BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.34/2015
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.)-President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
M/S Bhawani Cement - Complainant
Represented by Sri Shyam Lal Sharma
S/O- Lt.Shiv Dayal Sharma
Tokobari Satra, Guwahati
Kamrup, Metro, Assam.
-vs-
I) The Branch Manager - Opposite parties
New India Assurance Company Ltd.
Beltola Branch,
Opp. ASEB, Beltola, Guwahati,
Dist:-Kamrup (Metro), Assam
2) The Divisional Manager,
The New India Assurance Company Ltd.
G.S.Road,Bhangagorh,
Guwahati, Assam.
3) The Regional Manager,
The New India Assurance Company Ltd.
G.S.Road,Bhangagorh,
Guwahati, Assam.
Appearance
Learned advocate Mr.U.N.Chetia, Ms. Zenifer Rashul for the complainant .
Learned advocate Mr.Rabindra Ch.Paul for the opp. parties
Date of filing written argument:- 5.2.2019, 27.2.2020
Date of oral argument:- 12.1.2021
Date of judgment: - 10.2.2021
JUDGMENT
1) This is a complaint filed u/s 12 of the Consumer Protection Act, 1986. M/S Bhabani Cement having registered office at Athgaon, Guwahati filed this complaint who was dealing with business of wholesale and distribution of cement under registration No. 1834001122 and 18639912554 and the aforesaid company is represented by sole proprietor Shyamlal Sharma. The above named complainant filed this complaint against The Branch Manager, New India Assurance Company Ltd.,its Divisional Manager, G.S.Road, Bhangagorh, Guwahati, Assam and The Regional Manager, The New India Assurance Company Ltd. G.S.Road, Bhangagorh, Guwahati, Assam. According to the complainant, opp.party No.1 issued a standard commercial vehicle package policy by accepting the proposal of the complainant having policy No. 53070631100100001898 covering a risk period from 1.9.2010 12:00:01 A.M. to 31.8.2011 11:59 P.M. for the vehicle bearing registration No. AS 01-Q -2291. The vehicle was a commercial vehicle goods carrying model runned by diesel fuel and is open bodied having NCB . According to the complainant opp.parties are bound to protect the claimant’s vehicle under the package policy during the risk period in respect of any damage or accident or other occurrence as provided in the policy.
2) Now the actual incident is that on 12.2.11 at around 11.p.m. the vehicle of the complainant AS 01-Q -2291 while coming from Goreswar to Guwahati another truck bearing registration No. WB 25 BA-3950 proceeding in the same direction knock the vehicle of the complainant from the backside at jalijar, Amingaon highway resulting fall of the electrical post and in consequence caused fire causing damage to the vehicle of the complainant. It is submitted in the complaint that the driver of the complainant’s vehicle jumped out of the complainant’s truck and save himself , but the handyman of the truck namely Tulsiram Ghimire sustained severe burn injury in the accident and later died.
3) According to the complainant the offending truck fled away and could not traced out the driver by police. After this incident an F.I.R was lodged on 14.2.2011 with North Guwahati Police Station which was registered as Kamalpur P.S. case No. 46/2011 u/s 279/304 (A) vide GDE No.-219 dtd. 13.2.2011 and started investigation by the police .
4) The damage vehicle of the complainant was examined by MVI on 12.2.2011 and complainant intimated opp.party about the accident and filed claim form for loss/damages by his intimation letter No. 530706/2010-11 and estimated the loss of around Rs.20,00,000/- (twenty lacs) appox and repairing cost of Rs. 3,30,000/- (three lacs thirty thousand)only. After receiving the claim intimation and the opp.party appointed surveyor and loss assessor for assessment of damage. The surveyor visited the spot to assess the loss on 11.5..11 and complainant submitted his claim documents before the opp.party No.1 for settlement of the claim.
5) Thereafter on 18.5.12 the complainant sent a reminder of the claim to the opp.party no.1 and he also visited the office of the opp.party No. 1 & 2, but the matter was not settled . That on receipt of letter dtd.18.5.12 opp.party No.3 by a letter dtd. 3.7.12 informing the complainant for submitting the bill and cash-memos after necessary repairs and arrangement of re-inspection of the vehicle taking photographs along with the salvage which is mandatory for the settlement of the claim and final survey was conducted by the surveyor.
