Date of Filing: 02.09.2016. Date of Disposal: 10.05.2023.
Complainant :Mithu Karmakar, W/O Mr. Shyamal Karmakar, Resident of Ghiadoba, Pranta Pally, P.O. Achara, P.S. Salanpur, Dist. Burdwan, Pin 713335.
-VERSUS -
Opposite Party :1. Royal Sundaram Alliance Insurance Co . Ltd. being represented by its Branch Manager, Royal Sundaram Alliance Insurance Company Limited, Asansol Branch, having its Office at 2nd Floor, B.B. College More, G.T. Road, Asansol-713303.
2. Asansol Branch, Sundaram Alliance Insurance Company Limited, being represented by its Branch Managr, Asansol Branch, Sundaram Alliance Insurance Company Limited having its office at 2nd Floor, B.B. College More, G.T. Road, Asansol,-713303.
3. Branch Manager, Asansol Branch, Royal Sundaram Alliance Insurance Company Limited, having its office at 2nd Floor, B.B. College More, G.T. Road, Asansol -713303.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant :Sri Sanyuk Banerjee Ld. Advocate.
Appeared for the Opposite Parties :Sri Saurav Kumar Mitra Ld. Advocate
F I N A L O R D E R
On 02.09.2016 the complainant has filed an application u/S 12 of the C. P. Act, 1986 against the Opposite Parties (O.Ps).
The case of the complainant, in brief, is that the complainant purchased a vehicle for the purpose of earning her livelihood which has been described in the Schedule of the complaint and the said vehicle was insured with the OP No.1 through the Insurance Policy from the OP NO. 2 and the OP No.3 happens to be the Branch Manager of OP No.2. One Tarsan Singh approached the complainant after placing his driving license for his job, being an unemployed helpless person and the complainant authorized him to ply her vehicle. Subsequently, the complainant came to know that the driving license had been a fake one and she did not allow the said person to ply the said vehicle. Thereafter, by employing another driver having valid license for the purpose of driving of the aid vehicle. Everything had been running normally but when the said vehicle had been plying through the NH-2 from Kolkata to Asansol and had been running through the area of Galsi P.S. the vehicle met with an accident on 13.02.2015 . At that time, one Uday Shankar Kushwaha , having a learner driving license , had been plying the said vehicle , being accompanied by another driver having a full valid license for the purpose of plying the said vehicle namely Kartick Patra. She further stated that learner driving license holder holds the learner driving license for a particular period when he used the same to run vehicle of the kind for vehicles for which the learner driver has been used being accompanied with another driver always who is competent to drive the vehicle of that kind for which the learner driving license has been issued by the Competent Authority. The said learner driver Uday Sankar Kushwaha, lodged an information the O.C., Galsi P.S. on 17.02.2015 and Galsi P.S. Case No. M.A/6 of 2015 dt. 27.02.2015 has been stared. In para 9 of the complaint, the complainant-Mithu Karmakar stated that at the time of submitting information to Galsi P.S. , she made a mistake of mentioning the name of the driver, having the valid license to ply the vehicle in question of the complainant as Kartick Pal, in the said letter of information , just after the said letter of information, the complainant went to Galsi P.S. on 17.02.2015 and submitted details of the driver who had been actually accompanied when the driver who was driving the vehicle in question at the material point of time of accident namely Kartick Patra . Thereafter, an intimation has been lodged to the OP-Insurance Company about the unfortunate accident and the vehicle had been brought to the workshop for due repairing. The first claim of the complainant had been lodged through the computer with the OP Insurance Company. Thereafter, the complainant came back at her house and discussed all the matter with her husband who pointed out that actually Tarsen Singh had not been the driver at the material point of time of accident. Thereafter, stressing all the reality, another claim has been lodged through the Computer for the purpose of getting the claim amount of loss. Unfortunately, taking the advantage of the situation without whisper about the second claim of the complainant, the OP –Insurance Company has repudiated the claim of the complainant vide letter dt. 03.03. 2015.
The cause of action of the complainant arose after the event of accident of the vehicle i.e. on and from 13.02.2015 and finally to 03.03.2015.
