Order No. 11 Dated – 14/09/2017
F I N A L O R D E R
Shri Sibasis Sarkar, Ld. President.
This is a complaint U/S 12 of C.P. Act, 1986, filed by the complainant Smt. Sarala Debi Maheswari wherein it is contended that she is the owner of vehicle bearing registration no.WB-71/2975(TATA 1109 Truck), bearing chassis no. JPG-0001/07-08 and Engine No. 497 TC 93 BTZ 10897 – Year of Manufacturing : 2006. The said vehicle has been insured with the O.P/National Insurance Company Ltd., bearing Insurance Policy No. 153902/31/13/6300006371. During the coverage of the aforesaid insurance policy on 2.4.2014, at about 9-00 p.m the said truck met with an accident and as a result the vehicle was badly damaged. The vehicle was not in a condition to move without repair. So, the vehicle was towed to repairing garage-cum-workshop of the locality namely, Guru Nanak Auto Works at Gairkata Road. The said Auto Workshop made assessment of loss and repairing of the vehicle and submitted estimate of a sum of Rs.57,900/- towards the replacement of damaged parts by the new parts and a sum of Rs.85,600/- towards labour charges. Subsequently the said workshop also submitted an estimate of additional sum of Rs.35,000/- towards additional labour charge. The complainant intimated the said fact of accident of the vehicle and the estimate of repairing cost to the O.Ps. The complainant also made several correspondence in writing with the O.P for payment of the amount for repairing the vehicle. Ultimately the complainant also issued advocate’s notice on 30.12.2015 to the O.P. In reply to the said notice, the O.P on 14.1.2016 informed that they closed the matter and also informed that it will be opened after production of documents. But the complainant had already furnished all the documents, in spite of that the O.P did not pay the repairing cost which is covered under the insurance policy. As such having no other alternative the complainant has been compelled to file the present petition of complaint before this Forum praying for an order as per prayer of the petition of complaint.
The O.P/National Insurance Company Limited is contesting the case by filing a written version denying all the material allegations made in the petition of complaint contending, inter alia, that the case is not maintainable in its present form and prayer. There is no cause of action for the present case. The specific case of the O.P is that the O.P has not repudiated the claim of the complainant. The O.P has merely temporarily closed the file of the complainant. So, the matter is still pending and accordingly no cause of action has arisen in the present case against the opposite parties. The case has been filed in a pre-matured stage and accordingly is not maintainable in law and is liable to be dismissed with cost. The further case of the O.P is that after receiving information about the accident of the vehicle, the O.P engaged Shri Sandip Sarkar who is an I.R.D.A licensed independent surveyor for assessment of loss. The said surveyor physically inspected the ill-fated vehicle on 10.4.2014 and on 8.5.2014 for pre and post dismantled inspection. After assessment of loss of the ill-fated vehicle, the said surveyor submitted his interim report on 18.6.2014 showing Rs. 20,300/- only excluding any taxes as the estimate of cost of repairing. On 15.12.2012 the said surveyor submitted his final report. As per assessment of the said Expert the insurance liability is Rs.20,300/- only. As there was an inordinate difference between the estimate of repairing submitted by the Workshop and the estimate submitted by the surveyor, the O.P demanded few necessary documents from the O.P for deputing another surveyor for re-inspection. But the complainant did not comply the said request. As such the O.P again requested the complainant through letter dated 14.1.2016 to comply the previous letter. In spite of that the complainant did not pay heed to the request of the O.P. As the claim could not be kept pending for a long time, the opposite party temporarily closed the file with an option for the complainant to re-open the file by furnishing proper documents within a year from the date of closure. But the complainant without making any attempt to re-open the said file, came before the Forum and has filed the present case, which is liable to be dismissed being filed in a pre-matured stage.
Considering the rival pleadings of both the parties the following points are taken up for consideration.
POINTS FOR CONSIDERATION
- Is the case maintainable in its present form and prayer ?
2) Is there any cause of action for filing the present case ?
3) Is there any deficiency in service on the part of the opposite parties ?
4) Is the complainant entitled to get any order, as prayed for ?
5) To what other relief or reliefs is the complainant entitled?
DECISION WITH REASONS
In the instant case the complainant and the opposite parties submitted before the Forum that they would neither file any affidavit-in-chief, nor would adduce any oral evidence, nor would adduce any further documentary evidence. They also submitted before the Forum to pass Final Order/Judgment on the basis of the petition of complaint supported by affidavit along with documents annexed therein and the written version supported by affidavit along with documents annexed therein treating them as their evidence on affidavit. Accordingly, we have carefully gone through the petition of complaint, written version and the documents filed on behalf of the parties accepting them as their respective evidence on affidavit. We have also carefully perused the B.N.A filed by both the parties. We have also heard arguments of both parties in full and at length.
