Sri Subhra Sankar Bhatta, Presiding Member
The present appeal has been directed at the behest of the Appellant/complainant viz. Mr. Tanmoy Biswas under Section 41 of the Consumer Protection Act, 2019 challenging the impugned judgment and order dated 14.06.2022 passed by the District Consumer Disputes Redressal Commission, Kolkata Unit—II in connection with complaint case no. 181/2019 whereby Ld. District Commission was pleased to dismiss the petition of complaint on contest against the OPs without any costs.
Mr. Tanmoy Biswas as Complainant instituted the petition of complaint under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practices against the OPs viz. 1) Shriram General Insurance Company Ltd. and 2) The Branch Manager, Shriram General Insurance Company Ltd. and prayed for certain relief or reliefs as sought for in the prayer portion of the petition of complaint.
Case of the Complainant in a narrow campus is that Complainant is the owner of an ambulance (Mahindra and Mahindra Bolero Ambulance A.C—BS 3 Model having Registration No. WB-41G-5957, Engine No. GHE4B67689, Chassis No. MA1WK2GHKE3B26357). The said vehicle was registered with the Registering Authority viz. State Transport Department, Burdwan, West Bengal for the purpose of carrying patient. The Complainant used the said ambulance for earning his livelihood by way of self-employment. The said vehicle was duly insured with the Opposite Parties under Policy No. 334027/31/17/007367 having validity from 11.03.2017 to 10.03.2018 and the said policy was a continuing policy. The Complainant paid Rs. 7,063.00 as premium relating to that policy. On 14.05.2017 the said ambulance met with an accident at about 23:30 hours on NH6 near Alampur on the way to Kolkata after leaving the patient to his address at Fakirgunj, Raghunathbari, Panskura, Purba Mediniupur, Pin—721634. It has been categorically contended that the place of the said accident occurred in a remote place and as such the driver Deona Das having valid driving licence could not able to trace out any police station nearby in order to lodge complaint over the said accident. Due to that accident the said ambulance was damaged badly and also lost its mobility. On the said night the damaged ambulance was taken away from the accident spot with the help of break down van to the service station of the vehicle’s company for repairing. It is the further case of the Complainant that he informed the happening of the said accident immediately to the Opposite Parties. Despite giving intimation of the said accident the Opposite Parties asked the Complainant to make necessary repairs and thereafter submit claim along with all documents and money receipts of the expenditure. After doing essential repairing of the vehicle the Complainant paid a total sum of Rs. 2,56,647.79 to the service station against the bill. The Complainant also submitted claim of Rs. 2,56,647.79 on 17.05.2017 to the Opposite Parties as the amount incurred by him towards the damage of the vehicle due to such accident.
Further case of the Complainant is that despite receipt of the information of accident and claim from the end of the Complainant the Opposite Party/Insurance Company never showed any willingness to settle the said claim. The OP/Insurance Company kept themselves idle for a long period in spite of several request and representation made by the Complainant. It has been also contended that the Complainant intimated the incident of accident on the very next date of happening the incident over phone to the OPs and also submitted various letters subsequently. It has been alleged that the OP/Insurance Company did not take any action for settling the claim of the Complainant. Such performance of the OPs/Insurance Company tantamounts to deficiency in service on the part of the Insurance Company. The Complainant sent legal notice on 09.04.2019 and 13.04.2019 but the OPs did not give any response. According to the Complainant the OPs/Insurance company neither settled the claim of the Complainant nor repudiated the same which amounts to illegal, improper act of the opposite Parties and also contrary to the terms of the contract of insurance. The cause of action for the Complaint case arose on 14.05.2017 (date of the accident) and thereafter on 17.05.2017 when the Complainant launched the claim before the OPs. Under such compelling circumstances and finding no other alternative the Complainant instituted the petition of complaint before the District Consumer Disputes Redressal Commission, Kolkata Unit—II.
