The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Senior Divisional Manager, The New India Assurance Co. Ltd., Balasore, O.P No.2 is the Branch Manager, The New India Assurance Co. Ltd., Bhadrak and O.P No.3 is the Proprietor, Maa Mangala Welding Works, Proof Road, Balasore.

                    2. The case of the Complainant in brief is that the Complainant is a Consumer under the O.Ps as his vehicle (Pick-up van) bearing Regd. No.OR-01-R-0159 was duly insured under the O.Ps vide Policy No.55080131150100002797 and the same was valid from 30.08.2015 to 29.08.2016. On 15.06.2016 at about 4.30 A.M, while the van was plying towards Balasore, met an accident on N.H-60 at Haldipada bye-pass and the helper of the van Sk. Sahid died at the spot when the van was being driven by the driver namely Sk. Jahar, who survived from the accident. In the above said accident, the vehicle (van) was damaged to an extent of 90% and the matter was reported to Basta P.S, where case No.155/16 was registered. But surprisingly, the Basta police did not investigate into the matter properly and without proper investigation, the Basta police abated the case stating that the person died in the accident was not the helper, rather he was the driver instead of charge-sheeting the actual driver Sk. Jahar. Being aggrieved upon such perfunctory investigation of the Basta police, the Complainant had filed a protest petition on 15.07.2017 in the Court of S.D.J.M, Balasore, where the Hon’ble Court was pleased to take cognizance against the driver Sk. Jahar on 31.07.2017 vide C.T Case No.1335/16. The engaged driver had valid driving license and a good driving experience and the vehicle (van) had proper and genuine fitness, permit, up-to-date tax clearance and the insurance was valid at the time of accident. After the said accident, the Complainant had repaired the vehicle (van) in the workshop of the O.P No.3, where the expenditure has been estimated for Rs.3,43,647/- (Rupees Three lacs forty three thousand six hundred forty seven) only along with labour charges of Rs.72,500/- (Rupees Seventy two thousand five hundred) only, which were paid by the Complainant. So, the Complainant had lodged the claim before the O.Ps No.1 & 2, where the same was entertained by them, but they did not settle the claim rather refused to settle the claim basing and relying upon the faulty and perfunctory investigation of the Basta police. Even if the cognizance order of the learned Court of S.D.J.M, Balasore was intimated and sent to the O.Ps No.1 & 2, but still then they refused to settle the claim. The O.Ps No.1 & 2 are so cunning that they did not issue any letter to that extent by refusing the claim of the Complainant, rather they have communicated the same only on orally and they have also refused to give in writing. Thus, this intentional and deliberate act of the O.Ps No.1 & 2 amounts to deficiency of service on the part of the O.Ps No.1 & 2, causing mental agony and unnecessary harassment to the Complainant. Cause of action to file this case arose on 30.08.2015 and on 15.06.2016. The Complainant has prayed for directing the O.Ps No.1 & 2 to pay the claim amount of Rs.4,16,147/- (Rupees Four lacs sixteen thousand one hundred forty seven) only along with compensation and litigation cost to him.

                    3. Written version filed by the O.P No.1 through his Advocate denying on the point of maintainability as well as its cause of action. The O.P No.1 has further submitted that the Complainant made a proposal to insure his vehicle bearing Regd. No.OR-01-R-0159 for a sum of Rs.3,10,000/- (Rupees Three lacs ten thousand) only for a period of one year commencing from 30.08.2015 to 29.08.2016 and this O.P accepted the proposal and issued the policy subject to the terms and conditions interalia that a person holding valid and effective D.L would drive his vehicle. The Complainant on 16.06.2016 lodged information with this O.P that his vehicle had been damaged in the accident, which took place on 15.06.2016 and he requested to depute a Surveyor to conduct the spot survey. On receipt of the information from the Complainant, Er. S.K Giri was deputed to conduct the spot survey, who after the survey has submitted his report. After six months that is on 16.12.2016, the Complainant has submitted his claim form along with the estimate of loss for final survey of his vehicle at the garage of O.P No.3. After receipt of the claim form, Surveyor Sri Subhendu Kumar Jena was deputed to conduct final survey and to assess the loss and accordingly, he assessed the loss on repairing basis at Rs.1,68,101/- (Rupees One lakh sixty eight thousand one hundred one) only after taking into account depreciation, compulsory excess and salvage value. The Complainant requested for cash loss settlement as he expressed his inability to repair the vehicle due to his financial crisis. On his request, Surveyor Sri Jena assessed the loss on cash loss basis, which came to Rs.1,17,500/- (Rupees One lakh seventeen thousand five hundred) only, which was agreed by the Complainant. As there was death due to accident, the Complainant was asked to submit the certified copy of the G.R papers and accordingly, the Complainant has submitted the same after obtaining it from the Court of S.D.J.M, Balasore. After going through the G.R papers, it was ascertained that Sk. Sahid was driving the vehicle at the time of accident, but the Complainant falsely reported that Sk. Jahar was driving the vehicle in order to get the insurance benefit. After knowing it from the police papers, this O.P by letter dtd.12.06.2017 asked the Complainant to clarify his statement made in his claim form as Sk. Jahar was the driver, where as police submitted the charge sheet against Sk. Sahid. On 19.12.2017, the Complainant submitted a copy of the order dtd.31.07.2017 passed by the learned S.D.J.M, Balasore in C.T Case No.1335 of 2016 and a copy of the protest petition filed in the said C.T Case. The order dtd.31.07.2017 reveals that the learned S.D.J.M has taken cognizance against Sk. Jahar. When the Complainant knew that the O.Ps would not indemnify the loss as the police had submitted the charge sheet against Sk. Sahid, who had no D.L to drive his vehicle, he filed the protest petition and examined some gained-over witnesses and got-up witnesses, who have falsely stated that Sk. Jahar was driving his vehicle at the time of accident. The police being an independent agency, after thorough investigation, have submitted the charge sheet against the deceased driver Sk. Sahid showing the case to have abated as the offender was dead. As the vehicle of the Complainant was driven by a person having no D.L at the time of accident, the O.Ps’ Company is not liable to indemnify the Complainant against the loss/ damage to his vehicle. So, there has not been any deficiency of service on the part of the O.Ps nor any negligence is committed by them. Hence, the case of the Complainant is liable to be dismissed with cost.