Point Nos.1 to 5 :-
All the points are taken up together for the sake of convenience and combined discussions.
The ld. lawyer for the O.P/National Insurance Company Ltd. argued that the O.P has not repudiated the claim of the complainant. So, there was no cause of action for filing the present case and accordingly the case is not maintainable and is liable to be dismissed.
On the other hand, the ld. Lawyer for the complainant argued that the O.P closed the claim file of the complainant. They were neither settling the claim amount, nor refusing to settle the claim, which tantamounts to deficiency in service. Accordingly, the cause of action arose for taking action against the O.P for deficiency in service on their part. So, there is cause of action for filing the present case. The ld. lawyer also referred the decision of the Hon’ble State Commission,West Bengal, reported in 1994, C.P.J(Volume-I), page 460(Kamalesh Singh-Vs-National Insurance Company and another).Therefore, let us see whether there was any cause of action for filing the present case against the O.P.
It is the admitted fact that the complainant Smt. Sarala Debi Maheswari is the registered owner of the truck bearing registration no.WB-71/2975. It is also the admitted fact that the said vehicle met with an accident on 2.4.2014, at about 9-00 p.m. and as a result of which the said vehicle was damaged. It is also the admitted fact that the said vehicle had a valid insurance policy being no. 153902/31/13/6300006371 with the O.P on the date of accident. So, the O.P had an obligation to pay the repairment charges of the damaged vehicle within the coverage.
From the documents annexed by the parties we find that the complainant made one written information about the accident to the Officer-in-charge, Birpara P.S on 3.4.2014. On the basis of the said written information the Birpara P.S entered one G.D entry being Birpara P.S G.D entry no.126 dated 3.4.2014. We also find that on the same date i.e. on 3.4.2014, the complainant informed the said fact of accident to the O.P which has been duly received by the O.P. We also find that subsequently on 8.4.2014 the complainant issued one letter to the O.Ps submitting the estimate of repairment of damages of the vehicle along with xerox copy of some vehicular and other documents. From the documents annexed we also find that on receiving the accident information and on receiving the estimate of repairment along with other documents, the O.P engaged Shri Sandip Sarkar, an I.R.D.A licensed independent surveyor for assessing the loss and repairment cost. The said Sandip Sarkar inspected the ill-fated vehicle on 10.4.2014 and on 8.5.2014. The said Sandip Sarkar submitted his interim report on 12.5.2014 and subsequently he submitted his final report on 15.12.2014. From the documents filed by the O.P, we find that on 18.6.2014, the O.P issued one letter to the complainant requesting her to furnish certain documents i.e. 1) Duly filled up claim form; 2) Driving licence; 3) FIR copy in proper format. From the said letter dated 18.6.2014 we also find that the representative of the complainant received the said letter with blank claim form. But unfortunately, the complainant by her letter dt. 9.7.2014 furnished the xerox copy of the driving license only. The complainant neither submitted the duly filled up claim form, nor furnished the F.I.R copy in proper format i.e the formal F.I.R uptill now. It is an obligation for the complainant to submit duly filled up claim form as per official procedure of the O.P to settle the claim. The representative of the complainant received the blank claim form from the O.P. In spite of that the complainant did not furnish the duly filled up claim form uptill now. The FI.R copy in proper format i.e. the formal F.I.R is also very much essential to verify the genuineness of the fact of accident. But the complainant did not furnish the said formal F.I.R uptill now. The O.P in their written version supported by affidavit have stated that they gave several reminders to the complainant to furnish those documents along with other documents also. Ultimately they issued one final letter dated 10.6.2015 intimating the complainant to produce those documents, but in vain. From the advocate’s letter dated 30.12.2015 issued to the O.Ps we find that the ld. Advocate in his legal notice has stated that his client has already submitted all documents called for by the O.P. In reply to the said legal notice dated 30.12.2015 the O.P issued one letter dated 14.1.2016 informing that as the complainant has failed to furnish all vehicular documents including the F.I.R in proper format i.e the G.D number, seizure-list, mechanical report etc, they are unable to proceed further. The O.P has also stated in the said letter that since a claim could not be kept pending for a long time, they have closed the file treating as ‘NO CLAIM’. It has also been mentioned in the said letter that the file can be re-opened and settled on the basis of surveyor’s assessment and documents, if submitted within one year of the day of closure.
