Hon’ble Mrs. Rumpa Mandal, Member.
In the nutshell of the Complaint case is that the complainant Shyamal Chandra Saha purchased Tippers vehicle (Damper) with the finance help of Cholamandalam Investment Finance Co. Ltd. and after full Satisfaction Mathabhanga ARTO issued Registration bearing no WB-85-1195. The O.P. ICICI Lombard General Insurance Co. Ltd. with full satisfaction and received Insurance premium of Rs.63,054/- and issued insurance policy being no 3003/177041006/00/800. The insurance policy was covered during 04.08.09 to 03.08.20. On 21.03.20 the vehicle of the petitioner being No WB-85-1195. When the vehicle was loaded bolders at near construction side at Tista Bridge( Jayee Bridge) at that time one side at vehicle was fallen down on the ground & subsequently the vehicle was fully damaged & the complainant was informed the matter over Mobile phone to toll free phone no 18002666 before the OP and there after lock down was started. As per instruction of the O.P. on 11.06.20 complainant handed over the vehicle before the Khokan Motors Work Pvt. Ltd. Mahindra showroom, Cooch Behar. On that date as per instruction of the O.P. Khokan Motor Work Pvt. Ltd. estimated the damage cost vide Estimate No UOKMC1210000001 dt 11.06.20 of Rs.3,17,375/-. On the same date complainant submitted the claim form before the O.P. with details of total particulars of vehicle with Driver viz Jagabandhu Barman. After receiving of information of damage of the vehicle O.P. started insurance claim No MOTO9871597 against the insurance Policy. On 2406200247568 O.P. issued claim & demanded some documents for proceeding the claim i.e (1)D/L(2)Fitness (3) Road chalan.
On 19.06.20 by phone complainant informed the O.P. the nick name of driver named Ganesh Ray but to his old age but the good and correct name of the driver is Jagabandhu Barman. On 24.08.20 complainant sent a written petition with all documents as per the advice of O.P. with registered post.
On 31.07.20 O.P. whimsically repudiated the claim vide Ref. No31720210346 on the ground of misrepresentation of facts of the driver. Complainant mentioned in his complaint that non-settled the claim by O.P. is totally false and without basis of law and also mentioned that after receiving of insurance premium by O.P. but when at the time of disbursement of Insurance claim, this type of false and misleading of ground stated by O.P. is not tenable in the eye of law. The aforesaid activities of the O.P. tantamount to deficiency in service & it is arbitrary & non-disbursement of insurance claim complainant suffers mental pain, agony as well as heavy financial loss. The cause of action in the present case arose on 04.08.19 when O.P. issued insurance policy and on 21.03.20 when the vehicle was damaged due to accident and on 11.06.20 when the complainant submitted claim form and lastly on 31.07.20 when the O.P. repudiated the insurance claim & is still continuing . The Complainant therefore prayed for and repairing cost of the vehicle further order of Rs.3000/- order against the O.P. for a sum of Rs.3,17,375/- for per day of non-ply of vehicle on road for which complainant suffered financial loss and for further order of Rs2 lakhs for deficiency in service & Rs.20,000/- as cost of litigation.
The O.P. contested the case by filing written version wherein they denied each and every allegation and averment The positive defence case in few words is that though complainant purchased the vehicle for the purpose of earning livelihood but the complainant is the proprietor of a Logistic Company & the said vehicle used for totally for Commercial purpose. As per norms of IRDA and as per rule of Insurance Act, the O.P. gave an appointment of one surveyor and as per surveyor report, the O.P. was assessed to the tune of Rs.1,80,277/-. The so called estimated till does not have any relevance in this case. On 24.03.20 the O.P. sent a letter to the insured address for inspecting the vehicle garage name & address for assess the loss & demand for supplying relevant the vehicle documents for settlement the claim. So there was no deficiency in service or any other negligence from the part of answering O.P. & this case is not maintainable against the O.P. After receiving the surveyor report with relevant documents O.P. found that at the time of filing the claim complainant mentioned by mistake driver nickname Genesh Roy through phone call. But when filing claim form to O.P. complainant mentioned driver name Jagabandhu Barman. So O.P. mentioned in his written version that the claim can not be settled for the misrepresentation of facts & tried to hide the material facts . So the instant case is not maintainable in the eye of law against O.P. The claimed that the case is liable to be dismissed with cost.