The present Respondents as OP Nos. 1 and 2 contested the said petition of complaint by filing joint written version on 9th September, 2019. Denying all the materials allegations as brought in the petition of complaint the OPs/Insurance Company categorically contended that the Complainants have no cause of action for bringing the complaint case; that the complaint case is not maintainable in its form and law; that the petition of complaint is not at all maintainable due to non-joinder of necessary parties. It is the specific case of the defence that the Complainant did not submit any documents such as copy of registration certificate, tax token, route permit and copy of driving licence of the driver involved in the accident. It has been alleged that the said vehicle met an accident on 14.05.2017 at about 23:30 hours on the National Highway no. 6 at Alampur but the Complainant did not bring a scrap of paper to show that he informed the facts of such accident to the local Police Station or local authority. The Complainant did not also call the insurance company from the spot of the accident to conduct the spot survey as spot survey is mandatory for getting insurance claim. It has been further alleged that in order to settle the claim the OPs/Insurance Company directed the Complainant to submit certain documents such as proof of the accident, ambulance movement logbook, crane bill, purpose of movement of vehicle, place of actual date of accident, reasons for not conducting spot survey, injured persons detail, copy of FIR and NEFT details. But the Complainant never submitted the required documents before the Insurance Company. The Complainant did not also lodge any General Diary or FIR to record the fact that the vehicle skidded on an oil patch lying on the road and hit a post. It has been further alleged that the Complainant suppressed the facts and did not disclose the required documents sought for by the Insurance Company in order to disburse the claim.
The OPs (Present Respondents) did not also disclose the fact of issuing five letters on 04.07.2017, 11.07.2017, 25.07.2017 and 02.08.2017 and lastly on 15.09.2017 by the Insurance Company for submitting the required documents in order to settle the claim of the Complainant. The Complainant failed to submit the required documents and consequently the claim was repudiated with the note “No Claim” due to non-submission of documents by the Insured. It has been also alleged that the Complainant intentionally and deliberately suppressed the fact that his claim was assessed by the Surveyor and the assessment of loss was Rs.1,17,337/- subject to submission of repairing bills. According to the OPs non-submission of required documents by the Complainant does not amount to deficiency in service. For non-submission of the required documents the Complainants is not entitled to get any amount as compensation. On all such grounds the OPs prayed for dismissal of the petition of complaint in limini.
After perusing the evidence (both oral and documentary) adduced from the end of the parties to the complaint proceeding and after hearing both sides Ld. District Commission was pleased to dismiss the complaint case on contest against the OPs without any costs.
Being aggrieved by and dissatisfied with the above judgment and order of the Ld. District Commission the Complainant as Appellant has preferred the present appeal on various grounds as highlighted in the body of the memorandum of appeal. It has been contended that the Ld. District Commission has passed the impugned judgment and order purely basing upon assumption and presumption ignoring the facts of the case; that the impugned order of the Ld. Commission below is misconceived, erroneous and contrary to law; that the Ld. District Commission has passed the impugned judgment and order without proper application of judicial mind; that the Ld. Commission below failed to appreciate the impugned order without proper application of judicial mind and arrived at a wrong conclusion causing injustice to the Appellant; that the Ld. Commission below further failed to appreciate the fact that the claim of the Appellant/Complainant was filed within the reasonable period of time from happening the date of the incident; that the Respondent/Insurance Company kept themselves idle to settle the insurance claim of the Complainant for a long period and did not repudiate the same; that no such repudiation letter was ever served upon the Complainant; that the Ld. District Commission wrongly held that the Respondent/Complainant was requested by the OP/Insurance Company to submit necessary documents for several times in order to process the claim of the Complainant vide letters dated 14.07.2017, 15.07.2017, 08.08.2017, 24.08.2017 and 05.09.2017 but the Complainant did not respond to those letters; that the Ld. Commission below failed to consider that the letter dated 14.05.2017 which has been claimed by the Insurance Company as the letter of repudiation was not served at the registered address of the Appellant/Complainant; that the Ld. District Commission also failed to appreciate the fact that the Surveyor was appointed by the Respondent/Insurance Company who assessed the loss to the tune of Rs.1,17,337.00 in their written version but the report submitted by the Surveyor goes to show that the loss was assessed as Rs.1,25,948.47; that the Ld. District Commission failed to hold that the Respondent/Insurance Company is bound to pay the claim in accordance with the assessment of the Surveyor; that the Ld. District Commission wrongly considered the terms and conditions of the policy despite the fact that no terms and conditions of the said policy was supplied to the Appellant/Complainant at any point of time. On all such grounds the Appellant/Complainant has prayed for allowing the present appeal after setting aside the impugned judgment and order dated 14.06.2022 passed in consumer complaint case no. CC/181/2019.
