Hon’ble Mr. Haradhan Mukhopadhyay, President.
Failure to insure the vehicle into the Govt. portal is the bone of contention for filing this case by the Complainant Bishu Roy against the OP, Oriental Insurance Company. The history of the case in a few words is that the Complainant Bishu Roy is a driver cum owner of the vehicle bearing No. WGV-5599(Truck). The Complainant paid Rs.37,546/- as insurance premium to the OP Branch Manager, the Oriental Insurance Company Limited. After full satisfaction the OP issued motor insurance certificate cum policy having insurance policy No.313202/31/2022/1720 period of insurance from 26.02.2022 to 25.02.2023. The RTO, Cooch Behar issued a fitness certificate from the said vehicle No. WGV-5599 up to 18.10.2022 and the certificate was expired on 19.10.2022. As per terms and conditions the Complainant went to the RTO before 10 days of expiry fitness but RTO, Cooch Behar did not receive the renewal of fitness charge from the Complainant due to which the insurance policy was not up loaded in the Vahan portal by the insurance company. Till the filing of this case the OP did not up load the insurance policy of the Complainant in Vahan portal. Subsequently filed written complaint to the OP and RTO, Cooch Behar on 11.10.2022 but still now the OP did not reply and up load the insurance policy in Vahan portal. Subsequently the RTO, Cooch Behar issued a letter on 14.10.2022. Still now the insurance company did not up load the insurance policy. The RTO, Cooch Behar requested to OP for arrangement of up loading the details of insurance policy but due to negligence of the OP the insurance policy was not up loaded, which caused deficiency in service in regard to the vehicle fitness of the Complainant. Due such deficiency in service the Complainant suffered heavy loss for the period 19.10.2022 to 27.10.2022 for not plying the vehicle during that period. Subsequently the Complainant was compelled to purchase another insurance policy from Bajaj Allianz General Insurance Company Limited on 19.10.2022 with further payment of insurance premium of Rs.39,669/-. Thereafter the RTO received money from the Complainant on 28.10.2022 for Rs.13,990/- as fitness charge etc. Subsequently, the Complainant filed written complaint to the CA and FBP Department but the dispute was not settled there. The Complainant sustained mental pain and agony and heavy loss due to mal-practice of the OP. The cause of action arose on 14.02.2022 and on subsequent dates till the filing of this case. The Complainant prayed for an award for refund of insurance premium of Rs.37,546/-, Rs. 10,000/- for non plying of the vehicle on road and Rs, 5 Lakhs for deficiency in service and mental agony and Rs.10,000/- towards litigation cost.
The OP contested the case by filing written version wherein they denied each and every allegation of the Complainant challenging the case as not maintainable for not having any cause of action. The positive defence case in brief is that the OP insurance company is guided by the rules and regulation of the IRDA. So during subsistence of an insurance policy if any party purchases another policy of other insurance company, the subsequent policy became invalid for which the OP insurance company is not liable for payment of any amount for the subsequent policy. However, the party is at liberty to realise the insurance premium paid for the subsequent policy from the subsequent insurance company. The OP insurance company is not liable to refund the insurance premium paid to the present OP insurance company OP. The said insurance policy is still valid and active and the policy is covering 3rd party risk. So during the subsistence of the policy issued by the OP insurance company, if 3rd party claims come then the OP insurance company is liable to pay the claim but the insurance premium cannot be refunded. There was no deficiency in service since the insurance policy issued by the OP is valid and active so question of realization of insurance premium does not arise. The OP insurance company claimed that the case is liable to be dismissed with cost.
On the basis of the conflicting pleadings of the parties the following points emerge to be decided for proper adjudication of the case.
Points for Determination
- Is there any cause of action for filing the present case?
- Whether the Complainant is entitled to get the relief prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
It is the admitted fact that the Complainant purchased insurance policy for his vehicle(Truck) bearing No. WGV-5599 under the OP, Oriental Insurance Company Limited. The Complainant alleged that despite purchasing the said insurance policy the OP company did not upload the said insurance policy to the Vahan portal for which he sustained loss. Whether the allegation against the OP is reasonable and bonafide that are to be decided under the Points No. 2 & 3 but the pleadings of the parties and the evidence in the case record suggest this Commission that there is cause of action for filing the present case by Complainant against the OP insurance company.
Accordingly Point No.1 is answered in favour of the Complainant positively.
Points No.2 & 3.
These points relate to ascertainment of question as to whether the Complainant is entitled to get the relief claimed in this case.
The Complainant in order to establish the case adduced evidence both orally by filing evidence on affidavit and by means of documentary evidence.
It is the specific allegation that the Complainant purchased an insurance premium against the said vehicle No. WGV-5599(Truck) for a sum of Rs.37,546/- as insurance premium bearing insurance policy No.313202/31/2022/1720 for the period 26.02.2022 to 25.02.2023. The OP in their written version admitted the said fact as correct.
