Orissa

Sambalpur

CC/82/2021

JBN ENGICONS, - Complainant(s)

Versus

Oriental Insurance Co. Ltd, Divisional office - Opp.Party(s)

Sri. P.K. Mishra & Others Advocates

29 Nov 2022

ORDER

PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

CONSUMER COMPLAINT CASE NO- 82/2021

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

 

JBN ENGICONS, at New Colony 

PO-Budharaja, Ps-Ainthapali, Dist-Sambalpur

A registered construction firm being a juristic person,

Represented through its partner Ranish Patel

S/o-Chimanlal Patel, At New Colony, PO-Budharaja

Ps-Ainthapali, Dist-Sambalpur                                     ...………..Complainant

                                                Versus

Oriental Insurance Co. Ltd, Divisional office at VSS Marg,

Ps-Sambalpur Town, Po/Dist-Sambalpur,

Represented through his Divisional Manager                …………...Opp.Party

 

Counsels:-

1. For the Complainant                   :-         Sri. P.K.Mishra, Advocate & Associates
2. For the O.P.                                  :-         Sri. B.K.Purohit, Advocate & Associates

 

Date of Filing:22.03.2022,Date of Hearing :07.11.2022, Date of Judgement : 28.11.2022

           Presented by Dr. Ramakanta Satapathy, PRESIDENT,

1. The case of the Complainant is that for vehicle No. OD-15-G-4561 (ATAX) (Cement Mixture) an insurance Policy NO. 345600/31/2019/6787 was taken from O.P. which was valid from 02.12.2018 to 01.12.2019. On 12.06.2019 at about 11.30 A.M. when the vehicle was working near village Tabalakhata under Kuchinda skidded from the working side and overturned/toffled caused heavy damage to the vehicle. The O.P. was informed vide claim No. 340012/31/2020/030282. Informed local Police Station vide G.D. No. 021 dated 13.06.2019 of Kuchinda P.S. and later taken to Konark automobiles Pvt. Ltd., Sambalpur for repairing. An amount of Rs. 12,24,070,/- was assessed.

The O.P. vide letter No. 108/2020 dated 03.06.2020 rejected the claim on the ground, “the driver was having a driving licence to drive non-transport vehicle and not authorised to drive transport vehicle (Goods carrying vehicle) and the subject vehicle is a Misc. vehicle (class of vehicle goods carrying).” The Complainant was given liberty to substantive his claim within two weeks from the day of receipt of the letter.

The Complainant discussed with the O.P. that driver was having valid driving licence but the O.P. vide letter No. 135 dated 09.07.2020 repudiated the claim as “ not tenable on the ground that the driver was authorised to drive non-transport vehicle and not authorised to drive transport vehicle and the subject.” Subash Bhoi was the driver at the time of incident having valid driving licence. The unladen weight of the vehicle was 7100Kg and it was a light motor vehicle.

The repudiation of claim made by the O.P. is not proper.

Being aggrieved the Complainant filed this complaint.

2. The case of the O.P. is that the complainant as a juristic person and filed the complaint at the behest of Ranish Patel, claiming to be a partner of JBN ENGICONS is not a consumer, can not be treated to be earning livelihood by way of self employment.

The O.P. has issued the concrete Mixture Goods carrier insurance policy for Rs. 30,78,000/- and one Misc. class D vehicle package Policy Zone C bearing No. 345600/31/2019/6787 in favour of the Complainant for the period 02.12.2018 to 01.12.2019. Policy was issued subject to India Motor Tariff(IMT) Endorsement No. 28,29,34,23,47 & 6. The insured vehicle must be driven under a permit within meaning of sec. 66 of the Motor vehicles Act. The compulsory deduction in case of own damage claim is 0.5% of the IDV of the vehicle subject to a minimum of Rs. 2000/. The registered laden weight of the vehicle is 16700kgs and unladen weight is 7100kgs. The vehicle is a Heavy Goods vehicle.

The O.P. came to know about the accident dated 12.06.2019 on 14.06.2019, Surveyor and loss Assessor Sr. H.P. Singh was deputed, took the vehicle to repairer and Er. Saroj Kumar Sahoo, loss Assessor was requested to make final survey. Final Surveyor assessed Rs. 7,06,688.95P to-wards the parts at normal depreciation, Rs. 30,709.46 towards 50% depreciation, Rs.2500/- towards towing charges and Rs. 41,300/- to-wards labour charges including taxes, Gross loss Rs. 7,81,198.41P deducted thereafter Rs. 15,390/- to-wards policy excess and Rs. 34,508.41P to-wards salvages finally gave Rs. 7,31,300/- would be payable to the insured in the event of settlement to-wards own Damage claim.

The Driver Subash Bhoi having D.L. No. OD-2820160009961 was having LMV licence valid from 21.04.2016 to 20.04.2036, which is to driver Non-Transport vehicle. The insured vehicle is a transport vehicle. The insured vehicle is transport vehicle vide letter dated 03.06.2020 intimation was given to the Complainant. No reply was received from the insured, accordingly claim was repudiated vide letter No. 135/2020 dated 09.07.2020.

The repudiation of claim made by the O.P. is proper, there is no deficiency in service of the O.P. and the complaint is liable to be dismissed.

3. After perusal of the complaint, version of the O.P. and documents filed by the parties the following issues are framed:
103606587.  

1. Whether the Complainant as corporate body under the companies Act, not a Consumer of the O.P. ?
2. Whether the Complainant violated the terms and conditions of the insurance policy and the repudiation made by the O.P. is proper?
3. What relief the Complainant is entitled to get?

