Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint was initially filed under the provisions of C.P. Act, 1986 against the Opposite Parties (O.P.s) – 1) Royal Sundaram Alliance Insurance Company Ltd., C/O Shree Radha Apartment, Shop No. 04, 3^rd Floor, Iskon Mandir Road, P.O. & P.S. - Siliguri, Dist. - Darjeeling, Pin Code – 734001 and 2) The Managing Director, Royal Sundaram Alliance Insurance Company Ltd., Corporate Office- Vishramthi Melaram, Tower No.3/319/, Rajib Gandhi Salai (OMR), Karapakkam, Chennai- 600097 who contested the case by filing Written Version (W.V.).

          The brief fact of the complaint and Written Notes of Argument (W.N.A.) filed by the complainant is as follows-

          The complainant purchased one (01) goods heavy vehicle bearing No. WB 73D 7121 under the finance of Sundaram Finance Ltd., Kolkata and at that time the financer had made the insurance policy of his said vehicle from the O.P.s (Royal Sundaram Alliance Insurance Company Ltd.) to cover all risk. But unfortunately, in the middle of September, 2016 (dated 20.09.2016) the said vehicle met with an accident and got damaged. The damage amount was Rs. 2, 07, 801/- (Rupees Two Lakh Seven Thousand Eight Hundred and One) only. The complainant immediately informed the O.P.s vide claim No. VG00039472 about the said accident and requested them for payment of claim for the damage of his said vehicle but since last nine (09) months the O.P.s did not take any initiative regarding payment of the claim amount. The said insurance was valid at the time of accident. The O.P.s tried to avoid the claim by arguing that “damage to the hydraulic jack and cylinder valve were not due to accidental external damage but were due to mechanical failure”. The O.P.s neither supplied any copy of Survey Report to the complainant nor did they inform the complainant for partial settlement. As the O.P.s did not provide the Survey Report and partial claim rejection documents to the complainant it was not possible for the complainant to give any reply to them regarding the same. Due to the damage of the said vehicle the complainant could not run his vehicle and due to this reason he suffered a loss of Rs. 2, 35, 201/- (Rupees Two Lakh Thirty Five Thousand Two Hundred and One) only and has been suffering from very much hardship.     

                    The prayers of complainant are as follows :

1. To pass an order directing the O.P.s to pay the claim of Rs. 2, 07, 801/- (Rupees Two Lakh Seven Thousand Eight Hundred and One) only to the complainant.
2. To pass an order directing the O.P.s to pay Rs. 25, 000/- (Rupees Twenty Five Thousand) only for mental agony and harassment caused to the complainant in the due course.
3. Cost of litigation may also be awarded suitably.

         List of Documents filed by the complainant:

1. Photocopy of Registration Certificate being No. CR A 461572. (Annex.-1)
2. Photocopy of Insurance Policy Certificate being No. VGC0390153000100. (Annex.-2)
3. Photocopy of Policy Schedule. (Annex-3)
4. Photocopy of Permit of the vehicle (Form X/ Part- A & Form X/ Part- B). (Annex.-4)
5. Photocopy of Road Tax. (Annex.-5)
6. Photocopy of Tax Invoice being No. NirRSS-NS-1617-03228/501of TATA Motors. (Annex.-6)
7. Photocopy of Pass Book. (Annex.-7)
8. Photocopy of Drop Letter of C.A. &F.B.P, Siliguri being Memo No. 375/C&F/Slg.RO, dated 08.08.2017. (Annex.-8)
9. Photocopy of Aadhaar Card of the complainant. (Annex.- 9)
10.  Photocopy of Voter ID Card of the complainant. (Annex.-10)
11.  Photocopy of Policy Schedule cum Insurance Certificate being No. 5123003116010000131. (Annex.-11)
12.  Photocopy of Adjustment Voucher of New India Assurance Co. Ltd., dated 02.11.2016. (Annex.-12)
13.  Photocopy of Pre-litigation Mediation, dated 05.06.2017. (Annex.-13)
14.  Photocopy of letter of Royal Sundaram General Insurance Co. Ltd., dated 17.02.2017. (Annex.-14)
15.  Photocopy of letter of Royal Sundaram General Insurance Co. Ltd., dated 25.02.2017. (Annex.-15)

