MR. SWAPAN KUMAR DAS

The above Case no. A/72/2022 was filed on 11/11/2022 by the Ld. Advocate on behalf of the Appellant (ICICI Lombard General Insurance Company Ltd., henceforth to be referred to as LGICL) against the judgement of Ld. Jalpaiguri D.C.D.R.C. dated 31/08/2022. The above judgement was passed by the then President of the Ld. D.C.D.R.C., Jalpaiguri who is now the Presiding Member of W.B.S.C.D.R.C. of Siliguri Circuit Bench (S.C.B.) at the pertinent point of time. So, it was not possible for him to hear the same case as the President Member of W.B.S.C.D.R.C. (S.C.B.) which he had already heard and disposed as a President of the Ld. Lower Commission. Hence, a proposal was made from this office addressed to the President, W.B.S.C.D.R.C., Kreta Suraksha Bhavan, Kolkata – 87 for constitution of the Single Member Bench in connection with the above case of WB.S.C.D.R.C. (SCB) vide this office memo no. 432/SCB/3A-3/2021 dated 22/9/2023. Hon’ble President was kind enough to have given his consent for the constitution of Single Bench with the undersigned as the Presiding Member for adjudication of Case No. A/72/2022.

 The case in brief is that one Dipanjan Das had purchased a second-hand Yamah Motor Cycle having its Registration No. WB666W/8866 from one Sanku Roy and the latter (Sanku Roy) had the insurance from the Appellant/OP Company being Policy No.3005/20210967745/00/000000/1696 and its validity period of the Insurance Policy was from 18/07/2016 to 17/07/2017.

                                                                         Brief History of the case

The present owner (Dipanjan Das, Respondent/Complainant) subsequently transferred the said policy in his own name being Policy No.3005/119092057/00/000 and the validity period of the said Policy from 18/07/2016 to 17/07/2017.

On 11/6/2017, the above motor cycle met with a havoc accident at 10.44 hrs. at Kalua Dighi More, Dist. Malda and the said motor cycle was badly damaged. Consequently, the Respondent/Complainant brought the damaged motor cycle to Tirupati Traders being the Yamah Service Center for repairing works, etc. and he had to incur Rs.3,00,000/- (approx.) (Rupees three lakhs approx.) only for repair and allied works. The Ld. Advocate of the Complainant/Respondent claimed to have submitted all the bills to the office of the ICICI LGICL for payment. It is alleged by the Ld. Advocate on behalf of the Appellant/OP (ICICI LGICL) that they have not received any such bills in original and the Ld. Advocate on behalf of the Respondent/Complainant informed that they have submitted the all the bills to the Office of the Appellant/OP (ICICI LGICL), but no receipt to the same was issued to the Respondent/Complainant (i.e. Dipanjan Das).  

The Appellant/OP also raised certain questions/doubts regarding the high amount of incurred in connection  with repair works of the said motor cycle (Rupees three lakhs) only, therefore, the Appellant/op. sent one Sonu Kumar Prasad being approved Surveyor & Loss Assessor of the Appellant/OP (ICICI LGICL) who visited the said damaged motor cycle at Tirupati Traders and made an in-depth/detailed inspection regarding the causes, nature and extent of loss & damages and prepared an extensive report and submitted a summary assessment of Rs.1,47,763/- (Rupees one lakh forty-seven thousand seven hundred sixty-three) only as the total repair cost vide its report no. SP/FR/AUG/IL054 dated 04/08/2017.

Both the Ld. Advocate on behalf of the Appellant/OP & respondent/complainant appeared and argued in length.

The basic points of the argument of the Ld. Appellant/op are as follows:

1. The Respondent/Complainant repaired his two-wheeler in an exorbitant cost (Rs.3,00,000/-) which created doubts & hance it is not acceptable. Moreover, no such original bills were submitted to the office of the Company for making such payments to the Respondent/Complainant (Dipanjan Das, the insured).
2. Ld. Advocate also contended that his client (ICICI LGICL) never issued

any letter of repudiation of claim to the Respondent/Complainant (Dipanjan Das), so the order of the Ld. DCDRC, Jalpaiguri is redundant.

On the other hand, the Ld. Advocate on behalf of the Respondent/Complainant

contended that the Appellant/OP (ICICI LGICL) is reluctant to pay the repairing cost even fixed out by the approved Surveyor/Loss Assessor(i.e., Rs, 1,47,763/-).

Moreover, he also contended that he had already submitted all the necessary papers/bills in original to the office of the Appellant/OP, Malda Branch though no receipt was issued from them (i.e. Appellant/OP).

On perusal of records kept in the file, it transpires that the father of the Respondent/Complainant also informed IC, Malda regarding the accident of the motor cycle and which was also mentioned in the judgement of the Ld. DCDRC, Jalpaiguri dated 31/08/2022 (as per annexure 6).

