This complaint under C.P. Act., 1986 was initially filed against O.P., Reliance General Insurance, Gitanjali Complex, 2nd Mile, 2nd Floor, Sevoke Road, Post & P.S. - Siliguri, District – Darjeeling, Pin Code- 735221, who contested the case by filing Written Version.
The case of the complainant as per his complaint is as follows-
The complainant is the owner of a Tata ACE Magic (Passenger Carrying Vehicle), bearing Chassis No. MAT445501GVH41722 and Engine No. 275IDI06.HTYS90992 and she purchased the vehicle from OSL Automotives Pvt. Siliguri on 19/01/2017. The vehicle Registration No. is WB- 71- V- 0985 and it was insured under the O.P.
The complainant argued that the said vehicle is the only source of income to her along with her whole family.
The complainant also argued that on 26/01/2018, the said vehicle met with an accident at Garubathan, Jalpaiguri and it was fully damaged and then the complainant took the vehicle to the garage namely, Welding Workshop, Caltex More, Malbazar and spent Rs. 72,800/- (Rupees Seventy Two Thousand & Eight Hundred only), to repair the vehicle and on the very next day of the accident, the complainant went to the office of the O.P. and informed them about the accident and completed all the formalities there and the O.P then sent their Surveyor to the garage where he surveyed and took the signatures of the complainant, in various forms and documents, but, in spite of timely informing, the O.P., about the accident and also filing the claim form and all relevant documents, the O.P. has been taking time till date. Hence, finding no other alternatives on 26/04/2018 the complainant sent a lawyer notice to the O.P., through Advocate Mrinal Kumar Roy but did not get any result.
The complainant also argued that though it is the duty of the O.P. to take care of its customers and to settle their grievances, but, the O.P. had failed to do their duty most arbitrarily, wrongfully, negligently and thus caused deficiency in their service towards the complainant.
The complainant also argued that the cause of action arose on 26/01/2018 and again on 26/04/2018 and still now it is continuing within the jurisdiction of this Ld. Commission and he also added that the proper bank draft of Rs. 100/- (Rupees One Hundred only) has been filed accordingly, being Draft No. 699279 dated 16/07/2018.
The complainant therefore prays for-
- An order directing the O.P. to pay the claim amount of Rs. 72,800/- (Rupees Seventy Two Thousand & Eight Hundred only) along with interest.
- An order directing the O.P. to pay the complainant a sum of Rs. 10,000/- (Rupees Ten Thousand only) as compensation for deficiency in service and also a sum of Rs. 10,000/- (Rupees Ten Thousand only) for mental agony and harassment immediately.
- An order directing the O.P. to pay Rs. 5,000/- (Rupees Five Thousand only) to the complainant towards cost of the complain/ case.
- Any other order/ orders as may deem fit and proper for the ends of justice.
- The value of the complaint in total is Rs. 92,800/- (Rupees Ninety Two Thousand and Eight Hundred only).
The documents filed by the Complainant in support of her claim are as follows …...
Annex 1 ….. (1) Photocopy of the Delivery Order, dated 19/01/20017.
Annex 2 …..(2) Photocopy of the Insurance, dated 31/01/2017.
Annex 3 …..(3) Photocopy of the Lawyer Notice, dated 26/04/2018.
Annex 4 …...(4) Photocopy of the Aadhaar Card of the complaint.
The O.P., Reliance General Insurance, Gitanjali Complex, 2nd Mile, 2nd Floor, Sevoke Road, Post & P.S. - Siliguri, District – Darjeeling, Pin Code- 735221 contested the case and as per his Written Version (W.V.), the case is as follows –
The O.P. argued in his W.V., that the present complaint is not at all maintainable either in law or on facts as well as the claim made by the complainant against the said O.P. is not lawful, proper and bonafide and this Commission had no jurisdiction to entertain and determine the instant complaint as the provisions of the C.P. Act, 1986 are not attracted against the said O.P. The O.P. also added that there is no cause of action against this O.P. and as such the same is liable to be dismissed in limine.
The O.P. also argued in his W.V. that the complainant had filed this case against the O.P. with an ulterior motive to derive unlawful pecuniary gain based upon falsehood and figment of imagination beyond comprehension and as per the settled position of law, the point of maintainability must be decided at the first instance by the Consumer Commission before considering the merit of a case.
The O.P. also argued that the statements made in the complaint which are not specifically admitted herein bellow shall be deemed to have been denied by the O.P. The O.P. argued that the statements made in para 02 and 03 of the complaint are bound to prove the same by producing relevant evidences and also the statements made in para 04 and 05 of the complaint petition are the matter of record and as such the complaint is put to strict proof thereof by producing evidences. The O.P. also added that the statements made in para 06 to 11 of the complaint are the matter of records and as such the complainant is put to strict proof thereof by producing evidences and also the statements/ allegations made in para 12 to 14 of the complaint are totally false, baseless and the same are strongly disputed and denied by this O.Ps. The O.P also said in his W.V. that there has been no deficiency of service in any manner and the complainant herself was responsible for violation the terms and conditions of the policy, also concealed material facts and misrepresented the facts in order to gain unlawfully from the answering the O.P.
