OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI

C.C.89/2010

Present:

                                    1)Md.Sahadat Hussain, A.J.S.        -   President

                                    2)Smti Archana Deka Lahkar         -   Member

Mrs Nilima Boruah                                                 -   Complainant

W/O- Shri Ghana Kanta Baruah

Vill- Madhabpur,P.O-Madhabpur

P.S- Bihpuria,Dist-Lakhimpur,Assam

                           -vs-

1)   The Branch Manager                                       -    Opp.parties

Reliance  General Insurance Company Limited

Guwahati, 4^th  floor, Dhing Arcade,G.S Road,

Tarun Nagar,Guwahati-781005

Dist-Kamrup,Assam

2)  The Manager,

M/S Himatsingka Auto Enterprise

Parmeswari Building,Chatribari Road,P.S-Paltanbazar

P.O-Panbazar, Guwahati-781001

Dist-Kamrup,Assam

3)   The Manager

M/S Tata Motors Limited,Guwahati

Godrej Building, 2^nd floor,

G.S Road,Ulubari,P.O- Lachitnagar

Dist-Kamrup,Assam ,Guwahati-781007

Appearance : -       

Ld. advocate  Mr Shyama Kanta Sinha for the complainant but none for Opp.Party No-1 and 3.

Date of argument-             18.07 .2017

Date of judgment-             18.08.2017

                JUDGMENT

This is a complaint U/S- 12 of the Consumer Protection Act, 1986.

