The case of the complainant, in short, is that the complainant purchased one ‘Mini Vibratory Compactor, Case 450DX’ which is earthmoving equipment/machine from ‘Case New Holland Construction Equipment India Pvt. Ltd.’ being serial No. S0822, Chasis No. S15 A 0822 and Engine No. V4S14ZLT10678 on 29.01.2015 at a price of Rs. 11,75,000/- for the purpose of earning his livelihood by means of self employment. The complainant took financial help/loan of Rs. 9,45,000/- from Indusind Bank Ltd., Siliguri under a hypothecation agreement for the purpose of purchase of such above mentioned machine. The Case New Holland Construction Equipment India Pvt. Ltd. dispatched the said Mini Vibrator Compactor/Machine through a transport vehicle bearing Registration No. MP-04-GA3267 and thus it was delivered to the complainant thereafter receiving the said Mini Vibrator Compactor (earthmoving equipment) machine. Complainant insured the same with the OP-Insurance company vide insurance policy No. 313205/31/2015/5643 for the period of 06.02.2015 to 05.02.2016 and for that paid a sum of Rs. 17,197/- only as a premium (marked as Annexure-2).
On 13.10.2015 said Mini Vibrator Compactor (earthmoving equipment) machine was moving to Joarthang at that time metwith an accident at about 13:30 PM near Joarthang, Sikkim and for that accident said machine was damaged badly. After the said accident complainant informed the OP about the accident on the next day i.e. 14.10.2015.
On 19.10.2015 complainant submitted the claim form to the OP and also requested the OP to pay the claim as soon as possible. Further it is contended in the petition of complaint that at the time of taking Insurance Policy complainant submitted proposal form but the OP Insurance company most negligently and put the Registration number of the transport vehicle writing wrong Make model of the equipment or machine in the Insurance policy. But ultimately the OP-Insurance company repudiated the claim of the complainant. The complainant claim the expenses of Rs.2,85,900/- as incurred for repairing of the equipment and machine. It is noted in the petition of complaint that OP-Insurance company in the meantime on 29.10.2015 appointed one surveyor and loss assessor namely Mr. A.K. Choudhury for inspection of the damaged machine and that inspection was done on 30.10.2015 and on wards and after inspection the said surveyor Mr. A.K. Choudhury estimated cost of the repairing of the said machine at Rs.2,10,064.45/- in his survey report dtd. 12.03.2016 and as per direction of surveyor and OP Insurance company complainant repaired the said Mini Vibrator Compactor Machine and for that purpose paid a sum of Rs. 2,50,900/- only on account of purchasing of parts and also paid a sum of Rs. 35,000/- on account of labour charges totalling a sum of Rs. 2,85,900/-. The complainant since date of submission of claim form visited the office of the OP and enquired about the status of his claim and on every occasion the OP-Insurance company assured that the claim would be disbursed within a short period. Next, after lapse of more than 8 to 9 months OP-Insurance company over telephone asked the complainant to submit the registration certificate of the Mini Vibrator Compactor machine and at that time complainant informed the OP that the mini vibrator compactor machine does not require any official registration number as per Central Motor Vehicles Rules. The complainant to that effect to substantiate the information submitted two certificates one from the manufacturer Case New Holland Construction Equipment (India) Pvt. Ltd. dtd. 13.02.2017 and another from the Motor Vehicle Division, Department of Transport, Govt. of Sikkim dtd. 04.05.2017 where it has been clearly written “the vehicle category of mini vibrator compactor does not require any official registration number as per Central Motor Vehicles Rules”. It is mentioned in the complaint that on 24.07.2017 the OP Insurance company sent one letter to the complainant contending therein that the vehicle insured does not have a registration number and the registration number appearing in the policy is actually the number of the towing vehicle at the time of taking the policy and so as per company’s norms “No registration No claim follows” and thus the claim has been repudiated by the OP by its said letter dtd. 24.07.2017, hence this case for payment of a sum of Rs. 2,85,900/- as against repairing of the damaged machine and 12% (per cent) interest per annum thereon till full payment of the same and also for payment of further sum of Rs. 2,00,000/- for arbitrary and illegal act of the OP as well as for deficiency in service and for further payment of Rs. 1,00,000/- on account of harassment and mental pain and agony of the complainant and lastly a sum of Rs. 10,000/- as cost of litigation. The complainant in this case has filed some documents which are as follows:-
- Xerox copy of Invoice cum chalan being No. 0491351 dtd. 29.01.2015 (Annexure-1).
- Xerox copy of Insurance Policy being No. 313205/31/2015/5643 (Annexure-2).
- Xerox copy of intimation letter dtd. 14.10.2015 (Annexure-3).
- Xerox copy of Survey Report of Mr. A.K. Choudhury dtd. 12.03.2016 (Annexure-4).
- Xerox copy of money receipts total five nos. in respect of purchasing of spare parts ( Annexure-5).
- Xerox copy of certificate of manufacturer (Annexure-6).
- Xerox copy of certificate of Department of Transport, Motor Vehicle Department, Government of Sikkim (Annexure-7).
- Xerox copy of letter dtd. 24.07.2017 issued by the Oriental Insurance Co. Ltd. (Annexure-8).
The complainant has filed his examination in chief along with an affidavit to prove his case as PW-1 and lastly filed written notes on argument over this case.