6) The complainant stated that later on by a letter No.NERO/CCH/BRK/2012/223 dtd. 12.7.12 asked the complainant for submitting bills and cash-memos and arrangement for re-inspection of the vehicle for taking photographs along with salvage which is mandatory for settlement of the claim and requested the claimant and repairing the vehicle as advised by the surveyor for reimbursement of the assessed loss and inform the opp.party within 7 days from the receipt of the letter.
7) It is submitted that surveyor visited the spot twice for inspection at the spot of the accident and he was asked to submit the estimate of damage which was already submitted. Thereafter complainant had not received any telephonic reminder and reminder through letter and nor the complainant was asked to repair the vehicle by the surveyor. The complainant asked the opp.party for instruction on legal formalities required to fulfill for the reimbursement of the claim as he was suffering a loss for last 16 months. However on 23.7.12 complainant by a letter requested extension the intimation period for submission of documents to the opp.party No. 1,2 & 3 in reference to a letter No. NERO/CCH?BRK/2012/223 on 17.7.12. Again on 13.8.12 complainant requested the opp.party No. 3 to look into the matter seriously to release the claim without further delay. But there was no reply and thereafter the complainant issue reminder letter on 28.9.12, 24.10.12, 20.11.12, 18.12.12 and 23.1.13 for settlement of the claim , but no reply was there from the op.party. It is submitted that the vehicle of the complainant is still lying in his garage due to non-repairing and in consequence the complainant sustained loss of Rs. 3,00,000/- (Rupees three lacs)only being the repairing cost in addition to the aforesaid amount the complainant suffered commercial loss amounting to Rs. 9,00,000/- (Rupees nine lacs) only besides mental agony amounting to Rs. 5,00,000/- (Rupees five lacs) only all total claim of Rs. 15,00,000/- (Rupees fifteen lacs) only has been made by the complainant. All relevant documents and letters are annexed with the complaint petition by the complainant.
Reason for decision
8) The opposite party contested the proceeding by filing written statement stating that the case is liable to be dismissed in absence of any ground constituting deficiency in service. The opp.party disputed the complaint petition alleging that complainant Dulichand Sarma is not an athorized person by the insured of the vehicle and as such complaint petition is liable to be dismissed. It is alleged further that M/s Bhawani Cement is not the owner and as such complaint petition is liable to be dismissed. The contesting opp.party further denied the content of complaint petition parawise and submits that occurance of alleged accident is not known to the opp.party and burden of prove lies upon the complainant .
9) The fact narrated by the opp.party in their written statement is that the answering opp.party on receipt of informaiton appointed a surveyor to make an enquiry on alleged damaged of the vehicle which caught fire due to falling of a electric post in the accident and loss suffered by the complainant. Moreover, the complainant submitted the required claim documents to the opp.parties which were found irrelevant. Thereafter, the opp.party took steps to settle the claim finally, but the insured of the said vehicle did not submit the necessary documents as required to settle the claim in time and as such it is claim that this complaint is liable to be dismissed .
10) The pleading of the opp.party is that by a letter dtd. 12.7.2012 complainant was informed about the requirement of the documents , but complainant have not submitted his documents and as such complaint petition is liable to be dismissed with cost as alleged by the opp.party.
11) Having heard argument from both the sides it appears to us that the question of dismissal of the complaint due to filing the petition by an unauthorized person is to be decided first. The document produced as Ext. 1 Irrevocable General Power of Attorney is in favour of complainant Dulichand Sarma who is the attorney holder of M/S Bhawani Cement. Ex.2 the policy cover is also in the name of Dulichand Sarma, the complainant in respect of the vehicle bearing registration No. ASo1 Q 2291 . As such filing of complaint as well as claim petition by the complainant cannot be turmed as without jurisdiction and authorized person on behalf of the complainant company. Hence this issue is found in favour of the complainant.
12) Let us now determine whether the fact narrated by the complainant in his petition is correct and believable . So far accident is concerned it took place on 12.2.11 at around 11-30 p.m. and as to the veracity of the fact we have taken notice of the copy of F.I.R. exhibited vide Ext.3 by the complainant which corroborated the alleged fact of accident and there is no reason to disbelieve the motor accident as stated by the complainant. The fact about the accident of the insured vehicle is found undisputed and Ext.2 was valid from 1.3.2010 - 12 midnight to 31.8.2011 -11:59 p.m. The motor accident took place on 12.2.2011 at 11-30 p.m. As such it was within the validity period of the insurance policy and in our opinion without repudiation of the claim on valid ground the insured is entitled for damages as per terms and condition of the policy.
