Orissa

Cuttak

CC/198/2013

Dwadasi Dalai - Complainant(s)

Versus

New India Assurance Co.Ltd - Opp.Party(s)

S Sen

13 Nov 2014

ORDER

OFFICE OF DISTRICT CONSUMER DISPUTES REDRESAL FORUM:CUTTACK.

C.C.Case No.198/2013

 

Dwadasi Dalai,

At5:Talasahi,Sikharpur,

P.S:Chauliaganju,Dist:Cuttack.                                         … Complainant.

 

                                                Vrs.

 

New India Assurance Co. Ltd.,

D.O,ImKathajodi Road,

                   Badambadi,Cuttack

                                                                 ….Opp. Party.

In the presence  of

                              Shri C.K. Kar, President.

                              Sri B.K.Padhiary,Member.

                         Ms. Rajalaxmi  Das,Member.

 

Per Member Sri B.K.Padhiary.

 

                                                            JUDGMENT

1. (i)   In briefing the subject matter of complaint  as perused from the records and evidence produced that the complainant had purchased a Tata ACE HT bearing Regd. NO.OR-05AH-5785 and the vehicle has been insured in New India Assurance Co. Ltd under policy No.550300310901-00203022 having claim No.5503003110019000,00345  ensured with  valid period.

(ii) The accident happened on 16.5.10 under Dhenkanal SadarPolice Station and was reported as per Annex-1., The same case was reported and surveyer by Mr. S,K,.Sarkar consisting of Survey report attached with 34 nos., of photograph in respect to repair work  of vehicle as enclosed in Annex-2.

(iii) The complainant  further stressed that the repair estimated was amounted Rs.1,48,000/- by Tripti Automobiles on 24.5.10 vide Annex-3 but due to finance problem the same was repaired in the Garage of Urmila Motors and it had been surveyed amounting to Rs.64,214.78p.  The drivers license having D.L No.OR-04-20090110085 LMV and is valid at the time of accident as per Annexure-4.

(iv) The survey report was prepared on 24.3.11 in the presence of Administrative Officer of New India Assurance Co. Ltd. as mentioned in observation column on  the body of survey report consisting of 5 pages.

(v) The cause of action arised on 3.11.11 basing to the repudiation of claim of the complainant vide O.P letter No.550300/OD/2011/3/11/2011 after the lapse of 2 ½ years as per Annex-5.  Further the complainant is dissatisfied and aggravated with the seizure of vehicle by the Finance Company on 12.09.2011 as per annex-6 perplexed with multiple tensions

(vi) The complainant further alleged that he spent around Rs.1,50,000/- but not paid yet.

(vii) The complainant has  further appealed that he is a very poor person and is  living by doing vegetable business through this vehicle for his livelihood.  The complainant further affirmed that during the accident it was not used for any transporting purpose and the vehicle was empty and the driver had valid driving license of light motor vehicle, who died due to accident and the same is evidenced from Survey report.

vii. The complainant lastly prayed to compensate him regarding repair charges Rs.1, 50,000/-, loss of income Rs.2, 00,000/- including the compensation for mental harassment and interest, totaling Rs.4, 00,000/-.  The case is admitted on 11.9.13.

2. Basing and retaliating to the complainant the O.P has submitted his written statement/show cause on 25.,3.14 stating that

 (i) The driver is not authorized to drive such vehicle at the time of accident.  The driver was authorized to drive light motor vehicles but the vehicle faced accident is light goods vehicle.  It is affirmed by O.P during the valid period i.e. 30.12.09 to 29.12.10 the accident happened on 16.5.10 is never disputed or unquestionable but the accident matter intimated on 3.11.10 after the lapse of 6 months and it is revealed from the survey report along with police report that Sanjay Kumar Prusty had no valid license to drive the said vehicle as stated in paragraph-3 caused the violation of terms and conditions of the policy resulted with repudiation of the claim.

(ii) In the paragraph 7 the O.P has vehemently countered and resisted that the claim of the complainant is imaginary and speculative and claim was repudiated basing to violation of valid license at the time of accident and refuted strongly the absence of any deficiency in service on the part of O.P.

3.                          Documents submitted.

1. Complaint petition
2. Copies of the police papers
3. Copies of surveyor’s report consisting of 34 photographs.
4. Copies of Tripti Garage certificates.
5. Copy of D.L of the driver.
6. Copy of seizure of dt.12.9.11 of Tata Financier.
7. Copies of bills and cash.
8. I.P.O 200
9. Written statement of O.P.
10. R.T.O,Cuttack certificate.
11. Collection receipt with judicial decision.
12. Copy of letter of New India Assurance Company Ltd.

4.                                             ISSUE OF THE CASE

1. Whether the complainant is a consumer as per the Act?
2. Whether the Driver had valid driving license?
3. Whether Insurance Company in the arena of Deficiency in service?
4. Whether Insurance Company adopted Unfair Trade Practice?
5. If the averment are positive the quantum of compensation?

5.                                            ISSUE BASED FINDING

(i) Regarding the initial issue the  complainant’s allegation the complainant is coming under Consumer Protection Act under 2(1)(d),2(1)(o) &2(1) (r) as the complainant is a valid insurance holder in respect to the vehicle faced accident under the Terms and conditions of I.R.D.A.  Accordingly the issue in respect (i) is decided.