Regarding this instant case, the Opposite Party (O.P.) – 1) Royal Sundaram Alliance Insurance Company Ltd., C/O Shree Radha Apartment, Shop No. 04, 3^rd Floor, Iskon Mandir Road, P.O. & P.S. - Siliguri, Dist. - Darjeeling, Pin Code – 734001 and 2) The Managing Director, Royal Sundaram Alliance Insurance Company Ltd., Corporate Office- Vishramthi Melaram, Tower No.3/319/, Rajib Gandhi Salai (OMR), Karapakkam, Chennai- 600097 contested the case by filing W.V.

         The brief fact of the case as per Written Version (W.V.) and Written Notes of Argument (W.N.A.) filed by the O.P.s is as follows-

The complainant had taken a Goods Carrying Vehicle Package Policy from the O.P.s for Tata Motors Ltd. LP 1618 Tipper. The policy was issued for a period commencing from 03.11.2015 to 02.11.2016 under certificate No. VGC0390153000100, subject to the policy terms and conditions. A claim was lodged by the complainant under policy alleging damage to the insured vehicle and vide the claim from the insured narrated that the vehicle overturned while it was moving. Immediately on intimation of the claim, the O.P. arranged licensed surveyor to assess the loss and the surveyor vide his assessment report assessed the loss to the tune of Rs. 1, 58, 575/- (Rupees One Lakh Fifty Eight Thousand Five Hundred and Seventy Five) only. However, it was noted from the spot photographs that the damage to the vehicle was resultant of unloading and not because of overturning while in motion, as the damages were consistent with the fact of hydraulic jack failing due to mechanical failure. But this observation was contrary to the version of the accident narrated by the complainant wherein he stated that the vehicle overturned while in motion. Since, the misrepresentation of facts was raised by the complainant clarification was sought as to the cause of loss vide letter dated 17.02.2017 and it was clear that the damage to the said insured vehicle did not occurred due to any of the causes mentioned under the head of ‘Section I’- “Loss of or Damage to the Vehicle Insured” in the policy. There was no external accidental impact and it was happened due to failure of the hydraulic jack due to mechanical failure at the time of unloading and when the vehicle was stationary and the scope of the policy is only limited to damage by accidental external means. So, the claim with respect to hydraulic jack and cylinder valve due to mechanical failure were disallowed and the same was communicated vide letter dated 25.02.2017.

         In this respect, the O.P.s mentioned judgment of- (1) M/S Banerjee & Banerjee v. National Insurance Co. Ltd on 8 July, 2013, CS No.334 of 1989 High Court of Calcutta, (2) Observation of Hon’ble Supreme Court in the case of United India Insurance Co. Ltd vs M/S. Harchand Rai Chandan Lal on 24 September,2004, (3) Nand Kishore Jaiswal Vs National Insurance Co. Ltd (III (2009) CPJ 194(NC)), (4) Oriental Insurance Co. Ltd. V. Soney Cherain (II 1999 CPJ 13 SC).  

List of Documents filed by the O.P.s:

1. Policy being No. VGC0390153000100 with terms and conditions.
2. Claim Form.
3. Copy of the Survey Report.
4. Copy of photographs of the vehicle.
5. Copy of the Clarification Letter, dated 17.02.2017.
6. Copy of Partial Repudiation Letter, dated 25.02.2017.
7. Copy of Postal Receipt.     

 Having heard, the Ld. Advocate of the complainant and on perusal of the Complaint, Written Version and documents filed by the parties the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

DECISION WITH REASONS

          All the points are taken up together for consideration and decision.

Seen and perused the complaint petition filed by the party which is supported by the affidavit, documents filed by the parties. We are also heard arguments the complainant in full length.

