This is an application u/s.12 of the C.P. Act, 1986.

            Complainant by filing this complaint has submitted that he is the owner of heavy goods vehicle being Registration No.WB-37B-8264 which was insured with the Howrah Divisional Office of the New India Assurance Company Ltd. having policy No.51220031110100000684 and the certificate of fitness was valid up to 29-12-2012 and the said vehicle had all India permit from State Transport Authority of West Bengal bearing Serial No.021044 having permit no.NP/85425/2010 valid upto 15-03-2015 and, that vehicle is used for the purpose of transport business of the complainant. 

            It is specifically submitted by the complainant that the said goods vehicle met an accident on 19-08-2012 on its way from Kolkata to Asansol within the District of Burdwan at about 4.00 a.m. on Kajora Bridge, National High Way under the jurisdiction of Andal Police Station and said vehicle was felling down from the said bridge when the driver of the said vehicle Sri Pareshnath Yadav tried to save a cattle which suddenly came in front of the said vehicle and due to such the driver of the said vehicle succumbed serious injuries and thus he was admitted into the Bidhan Nagar Hospital at Durgapur and the vehicle of the complainant was also seriously damaged that matter was reported to the Andal Police Station and vide G.R. No.1378/12 and FIR No.1216 it was submitted before Ld. Additional Chief Judicial Magistrate at Durgapur.  Thereafter, the authority of the Andal P.S. filed the final report along with a seizure list in the aforesaid G.R. No.1378/12 in the Court of Ld. Additional Chief Judicial Magistrate at Durgapur on the 06-11-2012 and in the final report it was clearly mentioned that the driver of the said goods vehicle succumbed serious injuries and he was admitted in the Vivekananda Hospital of Bidhan Nagar, Durgapur and from the seizure list also reveals that the said truck was heavily damaged and it was broken condition.  Actually the said vehicle was seized on 20-08-2012 by Andal Police.

            Thereafter on 28-08-2012 complainant prayed before Ld. ACJM for return of the seized vehicle along with relevant papers and that was allowed and except driving license everything was returned to the complainant with condition to produce the same as and when called for and there was condition that he shall not change the nature and character of the said vehicle so that the evidentiary value is not lost.  Fact remains Paresh Nath Yadav was duly authorized to drive the said vehicle by the owner of the said vehicle and he had his valid driving license and after release of the said vehicle from the Andal P.S. the authorized person fo the complainant took the custody of the said vehicle and same was placed to the workshop of a reputed Body Builder and repairer namely Nageswar Sharma (Laxmi Garage) and after thorough examination of the damaged vehicle the said body builder and repairer submitted an estimated cost list for repairing of the said goods vehicle as on 11-09-2012 and communicate it in the letter head of the said concern to the claim manager of the New India Assurance Company Ltd. and in the said estimated cost list of necessary parts which are required for repairing of the vehicle was also noted and after collecting all those papers complainant filed claim before the insurer in duly filled up claim form claiming an amount of Rs.2 lakh against the loss sustained by the complainant/Insured due to heavy damage of the said vehicle faced such accident and complainant has already repaired the said vehicle at his own cost and expenses.  It is specifically mentioned that due to mistake in the claim form driving license no. of the authorized driver of the said vehicle was mentioned as WB 11 011904 issued by RTA, Howrah, but actually the driving license was renumbered as WB 11198591002 of the year 2009 and was seized by the Investigating Officer of the Andal P.S. as because the custody of the Andal P.S.  Moreover, complainant obtained an extract of Driving license of Poresh Nath Yadav from the Transport Department, Howrah which will speak that he had his valid driving licnese till 06-02-2012.  But ultimately the claim of the insured repudiated by the insurance company due to invalid driving license being No.11011904 of Prakash Yadav expired on 20-09-2009, nearly three years before the date of accident.  The decision of the insurer was communicated to the complainant by Deputy Manager of Claims Hum vide his letter dated 20-11-2012.

            On receipt of the aid letter complainant was utterly surprised to learn that the insurer repudiated his claim on the ground that the driving license of the driver expired in the year 2009 but truth is that the said license was never been expired and it was duly renewed within its validity period and after such renewal a computerized driving license no. WB 11198591002 was allotted instead of old driving license No.WB 11011904 and on 01-01-2013.

