DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 142 of 2014
Date of filing: 08.08.2014 Date of disposal: 11.8.2015
Complainant: Anisur Rahaman Mallik, Bandhutia, Irkona, Galsi, Burdwan – 713 428, West Bengal.
-V E R S U S-
Opposite Party: Branch Manager, Shriram General Insurance Company Limited, Asansol, District: Burdwan, PIN – 713 303.
Present: Hon’ble President: Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, Nagendra Nath Mukherjee.
Appeared for the Opposite Party: Ld. Advocate, Saurav Kumar Mitra.
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, as well as, unfair trade practice against the OP as the OP did not pay the repairing cost of the insured vehicle.
The brief fact of the case of the complainant is that he himself bears a valid driving license being professional driver. For earning his livelihood he purchased a medium goods vehicle from Tata Motors on 24.3.2013, which was duly insured with the OP. The complainant obtained a road permit to enable him to ply the vehicle. On 09.3.2014 at about 5.30 am while the vehicle was coming back from Kolkata and reached Goligram under Galsi P.S. the owner- driver found one unnumbered ten-wheeler standing by the side of the road which suddenly started moving at its back gear and while both the vehicles were in motion the insured vehicle got collusion from the said ten-wheeler and for this reason the front portion of the insured vehicle got badly damage. After the incident the ten-wheeler fled away from the spot. The road was very lonely because the incident occurred in very early morning at about 5.30 am. Immediately after the accident the complainant intimated the incident to
the Galsi P.S. by narrating the same but the P.S. did not take any step as no injury was occurred of the driver-owner. The complainant was advised to contact with the Insurance Company for getting the vehicle repaired. The ten-wheeler could not be located as it flew away to an unknown direction. The incident was further narrated to the Pradhan of Potna Pursha Gram Panchayet. After the incident the complainant contacted with the agent of the OP. The Assessor of the OP enquired the matter, inspected the damaged vehicle, photos taken from different angle, engine was duly checked up, damaged bonnet of the vehicle was opened. The Loss Assessor was also noted down the vehicle number, claim, policy numbers and the date of accident. After completion of examination the Loss Assessor left the site promising to sent a confirmation letter. But unfortunately the complainant received one letter dated 29.3.2014 whereby he came to know that the driver Mr. Jahangir Mondal was not holding an effective Driving License at the time of accident. The complainant being himself a driver never appointed any other driver for his vehicle and Jahangir Mondal unknown to him. The name of Jahangir Mondal is an invention of the Insurance Company with a view to avoid for making any payment. The name of the petitioner was also wrongly addressed as Mr. Aminur Rahaman Mallik in place of Anisur Rahaman Mallik. Such wrong treatment and interpretation shows the malafide intention of the Op, which is nothing but an unfair trade practice on behalf of the Op, as well as, a kind of exploitation. Thereafter, finding no other alternative the complainant approached before this ld. Forum by filing this complaint praying for direction upon the OP for making payment the repairing cost of the vehicle to the tune of Rs. 1, 44,790=00 along with compensation for Rs. 1,00,000=00.
The petition of complaint has been contested by the Op by filing written version wherein all the allegations as made out by the complainant have been denied. It is stated by the OP that this complaint is not maintainable before this ld. Forum because the vehicle has been registered as goods vehicle i.e. a commercial vehicle. Moreover, no allegation of deficiency in service and unfair trade practice has been alleged by the complainant. From the policy copy, as well as, the registration certificate it appears that the vehicle was hypothecated with Cholamondalam Investment & Finance Co. Ltd., but the complainant did not incorporate the said finance company as a party in this complaint, who is certainly a necessary party for proper adjudication of the case. Therefore, this complaint is bad for non-joinder of necessary parties. It is mentioned by the OP that the policy was issued in favour of Aminur Rahaman Mallik by covering the risk of a new vehicle with engine and chassis subject to terms and conditions mentioned thereof. The original policy along with its terms and conditions is under the custody of the complainant and this OP puts the complainant to produce the same before the ld. Forum. The intimation for loss was reported by the complainant and the same was registered under a claim number. As and when the claim was lodged one Surveyor and Loss Assessor were appointed to assess the loss and survey the damaged vehicle along with a claim form was issued in favour of the complainant. The claim form was submitted by the complainant to the OP along with necessary documents such as registration particulars, permit, Driving License of the driver etc. After survey work the Surveyor submitted his report before the Op. After going through the report so submitted by the Surveyor, the OP had noticed that the Driving License of the driver, namely, Jahangir Mondal was not a valid Driving License on the date of accident for driving a transport vehicle. The transport endorsement of the said Driving License was valid up to 20.9.2011. The OP had no direct knowledge about the alleged accident. Simultaneously, for settlement of his claim the OP is under obligation to rely upon the documents submitted before the Op, as well as, the Surveyor. From the record it appeared that Jahangir Mondal was the driver of the vehicle who was not authorized to drive any transport vehicle at the material time of accident and for this reason the claim was repudiated by the OP. It is pertinent to mention herein that the petitioner never disclosed and/or alleged before filing of the present complaint that he was the driver of the present vehicle. Therefore, this OP strongly believes that the complainant knowing fully well that Jahangir Mondal did not possess any valid Driving License has filed this vexatious complaint with mal-intention and with a view to squeeze some money through an illegal manner. The complainant himself was not driver of the vehicle at the material time but has cleverly alleged several untrue and baseless allegations. It is further submitted by the Op that the complainant has not come before this ld. Forum with claim hands. As there was neither any deficiency in service nor unfair trade practice on behalf of the OP, the OP is not at all liable for making payment of any amount as compensation and as the complainant had violated the terms and the conditions of the policy, the OP has rightly repudiated the claim and such repudiation cannot be termed as deficiency in service. As the complainant has filed a frivolous complaint only to harass the OP, prayer has been made by the OP for dismissal of the complaint with exemplary cost.
