This is a complaint under section 12 of Consumers Protection Act, 1986 filed by the petitioners Smt. Dipti Debnath & Rick Debnath wherein it is contended, inter-alia, to the effect that Jyoanta Debnath the husband of petitioner no.1 and father of petitioner no.2 having a Motor Cycle bearing no.WB-72C-0336 insured the same with O.P. insurance company under Policy No.313201/31/2011/2854. On 21/11/’010 at about 8:30 P.M. while Jyoanta Debnath was plying the said Motor Cycle he got fell down on the pacca road and sustained grievous injuries on his head and other parts of his body.
Immidiate after accident he was admitted at Touch Nursing Home, Jalpaiguri where from he was shifted to Malay Chakraborty Nursing Home at Siliguri where he succumbed to injuries on 23/11/2010. Maynaguri P.S. Case No.533/10 dt. 25/11/2010 U/S 279/304(A) of I.P.C. was started in relation to said accident. The said vehicle was insured under O.P. Oriental Insurance Co. Ltd. and the said insurance covered sum of Rs.1,00,000/- as owner cum-driver. Since demise of Jyoanta Debnath his wife the petitioner no.1 several times requested the O.P. for payment of compensation as per policy but in vain. Inspite of having lawyer’s notice dated 08/04/’13 of the complainant while the O.P. neglected and repudiated the said claim the petitioners are compelled to lodge this complainant.
The O.P. insurance company contested this case by filing W/V and denied all material allegations as alleged by the petitioners against the O.P. It is specific case of the O.P. to the effect that as the petitioners did not inform this matter of accident within statutory period of two years and the petitioners did not come forword to the O.P. to get the compensation as sought for, no deficiency in service has been made an the part of the O.P. In the circumstances the O.P. claimed for dismissal of the case with cost.
Under the above averments both parties went on hearing with the following points:-
- Is the case barred by limitation?
- Was there any deficiency in service on the part of the opposite party insurance company?
- Is the complainant entitled to get reliefs as sough for?
- To what other relief/ reliefs are the petitioners entitled?
DECISION WITH REASONS
Point No..1, and 4 :-
All these points are taken up together for consideration in discussion as they are interlinked and inter related.
Admittedly, the insurance policy holder Jyoanta Debnath died on 23/11/2010 for his serious injuries on his head caused for his felling down on the pacca road on 21/11/2010 while he was plying his said motor cycle. Admittedly the concerned insurance policy was made with coverage of Rs. 1,00,000/-.
The premium of the said policy was paid on due time. Admittedly the accident in question was made within the risk period of the said policy in question. It is also admitted that P.A. covers U/S 111 for registered owner-cum-driver(i.e. Jyoanta Debnath) for Rs. 1,00,000/-.
It is a specific case of petitioners that immediate after accident by which Jyoanta Debnath succumbed to his injuries the petitioner no.1 requested the O.P several times for payment of the compensation amount of Rs1,00,000/- as mentioned in the insurance policy.
Denying the same the O.P. stated that as no claim was made by the petitioners with in statutory period of two years, the question of deficiency in service as alleged by the petitioners does not arise. It is also submitted by the O.P. that as the lawyer’s demand notice was sent to the O.P beyond statutory period of limitation, the question of repudiation of the alleged claim also did not arise.
In support of the above mentioned submissions the O.P. has cited the following decisions:-
a. I(2013) CPJ 60(N.C.)
b. II(2012)CPJ 1
c. II P.S.C.D.R.C.-9 dated 07/07/’09
d. II(2013) C.P.J. 495(N.C.)
e. II(2008) C.P.J. 168(N.C.)
f. IV(2009) C.P.J. 72
In course of hearing the Ld. Advocate of the O.P. further argued that as the policy holder Jyoanta Debnath being a learner was driving the vehicle in question without having any assistance of licensed trainer, he had violated the relevant provision of Motor Vehicles Act and for this reason no compensation should be awarded in favour of the petitioners.
We have gone through the entire record and the documents filed with meticulous care and the provision of Section 24(A)(2) of C.P Act. O.P.’s specific case is that as the case is filed beyond specified time of two years from the date on which the cause of action has arisen, the complainant is not entitled to get any relief. In Section 24-A(2) provision we find that “provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reason for condoning delay” Having regard to this provision we are of the view that as the case has already been admitted for hearing by this Forum, it is to be presumed that the delay, if any has already been condoned, as because the compensation is claimed by petitioners for demise of Jyoanta Debnath in road accident.
We have perused the final report submitted by the police and other relevant documents in relation to appointment of instructor for assisting this learner driver Jyoanta Debnath at the relevant time. But the O.P. could not addance any satisfactory evidence to prove that the learner driver Jyoanta Debnath was not accompanied with any licensed instructor to assist him at the relevant time of his driving. So, in absence of specific evidence/material in this respect no advance inference should be drawn against the said learner driver. After heaving regard to the documents on record and after heaving regard to the arguments advanced by respective parties we do hold that inspite of heaving lawyer’s letter in-relation to demand of compensation as the O.P. did not give any response, it is to be presumed that there was sufficient deficiency in service on the part of the O.P. for which the O.P. is not entitled to get any relief as sought for. On the other hand we should hold that on the basis of relevant documents and evidences on record as produced and adduced on behalf of the petitioners the petitioner have adduced sufficient materials to prove their case. In this connection we would like to mention that for avoiding intrecasis of law in relation to provisions of insurance as well as limitation matter as ventilated in different decisions cited by parties, on the basis of materials on record we should opine that the petitioners should be given award as prayed for due to demise of their predecessor Jayanta Debnath. If the petitioners are restrained from getting the compensation as sought for, then the formation of Insurance Policy would be frustrated and anfractuous.
Thus, the case succeeds.
Hence it is
O r d e r e d
That the C.C. No. 29/2013 Under Section 12 of the Consumer Protection Act1986 filed by Smt. Dipti Debnath & Rick Debnath be and the same is decreed on contest against the O.P. with cost of Rs. 2,000.00(Rupees two thousand) only to be paid by the O.P. in favour of the petitioner within one month from this date.
The O.P. is hereby directed to pay a sum of Rs.1,00,000/-(Rupees one lakh) only as compensation as per condition of the insurance policy in favour of the petitioners.
The O.P. is also directed to pay a sum of Rs. 20,000/-(Rupees twenty thousand) only in favour of petitioners for their mental agony & harassment.
The O.P. is hereby directed to liquidate the entire decretal amount within one month from this date in default the petitioners will be at liberty to recover the said entire decretal amount alongwith interest @9% P.A. to be calculated on and from the date of filing of the case till recovery of the entire dues by filing a separate proceedings against the O.P. as per provision of law.