The complainant resides in the jurisdiction of Matigara, of Dist. – Darjeeling and the O.P. No.1 is also carrying his business in Siliguri of Darjeeling district. Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act- 1986 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.

At the time of argument Ld. Advocate of the Complainant submits that the complainant has been able to prove its case against the O.P.s not only through his written deposition but also by producing documents.

The complainant had taken a Goods Carrying Vehicle Package Policy from the O.P.s for Tata Motors Ltd. LP 1618 Tipper and the said policy was issued for a period commencing from 03.11.2015 to 02.11.2016 under certificate No. VGC0390153000100. Hence, this Commission does not hesitate to hold that as per the Consumer Protection Act 1986 and Consumer Protection Act 2019 the complainant is a very much consumer in this case.

In this instant case, the complainant purchased one (01) goods heavy vehicle bearing No. WB 73D 7121 under the finance of Sundaram Finance Ltd., Kolkata and at that time the financer had made the insurance policy of his said vehicle from the O.P.s (Royal Sundaram Alliance Insurance Company Ltd.) to cover all risk. But unfortunately, in the middle of September, 2016 (dated 20.09.2016) the said vehicle met with an accident and got damaged. The damage amount was Rs. 2, 07, 801/- (Rupees Two Lakh Seven Thousand Eight Hundred and One) only. The complainant immediately informed the O.P.s vide claim No. VG00039472 about the said accident and requested them for payment of claim for the damage of his said vehicle but since last nine (09) months the O.P.s did not take any initiative regarding payment of the claim amount. The said insurance was valid at the time of accident. The O.P.s tried to avoid the claim by arguing that “damage to the hydraulic jack and cylinder valve were not due to accidental external damage but were due to mechanical failure”. The O.P.s neither supplied any copy of Survey Report to the complainant nor did they inform the complainant for partial settlement. As the O.P.s did not provide the Survey Report and partial claim rejection documents to the complainant it was not possible for the complainant to give any reply to them regarding the same. Due to the damage of the said vehicle the complainant could not run his vehicle and due to this reason he has been suffering from very much hardship.

         In support of his defense, the O.P.s argued that the complainant had taken a Goods Carrying Vehicle Package Policy from the O.P.s for Tata Motors Ltd. LP 1618 Tipper. The policy was issued for a period commencing from 03.11.2015 to 02.11.2016 under certificate No. VGC0390153000100, subject to the policy terms and conditions. A claim was lodged by the complainant under policy alleging damage to the insured vehicle and vide the claim from the insured narrated that the vehicle overturned while it was moving. Immediately on intimation of the claim, the O.P. arranged licensed surveyor to assess the loss and the surveyor vide his assessment report assessed the loss to the tune of Rs. 1, 58, 575/- (Rupees One Lakh Fifty Eight Thousand Five Hundred and Seventy Five) only. However, it was noted from the spot photographs that the damage to the vehicle was resultant of unloading and not because of overturning while in motion, as the damages were consistent with the fact of hydraulic jack failing due to mechanical failure. But this observation was contrary to the version of the accident narrated by the complainant wherein he stated that the vehicle overturned while in motion. Since, the misrepresentation of facts was raised by the complainant clarification was sought as to the cause of loss vide letter dated 17.02.2017 and it was clear that the damage to the said insured vehicle did not occurred due to any of the causes mentioned under the head of ‘Section I’- “Loss of or Damage to the Vehicle Insured” in the policy. There was no external accidental impact and it was happened due to failure of the hydraulic jack due to mechanical failure at the time of unloading and when the vehicle was stationary and the scope of the policy is only limited to damage by accidental external means. So, the claim with respect to hydraulic jack and cylinder valve due to mechanical failure were disallowed and the same was communicated vide letter dated 25.02.2017. In connection to this, the O.P.s mentioned judgment of- (1) M/S Banerjee & Banerjee v. National Insurance Co. Ltd on 8 July, 2013, CS No.334 of 1989 High Court of Calcutta, (2) Observation of Hon’ble Supreme Court in the case of United India Insurance Co. Ltd vs M/S. Harchand Rai Chandan Lal on 24 September,2004, (3) Nand Kishore Jaiswal Vs National Insurance Co. Ltd (III (2009) CPJ 194(NC)), (4) Oriental Insurance Co. Ltd. V. Soney Cherain (II 1999 CPJ 13 SC).