            After submission of the extract of Driving license of Paresh Nath Yadav as obtained from the Transport Department, Howrah requested to proceed with the claim of the complainant/insured but unfortunately no step whatsoever has been taken by the concerned authority of the Claims Hub to disburse the bona fide claim of the complainant.  Thereafter, complainant wrote a letter on 24-10-2013 to the OP which was received by the OP on 2810-2013 requesting the authority concerned to dispose of the claim but same has not been disposed.  In the above circumstances, the cause of action for filing this complaint arose on 20-11-2012 from the date of repudiation of the claim and in the circumstances complainant has prayed for redressal against the OP for payment of Rs.2 lakh and compensation etc.

            Against the above complaint OP has submitted admittedly the truck was insured under the present Insurance Company and said contract faced an accident on 19-08-2012 and complainant lodged claim by submitting driving license being D.L. No.WB-11-011904 and at that time it was found invalid so claim was repudiated.

            But subsequently, on investigation performed by one Mr. D. Bose, the Investigator the said driving license being transferred to a computerized one being no.WB11198501002 was found to be a valid license in respect of transport vehicle up to 06-12-2012 and such information was obtained by the said investigator from the concerned Motor Vehicles Authority and after obtaining information relating to the validity of the driving license of the Pareshnath Yadav the claim file was reopened and processed and on 16-12-2013 the OP sought certain information from the complainant for submission of certain documents and thereafter, OP communicated one Mr. Mrinal Kanti Chowdhury as a Surveyor/Loss Assessor for the purpose of actual loss incurred by the complainant and said surveyor finally assessed the loss in accordance with usual norms and procedures at Rs.48,700/- plus towing charge of Rs.2,500/- i.e. in total Rs.51,200/- subject to production of the necessary bills and Claim Hub Department of the OPs finally settled the claim at Rs.46,350/- and OP was ready and willing to pay the said sum of Rs.46,350/- to the complainant towards final settlement of the claim as the claim lodged by the complainant in the application is an inflated one and in fact disbursing the claim settlement after repudiation was due to delay in filing the valid copy of driving license of the complainant so for which OP has no laches or deficiency.  So, the entire complaint is not tenable against the OP because deficiency and negligence on the part of the OP is not at all proved.

Decision with Reasons

Particularly after stating the complaint and written version it is found that it is admitted position that the present vehicle that is TATA Truck six wheelers being No.WB 37B 8264 had its valid permit tax token registration C F etc. up to 29^th December, 2012 or 4^th May, 2013 and permit up to 15-03-2015 and against the said vehicle policy no.512200/31/11/01/0000684 was valid up to 11-11-2013 and admitted fact is that said truck met an accident on 19-08-2012 during validity period of the said insurance policy and admittedly due to said accident said truck fell from a bridge at the time of saving a cattle.  No doubt the information of the of the accident was given to the Andal Police Station and thereafter, a police case was started at Andal P.s. being GR No.1378 of 2012 FIR No.1216 and on 28-08-2012 complainant received back the said vehicle after lifting from the Canal as per order of the Ld. ACJM, Durgapur and it was brought to the workshop of Nageswar Sharma (Laxmi Garage) on 11-09-2012 and after collecting estimated cost of repairing of the said goods vehicle as on 11-09-2012 collecting from said Nageswar Sharma (Laxmi Garage) complainant filed his claim before insurer.

            After hearing the Ld. Lawyer for the complainant and the OP and also relying upon the Para 12 of the complaint it is clear that that claim was repudiated by the insured on the ground of invalid driving license bearing No.WB 11011804 of Paresh Nath Yadav which expired on 20-10-2009 and fact remains complainant in his claim application mentioned that driving license as it was not valid so repudiation was made and that repudiation letter was of dated 20-11-2012.

            It is also admitted fact that thereafter complainant collected the extract of the computerized driving license of Paresh Nath Yadav after collecting it from Transport Department of Howrah and complainant wrote a letter to the Deputy Manager, Claim Hubs of New India Assurance Company Ltd. on 01-01-2013 and OP received it and this is the admission of the complainant in his complaint Para 13 (Page 12 of the complaint).  So, up to 01-01-2013 we find there was no deficiency or negligency on the part of the OP Insurance Company and repudiation was made rightly by the OP as it was detected that the driving license expired as mentioned by the complainant in the complaint form for claim which was found admittedly invalid so repudiation at the stage was justified and legal and that erroneous driving license was corrected by the complainant by a separate letter on 01-01-2013 and accordingly after consulting the entire materials on record it is found that thereafter the insurance authority reopened the claim after verification of the new license number as made by the complainant and it was verified by the OP insurance company through their surveyors and thereafter it was reopened and, thereafter, Claims Hub Department of the OP finally settled the claim for a sum of Rs.46,350/- to the complainant and it was prepared after considering as per mandatory provision of terms and condition of the policy and it is settled principle of law as per the provision of the terms and condition of the policy that in all cases if for damages or for any accidental loss any claim is claimed by any insured in that case the depreciation cost shall be assessed on the basis of manufacturing year of the said vehicle and also the date of accident and considering that statutory provision of the insurance policy and also RC card of the said vehicle it is found that the vehicle for which the claim was submitted by the complainant was manufactured in the year 2004 and accident took place on 15-08-2012 that means age of the said vehicle was about 8 years on the date of accident and according to policy conditions total loss as assessed after considering all materials shall be reduced in view of the fact 50% shall be deducted as depreciation cost when age of the vehicle was 8 years.  So, after consulting the insurance policy in which it is also noted the manufacturing year 2004 and also assessment as made by the OP Insurance Company we find that was justified.