1. The complaint  filed by Mrs Nilima Boruah against the Branch Manager,Reliance General Insurance Company Limited , Guwahati,the Manager, Himatsingka, Guwahati  and the Manager, Tata Motors Limited,Guwahati  was admitted on 27-08-2000 and notices were sent to them and Opp.Party No-1 and Opp.Party No-3 filed their respective written statements but the complaint against Opp.Party No-2 is proceeding on exparte vide this forum’s order dtd.  24-05-2011. The complainant filed her evidence and the evidence of one Sri Bhaben Baruah on affidavit and CW-1 was cross examined by both Opp.Party No-1 and Opp.Party No-3 side  ; but CW-2 was cross examined by Opp.Party No-1 side only but Opp.Party No-3 declined to cross examine CW-2. Thereafter, the complainant also orally examined one Sri Jiten Saikia as their witness and he was also cross examined  by the side of Opp.Party No-1 and Opp.Party No-3 .Thereafter , Opp.party No-3  filed evidence of Sri Anuj Kr Gogoi on affidavit and he was cross examined by complainant side. Opp.Party No-1 side also filed evidence of Sri Sabir Ahmed Choudhury on affidavit on 03-12-2015 and he was also cross-examined by the complainant side. Thereafter , Ld advocate Mr S.K.Sinha filed written argument for the complainant and Ld advocate Mirza Rafiqul Islam for Opp.Party No-1 and  Ld advocate Mr Rupjit De for Opp.Party No-3 ; but on the day of oral argument, Ld counsels of Opp.Party No-1 and Opp.Party No-3 were not found after calling ; and being compelled, we heard oral argument  only of the counsel of the complainant , Ld advocate Mr.S.K.Sinha  on 18-07-17, and deliver the judgment today. We are giving our decision which is as below:
2. The complainant’s case in brief is that the Tata Winger vehicle bearing Engine No- 483DL51ARZ700605 and Chassis No-460000 ARZU 00190 registered by D.T.O.North Lakhimpur vide Registration No-AS 07-B-6723, which was insured by Reliance General Insurance Company Limited(O.P.No-1) vide Policy No-1505782340003987 dtd. 25-02-2009 effective from 25-02-2009 to 24-02-2010 ,  on 27-06-2009 at about 4 to 5 A.M , while it was coming from Pahumara towards Madhabpur and while it reached Nogoyagaon ,it caught fire due to self ignition and burnt down of its own  and was completely damaged and turned into ashes  and became no longer roadworthy, while at  that time there was thunder –storm and lightning;  and the fire service arrived and doused the fire and the police  also reached the spot and they inspected  the spot, and registered a case and started investigation  vide Narayanpur P.S-G.D.E No-479 dtd.27-06-2009 and seized the completely burnt vehicle; and on the requisition of the police, one M.V.I of DTO office ,North Lakhimpur inspected the vehicle on 03-07-2009 and made report, who found that the vehicle was completely damaged in burning of fire . She also informed the insurance company(Opp.Party No-1 ) about the incident on 27-06-2009 and filed the claim with them and then they latter appointed one Sri Dipak Das as surveyor and he inspected the place of occurrence as well as  the burnt vehicle; and again after 6/7 days , another surveyor , Sri Nitul Kataky  investigated the place of accident as well as   the burnt vehicle . The insurance  company (Opp.Party No-1 ) got the vehicle inspected / surveyed by three surveyors  one after another till it  set favourable report to them to repudiate the claim of the complainant without specifying any cogent and satisfactory  reason for appointing three surveyors one after another . These three  surveyors inspected the burnt vehicle in three different dates but no survey report has been furnished to her. The insurance policy covers the case of damage due to fire for self-ignition , lightening, storm etc. and accordingly she is entitled to get the insured amount as compensation ,but the opp. party/ insurance company repudiated the claim of the complainant illegally and arbitrarily, and in violation to terms and conditions of the policy  vide their order dtd.29-05-2010; and thereby they commited  deficiency of service towards her , and in result the opp. party/ insurance company is liable to pay her the total value of the vehicle Rs.4,14,675/-   for damage of her vehicle in fire . The said vehicle was yielding income of Rs.1500/- per day and thereby she lost total income  of Rs.6,30,000. So, she prays for directing the insurance company to pay her the value  of the vehicle Rs.4,14,675/- , and Rs.6,30,000/-  as compensation for loss of income from the date of incident to the date of filing of the complaint  and Rs.1,00,000/- as compensation for causing harassment to her and Rs.50,000/- as cost of proceeding totalling Rs.11,94,675/-  with interest of 9% per annum.
3. The pleading of the Opp.Party No-1 (Reliance General Insurance Company Limited ) is that the connected vehicle was commercial vehicle and the policy was also Reliance Passenger Carrying Vehicle Policy, and as such the complainant is not a consumer within the meaning of Consumer Protection Act, 1986 and hence the complaint is not maintainable . It is specifically laid down in the Insurance Policy that any break down in the insured vehicle due to mechanical defect , the insurer can not be made responsible for it, as the same is not covered under the perview of the Insurance Policy. On receiving information about the accident from the complainant, they appointed surveyor,  who surveyed the matter and also submitted the report and the surveyor reported that the vehicle caught fire due to defect in engine. So they are not liable to pay compensation to the complainant and as such the complaint is liable to be dismissed . The fire caught in the engine in a mysterious way  even though it was raining heavily at that time ,and the fire was dowsed from the affected the vehicle, and in order to find out the real truth they had to obtain survey reports of the experts and the same was done and both the surveyors suggested that fire was caught due to mechanical defect in the engine, and therefore they failed to consider the claim lodged by the complainant . The Exclusion Clause No-11 of the insurance policy provides that company shall not be liable to indemnify the loss if the same results from mechanical or electrical break down; and they also informed the complainant about that matter vide their letter dtd. 15-09-2010, and therefore they are to be absolved from the liabilities .
4.  The pleading of the Opp.Party No-3 is that there is no cause of action for filing the complaint . It is settled law that a hire purchase agreement doesnot create an ownership right on the complainant and as such no complaint can be maintained  for deficiency of service.  The  complaint is guilty of supression of material facts.     The complainant is not entitled to get any relief from them and they also have not commited any deficiency of service towards the complainant. Although the claim of the complainant was repudiated by Opp.Party No-1 and Opp.Party No-2 for violation of terms and conditions of insurance policy , the complainant is bound to pay the loan amount . The complainant had purchased the vehicle by taking financial assistance from them and as such the complainant is liable to repay the loan but complainant is not entitled to get any relief from them and the complaint against them is liable to be dismissed.
5. We have perused the pleading as well as evidence of both sides. We have also perused submission of Ld counsel of the complainant as well as the written arguments filed by Ld counsels of the complainant, Opp.Party No-1 and Opp.Party No-3. It appears to us that the contesting opp. parties and the complainant admit that the vehicle of the complainant, which was a Tata Winger vide Registration No-AS 07 B-6723 and which was insured with Reliance General Insurance Co.Ltd. , Guwahati ( O.P.No-1) vide Policy No-1505782340003987 w.e.f. 25-02-2009 to 24-02-2010, had  caught fire over N.H. 52 at Nogoyagaon (Narayanpur ,Dist-Lakhimpur)  on 27-09-2009 at about 4-5 AM while it was coming from Pahumara towards Madhabpur, and got fully damaged in the said fire;  and about the said incident, the complainant informed the opp. party insurance company  and also Narayanpur Police Outpost  about the incident and Narayanpur Police Outpost investigated the case vide GDE No-479 dtd. 27-06-2009 and seized the burnt vehicle ; and the Motor Vehicle Inspector of the office of the DTO,Lakhimpur also examined the said vehicle and submitted the report ; and that at the relevant time, the driver of the said vehicle namely Sri Jiten Saikia had valid Driving Licence, which was effective from 04-10-2006 to 03-10-2009 ( Ext-A9 and A15) .
6. From evidence, it is also found that the complainant, on 27-06-2009, lodged  insurance claim for loss of his vehicle in the said fire with Opp.Party No-1, and Opp.Party No-1 rejected the claim of the complainant on the ground that the said vehicle caught fire due to mechanical and electrical breakdown , while  plea of the complainant is that the repudiation order is illegal as well as ground of repudiation of her claim as shown by  Opp.Party No-1 are not the true grounds having her vehicle caught fire for self ignition while it was plying through a thunderstorm and lightning weather. Their further plea is that the vehicle did not catch fire due to mechanical and electrical breakdown . Now question is that whether the said vehicle caught fire due to mechanical and electrical breakdown or for other causes. The complainant ,by giving evidence, states that the said vehicle caught fire due to self-ignition while it was plying through a thunderstorm and lightning weather.We have perused the report of the Motor Vehicle Inspector of the office of the DTO,Lakhimpur and found that in his report the Motor Vehicle Inspector has not mentioned the cause of fire in the said vehicle but he has mentioned that the said vehicle was totally burnt down. We have also perused the report of North Lakhimpur Fire Station, which is Ext-A6 and found that the officer of North Lakhimpur Fire Station certified that the vehicle of the complainant completely burnt up.