                    4. The O.P No.2 has neither appeared nor filed his written version in this case. So, the O.P No.2 is set ex-parte.

                    5. Though the O.P No.3 has appeared in this case through his Advocate, but he has not filed his written version in this case. So, the O.P No.3 is set ex-parte. Neither the O.P No.3 nor his Advocate was present at the time of hearing of this case.

                    6. In view of the above averments of both the Parties, the points for determination of this case are as follows:-

(i) Whether this Consumer case is maintainable as per Law ?

(ii) Whether there is any cause of action to file this case ?

(iii) To what relief the Complainant is entitled for ?

                    7. In order to substantiate their claim, both the Parties have filed certain documents as per list. It has been argued on behalf of the Complainant that the alleged vehicle bearing Regd. No.OR-01-R-0159 was covered under Insurance Policy No.55080131150100002797 from 30.08.2015 to 29.08.2016 and the said vehicle met accident on 15.06.2016 while it was driven by the driver Sk. Jahar. After the said accident, the Complainant had repaired the said damaged vehicle in the workshop of the O.P No.3 and the expenditure incurred for Rs.3,43,647/- (Rupees Three lacs forty three thousand six hundred forty seven) only along with labour charges of Rs.72,500/- (Rupees Seventy two thousand five hundred) only, in total amounting to Rs.4,16,147/- (Rupees Four lacs sixteen thousand one hundred forty seven) only. But, the Insurance Company-O.Ps No.1 & 2 repudiated the claim on the ground that the vehicle was driven by Sk. Sahid, the helper of the vehicle, who subsequently succumbed to injury by such accident, for which basing on the final report of the police of the Basta P.S vide P.S Case No.155/2016, which is not correct as the Complainant has submitted a protest petition against the final report of the police vide C.T Case No.1335/2016 before the S.D.J.M, Balasore and the learned Court vide order dtd.31.07.2017 vide Annexure-3 has taken cognizance U/s.279/304 (A) of I.P.C against the accused Sk. Jahar, who was driving the vehicle at the time of accident. So, it has been argued that as cognizance has been taken and law has been taken into motion, the O.Ps No.1 & 2 have no locus standi to repudiate the claim of the Complainant basing on the police report. So, when the driver was driving the vehicle having valid and effective driving license and as per the terms and conditions of the insurance policy, the Complainant is entitled to get the repair cost from the O.Ps No.1 & 2. According to the Insurance Policy, for individual covers, it is amounting to Rs.3,10,000/- (Rupees Three lacs ten thousand) only and compulsory excess is Rs.500/- (Rupees Five hundred) only. So, under what circumstances, the Complainant has prayed for the claim amount of Rs.4,16,147/- (Rupees Four lacs sixteen thousand one hundred forty seven) only along with compensation and litigation cost and the reason is best known to him. On the other hand, it has been argued on behalf of the O.P No.1 that the vehicle was insured for Rs.3,10,000/- (Rupees Three lacs ten thousand) only for a period of one year commencing from 30.08.2015 to 29.08.2016 and the O.P No.1 accepted the proposal and issued the policy subject to the terms and conditions that a person holding valid and effective driving license would drive his vehicle. After receipt of the claim form from the Complainant, the O.P No.1 has deputed a Surveyor Sri Subhendu Kumar Jena to conduct the final survey and to assess the loss and accordingly, he assessed the loss on repairing basis at Rs.1,68,101/- (Rupees One lakh sixty eight thousand one hundred one) only vide Annexure-F after taking into account depreciation, compulsory excess and salvage value. But, the Complainant requested for cash loss settlement as he expressed his inability to repair the vehicle due to his financial crisis, for which the cash loss claim was settled to Rs.1,17,500/- (Rupees One lakh seventeen thousand five hundred) only vide Annexure-H, which was agreed by the Complainant. But, when the O.P No.1 got the G.R papers, it was found that the helper Sk. Sahid was driving the vehicle having no driving license at the time of accident, but the Complainant falsely reported that Sk. Jahar was driving the vehicle in order to get the insurance benefit. Thus, the O.P No.1 has repudiated the claim of the Complainant. But, subsequently, the O.P No.1 got the order of the S.D.J.M, Balasore regarding taking cognizance against the accused Sk. Jahar. The Complainant has manipulated it by help of some gained-over witnesses and got-up witnesses, who have falsely stated that Sk. Jahar was driving his vehicle at the time of accident. The police being an independent agency, have thoroughly investigated the case and have submitted the charge sheet against the deceased driver Sk. Sahid. So, when the vehicle of the Complainant was driven by a person having no driving license at the time of accident, the O.P No.1 has rightly repudiated the claim of the Complainant. But, in this circumstances, as cognizance has been taken and law has been taken into motion against the accused Sk. Jahar, who has been claimed to have been driving the vehicle at the time of accident, the cash loss settlement should have been settled by the O.Ps No.1 & 2 for an amount of Rs.1,17,500/- (Rupees One lakh seventeen thousand five hundred) only and the Complainant is entitled to get such claim, but not the claim as claimed for by him. So, it is the boundant duty of the O.Ps No.1 & 2 for settlement of such cash loss amount to the Complainant. The O.Ps No.2 & 3 are set ex-parte as mentioned earlier and there is no claim against the O.P No.3 as mentioned.