Complainant filed evidence on affidavit along with some documents in support of his contention. He has also filed written notes of argument .The OP has filed some relevant portion of the Motor Vehicles Act and several Rulings in support of its contention.
We have carefully perused the record and documents as available filed by the contesting parties; the Rulings filed by the ld. Counsel for the OP and heard argument at length advanced by the ld. Counsel for the parties. It is seen by us that there are some admitted facts in the case in hand i.e. the complainant purchased a medium goods vehicle on 24.3.2013 from Tata Motors, the complainant bears a valid Driving License, he is a driver by profession, his vehicle was duly insured with the OP, the vehicle had valid road permit, on 09.3.2014 the vehicle met with an accident with an unnumbered ten-wheeler while the insured vehicle was returning from Kolkata, the incident occurred near Goligram under Galsi P.S., due to such accident the insured vehicle of the complainant got damage, intimation given to the Insurance Company, an FIR was lodged with Galsi PS, the complainant did not get any injury due to the accident, claim form submitted before the Insurance Company along with relevant papers and documents, the Loss Assessor and one Surveyor were appointed, upon examination of the damaged vehicle the Surveyor submitted a report before the OP, and based on the Surveyor’s report the OP had repudiated the insurance claim of the complainant. The allegation of the complainant is that as the insured vehicle got damage due to such accident he had to incur some repairing cost and for this reason he lodged the claim form, but the OP had arbitrarily and illegally repudiated his legitimate insurance claim based on false pretext stating that the driver who drove the vehicle during material time of accident did not posses any valid Driving License to drive the insured vehicle. Hence, this complaint.
The contention of the OP is that as the complainant had violated the terms and the conditions of the insurance policy the claim is not payable because the driver, namely, Mr. Jahangir Mondal did not possess any valid Driving License at the material time of accident to drive the said vehicle.
It is seen by us from the written version of the OP that it had prayed for dismissal of the complaint due to non-joinder of necessary party as the Cholamondalam Investment and Finance Co. Ltd. has not been incorporated as a necessary party in this proceeding. In respect of such argument we are to say that in view of the landmark judgement passed by the Hon’ble Supreme Court in the case of Moloy Kr. Ganguly vs. Dr. Sukumar Mukherjee wherein it has been held by Their Lordships that due to non-joinder and mis-joinder of necessary parties no complaint should be dismissed. Therefore, having regard to the said observation of the Hon’ble Supreme Court such contention of the OP cannot be entertained at all. The next allegation of the OP is that as Mr. Jahangir Mondal being a driver was driving the vehicle in question at the material time of accident did not possess any valid Driving License for the said vehicle, the complainant is not entitled to get any claim from the OP. Now we are to see as to whether the complainant is at all entitled to get any claim from the OP or not.
It is seen by us that the policy was issued by the OP in the name of Mr. Aminur Rahaman Mallik. After the incident/accident correspondences were made by the OP with Aminur Rahaman Mallik. But surprisingly the complaint is filed by Mr. Anisur Rahaman Mallik in whose favour no insurance policy was issued by the OP. Therefore in our view the present complainant, namely, Mr. Anisur Rahaman Mallik is not a consumer of the OP and being not a consumer of OP he is not at all entitled to be consumer before this Consumer Forum in view of definition of ‘consumer’ of the C.P. Act, 1986. It is seen by us that the repudiation letter was issued on 29.3.2014 in the name of Mr. Aminur Rahaman Mallik, then one interesting question is cropped up our mind as to how the present complainant Mr. Anisur Rahaman Mallik being aggrieved and dissatisfied with such repudiation has filed this complaint. The OP has raised the point in its written version, but no satisfactory answer is forthcoming in the evidence of the complainant and no argument has been made during hearing by the ld. Counsel for the complainant. Therefore as the present complainant is not a consumer of the OP hence there is no consumer–service provider relationship exists by and between the present complainant and the OP. Therefore the complaint cannot be entertained as a consumer complaint.
