IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.
Present: 1. Shri Biraja Prasad Kar, President,
2. Shri Pitabas Mohanty, Member,
3. Miss Smita Ray, Lady Member.
Dated the 25th day of April,2015.
C.C.Case No.10 of 2014
Bhagaban Mallick, S/O Dhusasan Mallick
Vill.Jhumpan , P.O. Naguan
P.S. Korei, Dist .Jajpur. ……………..…..Complainant .
(Versus)
National Insurance Co.Ltd, Jajpur Road,Branch Office
Main Road, Jajpur Road, Dist. Jajpur. …………………………Opp.Party.
For the Complainant: Sri B.N.Panda , Advocate.
For the Opp.Party Sri G.Ch.Panda, Miss B.R.Rout, Advocates.
Date of order : 25.04.2015.
SHRI BIRAJA PRASAD KAR, PRESIDENT.
Brief facts giving rise to this complaint are as follows:
The complainant was the owner of TATA ACE Magic bearing Regd. No.0R-04-9698 which was duly insured with the O.P-Insurance Company. It is the case of the complainant that during subsistence of policy on 08.11.09 while the vehicle was parked at Kantajhari Road infront of Kalu Dhaba met an accident causing damage to the vehicle. An intimation of the accident was lodged before the IIC,Korei Police station, who had entered the fact vide SDE No.83/09. The complainant also lodged claim with the O.P. for payment of damages. The Insurance Company (O.P) as per its letter dt.06.02.2012 repudiated the claim of the complainant which is illegal. The complainant alleging deficiency in service on the part of the O.P.- Insurance Company has filed this dispute with the prayer to direct the O.P. to pay the Insurance claim of the complainant and to pay Rs.1,00,000/- towards mental agony and cost of litigation charges.
On being noticed the O.P. appeared through his advocate and filed written version and additional written version denying the allegations made in the complaint petition. It is pleaded in the written version and additional written version that the Insurance policy as claimed is of 2008-2009. The present claim of the petitioner before the consumer Forum is barred by limitation . The petitioner has no authority to come to this Hon’ble Court. The petitioner has produced the repudiation letter of O.P. dt.06.02.2011. So the case is filed after 2 years of the said letter of O.P. Thus the claim is barred by limitation also. The petitioner is not entitled to claim in this Forum.
As per the documents produced by the petitioner the vehicle in question was a transport vehicle and the D.L of the driver was non transport and so he was not eligible to drive such a vehicle. So it violates the condition of the policy. So the O.P is no way liable for any accident if caused. The petitioner has never intimated the Insurance Company immediately after the accident. The station diary entry is forged, fabricated and anti-dated. There is no investigation in this matter. Entry in the diary of police station will not prove the real accident, liability and causes. The information of the petitioner is not itself a proof of fact therein. The petitioner has claimed defect in the vehicle in earlier consumer case No.103/11 before DCDRF, Cuttack on 07.10.11 for adjustment of amount and has also claimed that he had filed consumer Case No.232/12 in this Forum against TATA motors. The petitioner in para-6 of the original claim petition has admitted that he has deleted the NIC from such consumer case. Although forum has allowed deletion of such paragraph by allowing amendment petition of petitioner but the petitioner is not at all saved from liability to produce the petition and order copy of such two earlier case. This is a clear case of suppression by the petitioner. The petitioner can not suppressed such cases filed by him earlier . Petitioner is not entitled to any relief in this case because it is a fraud on court played by the petitioner .On the above facts and circumstances the C.C.Case is liable to be dismissed.
