Consumer Complaint No. 23 of 2017
Date of filing: 09.3.2017 Date of disposal: 30.6.2017
Complainant: Sunil Chandra Sarkar, S/o. Late Paresh Chandra Sarkar, Puratan Colony, Rathtala, Kanchannagar, Burdwan – 713 102.
-V E R S U S-
Opposite Party: Sr. Divisional Manager, National Insurance Co. Ltd., Burdwan Divisional Office, Bhangakuthi, 548, G.T. Road, Burdwan – 713 101.
Present: Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Syed Muztaba Ali.
Appeared for the Opposite Party: Ld. Advocate, Shyamal Kr. Ganguli.
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 Ops as the OP has repudiated his legitimate insurance claim on flimsy pretext.
The brief fact of the case of the complainant is that being the owner of a vehicle the same was under the coverage of package (private car) insurance policy issued by the OP for the period from 20.102015 to 19.10.2016 and IDV of the said vehicle was declared as Rs. 5, 15,900=00. On 04.8.2016 when Mr. D.C. Dey was returning from Durgapur towards Burdwan near Nababhat on NH-2 at 3.30. pm the said car dashed a running dog crossing the road from right to left and due to this reason the front right side of the car got damage. No one injured. The car was garaged at Hyundai showroom, Goda, NH-2. On the next date i.e. on 05.8.2016 the complainant intimated the said incident to the OP and requested to make necessary proceedings towards claim registration after observing all the official formalities. The OP acknowledged the receipt of the said intimation letter on the same date, issued claim form, the complainant submitted filled up claim form with estimated cost of repairing charges for Rs. 51,957=00 and along with the claim form some documents i.e. registration certificate of the car with the WB Government, receipt for registration, valid DL in the name of Mr. D.C. Dey, DL No. WB-4119800004340, date of issue 19.9.1980, valid up to 15.8.2021 (NT) and 18.8.2019 (Transport), type of license –professional, license to drive –LMV empty and trans, issued by LA, Burdwan and estimate cost of Rs. 51,957=00 i.e. Rs. 35,518.05 for spare parts and Rs. 16,439=00 for labour charges prepared by Rudra Automobiles Pvt. Ltd. on 08.8.2016. The OP acknowledged the receipt of the said filled up claim form along with the above-mentioned documents on the same day and recorded the claim no. as 154100/31/16/61/90000054. Thereafter the OP appointed one Surveyor, namely, Kashinath Chattopadhyay. As per instruction of the OP the Surveyor conducted the survey and inspected the damaged car in connection with the claim and the vehicle was re-inspected on 22.08.2016. At the stage of repairing of the car the Surveyor took photographs as per requirement before and after dismantled condition. The Surveyor also verified the driving license and found OK. Accordingly the Surveyor submitted his report. Due to emergency of the said car the Complainant repaired the same as minimum requirement for running the car and paid a sum of Rs.31, 488=00 towards the repairing cost on 23.08.2016. The OP sent a letter to the Complainant on 18.11.2016 stating that on scrutiny of the claim it is found that no valid driving license was possessed at the material time of accident for the insured vehicle. Upon receipt of the said letter the Complainant sent a reply on 29.11.2016 stating that he is not agreed with the observation of the Administrative Office, NIC, Burdwan Divisional Office. The Complainant clarified in his letter that it is evident from the extract of the questioned driving license in the name of his driver Dipak Chandra Dey that at the material time of accident the driver possessed valid driving license of transport vehicle which was valid for the period from 18.08.2016 to 18.08.2019. It is also observed by the Complainant that the license was renewed on 16.08.2016 which is before the date of 18.08.2016. It is needless to mention that transport vehicle license holder is allowed to drive any medium/heavy vehicle carrying under public service and private service vehicle and therefore transport vehicle license holder is entitle to drive any LMV vehicle. In his letter dated 29.11.2016 the Complainant requested the OP to settle his claim at the earliest. On 20.12.2016 the OP sent a letter to the Complainant wherein the OP had acknowledged the above stated reply of the Complainant and reiterating the drivers clause in the policy mentioning that ‘any person including insured provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such license….’In its letter the OP had also mentioned that as per the extract of the driving license obtained from concerned LA, it is clear that the non-transport cover of driving license of D. C. Dey was not valid for the period from 08.07.2015 to 15.08.2016. On the same date i.e. 20.12.2016 the OP corroborated the same view in its office note. On 21.12.2016 the OP sent a letter to the Complainant stating that ‘claim is not supported by valid documents/information’, therefore the OP close the claim file of the Complainant. The Complainant has strongly denied the observation of the OP regarding validity of the DL. The OP has deliberately repudiated the genuine claim of the Complainant