                  Here in this case , the evidence of CW-2 Sri Bhaben Baruah is very important having he is the eye witness of the said occurrence .He says that on 27-06-2009 at about 4-5 AM while he was travelling from the connected vehicle  driven by CW-3 and while the vehicle reached Nogoyagaon he saw that the vehicle was burning of its own and immediately he as well as the  conductor and the driver of the vehicle, got down from the vehicle and shouted for help and tried to extinguish fire with pouring water and dust,  but failed to control fire, and after some moment local people arrived there and the policemen also came there and all of them extinguished the fire but in the mean time the vehicle was burnt completely . In the cross examination, he further states that at the time of the incident there was thunderstorm and lightning. It is seen from the evidence CW-2(PW-2)  that he supports the evidence  of CW-1 (the complainant) that the vehicle caught fire in self-ignition and not for mechanical or electrical breakdown. CW-3(PW-3) the driver of the said vehicle namely, Sri Jiten Saikia states that on 27-06-2009 while he was driving the said vehicle from Pahumara to Madhabpur and while it reached Nogoyagaon at about 4-5 AM he found the vehicle was burning  and he jumped out of the vehicle and tried to extinguish fire and he also shouted for help . In the cross examination he states that the fire broke out from all sides of the vehicle but he did not know how the fire and from where the fire came out. This witness denies the suggestion of the opp. party side that he was driving the said vehicle on that day inspite of having technical defects in the said vehicle. He further states that at that time, there was thunderstorm and lightning in that area . Thus it is found that CW-3

( the driver of the vehicle) supports the statement of the complainant that on that day the said vehicle had caught fire for self ignition while it was plying through  thunderstorm and lightning weather. Opp.party No-1 Sri Sabir Ahmed Choudhury reversely states, in his evidence, as to the cause of catching fire that the said vehicle caught fire on that day due to mechanical or electrical breakdown  as it appears from the reports of the surveyors, they appointed . In the cross examination he states that three surveyors were appointed by them in this case, but he admits that when company is not satisfied with the report of the surveyor, it may engage second surveyor . He also admits that the report of the 1^st surveyor was rejected because he has failed to look into all aspects of the accident. He also admits that the report of the 1^st surveyor was not furnished to the complainant, nor he was informed about rejection of 1^st surveyor report. He further admits that the correction of the report of the 2^nd surveyor, Sri Dipak Das was done but he doesnot know who did the said corrections. He also admits that the second surveyo,r Sri Dipak Das did not mention in his report that the vehicle caught fire due to  mechanical or electrical breakdown and that the local people did not know the actual cause of fire of that vehicle. We have perused the report of the 2^nd surveyor Sri Dipak Das and found that he has not mentioned that the said vehicle had caught fire due to mechanical or electrical defects, but he mentions that the neighbouring people informed him that they did not know how the vehicle caught fire. Thus it is found that the survey report of the surveyor Sri  Dipak Das  doesnot support the plea of the Opp.Party No-1 that the vehicle had caught fire due to mechanical or electrical breakdown.