After scrutiny of the case of the respective parties the question involved in this case & having analysed the argument of both respective Advocates the Commission considers the following points for adjudication of this case.
POINTS FOR CONSIDERATION
- Whether the case is maintainable in its present form and manner?
- Is there any deficiency in service on the part of the O.P.?
- Whether the Complainant is entitled to get the relief?
- To what other relief or reliefs the complainant is entitled to get?
DECISIONS WITH REASONS
Point No.1:
O.P. challenged the case, but O.P. did not discard by documents and did not call for any document from Income Tax Department or other authority that he is a proprietor of a Logistic Company.
On the contrary, the Complainant pleaded & adduced evidence by affidavit in chief stating inter alia that he runs his livelihood by running the said Trippers vehicle. The O.P. did not cross-examine the complainant nor did call for any document to show the actual income of the complainant to establish the defence case that the income of the O.P. is so high which may be considered as commercial purpose.
Therefore, the complainant can not be considered that he runs the vehicle for commercial purpose or that he is not the consumer under the C.P. Act.
Point No1 is accordingly decided infavour of the Complainant.
Point No 2 , 3 and 4:
Both the points are very closely interlinked with each other and as such taken up together for convenience and brevity of discussion.
It is specific case that complainant issued insurance policy of his Tripper vehicle & the said vehicle when unloaded at near construction side at Tista Bridge, the vehicle was fallen down & subsequently the vehicle was fully damaged, the complainant informed the matter over mobile phone to toll free number and then lockdown started.
The O.P. denied & stated that complainant misrepresented the material facts. Complainant informed the O.P. that the name of the driver is Ganesh Roy but after receiving the surveyor report the O.P. found that the driver name is Ganesh Roy but after receiving the surveyor report the O.P. found that the driver name is Jaga Bandhu Barman. O.P. argued that so the complainant has tried for claim with bad intention.
Ld Advocate for the complainant vehemently raised objection to that point on the ground O.P. admitted the damage of the vehicle as per surveyor report. Complainant informed the matter vide mobile phone due to his old age mistakenly he mentioned the nick name of the driver. So there is no misrepresentation of fact. Though the O.P. received the insurance premium, but at the time of disbursement of insurance claim O.P. whimsically repudiated the claim.
After perusing the defence pleadings it transpires that the O.P. assessed compensation to the tune of Rs.1,80,277 by virtue of the final survey report. In this respect O.P. furthermore submitted that OPs do not have any sort of liability to pay any claim to the Complainant. However the defence plea taken by the O.P. could not be duly established by valid and cogent document as to how the O.P. insurer could escape their liability for repudiation of the claim of the complainant.
Thus it stands well proved on the basis of admission of the O.P. that the ill fated vehicle met with an accident resulting loss/ damage of the vehicle which was assessed by the own men of the O.P. to the extent of Rs.1,80,277/- as per final assessment by their own personnel. Now, the only defence plea to discard the claim of the complainant’s case shows that complainant is trying to make unlawful gains from policy of Insurance by filing the present case. The duly appointed surveyor after considering both repair basis as well as salvage mode of settlement computed the net liability of the O.P. subject to the admissibility of the claim at Rs.1,80,277/-.
So the Complainant cannot be said to have filed this case for unlawful gains.
Thus having assessed the evidence adduced by both the parties and in view of the through discussion made in the foregoing paragraph I came to the finding that the complainant proved the case as per the claim.
In the result the CC case succeeds point No.2,3 and 4 are answered in affirmative.
Hence, it is
Ordered
That the Complaint case No CC/39/2020 is allowed on contest with cost of Rs.10,000/-.
The complainant do get an award for a sum of Rs.1,80,277/- regarding cost of vehicle which the appointee surveyor assessed the surveyor report.
The O.P. is directed to pay Rs.10,000/- for deficiency in service & is further directed to pay litigation cost of Rs.10,000/- to the complainant.
The O.P. is directed to pay Rs.2,00,277/- to the complainant within 30 days from the date of passing the Final order failing which the complainant shall be entitled to get interest @6% per annum.
The Complainant case is accordingly disposed of on contest.
D.A to note in the trial Register.
Let plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