                    8. So, now on careful consideration of all the materials available in the case record and after hearing both the sides, I am in the opinion that it is a fit case to direct the O.Ps No.1 & 2, who are jointly and severally liable for payment of settled cash loss amount of Rs.1,17,500/- (Rupees One lakh seventeen thousand five hundred) only along with compensation of Rs.5,000/- (Rupees Five thousand) only and litigation cost of Rs.2,000/- (Rupees Two thousand) only to the Complainant within 60 days of receipt of this order, failing which it will carry interest @ 9% per annum for the total amount due from the date of order till realization, subject to a condition that the Complainant will file an undertaking supported by an affidavit before the O.Ps No.1 & 2 that he will return the total amount to the O.Ps No.1 & 2 basing on the findings of C.T Case No.1335/2016 after its disposal if it comes to the conclusion that Sk. Jahar was not driving the vehicle or Sk. Sahid was driving the vehicle without valid driving license at the time of accident. In case of failure by the O.Ps No.1 & 2 initially to comply the order within the stipulated time frame, the Complainant is at liberty to realise the same amount from the O.Ps No.1 & 2 as per law and in the alternative, in case of failure by the Complainant after the findings of C.T Case No.1335/2016 as directed earlier, the O.Ps No.1 & 2 are at liberty to realise the required amount from the Complainant as per law. Hence, ordered:-

                                                     O R D E R

                         The Consumer case is allowed on contest against the O.P No.1 and on ex-parte against the O.P No.2 with cost and the case is dismissed on ex-parte against the O.P No.3 without cost. The O.Ps No.1 & 2 are jointly and severally directed for payment of settled cash loss amount of Rs.1,17,500/- (Rupees One lakh seventeen thousand five hundred) only along with compensation of Rs.5,000/- (Rupees Five thousand) only and litigation cost of Rs.2,000/- (Rupees Two thousand) only to the Complainant within 60 days of receipt of this order, failing which it will carry interest @ 9% per annum for the total amount due from the date of order till realization, subject to a condition that the Complainant will file an undertaking supported by an affidavit before the O.Ps No.1 & 2 that he will return the total amount to the O.Ps No.1 & 2 basing on the findings of C.T Case No.1335/2016 after its disposal if it comes to the conclusion that Sk. Jahar was not driving the vehicle or Sk. Sahid was driving the vehicle without valid driving license at the time of accident. In case of failure by the O.Ps No.1 & 2 initially to comply the order within the stipulated time frame, the Complainant is at liberty to realise the same amount from the O.Ps No.1 & 2 as per law and in the alternative, in case of failure by the Complainant after the findings of C.T Case No.1335/2016 as directed earlier, the O.Ps No.1 & 2 are at liberty to realise the required amount from the Complainant as per law.

                         Pronounced in the open Forum on this day i.e. the 18th day of November, 2019 given under my Signature & Seal of the Forum.