The OP-Insurance company on the other hand, has submitted written version and admitted therein that complainant insured said mini vibrator compactor for the period for 06.02.2015 to 05.02.2016 and it is also admitted that complainant paid a premium of Rs. 17,197/- against that insurance policy with the OP. The OP also admitted that on 14.10.2017 complainant intimated the Insurance company about the accident of mini vibrator compactor machine and to that effect claim form was submitted by complainant on 19.10.2017. The appointment of Mr. A.K. Choudhury surveyor and submission of surveyor’s report after inspection of machine is also admitted. It is categorically mentioned in the written version that OP repudiated the claim of the complainant as the registration number of the vehicle/machine is appearing in the insurance policy is actually the registration number of the towing vehicle and ultimately the OP has prayed for dismissal of this case as there was no negligence or deficiency in service on the part of the OP. It is to be noted here that the OP side did not file in this case any evidence in writing while the OP prayed before this Forum for treating the written version as examination-in-chief. The OP side has filed written notes on argument where it is alleged that complainant never intimated the OP that policy was wrongly issued in respect of towing/transport vehicle and submitted further therein that OP in written version categorically explained the reasons of repudiation of insurance claim of the company. In fine, this Forum heard the argument as advanced by Ld. advocates of both sides. On the basis of above mentioned materials on case record and the pleadings of the parties the following points (issues) are framed:-
- Is the complainant a ‘consumer’ within the purview of the term as per C.P. Act 1986?
- Has there been any deficiency in service upon the complainant from the part of the OP-Insurance company?
- Is the complainant entitled to get the relief/reliefs as prayed for?
DECISION WITH REASONS.
All the above three points are taken up together for discussion and consideration and determination of this case as those are related with one another.
Admittedly, the OP-Insurance company and its office is situated well within the territorial jurisdiction of this District Forum of Siliguri Dist.- Darjeeling. It is the case of the complainant that he purchased the mini vibratory compactor/machine for the purpose of earning his livelihood of self employment and over this there exists no dispute from the side of the OP but the said machine while was moving to Joarthang on 13.10.2015 it met with an accident near Joarthang in Sikkim out of which accident the machine got damaged badly and this fact of accident in a sense has been admitted by the OP-Insurance company when appointment of surveyor was done on 29.10.2015 by the OP for inspection and assessment of the damage of the machine and we have perused carefully that report of surveyor which of dtd. 12.03.2016 and in that report surveyor Mr. Adhir Kumar Choudhury observed that the machine on travel pump assy got damaged badly and that was tested with the help service engineer which found not functioning and many other damages mentioned in the report and it is further reported that all damages are consistent with the nature of occurrence and it is further noted that age of machine was less than one year at the relevant time and damage was assessed at Rs. 2,04,741/- and after 5% depreciation it was calculated at Rs. 1,94,503/- and over plastic/rubber items damage was assessed at Rs. 10,585/- on depreciated value and labour assessed was at Rs. 4,975/- and finally assessment was at Rs. 2,10,064.45/- (excluding VAT, S.T, Salvages and Policy excess). It is admitted that at the time of accident the insurance coverage of the machine was there but at the same time we have perused the admitted position of the matter that in the insurance policy registration number of the machine/vehicle is appearing in the insurance policy is actually the registration number of the towing vehicle. It is admitted in the written version of the OP-Insurance company on perusal of the documents which are certificate of manufacturer of the machine and that of certificate of department of Transport Motor Vehicle Department Govt. of Sikkim respectively dtd. 13.02.20174 and 04.05.2017 it is clear that vehicle category of mini vibrator compactor does not require any registration number as per Central Motor Vehicle Rules. On this backdrop on going through all the relevant materials including documents on record we are of the view that OP-insurance company was completely negligent in issuing insurance certificate over the subject-insured but rightly that was issued in the name of the complainant. The wrongs in the insurance certificate as issued prove the negligency from the part of the insurance company and this is utter deficiency in service done from the part of the insurance company upon the complainant and on this juncture it can safely be said that repudiation of the claim of complainant is unjustified. The claim of the complainant is reasonable thus genuine one but complainant had to suffer for that and these sufferings have come out from the negligent act of the OP-Insurance company. Under the facts and circumstances of the case we are of the considered view that the complainant is a rightful consumer as per section 2(1)(d) of the C.P. Act. 1986 and it is also held by us that the letter of repudiation of OP-Insurance company dtd. 24.07.2017 with contention “No Registration No Claim” has got no value. OP-Insurance company with important admissions from its part on record has proved the case of the complainant and accordingly repudiation of claim is totally unjustified. The point of deficiency in service from the part of the insurance company upon the complainant is thus proved and accordingly the complainant is entitled to get the relief as prayed for in this case but in the following manner. All the three points are thus decided and disposed of in favour of the complainant.
Hence, it is,
O R D E R E D
that the instant Consumer Case No. 74-S-2017 be and the same is allowed on contest in part against the OP-Insurance company. The OP-Insurance company is directed to pay to the complainant a sum of Rs. 2,10,064/-(Two lakh ten thousand sixty four rupees) as against repair charges of the mini vibrator compactor machine and also further directed to pay a sum of Rs. 80,000/-(Eighty thousand rupees) on account of harassment, mental pain and agony as well as deficiency in service to the complainant totalling a sum of Rs. 2,90,064/- (Two lakh ninety thousand and sixty four rupees) within 45 days from the date of this order failing which this amount shall carry an interest of 9% per annum till the realization of the amount in its entirety counting from the date of filing of this application in that case since 31.08.2016.
The OP-Insurance company is also directed to pay a sum of Rs. 10,000/-(Ten thousand rupees) to the complainant as litigation cost within 45 days from the date of this order failing which the complainant is at liberty to put this order/decree in execution against the OP.
Let a copy of this final order/judgment be given to the parties free of cost at once.