13) We have gone through relevant documents filed by the complainant. Ext.4 the MVI report and Ext.5 the survey report dtd. 3.5.2011 is with record and these two records have established the fact that the vehicle of the complainant got damaged in an motor accident and the cabin was damaged due to impact of an electric post. By Ext.6 complainant company sent a reminder for the disbursement of the claim as his vehicle was lying in a damaged condition from the day of accident which was received by the opp.party on 21.5.2011. Ex. 6,7 & 8 are the vouchers from Himmatsingka Auto Enterprises and the total amount for the repairing of the vehicle by the dealer was Rs.1,88,843/- (Rupees one lakh eighty eight thousand eight hundred forty three )only . Again by Ext.9 complainant received a letter from op.party No.3 on 12.7.12 where he was requested to repair the vehicle as advised by the surveyor and informed the opp.party within 7 days . Thereafter the complainant have made no explanation about reply of the letter as required by Ext.9, but issued a letter vide Ext.10 for extension of period for submission of documents. Again by Ext.11 reminder was issued by the complainant for response of his claim. Similar reminder was issued vide Ext.12 , Ext.13, Ext.14 and Ext.15 continuously. The evidence of the complainant is that till 18.12.2012 he issued several reminder to the opp.party for doing the needful to release the claim amount. This witness was thoroughly cross examined by the contesting opp.party on different aspect of the matter , but we do not find any contradictory fact admitted by the claimant . In such a situation we are of the view that complainant was put in trouble without providing appropriate service by the opp.party in disbursing the claim amount and disposing the claim of the insured. Hence there is a clear negligence found on the part of the opp.party in rendering services to the insured on flimsy ground.
14) We again carefully scrutinized the testimony of opw 1 Dulal Kr.Pushilal who testified documents Ext.A and Ext. B which are later admittedly issued by the opposite party to the complainant . Issuing of such letters by opw 1 is not sufficient in rendering service to the insured by declaring the amount at Rs.29,715/- on 3.7.2012 vide Ext.A without any bill or vouchers from the authorized workshop which is assessed by the surveyor without any supporting documents and bill etc. The complainant was asked to submit vouchers bills etc, indirectly by their letter Ext. A is found unjustified for closure of the claim. Noting that re- inspection of the vehicle will be considered for reopening of the claim. Ext.B is something like a ultimatum to the insured claimant stating that no further correspondence will be entertained.
15) After due consideration of the entire fact as discussed herein above we unanimously come to an opinion that the role played by the opp.party at the time of damage of a insured vehicle is not satisfactory and repairing cost and vouchers etc. as submitted by the complainant in his evidence are found more believable than the statement made by the opp.party on the basis of surveyors report . As such , we are of the view that there is a damage along with losses of business of the complainant for not reimbursing the claim to make the commercial vehicle running condition within minimum period of time. There is no clear word of repudiation of claim on Ext.A and B and the claim has been kept partially open for the complainant .
16) In the result the case is decreed in favour of the complainant for payment of compensation etc. as ordered below.
ORDER
I) It is decided that complainant is entitled for reimbursement of actual expenditure by the insurance company as per voucher issued by Himmatsingka Auto Enterprise Ex. 7 & 8 amounting to Rs.1,88,843/- (Rupees one lakh eighty eight thousand eight hundred forty three)only along with an interest of 6% per annum from the date of filing the complaint till realization .
II) The complainant is further entitled for the loss of business amounting to Rs.,2,00,000/-(Rupees two lakh )only .
III) The claimant is again entitled for Rs. 1,00,000/- for causing mental agony and harassment by the opposite party .
All the opp.parties are jointly and severally liable to make the payment within 45 days from the date of judgement failing which opp.party had to pay an interest @12 % on the entire decretal amount till payment.
Given our hand and seal of the District Commission , Kamrup, this the 10th day of Feb.2021.
Smt A.D.Lahkar Md J.Islam Shri A.F.A Bora
Member Member President
DCDRC,Kamrup DCDRC,Kamrup DCDRC,Kamrup
Dictated and corrected by me
Shri A.F.A Bora
President
DCDRC ,Kamrup
Typed by me
Mrs Juna Borah
Stenographer
DCDRC,Kamrup