and misinterpreted the validity of the driving license. It has been established that the driving license in question was in effective at the material time of accident. From the extract of the driving license it is found that the non-transport DL is valid up to 15.08.2021 and validity of the transport DL up to 18.08.2019. It is observed from the extract of DL that on 16.08.2016 the said DL was renewed of old validity (transport) from 19.08.2013 to 18.08.2016 which is before the date of 18.08.2016. In this regard the Complainant submitted the documents relating to valid license for insurance claim-Section 10(e) of MV Act, 1988 with effect from 14.11.1994 ‘Transport vehicle license – If the weight specification is beyond of LMV than the transport vehicle license shall be required. This is because the upgraded category applicable after LMV is only transport vehicle, which has replaced all medium/heavy vehicles. This is irrespective of use may be private/public’…. ‘Further there has to be transport vehicle license if the ambulance is of higher weight specification than LMV. This is because the next higher category applicable after the LMV is only transport vehicle which replaced all medium/heavy vehicles…’ ‘Further the word transport vehicle means a public service vehicle, a goods carriage, an educational institutional bus or a private service vehicle…….’ ‘Further the transport vehicle license cannot be given unless one has held the LMV license for at least a year. It is thus needless to mention that the holder of the transport vehicle can drive any LMV vehicle as well may be goods or passenger carrying.’ Therefore the ground as taken by the OP for repudiation of the claim of the Complainant is illegal, arbitrary, ill-motive and beyond the provisions of law, which amounts to deficiency in service, as well as, unfair trade practice. Due to such deficient service of the OP, the Complainant having no other alternative has approached before this Ld. Forum by filing this complaint praying for direction upon the OP to pay a sum of Rs.51, 957=00 to him towards estimated repairing charge of the damaged insured vehicle, Compensation to the tune of Rs.1, 00,000=00 due to mental pain, agony and harassment and litigation cost of Rs.30, 000=00 to him.
The petition of complaint has been contested by the OP by filing written version contending that the averment as made out in the complaint is out and out false statement and for this reason this complaint is not maintainable before this Ld. Forum. The OP has stated that the dispute of the Complainant does not fall within the ambit of the provisions of the Consumer Protection Act, 1986. According to the OP there is no deficiency in service on its part as the information of repudiation of the insurance claim had duly been intimated to the Complainant by issuing repudiation letter and the claim was repudiated on the ground that on the date of accident the driver did not hold valid driving license, which is a clear violation of the terms and conditions of the policy. As this complaint is baseless and devoid of any merit, hence prayer is made by the OP for dismissal of the complaint with cost.
The Complainant has adduced evidence on affidavit along with some documents and papers in support of his contention with a copy to the other side.
We have carefully perused the record; papers and documents filed by the parties, photocopies of some Sections of Motor Vehicles Act, 1988 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 vehicle of the Complainant was under an insurance coverage for the period from 21.10.2015 to 19.10.2016 issued by the OP, the IDV was for Rs.5,15,900=00, on 04.08.2016 the insured vehicle met with an accident while a dog was rushing to cross the road from right to left, due to this reason the front right side of the car got badly damage, car was garaged at Hyundai Showroom, intimation was given to the OP on the next day about such accident, claim form issued, filled up form along with relevant documents submitted, claim was lodged for Rs.51,957=00 as the estimated repairing charge was raised by the repairing shop, the amount included the cost of the spare parts & labour charges, Surveyor was appointed, he inspected the damaged vehicle in dismantled condition, due to dire need the Complainant got delivery of the vehicle after its repairing in running condition by making payment of Rs.31,488=00 to the repairing shop, on 18.11.2016 the OP by issuing the repudiation letter had repudiated the claim of the Complainant on the ground that at the time of accident the driver of the Complainant did not possess a valid driving license, upon receipt of the said letter the Complainant wrote a letter to the OP that on the material date and time the driver was possessing a valid and effective transport driving license, the OP did not accept such contention of the Complainant, several request was made by the Complainant for allowing the claim, to no effect, being aggrieved with such action of the OP this complaint is filed by the Complainant. The allegation of the Complainant is that the OP has arbitrarily and illegally repudiated his legitimate insurance claim.