                             We have also perused the survey report of one Sri B.K.Roy appointed by the opp. party , which is Ext-B 3 and found that the said vehicle caught fire due to wind flow, meaning thereby that he did not find that the vehicle caught fire due to mechanical or electrical breakdown. On the other hand it is found that  the complainant side, through their witness ,has succeeded to prove one thing that on relevant time the weather was with thunderstorm and lightning ,and the vehicle caught fire due to self ignition due to thunderstorm and lightning . It is generally seen that due to thunderstorm and lightning, a running vehicle may catch fire due to self ignition on the affect of   lightning . The Opp.Party No-1 sides’ conduct of appointed three surveyors one after another and of not providing the copy of survey reports to the complainant infers that the plea of the complainant is a true fact but they tried to negativate the said plea. Secondly, as the opp. party appointed three surveyors one after another without any just cause, none of three survey reports  is acceptable in law except comments in favour of the complainant. Thus ,it is found that the Opp.Party No-1 side has failed to prove their plea that the vehicle of the complainant on that day burnt due to mechanical or electrical breakdown , but complainant side has succeeded to establish that the vehicle caught fire due to self ignition as a result of the storm and lightning at that place.

               The case laws referred by the opp. party sides Ld counsel do not support their case having the factual situation in the case in hand is different from the factual situation of the referred cases.

7.        As per Opp.Party No-1 ,the policy of the complainant doesnot cover the case of loss of vehicle resulting from mechanical or electrical breakdown. In the case in our hand, it is already established that the connected vehicle caught fire not due to mechanical or electrical defects in it, but it caught fire due to self-ignition for the affect of thunderstorm and lightning, and in result the vehicle completely damaged. The Opp.Party No-1 admits that the vehicle was completely damaged but their plea of rejecting the claim of the complainant  is that the vehicle caught fire due to mechanical or electrical defects in the vehicle , which they have failed to establish. Therefore, we hold that the damage of the said vehicle in a fire caught by it as a result of self-ignition due to thunderstorm and lightning weather at that time is covered under the policy; and accordingly we hold that the Opp.Party No-1 is liable to pay compensation to the complainant for damage of his vehicle in the said fire.     

8.          Admittedly ,the IDV of the said vehicle is Rs.4,14,675/- . It is found that  Opp.Party No-1 repudiated the claim of the complainant on the ground, which they have failed to establish. Therefore the very act of repudiation of the claim is an act of deficiency of service to the complainant, which warrants direction from this forum. Therefore , we hold that Opp.Party No-1 being insurer of the said vehicle is liable to pay Rs.4,14,675/- (IDVof the lost vehicle) to the complainant with interest @6% from the date of filing of this complaint ( 27-08-2017).   

9.   It is already proved that the    complainant after filing the claim petition before the Opp.Party No-1, repeatedly approached Opp.Party No-1 for consideration of her claim, but Opp.Party No-1 most illegally repudiated his claim and thereby caused harassment to her and also put her  in mental agony. Therefore, we hold that Opp.Party No-1 is also liable to pay atleast Rs.10,000/- as compensation for causing harassment to the complainant and putting her in mental agony . It is also found that for such  arbitrary and illegal repudiation of the claim of the complainant, she became compelled to prosecute opp. parties before this forum. Therefore the Opp.Party No-1 is further liable to pay atleast Rs.10,000/- to the complainant as cost of the proceeding.

10.  Because of what has been discussed above, we hold that the complaint has merit. Accordingly the complaint against Opp.Party No-1 (The Branch Manager,    Reliance  General Insurance Company Limited,Guwahati) is allowed on contest but against Opp.Party No-2 and 3 is dismissed; and Opp.Party No-1, is, therefore , directed to pay  Rs.4,14,675/-( Four lakh fourteen thousand six hundred seventy five only) to the complainant as compensation for loss of her vehicle in fire as per terms of the policy along with interest at the rate 6% per annum from 27-08-2010, and also to pay her Rs.10,000/- as compensation for causing harassment to her and putting her in mental agony as well as Rs.10,000/- as cost of the proceeding . Opp.Party No-1 is directed to make the payment within 45 days , in default, other two amounts shall also carry interest at the same rate.

            Given under our hand and seal of the District Forum, on this the   18^th   August  of , 2017.

           (Smti A.D.Lahkar)                                                                     (Md S.Hussain)

             Member                                                                                     President