In respect of non-existing of valid Driving License of Mr. Jahangir Mondal, who was authorized by the complainant to drive the insured vehicle we have noticed that in the claim form the complainant himself has mentioned the name of Mr. Jahangir Mondal as his driver and Mondal’s Driving License number was also mentioned in the claim form. It is seen by us that admittedly at the time of the accident Mr. Jahangir Mondal did not possess any effective Driving License. Hence, as there has been a serious breach of driver’s clause contained in the policy and such violation of the Motor Vehicles Act, the OP had acted rightly by repudiating the claim of the complainant. The ld. Counsel for the OP has relied on several judgments i.e. 2014 (1) CPR (NC) 400, 2012 (3) CPR (NC) 316, 2014 (1) CPR (SC) 287, 2014 (1) (CPR) 272. We have carefully perused the two Rulings passed by the Hon’ble Supreme Court wherein Their Lordships have held that it is beyond any doubt or dispute that only in the event an application for renewal of license is filed within a period of 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period the driver may be held to be possession a valid license. The proviso appended to sub Section (1) of Section 15, however, clearly states that the driving license shall be renewed with effect from the date of its renewal in the event the application of renewal of license is made more than 30 days after the date of its expiry. It is, therefore evident that as, on renewal of the license on such terms, the driver of the vehicle cannot be said to be holding a valid license, the insurer could not liable to indemnify the insured. ……………… It merely enables the licensing authority to take a further test of competent driving and passing thereof to its satisfaction within the meaning of sub Section (3) of Section 9. It does not say that the renewal would be automatic. It is, therefore, a case where a breach of contract of insurance is established. We have carefully perused all the judgments as relied on by the OP and it is seen by us that essence of all the Rulings are almost same because the Hon’ble Supreme Court, as well as, Hon’ble National Commission have held that when a driver does not have valid and effective Driving License at the time of incident, the claim could not be honoured. The Motor Vehicles Act, 1988 as relied on by the OP we have noticed that during driving of a vehicle a driver should possess a valid and effective Driving License. In Our view the Rulings as relied on by the OP can be implemented in the case in hand because the facts and circumstances of those Rulings and the fact of the instant complaint are almost same and identical. It is evident from a report issued by the licensing authority, Burdwan of the Transport Department that the driving licenses of Mr. Jahangir Mondal was valid till 20.9.2011 and after expiry of the said driving license whether he had applied for its renewal or not, in that respect no document is forthcoming. Having regard to the above-mentioned judgments and considering the facts and circumstances of the instant case we are of the opinion that the OP had rightly repudiated the insurance claim of the complainant because the complainant had breached the terms and the conditions of the insurance policy intentionally, which should not be executed.
Moreover, it is seen by us that nowhere in the complaint it is stated that he authorized Mr. Jahangir Mondal as a driver to drive the vehicle on that date but surprisingly complainant himself mentioned the name of Jahangir Mondal as a driver in the claim form which was submitted before the OP. Therefore, the complainant had intentionally suppressed the name of Mr. Jahangir Mondal in the petition of complaint, which in our view the complainant had done this with malafide intention. Moreover, where the complainant knew very well that Mr. Jahangir Mondal did not possess any valid and effective Driving License on that date, why he authorized him to drive the vehicle, no satisfactory reply is forthcoming. Therefore, the complainant by violating the terms and the conditions of the policy himself had filed this frivolous and vexatious complaint with a view to gain some amount through an illegal manner and hence this complaint can surely be termed as speculative, vexatious and frivolous. In view of the Section 26 of C. P. Act, 1986 such type of complaint should be dismissed with cost. In the instant case we cannot debar ourselves to impose any cost. In our view this complaint is liable to be dismissed with cost.
Going by the foregoing discussion, hence, it is
O r d e r e d
that the complaint is dismissed on contest with cost of Rs. 500=00 (Rs. Five hundred) only payable by the complainant to the Consumer Legal Aid Account, Burdwan within 45 (forty five) days from the date of passing of this judgment, in default, the amount shall carry interest @9% (nine per cent) per annum for the default period.
Let a plain copy of this final order/judgment be supplied to the parties free of charge.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
