West Bengal

Darjeeling

CC/15/2022

Prabhat Sharma - Complainant(s)

Versus

TATA AIG GENERAL INSURANCE COMPANT LTD - Opp.Party(s)

25 May 2023

ORDER

 

Govt. of West Bengal

Office of the District Consumer Disputes Redressal Commission, Darjeeling.

24, M.C. Road, Chota Kak Jhora, P.O & Dist: Darjeeling( W.B)

Pin-734101

Phone:- 0354-2252305

                                                                      Consumer Complaint No:-   C.C- 15/2022

   Date of Filing                                                                                  Date of Disposal

    21/10/2022                                                                                      25/05/2023

      Complainant                                                Oppositer Party/ies

Shri. Prabhat Sharma,                    1. The General Manager,

S/O Shri. Bharat Sharma,                   TATA AIG General Insurance Company Ltd.

R/O Rajbari, Near Rani Hitti               Constantia Office Complex,

    P.O & P.S & Dist:- Darjeeling             11, Dr. U.N. Brahmachari Street,

    Pin-734101                                            Kolkata.  

                                                              2.  TATA AIG General Insurance Company Ltd.

                                       Near P.C. Mittal Terminus,

                              Sevoke Road, Siliguri,

                            District:- Darjeeling.

 

Present:-   Sri. Siddhartha Ganguli................... Hon’ble President-in- Charge

                   Smt. Bhawana Thakuri.................... Hon’ble Member( Female)

 

 Ld. Advocate for the Complainant:-  Abel Rai.

 Ld. Advocate for the O.Ps:-                 P.K.Sharma.

 

Cont......P/2

 

 

 

   ::2::

 C.C- 15 of 2022

F I N A L   O R D E R

       Siddhartha Ganguli( President-in- Charge):-  An application has been filed by the Complainant U/S 35 of the Consumer Protection Act, 2019 against the Opposite Parties and the Complainant alleges deficiency in service against the Opposite Parties for non settlement of claim of the complainant caused due to the accidental damage of the vehicle in question.

     The brief fact of the case of the Complainant is that the Complainant is a resident of Rajbari near Rani Hitti, Darjeeling and he has purchased one Tata Sumo Vehicle being No. WB-76A/5392, having Engine No: 497SPTC43GTY6205053 and Chassis No. MAT446507GEH06725, which was hypothecated with Tata Motors Finance Ltd. Siliguri, District-Darjeeling.

    The said vehicle was insured with TATA AIG General Insurance Company Limited(O.PS) under the Policy No. 0158655444 02 and the period of insurance coverage was  from 24.09.2020  to 23.09.2021 and for the purpose of the said insurance coverage the Complainant has paid Rs. 30,628/- ( Rupees Thirty Thousand Six Hundred and Twenty Eight) as premium.

     It is stated by the Complainant that he was a simple minded person and a layman. He could not understand the complicated Terms and Conditions of insurance policy and he simply signed the Agreement of Insurance on good faith.

   It is further stated by the Complainant that on 04.02.2021 the vehicle in question was involved in an accident with an Army Vehicle and the Complainant’s vehicle incurred considerable damage. The matter was settled amicably with the Army Personnel vide a Mutual Agreement dated 08.02.2021.

     It is further stated by the Complainant that since the time of accident, the vehicle was kept in the Local Police Station for around 8-9 Days and subsequently, it was taken to Lexicon Motors, Siliguri for necessary repair.

Cont......P/3

 

 

 

   ::3::

 C.C- 15 of 2022

 

      The Complainant further stated that he had communicated with the Opposite parties through an e-mail apprising them about the accident and put up his claim to defray the expenses required for the repair of the vehicle in question as per the Terms and Conditions of the Insurance Policy.

      The Complainant alleges that the Opposite Parties failed to honour the Policy Conditions citing that the Complainant had failed to fulfil the Terms and conditions and all the Policy Agreement and the Opposite Party Company stated that they were not liable to compensate for the repair of the vehicle. Since that time the vehicle has been kept at the premises of Lexicon Centre, Siliguri and no steps has been taken by the Opposite Parties till the date of presentation of the case for the repair of the vehicle in question.