Upon this background the complainant has prayed for a direction upon the OPs to pay a sum of Rs. 5, 99,829.90/- i.e. repairing value of the vehicle in question along with a direction to the OPs to pay a sum of Rs.10, 000/- towards the cost of the case . She also prayed for interest @ 9% p.a. over the estimated cost of the repairing value i.e. Rs. 5, 99,829.90/-.
OP Nos. 1,2 & 3 have contested the case by filing W/V denying all the material allegations contending inter alia that the complainant has no cause action for that purpose and that the complainant is put to strict proof of the allegations and that the complaint is liable to be dismissed on the grounds of non-disclosure of material fact.
The specific case of the OPs is that the claim of the complainant is rightly repudiated on the grounds that the driver of the vehicle at the time of accident, did not have a valid, effective driving license to drive the transport vehicle and the complainant has not approached to this Hon’ble Forum with clean hands and is trying to suppress the real facts of the claim. That the complainant had taken a Goods Carrying vehicle policy for the period of insurance from 27.11.2014 to 26.11.2015 for her Mahindra Bolero Maxi Truck Plus, from the answering OPs, subject to terms and conditions therein. It is also submitted that the complainant lodged a claim with respect to accident to the subject insured vehicle which had occurred on 13.02.2015 on 24.02.2015 . As per claim form, the driver of the vehicle was Uday Shankar Kushwaha and the person accompanying the driver was one Tarsan Singh. It is further stated that on intimation of the claim, the OPs appointed IRDA licensed Surveyor Mr Kaustabh Basu to assess the loss and damage to the vehicle and also to verify the documents submitted by the complainant. The surveyor had assessed the net liability of this OP to Rs. 3, 75,000/- subject to admissibility of the claim. On perusal of the claim documents , it was found that the driver of the vehicle as mentioned by the complainant did not have a valid driving license to drive a transport vehicle and only possessed driving license for non-transport LMV vehicle and the copy of the license of Uday Kumar Kushwaha as verified by the surveyor is annexed. It is also submitted that as per policy , the driver of the vehicle is required to have a valid effective license but the complainant sent a letter to the OPs staging the presence of another driver namely Kartick Patra, who was in the same vehicle at the time of accident. However, the said driver’s name was not mentioned originally in the claim form and the complainant did not mention specifically whether the said Kartick Patra was at the wheel at the time of accident or not and that the complainant’s letter was not acceptable as the complainant neither asserted that the said Kartick Patra was driving the vehicle and further did not produce any evidence that the said Kartick Patra was in the said vehicle at the time of the accident. On the other hand, the driver Uday Shankar Kushwaha’s statement to Galsi Police Station also does not mention the presence of anybody accompanying him at the time of accident. For the above reasons, the denial of the claim of the complainant was in order and hence a reiteration of the repudiation was sent to the complainant vide letter dated 17.04.2015. As regards the averment of the complainant that the said Uday Shankar Kushwaha had a learner’s driving license and duly accompanied by a person with a valid Driving License for transport vehicle, it is submitted that the complainant never produced the learner’s license to the answering opposite parties at the time of submitting the claim form, neither did the complainant prove that the subject insured vehicle adhered to the provisions of Rule 3 of the Central Motor Vehicles Rules.
Upon this background, the OPs prayed for dismissal of the case.
Decision with Reasons.
The complainant, Mithu Karmakar, has filed evidence-on-affidavit, Xerox copies of documents.
OPs have also filed evidence-on-affidavit and Xerox copies of documents. The complainant has filed Written Notes of Argument but the OPs did not file any Written Notes of Argument.
Perused the complaint, W/V, evidence-on-affidavit of both sides and the Xerox copies of documents so filed by both parties and the W.N.A. filed by the complainant.
Both the parties in their evidence corroborated their case depicted in the complaint and depicted in the W/V.
There is no dispute regarding the coverage of the Insurance of the vehicle in question.
