Hon'ble Mr. Haradhan Mukhopadhyay, President.
The pith of substance of the case of the Complainant is that the Complainant Kapin Goenka purchased a vehicle (Damper) bearing No. WB-69A-2989 and thereafter it was insured on 16.07.20 with the OP Branch Manager, Oriental Insurance Company Limited Cooch Behar with an insurance premium of Rs.60,000/- bearing insurance policy No.313202/31/2021/669 for the period 22.07.20 to 21.07.21 for total value of Rs. 30 Lakhs. Due to some financial problem the Complainant decided to sale the aforesaid vehicle and accordingly the sale agreement is executed on 24.02.20 between the Complainant and one Biplab Sarkar. Subsequently due to some unavoidable circumstances both the parties mutually decided and executed dissolution of sale deed on 12.03.20. Presently the Complainant is the legal and rightful owner of the said vehicle and till now the registration of the vehicle stand in the name of the Complainant. Subsequently, on 23.04.21 at 11 A.M. met with an accident for which the vehicle was fully damaged. The Complainant immediately informed the said accident to the OC, Tufanganj PS against which Tufanganj PS started case being GDE entry No.923 dated 23.04.21. Subsequently, the Complainant informed the matter to the OP and insurance Agent. As per direction of the OP the Complainant took away the damaged vehicle to OSL Automotive Private Limited, Cooch Behar for repair. The Complainant paid repairing cost as per direction of the OP against which OSL Automotive Limited issued tax invoice dated 04.08.21. Subsequently, the Complainant submitted all claims with original money receipt to the OP as per their direction but the OP did not relies the insurance claim till now. The Complainant incurred repairing cost for Rs. 1 Lakh on 29.05.21, Rs.50,000/- on 10.08.21, Rs.1.5 Lakhs on 19.08.21 and Rs.2.66 Lakhs on 28.08.21 through different bills. Thereafter, the Complainant went to the Office of the OP but till today the OP did not repay the insurance claim of Rs.5.66 Lakhs to the Complainant. After lapse of long period suddenly the OP repudiated the insurance claim on 13.04.2022 on the ground of “No insurable interest”. The cause of action arose on 27.07.20 and on subsequent dates. The Complainant prayed for an award for Rs.5.66 Lakhs, Rs.3 Lakhs for deficiency in service, Rs.1 Lakh for loss of earning capacity and Rs.20,000/- towards litigation cost.
The OP contested the case by filing written version denying the major allegations. The specific defence case in a few words is that the OP issued a Motor insurance policy certificate cum policy scheduled GCCV public carrier other than 3 wheelers package policy Zone-C bearing No.313202/31/2021/3669 for the aforesaid period for the vehicle bearing No. WB-69A-2989. After getting intimation of the accident from the Complainant the OP appointed Mr. Sonu Prasad a surveyor for spot survey to assess the loss of damage vehicle as per norms and terms and conditions of insurance policy. He reported on 28.04.21. After receiving spot survey bill voucher and copies of vehicular documents and completion of other formalities on 07.07.21 Sri Siddhartha Lahiri a license surveyor/ Loss assessor was appointed to report in respect of cause nature and extent of loss or damage as per terms and conditions of insurance policy. The surveyor submitted his report on 14.08.21 for a sum of Rs.4,50,034/-. The Higher Authority assessed for Rs.4,26,130/-. As per the document submitted by the Complainant it is evident that the vehicle was sold by the Complainant on 24.02.20 i.e. before the commencement of policy period as per the sale deed. So the Complainant had no insurable interest at the time of loss. Therefore, the OP repudiated the claim of the Complainant. There was misrepresentation of fact. The OP also informed the OSL Automotive that the insurer had no insurable interest at the time of the accident. The OP claimed that the case is liable to be dismissed with cost.
The specific allegation by the Complainant as well as claim against the OP vis-a-vis the denial of the allegation, persuaded this Commission to ascertain the following points for determinations.
Points for determination
- Whether the Complainant is a consumer or not?
- Whether the case is maintainable in its present form and prayer?
- To what other relief if any the Complainant is entitled to get relief?
Decision with reasons
Point No.1.
It is the admitted fact that the Complainant insured the vehicle bearing No. WB- 69A-2989 with the OP for a sum of Rs. 30 Lakhs with insurance premium of Rs. 60,000/-. Having met with an accident by the said vehicle the Complainant lodged insurance claim against which there is an assessment of loss.
Thus the relation between Complainant and the OP appears to have been covered within the CP Act as a consumer and service provider/ seller.
Although the status of the Complainant as a consumer stands challenged in the written version of the OP yet in course of argument. Ld. Defence Counsel did not advance any documents challenging the status of the Complainant. However, the relation between the parties appears to be well within the jurisdiction of CP Act. The pecuniary jurisdiction is also within the limit of this Commission.
Thus the Complainant is a consumer and the present case is maintainable in its present form and prayer. Subject to entitlement of relief which would be ascertained under the position of two heads being Point Nos.2 & 3.
Point Nos.2 & 3.
Both the points are very closely interlinked with each other and accordingly these are taken up together for brevity and convenience of discussion.
These points relate to entitlement of relief by the Complainant. After perusing the pleadings of both the parties it appears that the OP, the Branch Manager Oriental Insurance Company Limited has admitted with the OP issued a Motor Insurance policy/ certificate cum policy schedule(GCCV) public carriers other than 3 wheelers package policy zone-C bearing No.313202/31/2021/669 for the period from 22.07.20 to 21.07.21 for vehicle bearing No. WB-69A-2989(Public Carrier/Dumper) in the name of the Complainant Shivam Service Station Proprietor Kapin Goenka from the OP Cooch Behar Branch on 16.07.20.