       The Complainant on 18.08.2022 sent one Advocate Notice to the Opposite Parties and The Opposite Party No. 1 sent a dismissive e-mail to Mr. Abel Rai (Advocate) saying that Complainant had failed to submit his documents and the Company was not under any liability to make any payment to the Complainant under the said policy .

        The Complainant, further stated that he is a Consumer as per the definition of ‘Consumer’ as laid down in the Consumer Protection Act, 2019 and the Opposite Parties are the ‘Service providers’ and the cause of action has arisen on and from 04.02.2021 and the Opposite Parties are liable to pay the cost of the repairing of the vehicle in question as per the Terms and Conditions of the Policy Agreement.

      As the matter was not resolved, the Complainant was bound to lodge this complaint before this Consumer Commission and prays for following reliefs :-

Cont......P/4

 

 

 

   ::4::

 C.C- 15 of 2022

 

1. Take necessary steps to repair the insured vehicle which is now lying at Lexicon, Siliguri, at the expense of the respondents.
2. Pay a sum of Rs. 50,000/- (Rupees Fifty Thousand only) for the pecuniary loss suffered by the complainant as the concerned vehicle was being used as a taxi to ferry passengers.
3. Pay a sum of Rs. 50,000/- (Rupees Fifty Thousand only) to the Complainant for physical and mental agony and the distress undergone by the Complainant.
4. Pay a sum of Rs. 50,000/- (Rupees Fifty Thousand) as costs of this litigation.
5. For any other relief/reliefs as the Complainant may be found entitled to.

The complainant along with his Complaint Petition files the following documents:-

List of xerox documents enclosed by the Complainant: -

1. TATA MOTORS FINANCE LTD – Statement.
2. Insurance Policy.
3. Receipt of State Transport Department.
4. Fitness Certificate.
5. E-mail of the Opposite Parties.
6. Lawyers Notice.
7. Receipt dated 25.08.2020
8. Certificate of Registration.
9. Aadhar Card of Petitioner.
10. Copies of Petition.

           NOTICES have been sent upon the Opposite Parties by this Consumer Commission and the Opposite Parties entered into appearance before this Commission on 13.12.2022 and they prayed time for filing Written Version.

Cont......P/5

 

 

 

   ::5::

 C.C- 15 of 2022

 

       This Commission granted time to the Opposite Parties and fixed the case on 22.12.2022.

      On 22.12.2022, the Opposite Parties filed Vokalatnama and again made a Time Prayer for filing Written Version and this Commission further extended time to the Opposite Parties for filing Written Version fixing 18.01.2023.

      On 18.01.2023, the Opposite Parties were absent and the next date was fixed on 24.01.2023 for filing Written Version by the Opposite Parties.

       On 24.01.2023, the Opposite Parties did not file any Written Version as per the direction given and as the Statutory Period of 45 Days for filing Written Version was over, this Commission decided to proceed with the case Ex-parte against the Opposite Parties by fixing 20.02.2023 for Ex-parte Evidence by the Complainant.

        On 28.04.2023, the Complainant led Evidence and filed some Documents in order to prove his case.

      The Argument of the case was heard on 19.05.2023.

      The Complainant filed Brief Notes of Argument as per the direction given

     From the Complaint Petition, Evidence led by the Complainant and other materials on record the following points have been framed:-

1. Is the Complainant a Consumer as per the definition of ‘Consumer’ u/s 2(7) of the Consumer Protection Act, 2019?
2. Are the Opposite Parties deficient in providing services to the Complainant?
3. Is the Complainant entitled to get any relief or reliefs as sought for?

 

Cont......P/6

 

 

 

   ::6::

 C.C- 15 of 2022

 

D E C I S I O N    WITH   R E A S O N S

      All the points are taken altogether as they are inter-related to each other and for the sake of brevity and avoidance of repetition of facts.

      It is the evident from the evidence of the complainant and other materials from the record that the complainant has purchased one Tata Sumo Vehicle being No. WB-76A/5392, having Engine No: 497SPTC43GTY6205053 and Chassis No. MAT446507GEH06725, which was hypothecated with Tata Motors Finance Ltd. Siliguri, District-Darjeeling and the said vehicle was insured with TATA AIG General Insurance Company Limited (O.PS) under the Policy No. 0158655444 02 and the period of insurance coverage was from 24.09.2020 to 23.09.2021 and for the purpose of the said insurance coverage the Complainant has paid Rs. 30,628/- (Rupees Thirty Thousand Six Hundred and Twenty Eight only) as premium.