The complainant in order to substantiate his case filed the Xerox copy of the S.D.E.No.83/dt.08.11.09, Xerox copy of letter dt.20.12.11 of the O.P. addressed to the complainant, Xerox copy of the Surveyor’s letter no.CRD /032/10 dt.18.10.10,Xerox copy of the Surveyor Final survey report no. TM 235/10 dt. 24.02.11 (six sheets),Xerox copy of letter dt.05.01.2011 of the O.P., Xerox copy of letter dt.28.11.2011 of the O.P., Xerox copy of Surveyor’s letter No.TM 172/11 dt. 20.12.11 addressed to the O.P., Xerox copy of the extract of D.L dt.13.01.10 , Xerox copy of the letter dt.23.11.11 of the O.P. addressed to the complainant, Xerox copy of the letter dt.29.12.11 of the complainant addressed to the O.P., Xerox copy of the repudiation letter dt.06.02.12 of the O.P. addressed to the complainant, Xerox copy of the policy no.163101/31/08/6300004841 in the name of the complainant (3 sheets),Xerox copy of the Registration certificate, Xerox copy of letter dt.16.12.09 of the complainant addressed to the O.P. , Xerox copy of policy conditions (3 sheets) Xerox copy of the judgement passed in C.C.Case No.103/11 and Xerox copy of the order passed in C.C. Case No.230/2012 which are marked as Exihibit-1, Exihibit-2, Exihibit-3, Exihibit-4 series ( six sheets), Exihibit-5,Exihibit-6, Exihibit-7, Exihibit-8, exihibit-9, Exihibit-10, Exihibit-11, Exihibit-12 series (3 sheets), Exihibit-13,Exihibit-14 , Exihibit-15 series( 3sheets), Exihibit-16 and Exihibit-17 respectively.
The O.P.did not choose to file any documents to substantiate his case.
On the above back ground we have framed the following issues:-
- Whether C.C. Case is barred by limitation?
- Whether the station Diary entry is forged, fabricated and anti-dated ?
- Whether there is suppression of material facts ?
- Whether the repudiation of the claim of complainant by the O.P is justified?
Answer to issue No.1
The advocate for the O.P. argued that the C.C. Case is barred by the law of limitation. As against the contention of the O.P we have verified the letter of repudiation filed by the complainant which is not disputed by the O.P. The O.P. vide their Regd. Letter No.163101/ Mot claim/UKS/SCP/217/2011 dt. 6th February-2012 (Exihibit-11) addressed to the complainant have repudiated the claim of the complainant on the ground that at the material time of accident your driver Sri Bhagaban Mallick S/O Sri Dusasan Mallick, D/L No. 0R-0420080027823 has no valid license . As per section 24A. Limitation period-(1) The District Forum , the State Commission ‘or’ the National Commission shall not admit a complain unless it is filed within two years from the date on which the cause of action has arisen. In the present case the cause of action arose on 06.02.2012. i.e the date of repudiation of the claim. The present complaint is filed against the O.P. on 01.02.2014. The present C.C. Case is filed within 2 years from the date on which cause of action has arisen . Hence in our opinion the present C.C. Case filed by the complainant against the O.P. is not barred by limitation and it is maintainable in law since it is the settled principle of law that limitation starts from the date of repudiation .
Answer to issue No.2
The complainant has filed the photo copy of the SDE No.83/dt.08.11.09 issued by Korei police station which is vehemently challenged by the advocate for the O.P.. As against the challenge we have verified the report of Surveyor and Loss Assessor filed by the complainant . The report of Surveyor is not disputed by the O.P. The Surveyor in his final Survey report dt.24.02.11 in para-9 has stated that :-
9. a) The accident has been reported to the police. Yes,
Name of the police station : Korei Police station.
Police station Diary No. : SDE No.83/dtd.08.11.09.
b) Action taken by the police :
From the Surveyor’s report it is evident that the SDE No.83/Dt.08.11.09 at Korei Police station had been verified by the Surveyor appointed by the O.P. The O.P. has not raised any doubt against the report of the Surveyor nor the O.P. challenged the report of the surveyor. The Surveyor appointed by the O.P also did not raise any doubt about the SDE No.83/dt.08.11.09 . Hence in our opinion the O.P. is now stopped to challenge the SDE No.83/dt.08.11.09 . More over the O.P. has not filed a single scrap of paper to show that the SDE No.83/dt.08.11.09 is forged, fabricated and antedated . The O.P. failed to establish that the SDE no.83/dt.08.11.09 is forged ,fabricated and antedated . We hold that the Xerox copy of the SDE no.83/dt.08.11.09 filed by the complainant is not a forged ,fabricated and antedated one and it is genuine. Accordingly issue no.2 is answered affirmatively in favour of the complainant .