            Further we have considered the final receipt of Nageswar Sharma wherefrom it is found that Nageswar Sharma issued final receipt on 15-02-2012 which was submitted by the complainant to the insured and in the said receipt Nageswar Sharma noted “receipt with thanks from Kaluram Gupta a sum of Rs.1,25,000/- for repairing cost and prepared the said accidental vehicle receipt in total Rs.1,25,000/- after fixing new materials also.  So, considering the amount it is clear that the assessment as made by the OP was justified.

            Ld. Lawyer for the complainant referred one ruling reported in 2014 (1) CPR 519 NC and submitted that National Commission has observed that deduction of 50% on the ground of depreciation is not possible since vehicle has been insured just a year prior to the accident and in this regard we have gone through the judgment of the National Commission and it is found that invariably the said vehicle was first time register after purchase and for which the National Commission did not consider 50% depreciation and at the same time it is found that in that judgment National Commission assessed loss of total Rs.53,000/- for repairing and cost of purchase of new materials but fact remains similar incident happened in this case and in the present case also the vehicle in question fell down in the ditch so considering that situation and fact and present facts and circumstances, we are convinced to hold that in case of a new vehicle which fell into ditch only total Rs.90,000/- was assessed but the present the vehicle is 8 years old and in the insurance policy it is noted then as per mandatory provision and clause of the insurance policy 50% depreciation is legally valid and no authority of judicial power has any legal right to deviate from the said regulations and for which we are of the view that that ruling is not at all applicable in this case.  In view of the fact in that case vehicle was a new one but in the present case the vehicle is aged about 8 years old so as per mandatory clause for assessment of claim in case of accidental loss 50% was rightly deducted by the OP authority and there is no illegality in this regard.

            Furthermore, we want to say that Hon’ble Supreme Court including National Commission President, Justice Bhan decided that policy of insurance is a contract between insured and insurer and terms and condition of the policy are binding upon the parties and terms and conditions are required to be written with reference to stipulation contain in the policy and non-observation of the terms of the policy can vitiate the policy and absolve the insurance company’s liability to indemnify the loss and in this regard ruling reported in II(2013) CPJ 122 NC and also Hon’ble Supreme Court’s ruling reported in IV (2004) CPJ 15, IV (2010) CPJ 38 are studied and relying upon these ruling we are convinced to hold that the ruling of Supreme Court are binding upon National Commission also but sometimes the same trends to pass order defying the standing judgment of the Hon’ble Supreme Court and it is no doubt a bad precedent in all respect which has been observed by Supreme Court also but we are not in a mood to defy the judgment of the apex court and relying upon the judgment of the apex court we have gathered that the present deduction as made by the OP for assessment of loss in the present case was made rightly when the age of the present vehicle was 8 years from the date of manufacturing and for which it was rightly done and considering that fact we are inclined to say that the laches was not on the part of the OPs and for which it is proved beyond any manner of doubt that there is no negligence and deficiency on the part of the OP, when the assessment as made by the OP is as per legal norms and in the light of the above findings we are convinced to hold that complainant has failed to prove by any cogent and material evidence that OPs are deficient and negligent in discharging their duties or settling the claim and truth is that delay was caused due to wrong supply of driver’s license etc. and after deduction it was repudiated by the OP to the complainant and thereafter, the complainant supplied it and, thereafter, relying upon all documents and as per norms and clause of the policy contract they disposed of the final claim and reported the complainant but complainant refused to accept it.  So, anyway, the laches or negligence or any sort of mal-practices on the part of the OP is not at all proved.

In the result, the case fails.

Hence,

Ordered

That the case be and the same is dismissed on contest against with a cost of Rs.5,000/-(Rupees Five thousand only).

          Complainant is to pay the cost to the OP Insurance Company within one month from the date of this order.