Consumer Complaint No.103 of 2014
Date of filing: 28.5.2017 Date of disposal: 10.4.2017
Complainant: Subodh Kumar Singh, S/o. Nagendra Prosad Singh, resident of Rambagan, Ramkrishna Colony, PO: Searsole, Rajbari, PS: Raniganj, District: Burdwan (West Bengal), PIN – 713 358.
-V E R S U S-
Opposite Party: 1. The Branch Manager, Royal Sundaram Alliance Insurance Co. Ltd., 2nd Floor, B.B. College More, G.T. Road, Above UBI, Asansol – 713 303.
2. The Branch Manager, Gati Motors Pvt. Ltd., Bonagram, G.T. Road, Durgapur – 713 217.
3. The Zonal Manager, Tata Motors Finance Ltd., DGP House, 4th Floor, Old Probhadevi Road, Mumbai – 400 025. Having registered office at: 3rd Floor, Navavati Mahalaya, 18 Homi Mody Street, Mumbai – 400 001.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suman Bez.
Appeared for the Opposite Party No. 1: Ld. Advocate, Saurav Kumar Mitra.
Appeared for the Opposite Party No. 2: Ld. Advocate, S. Ghosh (ex parte).
Appeared for the Opposite Party No. 3: Ld. Advocate, Arindam Mukerjee.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service and unfair trade practice as the Ops did not settle the insurance claim till filing of this complaint.
The fact of the case is that the complainant purchased TATA 407 from the OP-2 for his livelihood and the complainant has entered into a hire purchase agreement vide Hired No. 20011764833 with the OP-3 and being advised by the OP-3, the complainant insured his vehicle under the Op-1. The said vehicle met an accident on 29.5.2012 under the jurisdiction of Sripur I/C, under the Jamuria P.S. and was seized by the said I/C on 09.6.2012. The said vehicle was inspected by mechanical expert and given a mechanical report. The said vehicle was released from the said I/C by the order of the Ld. ACJM, Asansol. The said vehicle was sent to Gati Motors, OP-2 on 10.7.2012 for repair of the damaged portion of the said vehicle. The OP-1 told the complainant to deposit Rs. 10,000=00 as advance money to Gati Motors, OP-2 for starting the repairing work and the complainant just to get repaired the vehicle the complainant paid the demanded amount of Rs. 10,000=00 to OP-2 vide receipt No. 8073, dated 12.10.2012. After repairing the said vehicle Gati Motors has demanded Rs. 1,44,746=00 and Rs. 79,050=00 as parking charge by the OP-2, calculating Rs. 150=00 per day from the date of 31.01.2013 till date of delivery as because the said vehicle is lying in a ready condition within the custody of the OP-2. Due to huge loss incurred by the complainant, the complainant could not repay the installments during the period from accident to repair to the OP-3 and accordingly the OP-3 sent a demand notice dated 03.01.2013 to the complainant to realize the amount. As the vehicle was duly covered under the insurance policy of OP-1, the complainant has furnished the claim from the OP-1 for getting the claim of the insured amount, although no copy of such claim form submitted by the complainant was provided to the complainant. After expiry of a reasonable period the complainant had asked several times to the OP-1 to settle the claim but the OP-1 tactfully without providing any written intimation to the complainant about the said claim always took time and sent the complainant back to his house by making some false commitment to settle his claim. But when the tolerance limit of the complainant was crossed the complainant went to the office of the OP-1 and asked them about the status of his claim in writing and even requested the OP-1 either to disburse or to reject his claim. But the OP-1 inspite of having a valid insurance policy being No. VGCO 265677000100 and also After taking huge time to proceed with the claim of the complainant, the OP-1 with a reluctant manner verbally conveyed the complainant on 15.4.2014 that they shall not do anything with the said claim nor shall provide any repudiation letter to the complainant. Under the above context the complainant has been constraint to file this present case before this ld. Forum praying to disburse Rs. 1,44,746=00 as claimed by the OP-2 as repairing cost, Rs. 79,050=00 as parking charge claimed by the OP-2 , Rs. 5,67,274=00 towards claimed by the OP-3, Rs. 1,21,050=00 towards due till date, Rs. 72,900=00 towards current overdue and Rs. 10,000=00 as litigation cost and mental agony, totaling Rs. 9,95,020=00.
The complaint is contested by the OP-1 & 3 by filing written version separately. Though the notice was served upon the OP-2 but did not appear to contest the case by filing written version. So the case is heard ex parte against the OP-2.
The OP-1 has denied all the allegations made by the complainant in his petition of complaint. The contention of the OP-1 is that it has sought various claim documents from the complainant which included clarification regarding the correct cause of accident, original driving license of Mr. Bhagwan Yadav, the driver at wheels during accident for verification, FIR copy and injury details, however the complainant did not submit those documents/explanations till date as the complainant purposefully evaded from submitting the claim documents. It is submitted by this OP that the complainant instead of submitting the required documents has filed this pre-mature complaint which is liable to be dismissed. It is further submitted that the due compliance of the terms and conditions of policy is condition precedent for entertaining the claim of the complainant, as the same is contractual obligation upon complainant, is also submitted that this OP is not liable to pay any sum to the complainant as the complainant has failed to comply with the terms and conditions of the policy by not providing the original DL of the driver for verification and FIR copy/ police report with original bills and receipts. Further the complainant did not give any correct cause of accident and as a result the claim of the complainant was not settled.