During argument the Ld. Counsel for the Complainant has relied on the Section 10(e) of Motor Vehicles Act, 1988, which runs as follows:
‘If the weight specification is beyond the definition of LMV than the transport vehicle license shall be required. This is because the upgraded category applicable after LMV is only Transport vehicle, which has replaced all medium/heavy vehicles. This is irrespective of use may be private/public. Further there has to be Transport vehicle license if the ambulance is of higher weight specification than LMV. This is because the next higher category applicable after the LMV is only Transport Vehicle which has replaced all medium/heavy vehicles.’
Section 10(e) further enumerates that Transport Vehicle has replaced the following category of the vehicles vide amendment 1994 in MV Act, 1988 w.e.f. 14.11.1994.
- Medium Goods Vehicle, 2. Medium Passenger Motor Vehicle, 3. Heavy Goods Vehicle & 4. Heavy Passenger Motor Vehicle.
Further the word Transport Vehicle has been defined in Section 2 (47) MV Act, 1988 as-
Transport vehicle means a public service vehicle, a goods carriage, an educational institutional bus or a private service vehicle. It means it covers following four categories of vehicles-
- Public Service Vehicle, 2. Goods Carriage, 3. Educational Institutional Bus & 4. Private Service Vehicle.
- Further the transport vehicle license cannot be given unless one has held the LMV license for at least a year. It is thus needless to mention that the holder of Transport vehicle license can drive any LMV vehicle as well may be goods or passenger carrying.’
The Ld. Counsel for the OP has stated that as on the date and time of accident no valid driving license was possessed by the driver of the Complainant, hence the Complainant has breached the terms and the conditions of the concerned policy and for this reason the Complainant is not entitled to get any claim from the OP towards reimbursement of the repairing cost of the vehicle. Upon hearing from the parties in our opinion that admittedly on the date of accident the driver did not hold valid and effective non-transport driving license, but he possessed valid and effective transport driving license. So in view of the Section 10(e) of Motor Vehicles Act, 1988 the holder of transport vehicle license can drive any Light Motor Vehicle as well may be goods or passenger carrying. Admittedly the driver of the Complainant was driving a light motor vehicle and at the relevant time whether the vehicle was carrying either goods or passengers, there is no such clear picture from either side. But as per Motor Vehicles Act, 1988 irrespective of carrying goods or passengers, if the driver of the LMV is holding transport vehicle license, then it can be termed as valid and effect driving license, even in case of expiry/not holding the non-transport driving license. Therefore, in our view repudiation of the claim of the Complainant reveals that the OP being the Insurance Company did not bother to abide by the relevant Section of the Motor Vehicles Act, 1988 and illegally repudiated the insurance claim of the Complainant, which denotes the deficiency in service on the part of the OP. It is true that as the legitimate claim was repudiated by the OP and the OP did not take any step for redressal of the grievance of the Complainant, hence by filing this complaint the Complainant has sought for some reliefs. Therefore, for such proceedings the Complainant has to incur some expenses and for this reason the Complainant is also entitled to get some amount towards litigation cost.
Going by the foregoing discussion, hence it is
O r d e r e d
that the Consumer Complaint being No. 23/2017 is hereby allowed on contest with cost. The OP is directed to pay a sum of Rs.51, 957=00 to the Complainant towards the estimated repairing cost of the damaged insured vehicle within a period of 45 days from the date of passing of this judgment, in default; the said amount shall carry penal interest @6% p.a. for the default period. The OP is further directed to pay a sum of Rs.2, 000=00 as compensation due to harassment, mental pain and agony and litigation cost of Rs.500=00 to the Complainant within a period of 45 days from the date of passing this judgment, in default, the Complainant will be at liberty to put the entire decree/order in execution as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per porovisions of Consumer Protection Regulations, 2005.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