The Complainant proved the said insurance policy by filing the original document being the policy No. 313202/31/2022/1720 dated 14.02.2022 for the period 26.02.2022 to 25.02.2023.
The further allegation of the Complainant is that when he went to the RTO before 10 days of expiry of fitness, the said RTO, Cooch Behar did not receive the renewal of fitness charge from the Complainant due to insurance policy being not uploaded in the vahan portal by the insurance company OP.
Except an evasive denial the OP company did not make any positive case against the said allegation. On the contrary the OP only pleaded that it is guided by IRDA and during the subsistence of one insurance policy the subsequent policy becomes invalid.
The Complainant further pleaded that despite filing written complaint to the OP against such inaction to upload the insurance policy the Complainant was compelled to purchase another insurance from Bajaj Alliance Insurance Company.
The Complainant proved one letter dated 11.10.2022 to the Branch Manager, OP insurance company stating inter alia that despite issuing insurance policy by the OP company it was not being shown in online for which the Complainant could not succeed for renewal of the fitness. The OP company received the said letter on 11.10.2022 but the case record shows that the OP company did not take any step.
The Complainant also proved another letter dated 11.10.2022 sent to the RTO, Coach Behar stating the entire facts of the matter which the RTO received on the same day. Having received the said later the RTO replied to the Complainant by their letter dated 14.10.2022 having memo No. MV535. The Complainant proved that letter in course of trial of this case after perusing the said letter dated 14-10-2012 issued by RTO, Cooch Behar it is evident that the Complainant had reasonable grievance in as much as it is stated in the said letter inter alia that all the documents of a vehicle are required to be updated in the Vahan portal prior to appearing for fitness test. In this case the vehicles of the insurance of the aforesaid vehicle No. WGV 5599 were not uploaded in the portal which is being done from the end of the insurer. Also there is no scope for uploading the details of insurance from this end.
Thus the allegation of the Complainant was clearly corroborated by the independent witness like the RTO, Cooch Behar. So, the Complainant proved the best evidence to substantiate the allegation against the OP Insurance Company.
The Complainant further proved certificate of fitness which was taken afresh. As per Annexture-6 the said vehicle was insured afresh having policy No. 313202/31/2022/1720 dated 19.10.2022 valid for the period 19.10.2022 to 18.10.2023. The Complainant also proved the certificate of fitness for the vehicle No. WGV 5599 dated 28-10-2022.
Ld. Advocate for the Complainant argued that due to not uploading the insurance in the Vahan portal by the OP company the Complainant sustained loss for not running the vehicle for the period 19.10.2022 to 27.10.2022 and he had to purchase a fresh insurance with further payment of RS.39,669/- + fitness charge for Rs.13,990/-.
The OP could not discard the said allegation except some evasive denial that they have no latches and no liability.
The OP could not prove any document to establish the defence case that it was uploaded as per the rules of the IRDA. Therefore, it is crystal clear and evident that the OP company failed to follow the rules of IRDA. An independent witness like the RTO Department Govt. of West Bengal corroborated the case of the Complainant that despite receiving the charges for insurance policy the OP company did not upload the insurance policy for the disputed vehicle to the Vahan portal. Except a formal denial of the liability Ld. Defence Counsel could not advance any specific argument as regard the failure to follow the IRDA rules and regulation.
The OP also did not cross-examine the Complainant in regard to his compulsion to purchase a new insurance despite purchasing a previous insurance for the same vehicle. Thus the Complainant successfully proved all the documents as different annexures to substantiate his case.
Accordingly, having assessed the entire evidence in the case record and after considering the argument advanced by both the parties the Commission comes to the reasonable inference that the Complainant successfully proved the case against the OP, Oriental Insurance Company up to the hilt.
Thus its stands well established that the OP acted in a manner which tantamounts to deficiency in service against the Complainant. Points No. 2 & 3 are therefore decided in favour of the Complainant.
In the result complaint case succeed on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/59/2022 be and the same is allowed on contest with cost Rs.5,000/-
The Complainant Bishu Roy do get an award for a sum of Rs.37,546/- with up to date interest towards refund of insurance premium against the OP, Oriental Insurance Company, Rs.5,000/- per day for not plying vehicle in road for the period 19.10.2022 to 27.10.2022 i.e. Rs.45,000/-, Rs.20,000/- towards deficiency in service and Rs.5,000/- litigation cost. The O.P Oriental Insurance Company is directed Rs.1,07,546/- to the Complainant, Bishu Roy within 30 days from the date of passing the final order failing which the entire award money shall carry an interest @ 6% per annum from the date of passing final order till the date of realization thereof.
D.A. to note in the trial Register.
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 be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