      It is relevant to be mentioned here that the Complainant is the owner of the above noted vehicle which he was using for ferrying passengers, that means the vehicle is a commercial vehicle. Nowhere in the averment has the Complainant stated that he is plying this vehicle for earning his livelihood by means of self employment. Now the question arises, “Whether the Complainant is a consumer who has purchased an insurance policy for his commercial vehicle?

      The simple answer to the question is that the Complainant who takes an insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy has been purchased by the Complainant only for indemnification and actual loss. It is not intended to generate profit. Therefore, the Complainant is a consumer.

Cont......P/7

 

 

 

   ::7::

 C.C- 15 of 2022

 

       In M/S. Harsolia Motors  Vs  National Insurance Co. Ltd, reported in 2005(1)C.P.J-27//2005(1) C.P.R-1 Hon’ble N.C.D.R.C (Order dated 3rd December, 2004) categorically decided that point and was pleased to hold the view that a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit. Hon’ble President M.B.SHAH and Companion Hon’ble Member RAJYALAKSHMI RAO of Hon’ble N.C.D.R.C held that availing of the insurance policy is for indemnifying the loss which may be suffered by the assured; it is for protection and not for making any profit. Therefore, it would be totally unjustified to arrive at a conclusion that as the Complainants are carrying on business/trading activity and as they have taken the insurance policy, they are not entitled to approach the consumer fora or that they are excluded as per Section 2(1)(d) of the Act.

       Therefore, from the above discussion we can safely conclude that the Complainant is a Consumer within the meaning of “Consumer” as provided U/S 2(7) of the C.P. Act, 2019.

       Now, in order to ascertain whether the O.Ps were deficient or not, we have to delve into and scan the evidence of the Complainant once again.

       It is evident from the evidence adduced by the complainant and other materials on record that on 04.02.2021 the vehicle in question was involved in an accident with an Army Vehicle and the Complainant’s vehicle incurred considerable damage. The matter was settled amicably with the Army Personnel vide a Mutual Agreement dated 08.02.2021. Soon after the time of accident, the vehicle was kept in the Local Police Station for around 8-9 Days and subsequently, it was taken to Lexicon Motors, Siliguri for necessary repair. The Complainant had communicated with the Opposite parties through an e-mail apprising them about

Cont......P/8

 

 

 

   ::8::

 C.C- 15 of 2022

 

       the accident and put up his claim to defray the expenses required for the repair of the vehicle in question as per the Terms and Conditions of the Insurance Policy.

       From the documents annexed by the Complainant it is seen that the Complainant had taken the insurance policy for his vehicle from the O.Ps Company, being Policy No:- 015865544402, policy type:- Auto secure Commercial Vehicle Package Policy, which was covered from :- 24.09.2020 to 23.09.2021. So, it is clear that the accident happened within the coverage of policy risk period.

      Further, it is manifested from the documents annexed by the Complainant that Ld. Advocate for the Complainant had sent one Advocate letter to the O.Ps Company on 18.08.2022 and in response to the said Advocate letter, the O.Ps Company gave reply through e-mail and requested the Complainant through him to furnish certain documents to the Claims Manager for moving ahead with the claim of the Complainant, which has been listed therein. It is also mentioned therein that the Complainant has to adhere the policy condition “B”  i.e 1) Duties and Obligations after occurrence of Insured Event during Contract, Sub- Section-1 & Condition A-2. It is seen from the said reply that the Complainant has not yet submitted the documents as required by the O.Ps.

      During hearing of the argument Ld. Advocate in reply to the question asked by this Bench stated that the Complainant has not yet submitted the documents as requisitioned by the O.Ps. Ld. Advocate for the Complainant has submitted that the Complainant had communicated with the O.Ps at Siliguri office verbally and through e-mail and put up his claims to defray the expenses required for the repair of the vehicle in question, but the O.Ps Company failed to honour the terms and conditions of the policy citing that they were not liable to compensate the Complainant for the repair of the vehicle.  