POINTS FOR DETERMINATION
i) Whether the Ld. District Commission was justified in passing the impugned judgment and order on 14.06.2022
ii) Whether the Ld. Commission below has committed gross error, irregularity and illegality in passing the impugned judgment and order
iii) Whether the Ld. District Commission was correct in the approach in arriving at a definite conclusion
iv) Whether the impugned judgment and order of the Ld. District Commission deserve interference of this Appellate Authority
v) Whether the impugned judgment and order can be sustained in the eye of law
DECISIONS WITH REASONS
All the above points are taken up together for the sake of brevity of discussion and in order to avoid unnecessary repetitions. Moreover, all the above points are interlinked and interrelated with each other.
We have perused the entire materials available in the case record along with brief notes of arguments submitted on behalf of the parties to the appeal.
We have further considered the submissions of the respective Ld. Counsels advanced on 14.12.2023 and 12.02.2024.
Undisputedly, Ld. District Commission was pleased to dismiss the complaint case on contest against the OPs without any order as to costs. In the body of the judgment Ld. District Commission categorically observed that “the Complainant was requested to submit the necessary requisite papers and documents several times for processing the claim of the Complainant vide letters dated 14.07.2017, 15.07.2017, 08.08.2017, 24.08.2017 and 05.09.2017. But the Complainant did not find any importance to respond to those letters of the OPs for the reasons best known to him. We expect reply within 7(seven) days of receipt of this, failing we presume that you are not interested for the claim & closed your said claim as no claim. Since the Complainant has not complied with the relevant documents the claim has not been settled by the OP as evident from their above letters. The Complainant was given several opportunities to submit the documents for processing the claim which as per record has not been fulfilled by the Complainant. As such we do not find any deficiency in service on the part of the OPs”.
It is evident from the evidence and materials on record that the vehicle in question (Ambulance) met with an accident on 14.05.2017 at about 23.30hours on National High Way No. 6 at Alampur. It is also evident that the said vehicle (Ambulance) was duly insured with the Opposite Parties Shriram General Insurance Company Limited under policy no. 334027/31/17/007367 having the validity period from 11.03.2017 to 10.03.2018 and the Appellant/Complainant paid Rs.7063.00 as premium against the said policy in every year. Undoubtedly, the said accident occurred on 14.05.2017 at 23.30hrs i.e. within the coverage period. The said car (Ambulance) was badly damaged due to such accident and lost its mobility. Consequently, the damaged Ambulance was taken away from the accident`s spot with the help of a breakdown van to the service station of the vehicles` Company for repairing. It is the specific case of the Appellant/Complainant that he immediately informed the Opposite Parties about the said accident and also submitted claim along with relevant documents and money receipt towards the repairing expenditure. It is also the case of the Appellant/Complainant that he paid Rs.2,56,647.79 to the service station for repairing works. It is the further case of the Appellant/Complainant that he submitted a claim of Rs.2,56,647.79 on 17.05.2017 before the Respondents/OPs towards the cost of repairing of the damaged vehicle. On the other hand it is the specific case of the Respondents/OPs that the Complainant failed to provide a single scrap of paper to show that the said accident was recorded to the Police Station or before any local authority. Admittedly, the Surveyor appointed by the Respondents/OPs conducted survey and assessed the loss to the tune of Rs.1,17,337.00. Such report of the Surveyor goes to prove beyond any doubt that the said accident actually occurred on 14.05.2017 and the vehicle in question was badly damaged due to such accident. Astonishingly, the Respondents/OPs did not challenge the amount of cost of repairing of the vehicle within the four corners of their written version. In the body of the impugned judgment Ld. District Commission arrived at the conclusion to the effect that despite availing opportunities the Appellant/Complainant did not produce the relevant documents as directed by the Respondents/OPs. On this point it is the categorical version of the Appellant/Complainant that he did not receive any reply regarding his claim from the end of the OP/Insurance Company. It has been alleged that the OP/Insurance Company never showed any willingness to settle the claim of the Complainant and kept themselves mum for a prolonged period. On careful perusal of the pleadings and evidence (both oral and documentary) on record it can be safely concluded that the said vehicle in question was badly damaged due to the accident which was occurred on 14.05.2017 at 23.30hrs. on NH-6 at Alampur and the Appellant/Complainant duly informed about the said accident to the OP/Insurance Company immediately and submitted his claim on 17.05.2017 i.e. two days after happening the said accident.
