Date of filing:-09/05/2017.
Date of Order:-01/05/2019.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complaint No. 23 of 2017.
Prasanta Kumar Mahanty, S/o Gagan Kumar Mahanty, aged about year, Occupation- Service, R/o and P.o. Netaji Nagar, Po. Rajborasambar, Padampur Dist-Bargarh. ..... ..... ...... ...... Complainant.
-: V e r s u s :-
The Branch Manager, New India Assurance Company Ltd., Bargarh Branch, P.o/Ps/Dist-Bargarh. ..... ..... ..... .....Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri K. Sahu, Advocate with other Advocates.
For the Opposite Party:- Sri A.K. Dash, Advocate.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.01/05/2019. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief Facts of the Case: –
In pursuance to the Provision U/S 12 of the Consumer Protection Act 1986, the case has been filed with an allegation of deficiencies in rendering service and unfair trade practice on the part of the Opposite Party enumerated as follows.
The Complainant being a personal car owner by the make and model of the Car as Chevorolet having it’s Registration No. OR-17-B-4345 and Engine Number 10 CIZ133050145 and Chassis Number MA6HBELADDHO 15117, have been using for his personal purpose, insured the said Car with the Opposite Party on it’ said basis by paying the required amount of premium.
On Dt.26.02.2016 during the subsistence of the policy period the said car while moving towards Bargarh from Padampur carrying the Aunt and some of relatives, met with an accident under Bijepur Police Station being dashed with a tractor bearing it’s Regd No.OD-17-1702 due to the rash and negligent driving of the said Tractor driver causing thereby heavy damage to the said Car and also causing personal injury to the driver and it’s co-inmates. Further causing financial and physical injury to the Complainant in repairing the said Car and the persons moving with the same for which immediately thereafter the matter was reported before the Police Station, Bijepur.
Subsequently thereafter the Complainant placed his claim before the Opposite Party for making good of his claim due to such accident as it was within the policy coverage period and also supplied with all documents to the Opposite Party as and when required by him but in spite of the best co-operation given by the Complainant, the Opposite Party repudiated his said claim with some baseless ground that the same was used for private purpose violating the policy condition thereby causing mental physical and financial harassment, which of such acts of the Opposite Party in his view is deficiencies in rendering him service coupled with unfair trade practice on the part of the O.P.
Thus the cause of action for filing the case against him arose on Dt.24.03.2017 when he served a Pleader Notice through his pleader with a claim of Rs.1,60,000/-(Rupees one lakh sixty thousand)only against the insurance claim against the damage caused to the vehicle and Rs.50,000/-(Rupees fifty thousand)only against his mental and physical harassment but to no effect. And in substantiation of his such case has relied on some Documents:-
Policy details of the vehicle.
Office copy of the Pleader Notice Dt.22.03.2017 and the postal slip Dt.24.03.2017.
Having heard the matter placed by learned counsel for the Complainant and on perusal the complaint and the accompanied documents, prima facie, it seemed to be a genuine case hence admitted and Notice was served on the Opposite Party and responding the same the Opposite Party appeared through it’s Advocate and filed it’s version before the Forum.
The rival contention of the Opposite Party is a complete denial of the averments made by him solely on the ground that though it is an admitted fact that the car was insured by the Complainant but the same was insured under private car package policy but the same has been used for commercial purpose at the relevant time by carrying passengers thus violating the policy terms and condition furthermore has failed to prove the same alleged facts of the purpose of the movements of the same coupled with failure of providing required documents before the Opposite Party thus has claimed to dismiss the case being devoid of merit under the Act.
In furtherance to his version has contended that after getting information of the alleged accident they have taken care of the same in deputing it’s surveyor for assessment of the loss caused to the vehicle and to investigate in to the matter and also has arranged to fetch copy of the Police investigation report where from it has been observed that policy condition has been violated by the Complainant and thus the allegation with regard to deficiencies in rendering service and unfair trade practice on their part is a futile one hence has claimed to dismiss the case against it. And to substantiate it’s case has relied on the following Documents:-
Copy of the F.I.R. of Charge sheet & statements of witness recorded by the I.O. U/s,161 CRPC in G.R. Case No.143 /2016 pending in the Court of J.M.F.C., Sohela.
Report of investigator Mr. Anand Mahakud Dt.27.07.2016 in connection with G.R. Case No.143/2016 of JMFC, Sohela.
Photo Copy report of Surveyor Er. Mukunda Sahu Dt.05.04.3016 in respect of the Vehicle bearing No-OD -17-B-4345.
True Copy of Insurance Policy in respect of vehicle bearing No.OD-17-B-4345.
Affidavit filed by Mr. Sushanta Kumar Mohapatra, Asst. Manager New India Assurance Co. Ltd. Bargarh Branch Dt.20.08.2018.