The further statement of the OP-1 is that the claim amount as assessed by their statutory Surveyor under Section 64UM of the Insurance Act for a sum of Rs. 1,19,102=00 and therefore the claim of the complainant for Rs. 1,44,746=00 is untenable and therefore the claim of the complainant for additional sum is untenable and unsustainable. The complainant without establishing any just cause has come before this forum with unclean hands and with the sole intention of gaining unlawfully from this OP. the OP-1 has prayed for dismissal of the complaint.
The contention of the OP-3 is that the prayer of the complainant is not sustainable being based upon concocted allegations and frivolous claims for which it is denied ab initio. The complainant’s case is made out of false and fabricated story, which has no legs to stand before the Forum and can be deemed to be an afterthought and has been filed in order to gain wrongfully by causing wrongful loss to this OP by the complainant. The complainant has not come with clean hands before the Forum and has suppressed all the relevant facts. The complainant has never suffered any financial loss or otherwise due to the staff of the OP-3. If ever any loss has been incurred by him, it is only due to his own malicious deeds and mischievous attitude for which OP-3 can in no way be held responsible. This O3 has committed no deficiency of service and therefore there is no reason for the complainant to undergo any physical, financial and mental loss and agony attributable to OP-3.
Decision with reasons:
Heard the argument at length. Perused the papers submitted by the complainant, as well as, the Ops. The complainant prayed for Rs. 9, 95,020=00 under different heads including the charges claimed by the OP-2 as repairing cost of Rs. 1, 44,746=00 but the claim has not been settled by the OP-1 for non-compliance of submitting some documents demanded by the OPs viz; (i) the original copy of the driving license of the driver who was at the wheels at the time of accident, (ii) FIR/police report, (iii) the original bills, (iv) actual cause of accident. As per the terms and conditions of the relevant policy under which the complainant’s breach of terms and conditions is regarded conditions precedent is reproduced below:
“the due observance and fulfillment of the terms and conditions and endorsements of the policy in so far as they relate to anything to be done or complied with by the insured as the truth of the statement and answers in the said proposal shall be condition precedent to any liability to any of the company to make any payment under the policy”.
It is further stated by the OP-1 that the complainant has the burden to prove that the complainant has not violated the terms of the policy by furnishing the details as being sought for by the OP as per the dictum held by the Hon’ble NCDRC reported in 4(2012)CPJ62(NC) as decided on 21.8.2012. But the complainant has failed to prove his case accordingly. The complainant prayed for Rs. 1, 44,746=00 towards the cost of repairing the said damaged vehicle by the OP-2 and other charges like parking charges, claim of OP-3 and other dues totaling to Rs. 9, 95,020=00. But as per terms and conditions the OP-1 is not liable to pay the consequential loss incurred by the complainant other than the repairing cost. The ‘consequential loss’ is defined in Black’s Law Dictionary (9th Edition) as
“A loss arising from the results of damage rather than from the damage itself. A consequential loss is proximate when the natural and probable effect of the wrongful conduct, under the circumstances, is to set in operation the intervening cause from which the loss directly results. When the loss is not the natural and probable effect of the wrongful conduct, the loss is remote.”
As per the terms of the policy the OP-1 has specifically excluded the liabilities arising due to ‘consequential losses’, as the general exclusion No. 4 (i) clearly excludes all liabilities arising due to ‘consequential losses’. Therefore the claim of the complainant for non-usage of the vehicle is inadmissible in the view of the exclusion clause of the policy. After hearing from both the complainant and OP-1, it is evident the complainant has incurred a loss for repairing his damaged vehicle and the loss has been assessed by the Surveyor appointed by the OP as Rs. 1, 19,102=00 which the OP has admitted in his written version but cannot settle the claim due to non-supply of certain documents by the complainant required for settlement of the claim. As the Consumer Protection Act, 1986 is a beneficial legislation and has been set up to give protection to the consumers at best; hence the complainant may get refund of Rs. 1, 19,102=00, the cost of repairing of the damaged vehicle as assessed by the Surveyor after submission of the documents as demanded by the OP-1. As the complainant has not yet stood on his own legs to prove his case, he is not entitled to get the compensation as prayed by him for mental agony. Further the complainant is not entitled to get the consequential loss as prayed for by him as per the terms and conditions of the policy. Hence, it is
O r d e r e d
that the complainant is directed to supply the documents viz; (i) the original copy of the driving license of the driver who was at the wheels at the time of accident, (ii) FIR/police report, (iii) the original bills, (iv) actual cause of accident, to the O.P. No.1 within 15 days from this day and the O.P. No.1 is directed to pay Rs.1,19,102/- as cost of repairing to the complainant on receipt of the documents as mentioned from the complainant within 15 days, failing compliance of the direction made to the complainant the case shall stands dismissed and failing compliance of the direction made to the O.P. No.1 the complainant will be at liberty to put this order in execution in accordance with law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Pankaj Kumar Sinha)
Member
DCDRF, Burdwan
(Silpi Majumder) (Pankaj Kumar Sinha)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
