This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for an order directing the O.P./ insurer to pay Rs.27,800/- as claim of insurance money, Rs.80,000/- for compensation and Rs.20,000/- for mental harassment and also Rs.10,000/- as litigation cost.

The case of the complainant in short is that the petitioner Nurul Islam filed this case and he died during pendency of this case; thereafter petitioner No. 1 to 4 are substituted as legal heir and representative of the deceased. Said Nurul Islam insured his vehicle TATA Indica, No.WB-02W/7695 on 10.11.2013 vide insurance policy No.313501/31/2013/7825 with the O.P. No.1, Insurance Company and the said policy was valid up to 10.01.2014. On 23.06.2013 the vehicle met with an accident at Itahar PS area and the vehicle was seriously damaged. One Gosai Nath Sarkar was driving the vehicle at the relevant time. Then Nurul Islam informed O.P. about the accident and also lodged claim before O.P./ Insurance Company for compensation for damage and took the damaged vehicle at ‘Moumita Enterprise’ at Raiganj for repair. The vehicle was repaired at a cost of Rs.87,000/-. Nurul Islam submitted the claim for damage with all the documents and several times contacted with O.P./ Insurance Company. So also his legal representatives, the present petitioners visited O.Ps. and were assured, but they were never disbursed with the claim amount.

On 05.12.2014 O.P. No.1 served letter informing that the driver had no valid driving license at the relevant time of occurrence and repudiated the claim therefore, Nurul Islam filed this case against the O.Ps. praying for compensation in terms of insurance policy and also prays for compensation for deficiency in service, negligence, harassment etc. as mentioned above.

O.P./ Insurance Company appeared and contested the case by filing written version. O.P. categorically denied all the allegations of the petitioners stating inter alia that petitioner suppressed material facts. O.P. admits the registration of the vehicle on 13.11.2006 and also admits that, it received the information of the incident and damage of the vehicle. Then preliminary investigation was done and subsequently final survey report by surveyor, Bankim Chandra Ghosh Dostidar was prepared, who assessed the actual damage of the vehicle to the tune of Rs.55,000/-. After deduction of salvage etc., he assessed net damage cost Rs.49,300/- in the report. That, O.P./ Insurance Company on 14.02.2014 issued letter to the petitioner asking to submit documents in original, bill, cash memo, purchase invoice and money receipt. O.P. alleges that the petitioner never replied to the letter and did not comply. Thereafter, O.P. issued another letter dated 03.03.2014 asking the documents. That, petitioner failed to comply again. That, the accident occurred on 23.06.2013, when the driver, Gosai Nath Sarkar had no valid and effective license at the material time. The DL verification report of the said license No.WB-59/10788 was valid up to 26.02.2003 to 28.03.2013, while accident took place on 23.06.2013. That, the petitioners violated the terms and conditions of the policy and there is no latches or deficiency in service on the part of the O.P. and petitioner is not entitled to any relief. O.Ps. therefore are praying for dismissal of the case.  

To establish the case, the complainant No.1 on behalf of all complainants filed affidavit of examination-in-chief sworn by him as P.W.1. Complainants filed documents, Insurance Policy, Driving License, letter dated 05.12.2014, Registration Certificate, Bills & Vouchers, etc. O.P. also filed documents copy of Verification Report, Authorization Letter and Final Report of Surveyor. One Anil Barman, Branch Manager of Raiganj Branch, Oriental Insurance Company Limited also deposed as O.P.W.-1.

DECISIONS WITH REASONS

Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, argument advanced by the lawyers of both sides, the Ld. Forum has come to the findings as follows: -

It is admitted fact that Nurul Islam, since deceased insured the vehicle in question with the O.P./ Insurance Company on 10.11.13 and he paid insurance premium Rs.5,839/-. Both parties filed the policy papers. It is also admitted that vehicle met with an accident and got damage on 23.06.13 during the validity of said policy. O.P. rebutted the claim of the petitioners on the sole ground that driver had no valid driving license at the time of accident. O.P., however also disputed the cost of damages borne by the petitioners to the tune of Rs.87,000/-. O.P. relied upon the final survey report and damage cost assessed as Rs.55,000/-, which and after deduction of salvage etc. comes to the tune of Rs.49,300/-.