Having gone through Complaint, version and the accompanied documents of the parties, it is observed that the following issues are to be adjudicated for the proper appreciation of the case.
Whether the case is maintainable, and whether there is any deficiencies in rendering service and unfair trade practice on the part of the Opposite Party is there or not ?
To what relief the Complainant is entitled for ?
While dealing with Issue No.1(one) as to whether the case is maintainable, in this context delving deep in to the materials available in the record, it is observed that the Complainant has admittedly paid the required amount of premium and the Opposite Party has issued with the policy bond to that effect and also it is not disputed that the said accident has taken place during the subsistence of the coverage period of the policy period and the claim of the Complainant consequent upon the said accident has been repudiated by the Opposite Party with certain condition as envisaged in their such letter which also reflects in their version, therefore it is an admitted fact that there is some dispute among the parties and for it’s redressal the case has been filed, hence in our view the case is maintainable.
And with regard to the allegation of the deficiencies of service and unfair trade practice on the part of the Opposite Party having gone through the materials available in the record that at the relevant time of the accident as per the Complainant his aunts along with some of his relatives were moving in the said vehicle to which the Opposite Party has claimed that those passengers moving in the vehicle are not his relatives rather the same was carrying some passengers in hire basis which amounts to violation of the policy condition as such are not entitled to any compensation. So in this context we vividly verified the surveyors report and other relevant documents and also perused the affidavit and counter affidavit of both the parties and we observed that the said surveyors of the Opposite Party have prepared their report only on the basis of the police papers and the examination of the witness and the passengers moving in the said vehicle U/s 161 CRPC by the I.O. of the case vide GR Case No-143 of 2016. And the said surveyors have also assessed the loss of the vehicle due to the accident out of which it is observed that the aforesaid statement is the only basis of the report but to our observation as per law the sole recording of the statements of the witness by the I.O in a Case U/S.161 CRPC is not the conclusive evidence unless and until those are properly examined and taken in to evidence by the court of law hence such a piece of statements cannot be used against the claim of the Complainant as a piece of evidence to defy that the vehicle was used by his relatives in a personal manner without any fare for the same.
In furtherance to our observation it reveals from the surveyor report he has been asked to survey the same after one month from the date of accident and the survey is also made in the absence of the Complainant which is bad in law as has been held by different authority in many occasion furthermore the surveyor has only examined the Police paper instead of visiting the spot and to the nearby place of the residence of the Complainant or other source where from he could have better investigate in to if the same vehicle was used to personal use or for business purpose. In addition to the above observation it is also reflected in the limitation of use of the vehicle in a column of limitation of use the policy terms and condition that in case of a private package of policy of a vehicle the following condition is used to ( the policy covers use of vehicle for any purpose other than (a) Hire or Reward (b) Carriage of goods(other than samples or personal luggage © Organized racing (d) Pace making (e) Speed testing (f) Reliability trials (g) Any purpose in connection with Motors trade). And to our observation no policy condition proved to have been violated by the Complainant in using the same. It is also observed from the surveyor report that the vehicle was being driven by an authorized driver having valid license at the relevant time, from all such observation it can be safely deduced that there is no impediments in allowing the claims of the Complainant which he has not done so and repudiated the same, which amounts to deficiencies in rendering him service coupled with commitment of unfair trade practice in our prudent view, hence it is assertively answered in favour of the Complainant .
Secondly while dealing with the issue as to what relief the Complainant is entitled to, in this regard it is observed from the claim of the Complainant he has nowhere mentioned in his complaint for any particular amount with regard to damage and repair of the vehicle though has claimed for the same but for an amount of Rs. 50,000/-(Rupees fifty thousand)only against claim for his financial and mental agony, hence in our vigilant view we take the report of the surveyor with regard to his assessment of loss caused to the vehicle in it’s repair and parts used in it as final i.e Rs.1,12,000/-(Rupees one lakh twelve thousand)only as full and final settlement of the claim amount of the Complainant and Rs.5,000/-(Rupees five thousand)only with respect to his mental and financial loss due to the same. Accordingly our view is expressed in favor of the Complainant, hence our order follows.
O R D E R
Hence the Opposite Party is directed to pay an amount of Rs.1,12,000/-(Rupees one lakh twelve thousand)only with an interest @ 8%(eight percent) per annum from the date of filing of the case till the date of Order to the Complainant and also to pay an amount of Rs.5,000/-(Rupees five thousand)only in lieu of compensation for his mental agony and financial harassment caused to him by such act of the Opposite Party within thirty days from the date of receipt of the Order, in default of which the entire amount would carry an interest @ 16 %(sixteen percent) per annum till the actual date of realization of the entire amount.
Accordingly the order is pronounced in the open Forum and the same is disposed off to-day i.e. on Dt.1.05.2019.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree,
( Ajanta Subhadarsinee)
M e m b e r (W)
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