                                                                                  Decisions with Reasons

On perusal of the records kept in the file and along with the judgement of the Ld. DCDRC, Jalpaiguri, it is clear that –

1. Dipanjan Das being the Respondent/Complainant in the valid purchaser of the said motor cycle and transferred his name as the owner.
2. He also successfully procured separate insurance policy from the ICICI LGICL for him whose validity was from 18/07/2016 to 16/07/2017.
3. The accident of the said motor cycle took place on 11/06/2017 within Malda district which is within the valid insurance period. Therefore, he (Respondent/Complainant) is entitled to get the claim of insured amount/or at least, the said repairing cost, whichever is lesser as assessed by the empaneled Surveyor and Loss Assessor of the Appellant/op.
4. Mr. Sonu Kumar Prasad, the empaneled Surveyor & Loss Assessor visited the damaged the motor cycle at Tirupati Traders Service Center and made an in-depth detailed enquiry regarding the extent of loss and damages of the said motor cycle and came to the conclusion that the repair cost of the damaged motor cycle amounts to Rs.1,47,763/- (Rupees one lakh forty-seven thousand seven hundred sixty-three) only.
5. The father of Mr. Dipanjan Das the Respondent/Complainant informed the Malda P.S. regarding this accident and this is evident from the judgement of Ld. Lower Commission, Jalpaiguri dated 31/08/2022.
6. The said Insurance Co. being the Appellant/OP never showed any signal of goodwill for payment of the said amount even prepared by its empaneled Surveyor and Loss Assessor (i.e. Mr. Sonu Kumar Prasad), even after the lapse of 2/3 years. This unnecessary delay without any cousin reasons to make payments to the respondent / complainant gave birth to the very basic intension of the appellant/ op (ICICI LGICL).
7. Even for the end of justice, if we accept the argument of the Respondent/OP that it had never issued any repudiation letter to the Appellant/OP, it is also true that ICICI LGICL being appellant/op had never issued any consent letter to the respondent/op as a mark of goodwill of payment. Such delay tactics can be termed indirectly as negation of the claim. Such delay without any cogent reasons went against the spirit that “Justice delayed means Justice denied”. We can safely say that delay for payment towards valid of claim means denial of payment.
8. It is not clear to the undersigned why the ICICI LGICL was reluctant to make payment of the amount of Rs.1,47,763/- (Rupees One Lakh forty-seven thousand seven hundred sixty-three) only which was calculated by the Agency appointed by the Appellant/OP (ICICI LGICL) itself even after the order of the Ld. DCDRC, Jalpaiguri dated 31/08/2022 and this delay is payment went against the principles of natural justice.
9. Such delay on the part of the Appellant/OP   are not only against the terms and conditions of the Policy, but also tantamount to the violation of Indian Contract Act. Such non-payment/delayed payment in valid cases not only created doubts, but also gave birth to the image of credibility of the Insurance Co. as a whole.
10. So, it is crystal clear that such unwholesome delay tendencies and /activities like indifference, negligence regarding payments not only amounts to mental pain and agony, anxiety but also are the mark of unfair trade practices.

After thorough perusal of the records in file and the papers kept in the file and being confirmed that the accident took place within the valid period of same Insurance Policy, the ICICI LGICL being the Appellant/OP had no way out but to make payment of Rs.1,47,763/- (Rupees one lakh forty-seven thousand seven hundred sixty-three) only as per the terms and conditions of the Policy Bond and non-payment of the said amount which comes under the purview of Rule 10 of Indian Contract Act. Therefore, I have no reasons to deviate from the spirit of the judgement of the Ld. Lower Commission, Jalpaiguri except amount of compensation of Rs.50,000/- (Rupees fifty thousand) only as fixed by the Ld. Lower Commission which appears to be a little bit at higher side and it is therefore fixed at Rs.20,000/- (Rupees Twenty thousand) only. Rest of the amount of litigation cost, Legal Aid Fund and Repair Cost Rs.1,47,763/- (Rupees one lakh forty-seven thousand seven hundred sixty-three) will remain same.

Under a circumstance, the impugned order of Ld. DCDRC, Jalpaiguri dated 31.08.2022 stands modified to the extent of compensation being Rs. 20,000/- (Twenty Thousand) only instead of Rs. 50,000/- (Fifty Thousand) only and other directions regarding the payment of amount in connection with litigation changes, legal Aid fund and rapier cost as worked out by the servitor and Loss Assessor will remain unchanged.

It is, therefore, ordered that the instant appeal be and same is allowed in part on contest but without cost. The appellant/op is directed to pay the following payments:

      a. Rs. 1,47,763/- (Rupees one lakh forty-seven thousand seven hundred sixty-three) as a repairing cost of the said Motorcycle.

     b. Rs. 20,000/- (Rupees Twenty thousand) as compensation for anxiety, mental pain and deficiency in service etc.

     c. Rs. 10,000/- (Rupees Ten thousand) as litigation charges,

     d. Rs. 10,000/- (Rupees Ten thousand) to the Legal Aid Fund.

to the respondent/complainant within 30 days from the day of the receipt of this order failing which 8% interest P.A will be charged on all the above amounts.  

The above order be sent to the Ld. DCDRC, (Jalpaiguri) immediately.

The copies of the order/judgement be sent to all parties free of cost.

Statutory deposit, if any, to be returned from whom received.

Joint Registrar will take necessary action to this end.