We have already found that the complainant intimated the fact of accident to Birpara P.S in writing. On the basis of the said written intimation Birpara P.S entered the said fact in the G.D book, vide Birpara P.S G.D entry no. 126 dated 3.4.2014. As it is a case of accident of the vehicle, it can be safely presumed that Birpara P.S seized the vehicle and prepared one seizure-list. It can also be safely presumed that the said seized vehicle was mechanically examined by a Mechanical expert. The said seizure-list is required to know as to whether the Birpara P.S seized the ill-fated vehicle owned by the complainant or not. The mechanical test report is also required to know the actual damage caused to the vehicle. The ld. Advocate in his legal notice has stated that his client has submitted all the documents called for by the O.P. But we have already found that the complainant has failed to furnish the filled up claim form, formal F.I.R, seizure-list prepared by Birpara P.S and the mechanical expert’s report prepared in connection with the accident case. We have also found that those documents are very much vital for settlement of the claim amount. It was not possible for the O.P to settle the claim of the complainant without verifying those documents. As such the O.P has no other alternative but to close the file of the complainant due to non-cooperation and negligence on the part of the complainant herself. Accordingly, they informed the said fact to the complainant, vide their letter dated 14.1.2016. However, they gave the option to the complainant to furnish those documents to re-open the file and settle the claim.
Ld. Lawyer for the complainant by referring the decision of the Hon’ble State Commission, West Bengal, reported in 1994, CPJ, page 460 submitted that the O.P vide their letter dated 14.1.2016 neither settled the claim of the complainant, nor refused the claim. According to the ld. Lawyer, as per decision of the Hon’ble State Commission this tantamounts to deficiency in service. So cause of action for filing the present case arose as and when the said letter dated 14.1.2016 was received by the complainant.
On perusal of the decision referred by the ld. Lawyer we find that the fact before the Hon’ble State Commission differs from the fact of the case before us. In the case before the Hon’ble State Commission the insured vehicle was completely destroyed except the damaged skeleton. The mob set the vehicle on fire and the vehicle transformed into ashes. There was no dispute regarding the said fact of accident. There was also no case that the complainant did not furnish the relevant documents. There was no ground for the O.P for not settling the claim of the complainant. In spite of that the O.P/Insurance Company was delaying the matter. They were neither settling the claim, nor refusing the claim of the complainant. As such the Hon’ble State Commission found negligence on the part of the insurance company and accordingly decided that the claim neither settled, nor refused - amounts to deficiency in service. On the other hand, in the case before us we have already found that the complainant has failed to furnish the documents demanded by the O.P which were very much essential for settlement of the claim. So, there was negligence on the part of the complainant herself and not on the part of the O.P. Therefore, the decision cited on behalf of the complainant is not applicable in the facts and circumstances of the present case.
From the discussions made above, we have already found that the complainant has failed to furnish the vital documents demanded by the O.P. As a result, the O.P could not settle the claim of the complainant.
On the other hand, the complainant issued legal notice upon the O.P demanding Rs.5 lacs for negligence and deficiency in service. In the said legal notice the complainant has also stated that she would take appropriate legal steps against the O.P. In such a situation the O.P had no other option but to close the file stating as ‘NO CLAIM’. But the O.P did not repudiate the claim of the complainant. In the letter dated 14.1.2016 the O.P has informed the complainant that the file can be re-opened if the required documents are furnished by the complainant. So, the file of the complainant was closed by the O.P due to the negligence on the part of the complainant temporarily with an option to re-open the file if the documents are submitted within one year from the day of closure. So, the present case was filed by the complainant without making an attempt to re-open the file. The file is still pending. The present case has been filed in pre-matured stage. Therefore, we are inclined to hold that there was no cause of action to file the present case. As such the case is not maintainable and is liable to be dismissed.H We also find no deficiency in service on the part of the O.P at this stage. Accordingly, the complainant is not entitled to get an order along with other reliefs, as prayed for.
All these issues are thus decided against the complainant.
As a result, the case fails.
Hence, it is
O R D E R E D :-
that the C.C No. 23 of 2017 be and the same is dismissed on contest against the opposite parties without cost.
Let the original documents, if any, filed by the parties, be returned on proper receipt.
Let a plain copy of this final order be supplied to the parties free of cost on proper acknowledgment or be sent by ordinary post, in terms of Rule 5(10) of West Bengal Consumers Protection Rules 1987 and the extra-sets be also returned to the parties on proper receipt.