(ii) In respect to issue No.(ii) the light motor vehicle is defined under Section-2(21) on V.Act,1988, as a transport vehicle or Omnibus the gross vehicle weight of either of which or motor car or tractor or road roller of 7500 Kilograms conforming unladen weight and transport vehicle is defined under Section-2(47)  as public service or private service vehicle , a goods carriage, educational institution bus.  There is no such difference between the Light motor vehicle and light goods vehicle from the strict sense of its driving system and mechanical aspect except the design and the change of body without any alteration or change of Gear box or Engine or driving system.  Further under Sec-66(3)  under chapter V there are certain exception in which respect 66(1) Sub Section  certain exceptions are provided  regarding  necessity  of  permit in respect to  Transport Vehicle ,is not applicable at the time of plying.  Further the same view is vehemently and irresistibly pronounced by Hon’ble Supreme Court in 2000(i) TAC-98 vide Ashok Gangadhar Maratha Vrs. Oriental Insurance Co. Ltd. decided on 2^nd September,1999 under para-10,11,14 & 16.  The same view is reiterated and pronounced by Hon’ble Supreme Court vide AIR 2008 Supreme Court 1418 under para-8,16 & 17,  Moreover on the date of accident the vehicle was empty as per the survey report and not carrying any goods.

 The same view is pronounced by Apex Court vide the above cited case from page 98 to 104. (in xerox ) as per 2(16) the weight of the light vehicle should not exceed 12000 Kg. in this case the weight is 815 kg. as per the survey report.  There are  14 nos. of grounds where the driving license is not required even the vehicle is plying on the public road the same are mentioned in U/S-66(3)(a,b,c,d,e,f,g,h,I,j,k,m,n,o,p) Under Section 66(3)(i) if any goods vehicle, the gross vehicle weight of which does not exceed 3000 Kilograms does not come under the restriction of driving license as imposed & required  under section 66(i).  The weight of the present vehicle is 815 kg (unladen weight as reported by Surveyor).  Further in the case at 66(3) (p), the vehicle was moving in empty stage.  So the restriction in the light of above provision the valid license shall not applicable.  Insurance decision to reject a claim is not based on sound logic and valid ground.

 The Insurance is a socio-economic service and should maintain good spirit to earn the confidence of mass.  The rejection should not be done on the technical ground or in mechanical fashion.  Utmost care, due diligence and above all humanity is required before conceptualizing the term repudiation of a claim of an innocent person and when a person faced accident causing his death to save a cow.

 Many judgments are pronounced by Apex Court when the policy is valid, other technicalities and formalities are to be ignored to earn the confidence and good will of public of the Insurance organization without dragging to litigation dragon as pronounced by the Hon’ble Apex Court and Hon’ble National Commission vide CPR 2013(4).  Hon’ble Supreme Court in his most noble judgments reiterated that “Insurance Company cannot be permitted to avoid it’s liabilities only on ground that person driving vehicle at the time of accident was not duly licensed vide CPR 2013(4) page-601 to 605.

In the light of above legal point, technical ignorance, judicial pronouncement and above all human point of consideration, when the insurance policy is valid it is not legally and morally  acceptable to repudiate the claim.  Accordingly the issue No.(II) and Issue No.(III) are decided.

Issue No.5.  In the light of above judicial pronouncement in respect to issue No(II& (III) and the intensive interpretation of M.V.Act and various sections,  it is revealed that the Insurance Authority has not taken due diligence regarding the claim settlement and the basic provision of M.V.Act and I.R.D.A Act  caused  harassed and duped the complainant in spite of the death of the  driver.  The Insurance Company deliberately and intentionally deviated from it’s statutory responsibility causing unfair trade practice under 2(1) (r) of C.P.Act,1986 and MRTP Act,1969 under section-36A(i)(ii)(iv)(vi(viii)® & 36B.  Accordingly the issue is decided.

• : Regarding issue No.(iv) & (v)it is well averred that the Insurance Company is coming under deficiency in service and unfair trade practice under cited above and liable to compensate the complainant; the claim which is repudiated since 3.11.11.  The Insurance Company is liable to pay the repair expenditure done as per the surveyor.  In addition to interest will be paid. @ 12% from the date of report to the Insurance Authority.

Being the Insurance Company deliberately addicted with unfair trade practice and causing unnecessary harassment, financial loss and mental tension, so in our considered view the compensation is ascertained to ensure commercial integrity and to Rs.10,000/-.  Further the litigation expense is Rs.4 000/- as considered by us.

         Act &judicial pronouncement  referred

(i) 2(i)d,2(1)(g),2(1)(o), 2(1) (r) of C.P.Act,1986 and MRTP Act,1969 under section-36A(i)(ii)(iv)(vi(viii) & 36B. 

(ii) M.VAct 1988 under section 2(16),2(21),2(47),66(1),66(3)

(iii) I.R.D.A (Protection of  Police holders’ Interest) under section  5,7 &10

(iv) Judicial pronounce ment  A.I.R Supreme  Court 2008,civil appeal No 574 of karnatak, 2000(1)T.A.C 98 (SC) & others  case mentioned in the body of judgement

 

                                                           ORDER

                                                     

1. The O.P is directed to pay the repair expenditure amounting Rs 64,215/== with the interest @ 12%.
2. Further directed to pay in addicting with unfair trade practice amounting to Rs.10,000/- causing financial loss in respect to income, mental harassment.
3. Further burdened with litigation cost of Rs.4000/-.
4. Real parties are to be arrayed to legal platform to ensure real exercise of judicial integrity, impartially but the complainant has not entangled them where the cause of action crupted and spouted.
5. The above direction is to be complied within 30 days of the receipt of this order, failing which the complainant is at liberty to enforce the order U/S-25 & 27 of the C.P.Act,1986. 

 

Typed to dictation, corrected and pronounced by the Hon’ble Member in the open Court on this the 13^th day of November 2014 under the seal and signature of this Forum. 

                                                                                                            (Sri B.K.Padhiary )

                                                                                                                        Member                 

                                                                                                                (Sri C.K.Kar )

                                                                                                                       President.

                                                                                                                 ( Ms.Rajalaxmi Das )

                                                                                                                       Member(W).