Orissa

Cuttak

CC/93/2021

Mrs Santoshi Sendh - Complainant(s)

Versus

New India Assurance Company Limited - Opp.Party(s)

K Panigrahi & associates

23 May 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                                   C.C.No.93/2021

Mrs. Santoshi Sendh,

Wife of Dillip Sendh,

Vill;:Nayapatana,P.O:Chhatia,P.S:Barchana,

Dist:Jajpur,PIN-754023.                                                                  ... Complainant.

 

                                                Vrs.

The New India Assurance Co. Ltd.

Represented through its Sr. Branch Manager,

1^st Floor,Surya Vihar,Link Road,

Near Nishamani Cinema,Cuttack-753001.... Opp. Party.

                       

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    21.06.2021

Date of Order:  23.05.2022

 

For the complainant:          Mr. Kalpataru Panigrahi,Adv. & Associates.

For the O.P.       :                  Mr. A.A.Khan,Adv. & Associates.

 

Sri Sibananda Mohanty,Member.

                                               

            The case of the complainant is that he is a registered owner of a truck bearing Regd. No.OD-04-K-3219 which is purchased being financed by Cholomandalam Investment and Finance Company Ltd. for earning her livelihood.  The truck was insured by the O.P under commercial vehicle enhancement covered policy vide policy No.55030331180300002162      which was valid from 23.8.18 to 22.8.19.  He had paid the premium amount of Rs.74,086/- to the O.P.

            On 2.8.19 at about 8.00 p.m, while the truck was proceeding from Chandikhole to Panikoili, on the way on N.H-16near Neulpur, a cow suddenly came in front of the said truck and in order to save the cow from accident, the driver applied sudden brake.  As a result of which the truck being imbalanced, dashed with a parking trailer for which the front portion of the truck was damaged.  The complainant on 3.8.19 informed about the accident before Dharmasala Police Station, vide SDE No.23 dt.3.8.19.  The complainant also immediately informed the O.P about the accident.  The O.P on receipt of intimation had deputed a surveyor who had visited the spot and had prepared his survey report.  The copy of the survey report has not been served upon the complainant.  The further case of the complainant is that one Bibhisan Das was the driver of her truck at the relevant point of time who had a valid driving license.  The complainant had paid Rs.6,14,000/- towards repairing of  her truck  through Trupti Automotive,Cuttack and has requested O.P for settlement of that amount.  The O.P repudiated the claim of the complainant as “No claim” vide  office letter dt.13.8.20,24.8.20 and 11.12.20 on the ground that the driver who was driving the truck at the relevant time was holding invalid and ineffective driving license and he had not renewed his transport driving license for the period from 14.9.16 to 17.9.19 though the same was renewed from 14.9.13 to 13.9.16 and thereafter from 18.9.19 to 17.9.24.  In fact, the driver of the said truck possessed the driving license bearing No.OR-2220090022344 and was authorised to drive transport vehicle which was valid till 13.9.19 covering the date of accident i.e. 2.8.19.  It is further case of the complainant that the accident took place due to sudden appearance of the cow and parking of the trailer on the road side by covering major portion of the road.  Hence non-renewal of the transport driving license of the driver was not being the immediate and proximate cause of loss.   The O.P should not have totally repudiated the claim of the complainant as “No claim” rather, he should have settled the claim on “Non-Standard Basis”.   Hence the action of the O.P amounts to gross deficiency in service and unfair trade practice.  So the complainant has filed this case with a prayer for direction to the O.P to pay a sum of  Rs.6,14,000/- along with interest @ 12% per annum from the date of repudiation of the claim as well as cost and compensation of Rs.1,50,000/-.

2.         The O.P appeared and filed his written version.  It is stated by the O.P that the commercial vehicle enhanced cover policy bearing No. 55030331180300002162 issued in favour of the complainant covering risk of her truck bearing Regd. No. OD-04-K-3219  which was valid from 23.6.18 to 22.8.19, subject to certain terms and conditions of the insurance policy.  The O.P had admitted the accident took place on 2.8.19.  It is stated by him that after receipt of intimation from the complainant he deputed the surveyor namely Er.Binayak Das to survey and give report, the surveyor assessed the loss  and submitted his report on 18.8.20 assessing the loss to the tune of Rs.6,38,000/-.  It is stated by the O.P that the driving license of the driver Mr. Bibhisan Das has not been renewed for the period from 14.9.16 to 17.9.19 which does not cover the date of accident i.e. on 2.8.19, which clearly establishes that the driver had not valid and effective D.L and was driving the same in gross violation of the policy condition.  On scrutiny of the claim filed, when it was found that the insured vehicle was a heavy goods vehicle having unloaded weight of 12760 kgs and driver namely Bibhisan Das who was driving the said vehicle had renewed his license for transport vehicle from 14.9.16 to 17.9.19, this clearly establishes the fact that the said driver had no effective D.L at the material time which is in gross violation of the policy condition.  In view of the same, the O.Ps had repudiated the claim of the complainant.  Hence it is prayed by the O.P that the case is not maintainable and prayed for dismissal of the same with cost.

            Both the parties have filed relevant documents in support of their case.

3.         Keeping in mind the averments as made in the complaint petition as well as in the written version, this Commission feels it proper to settle the following issues in order to arrive at a valid conclusion.

i.          Whether there is any deficiency of service on the part of the O.P?

 

                        ii.         Whether the case as filed is maintainable?

                        iii.        Whether the complainant has cause of action to file the case.

                        iv.        Whether the complainant is entitled to get the reliefs as claimed by her?

Issues No.1,

            It is an admitted fact that truck of the complainant met with an accident which was duly insured with the O.P.  The O.P repudiated the claim as the driver had no valid driving license at the material point of time, when the accident took place i.e. on 02.08.2019.  The complainant has taken the plea that the driver had a valid Driving License at the material time but he could not substantiate such plea with proper documents.  The further plea of the complainant is that the D.L of the driver to ply heavy/transport vehicle was renewed before the accident i.e. from 14.9.2013 to 13.09.2016 and renewal of D.L. after the accident i.e., from 18.09.2019 to 17.09.2024 would not improve her case, as at the material point of time the driver had no valid D.L to ply heavy/transport vehicle.  The complainant is bound by the Insurance contract/Insurance policy condition as it is an agreement.  As per the policy condition, the driver should have valid D.L to ply heavy/transport vehicle.  But the complainant allowed the driver to ply her truck, who had no valid D.L to ply heavy/transport vehicle at the material point of time.  Hence, repudiation of claim of the complainant is justified and the O.P has not committed any deficiency in service.  The complainant relied upon a decision of Supreme Court i.e. Amalendu Sahu Vrs. Oriental Insurance Company Ltd. reported in 2013(3) CPR,641(S.C) for settlement of claim amount on non-standard basis.  But the said decision is not applicable to the present facts and circumstances of the case.  Hence, this issue is answered in favour of O.P.

Issues No.2 & 3.

            In view of the discussions made above, these issues are answered against the complainant.

Issue No.4.

            From the above discussion, it is made out that the complainant is not entitled to any of the reliefs as claimed by him.  Hence it is so ordered;

                                                            ORDER

            The complaint case is dismissed on contest but as regards to the facts and circumstances of the case without cost.

Order pronounced in the open court on the 23^rd day of May,2022 under the seal and signature of this Commission.

                                                                                                                                

                                                                                                                            

                                                                                                                                                                                                                       

                                                                                                               Sri Sibananda Mohanty

                                                                                                                            Member.

 

 

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President