Cont......P/9

 

 

 

   ::9::

 C.C- 15 of 2022

 

       It is surprise to us that the vehicle in question was kept under the custody of the local P.S after the accident, but no F.I.R was lodged by the Complainant regarding the accident. The reason given for non lodging of F.I.R was that the matter was amicably settled with the Army Personnel. That smells something foulplay and it is totally unconvincing to us.  

        If any accident happens it is the duty of the owner of the vehicle to report the same to the local Police Station about the accident at once and it is the incumbent duty of the owner of the vehicle to inform the Insurance Company immediately. On the contrary, it is the duty of the Insurance Company to engage one Loss Assessor to inspect the vehicle and evaluate the loss/ damage caused. After submitting report of the Loss Assessor/ Surveyor and filing of relevant documents and maintain other formalities as per the terms and conditions of the Contract of Insurance the Insurance Company will decide to settle the claim.

      It is pertinent to mention here that the vehicle in question is lying with the Lexicon Motors, Siliguri for long time, as stated by the Complainant, but there is no document available with the record so that we can figure out the actual loss or damage caused to the vehicle and how much amount is needed to repair the vehicle. Not a single scrap of paper has adduced by the Complainant in order to satisfy that point. We are also in dark whether the O.Ps Insurance Company had deputed any Loss Assessor for measuring the loss or damage of the vehicle or the person concerned had ever inspected the vehicle in question.  But, it is clear that the Complainant has not yet submitted the required documents to the O.Ps Insurance Company, as asked by them, for settlement of Claim.

      Further, the Terms and Conditions of the Policy document is not available with the case record and the Complainant has filed only the xerox copy of certificate of Insurance Policy wherein the terms and conditions of the policy are missing and

Cont......P/10

 

 

 

  

 ::10::

 C.C- 15 of 2022

 

      due to incomplete, obscure document it would not be just to infer to any conclusion and safe to unravel the case.

       Therefore, we find no deficiency on the part of the O.Ps at this juncture.

       Had the O.Ps rejected the claim without citing any valid reason, or repudiated the claim without assigning any valid reason, the Complainant would have been lodged the Complaint against the O.Ps for deficiency of service.

       Here, in our view the present complaint is pre-mature one and so we are refraining ourselves to pass any order against the O.Ps Insurance Company to pay any amount to the Complainant on account of loss/ damage caused to his vehicle.

       However, it is the contractual obligation of both the parties to conform the terms and conditions of the Agreement of Insurance. In one way, it is the obligatory duty of the Complainant to submit all the relevant documents to the O.Ps Insurance Company for his claim, vis-a vis it is also the incumbent duty on the part of the O.Ps Insurance Company to take immediate initiative to make investigation by engaging one Loss Assessor, ask for relevant documents from the Complainant, proceed with the matter to settle the claim in no time. The O.Ps should take immediate steps for inspection of the vehicle, assess the loss and start proceedings to settle the claim of the complainant as the vehicle in question is lying in the garage for a long time, if not already taken. And for the name of settlement it is also not wise to keep pending the claim for an indefinite period of time.

      Considering the above discussion, we find no deficiency in service on the part of the O.Ps.

      The Complainant has miserably failed to prove his case. Therefore, the case of the Complainant is liable to be dismissed.

Cont......P/11

 

 

::11::

 C.C- 15 of 2022

 

      As the deficiency is not proved, the question of awarding compensation and other reliefs as sought for by the Complainant does not arise at all.

      However, it is left open to the Complainant to lodge any Complaint against the O.Ps within the specified period of time of Limitation, if the O.Ps rejects or repudiates the claim of the Complainant without assigning any valid reason or does not settle the claim even after fulfilling all the terms and conditions of the agreement of insurance and after observing all required formalities.

Hence,

It is ordered,

That the Consumer Complaint, being No: C.C- 15 of 2022 is dismissed ex-parte.

No order as to costs.

Let free copies of this order be supplied to all the parties concerned as per the C.P. Rules and Regulations, 2020.

 

.......................................................

 Prepared, Checked and Signed by

        Siddhartha Ganguli,

 President-in- Charge, D.C.D.R.C, Darjeeling.

I concurred.

.....................................................

     Bhawana Thakuri,  Member.

         D.C.D.R.C, Darjeeling.