In order to prove the case, the Complainant has filed its evidence in the form of an Affidavit and in the Written Complainant has specifically corroborated the complaint and has stated on which day he purchased the scheme from the O.P.s. The Complainant has also stated on which day he lodged his claim in respect of his insurance policy to the O.P.s. The Complainant has also stated in his evidence that after accident he immediately informed the O.P.s vide claim No. VG00039472 about the said accident and requested them for payment of his claim for the damage of his said vehicle but till today the O.P.s did not take any initiative regarding payment of the claim amount.

At the time of argument Ld. Advocate of the complainant submits that the complainant has been able to prove its case against the O.P.s not only through his Written Deposition but also by producing documents.

In view of above discussion and other materials on record we are of the view that this Commission has sufficient Jurisdiction to entertain this complaint as a consumer dispute and thereby this case is maintainable.

The complainant had taken a Goods Carrying Vehicle Package Policy from the O.P.s for Tata Motors Ltd. LP 1618 Tipper. The policy was issued for a period commencing from 03.11.2015 to 02.11.2016 under certificate No. VGC0390153000100 and the accident occurred within the policy period. The complainant lodged his claim to the O.P.s vide claim No. VG00039472 about the said accident. In determination of the damages or repairing cost of the said accidental vehicle here we follow the Surveyor’s Report of the Surveyor appointed by the O.P.s (Insurance Company). As per Surveyor’s Report the total liability of the O.P.s (Insurance Company) was stated Rs. 1, 58, 575/- (Rupees One Lakh Fifty Eight Thousand Five Hundred and Seventy Five) only. But the O.P.s did not pay the said Rs. 1, 58, 575/- (Rupees One Lakh Fifty Eight Thousand Five Hundred and Seventy Five) only to the complainant.

So, as per the above discussion as well as documents and evident filed by the parties it is very much clear that the ground of repudiation by the Insurance Company is not satisfactory one. Hence, this Commission does not hesitate to hold that there was a deficiency of service in the part of the O.P.s. 

 The O.P.s are liable to pay Rs. 1, 58, 575/- (Rupees One Lakh Fifty Eight Thousand Five Hundred and Seventy Five) only to the complainant. In this instance case, the O.P.s are jointly and severally liable.

Hence, it is, therefore,

ORDERED

That the Consumer Case No. 82/2017 be and same is allowed on contest against the O.P.s (Royal Sundaram Alliance Insurance Company Ltd.) with cost. The O.P.s are jointly and severally liable in this case.

The O.P.s are directed to refund the entire amount of Rs. 1, 58, 575/- (Rupees One Lakh Fifty Eight Thousand Five Hundred and Seventy Five) only to the complainant with a simple interest @ 6% per annum from the date of filing of this case, i.e., from 10/10/2017 to the complainant within 45 (Forty Five) days from the date of this order, i.e., 21.11.2024. The complainant is also entitled to get Rs. 15,000/- (Rupees Fifteen Thousand) only for mental pain and agony and Rs. 15,000/- (Rupees Fifteen Thousand) only for litigation cost to the complainant. The O.P.s are also directed to deposit Rs. 5,000/- (Rupees Five Thousand) only to Consumer Legal Aid Account of this Commission within 45 (Forty Five) days from the date of this order, i.e., from 21.11.2024. The O.P.s shall pay the entire amount through an account payee cheque within 45 (forty five) days from the date of this order, i.e., from 21.11.2024, in default the complainant will be at liberty to execute the award as per law.

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.