Petitioner was examined as P.W.-1 and submitted documents being vouchers etc. showing payment of total damage cost of repair about Rs.87,000/-. The report of surveyors submitted by the O.P. goes to show that approximate net loss of Rs.55,000/- less salvage and less excess. The report of surveyor, Bankim Chandra Ghosh Dostidar clearly mentioned the particulars of the policy papers, vehicle particulars, driver particulars, date of accident on 23.06.2013 with a note that “DL is not valid at the time of accident”.

Regarding the validity of the driving license, O.P. filed particulars of driving license of Gosai Nath Sarkar, No.WB-59/10788, date of first issue 26.02.2003, valid up to 28.03.2013 for driving light motor vehicle. It was collected by first surveyor, Gopal Sarkar, as per copy of letter of the first surveyor, dated 30.08.2013. On the other hand petitioner submitted particulars of driving license of Gosai Nath Sarkar WB-59/10788 date of first issue 26.02.2003 renewed valid up to 28.03.2016 of the motor vehicle department, Government of West Bengal dated 20.02.2015. From this document of the petitioner and on perusal of the original driving license of Gosai Nath Sarkar it is clear that the driver has valid driving license on the date of the accident i.e. on 23.06.2013 to drive the ill-fated vehicle in question. O.P. failed to prove by producing any piece of evidence to controvert the averment made by complainant on oath that the driver has valid DL at the relevant time. Therefore, this fact challenged by the O.P. regarding violation of terms and conditions of the policy, practically remain un-rebutted. So this Forum has no reason to disbelieve the complainant.

Moreover, it is well settled law that surveyor’s report has significant evidentiary value unless it is proved otherwise. While both the parties have failed to discard the said report of the surveyor, the report should be given due value. Complainant gave his estimate that he suffered a total burden of Rs.87,000/- for the repair of the damaged vehicle. The original estimate shown in the report of the surveyor in summary assessment in total Rs.95,000/- and surveyor assessed the same to the tune of Rs.55,000/- after deduction of salvage etc. It also includes labour charges of Rs.22,750/- and cost of spears Rs.33,398/-. Therefore, to our considerate view, petitioner is entitled to realize said approximate net loss of Rs.55,000/- as cost of repair of the damaged vehicle. This Forum has given due weightage to the report to the final surveyor’s report and relied upon the decision of National Commission as reported in 2015(2)CPR P-432 (NC).  

In spite of receiving the surveyor’s report, the O.P./ Insurance Company failed to settle the claim of the petitioners only on the ground that driver was not possessing valid effective driving license. We have already stated that complainant has been able to prove by sufficient and cogent oral and documentary evidence that driver was possessing effective driving license on the date of incident on 23.06.2013. Complainant has also been able to prove that he incurred expenses for repair of the damaged vehicle following the accident. Therefore, complainant is entitled to get relief from the insurance company as per terms & conditions of the insurance policy and also in tune with the report of the surveyors. 

Therefore it is deficiency in service of O.P./ Insurance Company causing mental pain and agony to the complainant, when he was denied any damage claim amount from the O.P./ Insurance Company.

In the light of our above discussions we can safely conclude that the complainant has been able to prove his case and is entitled to get relief accordingly.

Fees paid is correct.

Hence, it is

ORDERED,

That the consumer complaint being No. CC - 22/2015 be and the same is allowed on contest against the O.P./ Insurance Company.

Complainant is entitled to realize the assessed actual damaged cost of the vehicle to the tune of Rs.55,000/- towards their claim for damage of vehicle No.WB-02W/7695 under the policy. They are also entitled to a compensation of Rs.2,000/- to the complainants for unnecessary harassment and also entitled to litigation cost of Rs.1,000/- payable by O.P./ Insurance Company within one month from the date of passing of this order; failing which the complainant will be at liberty to realize his claim in accordance with law.

Let copies of this order be supplied to the parties free of cost.