Answer to issue No.3
It is the settled principle of law that the party who alleges suppression of material facts, the onus lies on him to prove that there is suppression of material facts. In this case it is alleged that complainant had suppressed the C.C. Case No.103/11 (Exihibit-16) and C.C. Case No. 230 /12 (Exihibit-17) . We have verified the Xerox copy of the orders passed in C.C. Case No. 103/11 (Exihibit-16) and C.C. Case No. 230/12 (Exihibit-17) . In those C.C. Cases the complainant had not claimed any relief against the present O.P. for the O.D / accidental benefit. The O.P. also failed to establish that there is suppression of material facts by producing any cogent evidence. The issue is answered accordingly.
Answer to issue No.4
The advocate for the complainant argued that the O.P.- Insurance Company as per its letter dt.06.02.12 repudiated the claim of the complainant solely on the ground that at the material time of accident the owner-cum-Driver has no valid license to drive the vehicle. But in the present case as per record and Surveyor’s report the driver of the vehicle parked the vehicle near Kalu Dhaba and went for dinner. On his return he could see that the vehicle has been damaged. Some unidentified vehicle dashed the vehicle and fled away , as a result of the insured’s vehicle sustained damages. There is no contribution from the side of the driver to the accident. Hence the repudiation of the O.D claim by the O.P is unjustified in view of the observation of Hon’ble Supreme court reported in Civil Appeal No.4647 / 2003 (Jitendra Kumar Vrs. Oriental Insurance Co. Ltd & another .)
The learned counsel for the O.P. contended that the alleged vehicle was registered as commercial vehicle. The driving license of the driver shows that he was allowed to drive a non-transport vehicle, but he was not entitled to drive a transport vehicle. So the O.P rightly repudiated the claim.
On the above back ground we have verified the Surveyor’s Final report and the Insurance policy which are not disputed by the O.P-Insurance Company. The Surveyor in his Final Report in para-11 cause and nature of accident had specifically mentioned that it was ascertained from the insured’s representative that on the date of occurrence the driver parked the vehicle at Kantajharigarh on N.H.215 and went inside a Dhaba for dinner. On his return he could see that the vehicle has been damaged. On enquiry ,it was ascertained from the local shop keeper that an unidentified truck dashed with the vehicle and fled away. As a result of this, the insured’s vehicle sustained the following damages ………
From the final report of the Surveyor it is evident that while the vehicle was parked near the Kalu Dhaba one unknown truck dashed the alleged vehicle and fled away causing damage to the complainant’s vehicle. The driver had no contribution to the accident. When an accident takes place without there being fault on the part of the driver,such an event,the question as to whether a driver was holding valid licence ‘or’ not would become redundant. Therefore, in our considered opinion the Insurance company –O.P. could not have repudiated the claim of the complainant. The repudiation of the OD claim of the complainant by the O.P. is not justified. Our view is supported by decision of Hon’ble Supreme Court reported in J.T.2003(5)S.C.538,Jitendra Kumar Vrs. Oriental Insurance Company Limited & another : Civil Appeal No.4647 / 2003 and another decision of our own Hon’ble State Commission reported in 2014(4) CLT-P -190-Santosh ku. jena Vrs. Ittco-Tolio General Insurance Co. Ltd & another. The issue is answered accordingly.
As per the Survey report, the loss sustained by the complainant towards repairing of the vehicle was Rs.46,000/- but the complainant has filed the bill (retail invoice ) of Trupti Automobiles for Rs.2,93,779/- towards repairing of the vehicle. It is no more res intigra that the surveyor report be given due weightage and it can not be brushed aside unless there is sufficient material to the contrary. The complainant had also not challenged the Final Surveyor’s report. So in our view, it will be apposite to accept the assessment of Surveyor –cum- loss assessor towards the repairing of the vehicle in question.
O R D E R
In the above facts and circumstances, the complaint is allowed. The O.P.is directed to pay a sum of Rs.46,000/-( Forty six thousand ) with interest at the rate of 9% per annum from the date of filing of the C.C.Case i.e 01.02.2014 till payment/ realization and Rs.2,000/- ( two thousand) towards litigation expenses within two months of receipt of the order.
This order is pronounced in the open Forum on this the 25th day of April ,2015. under my hand and seal of the Forum.
(Shri Pitabas Mohanty)
Member. (Shri Biraja Prasad Kar)
President.
Typed to my dictation & corrected by me
(Miss Smita Ray)
Member.
(Shri Biraja Prasad Kar )
President.