The case of the complainant is that the dispute is a minor accident and driving of the vehicle in question at the time of accident for which the claim of the amount for repairing of the vehicle has been refused. It is the case of the complainant that she appointed one Tarsan Singh as driver of her vehicle and subsequently, as the papers we not genuine and the driving license was a fake one, Taran Singh was not allowed to ply her vehicle in question and everything had been running normally. It is also the case of the complainant that when the vehicle met with an accident on 13.02.2015 , the same has been plying on NH-2 from Kolkata to Asansol and had been running through the area of Galsi P.S. and at that time one Uday Shankar Kushwaha , having a learner’s driving license, had been driving the said vehicle accompanied by another driver having full valid driving license whose name was Kartick Patra and Uday Shankar Kushwaha lodged a letter of information addressed to the O.C, Galsi P.S. on 17.02.2015 and Galsi P.S. case being No. 6/2015 dt. 17.022015 has been started.
In this case, the complainant tried to make another story that Uday Shankar Kushwaha made a mistake mentioning the name of the learner driver having valid license to ply the vehicle in question just after lodging the said information, the complainant went to Galsi P.S. on the selfsame day on 17.02.2015 and submitted with Galsi P.S. details the name of the driver who has been actually accompanying with the learner driver license holder who was driving the vehicle in question at the material point of time of accident namely Kartick Patra. Only to make amendment of the earlier information made by Uday Shankar Kushwaha to the O.C. Galsi P.S. which is the real fact to show actually who drove the vehicle at the material point of time and this approach was made after consulting the fact with her husband in their house as per the case of the complainant.
In this case, the OPs submitted that after accident, the complainant lodged the claim for the purpose of insured vehicle which had occurred on 13.02.2015 on 24.02.2015. As per the claim form the driver of the vehicle was one Uday Shankar Kushwaha and the person accompanied by Tarsan Singh and not Kartick Patra and then the OP appointed IRDA licensed surveyor who assessed the loss and damage to the subject vehicle and also verify the documents submitted by the complainant,. The surveyor had assessed the net liability of this OP to Rs. 3, 75,000/- subject to admissibility of the claim. On perusal of the claim documents, it was found that the driver of the vehicle as mentioned by the complainant did not have a valid driving license to drive a transport vehicle and only possessed the driving license for non-transport LMV vehicle and the name of Kartick Patra, who was in the same vehicle at the time of accident , was not mentioned originally in the claim form and the complainant did not mention specifically whether the said Kartick Patra was at the wheel at the time of accident or not. It is also submitted by the OPs that the complainant ‘s letter was not acceptable as the complainant neither asserted that the said Kartick Patra was driving the vehicle and further did not produce any evidence that the said Kartick Patra was in the said vehicle at the time of the accident. On the other hand, the driver Uday Shankar Kushwah’s statement to the Galsi Police Station also does not mention the presence of anybody accompanying him at the time of the accident. From the documents, i.e the statement of Uday Shankar Kushwah to Galsi P.S. , it is found that the said information does not disclose that Kartick Patra was driving the vehicle or Kartick Patra was in the said vehicle at the time of accident. On the other hand, Uday Shankar Kushwah himself was driving the vehicle at the material point of time. Therefore, the story as depicted either in the complaint or in the evidence of the complainant, cannot be believable. Therefore, the specific case as stated by the OPs is more believable than that of the case of the complainant.
According to the copy of the driving license of Uday Shankar Kushwah , produced by the OP , it appears that the driver of the vehicle of the complainant i.e who drive the vehicle at the material point of time did not have a valid driving license to drive the transport vehicle and only possessed a driving license for non-transport L.M.V. On the other hand, the complainant could not produce any document to show that she appointed Uday Shankar Kushwah , learner license holder to drive her vehicle and she tried to speak that one Kartick Patra was driving the vehicle . But from the information lodged before Galsi P.S. it is clear that at the time of accident Uday Shankar Kushwah was driving the vehicle. From the other statement of the complainant in complaint, it is clear that she tried to manufacture her case by stating colourful statement in the complaint and that has not been materialized by the complainant herself.
Under the above facts and circumstances of the case and above made discussions, we are of opinion that the complainant has miserably failed to prove her case against the OPs to show that they committed deficiency in service and negligent.
Therefore, the case must fail.
Hence, it is
ORDERD
That the Consumer Complaint No. 156/2016 be and the same is hereby dismissed on contest against the OPs but without any cost.
Let a copy of this order be supplied to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C., Purba Bardhaman.
Member President
D.C.D.R.C., Purba Bardhaman. D.C.D.R.C., Purba Bardhaman.