It is settled position of law that admitted fact need not be proved. So we can much forward to the next stage of analysis of fact and evidence.
The OP further seems to have admitted that after getting intimation about the accident from the Complainant this OP appointed Mr. Sonu Prasad surveyor for spot survey to assess the loss of damage vehicle as per norms and terms and conditions of insurance policy. After receiving spot survey bills, vouchers and copies of vehicular documents and after completion of other formalities on 07.07.21 Sri Siddhartha Lahiri a licensed Surveyor/Loss Assessor was appointed to report in respect of cause, nature and extent of loss or damage as per terms and conditions of insurance policy. Surveyor submitted the survey report on 14.08.21 for a sum of Rs.4,50,034/- and Higher Authority assessed it for Rs.4,26,130/-.
Thus it stands well proved on the basis of admission of the OP that the ill fated vehicle met with an accident resulting in loss/damage of the vehicle which was assessed by the own men of the OP to the extent of Rs.4,26,130/- as per final assessment by the personnel.
Now the only defence plea to discard the claim of the Complainant’s case shows that at the time of raising the insurance claim the said vehicle was reported to have been sold by the Complainant as per the knowledge of the OP.
The OP claimed that the said vehicle was sold by the Complainant on 24.02.20 before the commencement of the policy period and as such the Complainant had not insurable interest.
In order to ascertain the veracity of the said defence plea let us have an introspection into the documentary evidence adduced by the Complainant.
The Complainant claimed that the said vehicle was decided to be sold but after the alleged sale the sale deed was immediately cancelled by way of dissolution of sale agreement and till now the RC is in favour of the Complainant.
The Complainant filed the original dissolution deed of sale authenticated by notarial certificate dated 12.03.20. The said deed of dissolution was executed between Shivam Service Station and Sri Biplab Sarkar i.e. between the Complainant and the said Biplab Sarkar. In the said deed of dissolution in the preface and other paragraph there is specific mentioning inter alia “Whereas the first and second parties of this deed, sale of vehicle bearing this Registration No. WB-69-2989 and deed of sale authenticated on 24th February,2020 and by the deed of sale executed and authenticated before the notary A. Roy (Sri Arabinda Ray) of Alipurduar on 24.02.2020 and the same has been entered in the notarial register as SL No.02 dated 24.02.2021. And whereas the parties of this deed of sale have decided to dissolve the said deed and this deed of dissolution is now under the terms and conditions mentioned below. That after the dissolution of the above deed of sale the parties herein will be not entitled to sale of vehicle deed of land documents”.
Thus in a plain reading of the said dissolution of the sale deed it is crystal clear that there is specific clause inter alia that the parties of that sale deed have decided to dissolve the said previous sale deed and the subsequent deed of dissolution came into force on and from the date of execution. Therefore the ownership of the said vehicle remained with the Complainant being the original owner and the ownership was never shifted to any other person than the Complainant Kapin Goenka.
On the basis of the said pleading and documentary evidence it is evident that the ownership of the vehicle bearing No. WB-69A-2989 was not changed and the Complainant was the owner on the disputed date of the accident and the date of raising the claim. Thus the Complainant as a registered owner of the said vehicle has legitimate claim for insurance. So the defence plea that the Complainant had no insurable interest at the time of loss is not acceptable in the eye of law and as such the repudiation of the claim by the OP is not justified.
The Complainant in order to establish the further claim regarding incurring expenses for damage caused to the vehicle proved some original voucher bearing No.47 from OSL Automotive Limited for Rs.1 Lakh dated 29.05.21, OSL No.814 dated 28.08.21 for Rs.2.66 Lakhs OSL No.747 dated 19.08.21 for Rs.1.5 Lakhs and OSL No.697 dated 10.08.21 for Rs.50,000/-.
The OP assessed the loss finally by their assessor for Rs.4,50,034/- which was reduced by the higher authority for Rs.4,26,130/-.
The Complainant did not want to cross-examine any of the assessors to unveil the actual truth before the Commission. As such the valuation made by the assessor of the OP shall be considered as acceptable to the Commission.
Ld. Advocate for the Complainant argued that the claim of the Complainant is genuine since his claim is duly supported by the different receipts for incurring cost.
The OP did not cross-examine the Complainant against the said voucher which was duly proved. Thus the claim of the Complainant for Rs.5.66 Lakhs towards repairing cost could not be discarded.
Ld. Defence Counsel argued that the sale deed was manipulated and the previous sale was dissolved.
Other than the oral document the OP seems to have did not cross-examine to the Complainant on that point in any way. Accordingly the specific claim of the Complainant regarding the said sale cannot be considered to have been discarded.
In the backdrop of the assessment evidence vis-a-vis the observation made in the foregoing paragraph this Commission comes to the findings that the Complainant is entitled to get the relief towards the insurance claim alongwith some consequential relief.
Accordingly point Nos. 2 & 3 are answered in favour of the Complainant. In the result that the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No.CC/28/2022 be and the same is allowed on contest with cost of Rs.5,000/-.
The Complainant do get an award for a sum of Rs.5.66 Lakhs, Rs.25,000/- towards deficiency in service, Rs.25,000/- towards loss of earning.
The OP is directed to pay Rs.6.21 Lakhs (Rupees six Lakhs twenty one thousand only) to the Complainant within 30 days from the date of Final Order failing which the Complainant shall be entitled to get interest @ 6% per annum. The complaint case is accordingly disposed of on contest.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
DA to Note in the Trial Register.
Dictated and corrected by me.
