine case.sThe further argument that the complaint is barred U/S 149(2) is also not tenable. We find no substance in the submission that the earlier complaint was dismissed for default as such a fresh complaint is not maintainable because of the fact that U/s 38 Sub Section (9), the Code of Civil Procedure, 1908 is applicable so far as clause (a) to (f) of the Section. Therefore, since there is no provision for restoration of the complaint, a fresh complaint can not be said to be barred if the complainant can satisfy why the complaint was not preferred in time and that is within 2 years. In the case at hand, it is self explanatory why there was delay in filing the complaint as earlier complaint is dismissed for default.

5.1 Hon'ble State Commission while hearing appeal by which the order of dismissal of this Commission was challenged, was kind enough to pass advisory direction to the complainant to file appropriate application before the  Motor Accident Claim Tribunal. Learned Counsel Mr. Diptanu Debnath appearing for the complainant submits that Sub Section (1) of the Section-165 of M.V Act is clear that the Motor Accident Claims Tribunal can be  approached for damages to any property of 3rd party or involving death of bodily injury of 3nd party. Therefore, in the case at hand  Pradip Kumar Dey being the 1st party can not approach the MACT for appropriate redress. However, without entering into such legal position also we safely come to the conclusion that Hon'ble State Commission has nowhere passed any observation that the District Commission has no jurisdiction to try this complaint. Therefore, we conclude with all humility that this District Commission has jurisdiction to try the complaint in view of the fact that Pradip Kumar Dey, since deceased being insured was 1st party to the policy of Insurance and as such, the complaint before this Commission by the complainant being mother of the deceased Pradip Kumar Dey is maintainable. We also fail to agree with the argument of the Learned counsel of the Insurance company that because of  delayed intimation such claim can not be entertained. In view of  the findings of Hon'ble national Commission Reported in 2018 (3)CLT(1)NC we find that IRDA Circular No. IRDA/ALTH/MISC/ CIR/216/ 09/2011  dated September, 2011 Hon'be National Commission was pleased to lay down that the  insurer's decision to reject a claim shall have to be  

based on sound logic and valid ground. The intimation clause can not be worked in isolation and it is not obsolute. It was advised that the insurer may not repudiate the claim unless and until the reasons of delay are specifically ascertained, recorded and the insurer should be satisfied  that the delayed claim would have otherwise been rejected even if reported in time. 

5.2 What we can understand from the observation of the Hon'ble National Commission that the delayed claim ifso facto can not be a ground to reject a claim until and unless Insurance company can arrive at a conclusion that the claim would have been otherwise barred even if it was preferred in time.

5.3 In the case at hand there is no such impediment if the claim would have been preferred in time the Insurance company would have rejected the claim on any valid ground because the ground taken by the Insurance company in the written argument that there was no valid policy of insurance at the time of accident is also not correct in view of the fact that the vehicle was insured on and from 11.03.2019 to mid-night of 10.03.2020 as we find from the Policy of Insurance.

6. All the points are decided accordingly.

7. In the result, the complaint is allowed. The Insurance Company shall pay the sum of Rs.15,00000/- P.A. Coverage to the claimant within 30 days from today, otherwise it shall carry interest @ 7.5% P.A. till the date of actual payment.

8. The case stands disposed of.

9. Supply copy of this order free of cost to the parties. 

Announced.

 

 

SRI  GOUTAM DEBNATH

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

DR (SMT)  BINDU  PAL

MEMBER, 

DISTRICT CONSUMER DISPUTES 

REDRESSAL COMMISSION, 

WEST TRIPURA,AGARTALA

 

SRI SAMIR  GUPTA

MEMBER,

 DISTRICT CONSUMER DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,AGARTALA.