It is the categorical version of the Appellant/Complainant that he did not receive any letter of repudiation from the Respondents/OPs. The Respondents/OPs repudiated the claim of the Appellant/Complainant on the ground of non-production of the relevant documents despite several reminders through letters. Thus being the position we come to an irresistible conclusion that the claim of the Appellant/Complainant was repudiated by the Respondents/OPs purely on the ground of non-production of required documents. It is to be borne in mind that the Consumer Protection Act is a benevolent legislation and it was enacted for the benefit and protection of the Consumers. In our considered view the Appellant/complainant is certainly entitled to get Rs.2,56,647.79 towards the cost of repairing of the damaged vehicle (Ambulance). The Appellant/Complainant is entitled to get Rs.20,000/- only and Rs.10,000/- only respectively towards the mental agony and harassment and litigation cost on production of the documents such as copy of registration certificate, tax token, route permit, driving licence of the driver involved in the said accident and the NEFT details.
Considering all aspects from all angles and having considered the submissions of both sides and regard being had to the position of law we arrived at a definite conclusion that the Appellant/Complainant is entitled to get the claim amount of Rs.2,56,647.79 towards the repairing cost of damaged vehicle (Ambulance) and Rs. 20,000/- for mental agony and harassment and Rs.10,000/- for litigation cost from the Respondents/OPs. Ld. District Commission reached at the decision without appreciating the respective cases of the parties and the attending circumstances. The judgment and order passed by the Ld. District Commission are not at all legal, valid and justified in the eye of law.
The impugned judgment and order of the Ld. District Commission certainly require interference of this Appellate Commission. Practically, we find much substance in the argument advanced by the Ld. Counsel representing the Appellant/Complainant.
All the points are thus answered and decided in favour of the Appellant.
Resultantly, the present appeal succeeds.
The judgment and order of the Ld. Commission below require to be set aside.
It is, therefore,
O R D E R E D
That the present appeal being no. A/159/2022 be and the same is allowed on contest against the Respondents/Insurance Company but considering the circumstances without any order as to costs.
The Appellant/Complainant is entitled to get Rs. 2,56,648/-( Two lakhs fifty six thousand six hundred and forty eight/figure rounded off) only towards the cost of repairing of the damaged vehicle (Ambulance) and Rs. 20,000/- and Rs. 10,000/- respectively towards the mental agony and litigation cost.
Respondents/Insurance Company are directed to disburse the awarded amount in favour of the Appellant/Complainant subject to production of the above mentioned documents within one month hereof failing which the awarded amount shall carry an interest @ 9% per annum from the date of passing the order till its full and final realisation.
The Appellant/Complainant is at liberty to realise the awarded sum along with interest if the Respondents/Insurance Company fail to comply the above order within the stipulated period.
Thus, the judgment and order of the Ld. District Commission passed on 14.06.2022 in complaint case No. 181/2019 are hereby set aside.
Let a copy of this judgment and order be transmitted to the Ld. District Commission forthwith for information and taking necessary action.
Let free copy of this judgment and order be sent or handed over to both sides immediately for information and strict compliance.
Thus, the appeal stands disposed of.
Note accordingly.