Issue No.1 Whether the Complainant as corporate body under the companies Act, not a Consumer of the O.P. ?

Sec.2(31) of the C.P. Act, 2019 defines a ‘person’. Person includes a corporate body. As ‘company’ is a juristic person, registered owner of the vehicle OD-15G-4561(AJAX) concrete Mixture and insured the vehicle with Insurance Policy No. 345600/31/2019/6787, which was valid from 02.12.2018 to 01.12.2019 and paid Rs. 25,441.00 premium to the O.P., entered into an insurance contract, the Complainant is consumer of the O.P.

Question raised by O.P. that Ranish Patel filed the complaint, who is a partner in the company. Complaint can be filed by one or more consumers, where there are numerous Consumers having the same interest. In the present Complaint Ranish Patel is a partner, having interest in JBN Engicons, filed the complaint, Hence the complaint is maintainable.

The issue is answered in favour of the complainant.

Issue No.2  Whether the Complainant violated the terms and conditions of the insurance policy and the repudiation made by the O.P. is proper?

An insurance contract is a contract between insurer and insured. Policy No. 345600/31/2019/6787 was issued in favour of the Complainant. India Motor Tariff(IMT) endorsement No. 28,29,34,23,47 & 6 are applicable to the Complainant. The Driver’s clause is also applicable to the Complainant at the time of taking decision of repudiation of policy. Section 66 of the Motor vehicle Act speaks up the insured vehicle must be driven under a permit and no party can deviate to the policy terms.

It is the allegation of the O.P. that Subash Bhoi was the driver of the vehicle having DL No. OD-2820160009961 which was for light Motor vehicle(LMV) and to drive a non-Transport vehicle. The insured vehicle being a Transport vehicle(Goods carrying vehicle) the driver was not legally authorised to drive the insured vehicle. The O.P. intimated the complaint vide letter dated 03.06.2020 and an opportunity was given to further defence. As reply was given by the Complainant vide letter No. 135/2020 dated 09.07.2020 the claim was repudiated.

It is admitted by both the parties that the driver was having a licence. The question arises whether the insured vehicle is a transport vehicle or non-transport vehicle. The Complainant submitted that the unladen weight of the vehicle is less than 7500kg. In the other hand the O.P. submitted that light Motor vehicles are of two specifications.

1. Transport vehicle or Omnibus where the gross vehicle weight is measured and it should not exceed 7500kgs and
2. Motor car or Tractor or Road Roller, where the unleaden weight is measured and it should not exceed 7500kgs.

The gross laden weight of vehicle is 16700kgs and unladen weight is 7100 kgs. As the weight laden having 16700kgs the class of vehicle can not be termed as LMV Category. The driver was only having a licence to drive LMV. The Complainant referred the case of Nirmala Kothani Vs United India Insurance Co.Ltd. 2020(1) OLR SC page 891. The Hon’ble Supreme Court held that “while hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence on the face of it looks genuine, the employer is not expected to further investigate into authenticity of the licence unless there is cause of believe otherwise if the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Sec. 149(2) (a) (ii) and the Insurance Company would be liable under the policy.” The O.P. failed to prove that the licence of the driver is fake or invalid and still the Complainant permitted the person to drive, the Complainant has knowledge about it. In such circumstances the plea taken by the O.P. is not acceptable and on the point of driver’s clause the repudiation of the claim is found to be not proper.

Now the question of assessment of the vehicle comes. The Complainant has spent Rs.12,24,070/- towards repairing of the vehicle. The final Surveyor and Loss Assessor of the O.P. assessed the loss to be Rs. 7,31,300/-. The O.P. referred the case of Hon’ble Supreme Court, Sikka Paper Ltd. Vs National Insurance Co. Ltd. & others, AIR 2009 SC 2834. The Complainant has not assailed the survey report and assessment of loss at any point of time. The vehicle OD15G-4561 was manufactured in Nov. 2016 and registration date is 19.12.2016. The vehicle was having above 2 years age and below 3 years, so the % of depreciation for fixing IDV is 30% whereas the surveyor taken the normal depreciation as 15 % . Accordingly the final survey and assessment found to be genuine.

The O.P. further submitted that the Complainant is a company and claim for mental harassment is not legally permissible. As per spirit of the Sikka Paper Ltd. case discussed supra, the Complainant is not entitled for the allegation mental harassment and agony.

After foregoing discussions I am of the view that the O.P. has not applied its mind while repudiating the claim of the Complainant and accordingly found deficient in its service and failed to establish the Complainant that the terms and conditions are violated.

The issue is answered against the O.P.

Issue No.3 What relief the Complainant is entitled to get?

The Complainant is entitled for compensation as assessed by the final Surveyor and Loss Assessor. In the other hand for non-application of mind and repudiation of claim the complainant is entitled for compensation.

Accordingly, it is ordered:

ORDER

The complaint is allowed on contest against the O.P. The O.P. is liable to pay Rs. 7,31,300 to the complainant to-wards repairing charges of the vehicle No. OD-15G-4561 with simple interest @ 9% P.A. w.e.f. 12.06.2019 within one month of this order, failing which the amount will carry 12% P.A. till realisation. Further the O.P. is directed to pay compensation of Rs. 2.00lakhs and litigation expenses of Rs. 20,000/- to the Complainant.

Order pronounced in open court on this 29^th Nov of 2022.

Supply free copies to the parties.