The O.P. also argued that as per intimation lodged by the complainant and as per the perusal of the documents and investigation it has been observed that the insured name as per policy and registration is Molina Chakma, however the said vehicle WB- 71- V- 0985 is purchased and used by Abdul Rahaman. As the claimant has sold the vehicle, as such the complainant does not hold any insurable interest and moreover it is the prima- facie duty of the insured, to give all such information and assistance but none of this information was ever declared to the Insurance Company. The O.P. also told in his W.V. that the documents given by the complainant it has been observed that as per the claim form furnished by the complainant, the driver details provided by the complainant was in the name of Umesh Saha but it was observed and confirmed that Abdul Rahaman was driving the vehicle at the time of alleged accident which proves that the information pertaining to the driver was misrepresented by the complainant which is a violation of policy terms and conditions and as the driver of the vehicle Abdul Rahaman did not have a driving license/ valid license so, it is also a violation policy terms and conditions.
The O.P. also argued that the damages to the vehicle were assessed at Rs. 28,020/- (Rupees Twenty Eight Thousand and twenty only) by the surveyor however the said amount is not payable as the O.P. had repudiated the instant claim lodged by the complainant due to violation of policy terms and conditions.
The O.P. also argued that the complainant nowhere stated in the complaint that he had sold the vehicle to Abdul Rahaman and that vehicle was being driven by Abdul Rahaman at the time of alleged accident and for what reason the claim of the complainant was repudiated by the Insurance Company.
The O.P. also argued that the said vehicle in question was hypothecated with Sreeram Transport Finance Company Limited, Siliguri but the complainant has not impleaded the said financier as the necessary party in the instant case for the reasons best known to her.
The documents filed by the O.P. are as follows …..
Annex 1 ….. (1) Photocopy of the Survey Report.
Annex 2 …..(2) Photocopy of the claim form and repudiation letter dated 28/05/2018.
Points for consideration
- Whether the complainant is a consumer?
- Whether the case is maintainable under the C.P. Act 1986?
- Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?
- Is the complainant entitled to get any award and relief as prayed for?
All the points are taken up together for consideration and decision.
Seen and perused the complaint petition and Written Version filed by the parties which are supported by the affidavit, documents filed by the parties.
From the documents and the evidence on oath, it is clear that the vehicle in question has been insured by the OP Insurance. That apart, the fact of accident is also not disputed. The major point of contention, between the claim made by the complainant and the OP Insurance Company, is that the existence of a sale agreement on a stamp paper between the complainant and one Abdul Rahaman. With the existence of such document, the OP Insurance Company has questioned the claim made by
the complainant. In this regard, it can be stated that it is settled law that the claim if valid otherwise, has to be made to the registered owner. In the instant case, it is not disputed that the registered owner of the vehicle in question, is the complainant. Though, the existence of one document pertaining to be a sale document, has been supplied by the O.P. Insurance Company, but the same cannot be termed a sale deed in the eyes of law and therefore, the alleged sale of the vehicle in question cannot be accepted as legal and valid. In other words the transfer of ownership of the vehicle in question cannot be accepted to have taken place. Therefore, the complainant still remains the registered owner of the vehicle in question. Hence the repudiation by the O.P. Insurance Company on this ground cannot be accepted and therefore, fails.
The next ground of the repudiation of the claim made by the complainant is that, the driver on the date of the accident did not have any valid license, has been controverter by the existence of the Seizure List dt. 27.01.2018 filed by the O.P. Insurance Company themselves. From the above Seizure List it becomes clear that the vehicle had been driven by one Abdul Rahaman and on proper authorization as mentioned in Column-C of the above Seizure List. Moreover, there is no mention of the vehicle being driven by the driver without any Driving Licence. Therefore, the repudiation of the claim by the O.P. Insurance Company on this ground also fails. Hence, the O.P. Insurance Company is liable to compensate the complainant’s claim.
However, in this regard, it has been stated in the O.P.’s evidence-on-affidavit that the surveyor’s assessment had been found to be Rs. 28,020/- (Rupees Twenty Eight Thousand Twenty Only). There being no questionnaires, on behalf of the complainant to controvert or dispute the above amount or evidence, the complainant would therefore, be entitled to the above amount only as damages. Hence in view of the principles percolating from the Hon’ble Appellate Forums the complainant is entitled to the above amount of Rs. 28,020/- (Rupees Twenty Eight Thousand Twenty Only) as damages.
As regards to the illegality caused in the instant case, by the non-addition of the Financier, Sreeram Transport Finance Co. Ltd. Siliguri, it can be stated that the above Financier, has an agreement with the complainant therefore, is not involved with the dispute in the instant case. In any case of dispute between the Financier and the Complainant, the dispute needs to be settled in the different Forum and therefore, the non addition of Sreeram Transport Finance Co. Ltd. Siliguri,would not affect the dispute in the instant case.
As a result the instant case succeeds and the O.P. Insurance Company is directed to pay the complainant the amount of Rs. 28,020/- (Rupees Twenty Eight Thousand Twenty Only) as damages along with cost of Rs. 5,000/- (Rupees Five Thousand Only) for mental pain and agony and Rs. 5,000/- (Rupees Five Thousand Only) towards litigation cost.
Hence it is,
ORDERED
That the Consumer Case No. 40/2018 and the same is allowed, in-part with contest against the O.P.
The O.P. Insurance Company is directed to pay the complainant the amount of Rs. 28,020/- (Rupees Twenty Eight Thousand Twenty Only) as damages along with cost of Rs. 5,000/- (Rupees Five Thousand Only) for mental pain and agony and Rs. 5,000/- (Rupees Five Thousand Only) towards litigation cost.
In case of failure of payment of the decretal amount within the stipulated time the complainant may realize the same by executing the decree according to law.
Let a copy of this Judgement be given to the parties free of cost.
