Date of Filing: 12-03-2015 Date of Final Order: 04-10-2016
Sri Debangshu Bhattacharjee, Member.
The gist of the complaint as culled out from the record is that the Complainant is the registered owner of the Tata ACE Magic vehicle bearing Registration No. WB – 63/5790. The Complainant has been plying the said vehicle on hire to carry passengers in the District of Cooch Behar for livelihood of his family. The above vehicle of the Complainant is/was insured with the Cholamandalam MS General Insurance Co. Ltd., i.e. the O.P. N0.1 vide Insurance Policy No.3368/00523164/ 004/028 valid from 30/06/2014 to 29/06/2015 and the said insurance cover was obtained through the O.P. No.2, Sri Suvonkar Paul, Insurance Officer, The Cholamandalam MS General Insurance Co. Ltd., and the O.P. No.3, the Branch Manager, The Cholamandalam MS General Insurance Co. Ltd., Siliguri Branch.
On 19/10/2014 the said vehicle was proceeding towards Baneswar with passengers, being driven by the above Complainant and while the said vehicle reached near Patimore, Kharija Sonari within P.S. Kotwali, Dist. Cooch Behar suddenly met an accident and overturned the vehicle causing damage to the said vehicle and injury to its passengers. One person namely Atul Karjee informed the above matter of accident to the Kotwali P.S, Cooch Behar and accordingly a case was registered by the Kotwali P.S. vide Kotwali P.S. Case No.986, dated 19/10/2014.
The Complainant being the insured lodged claim vide claim No.3368051090 to the above insurance company asking to indemnify the loss or damage of the said vehicle, caused due to above accident.
The Complainant took his above vehicle to Bablu Motor Works, Khagrabari, Natyasangha, Cooch Behar for repairing of his above vehicle. The said garage after inspecting the said damaged vehicle prepared an estimate of expenses to be incurred for repairing of the said vehicle and as per the estimate, the cost of repairing charge Rs.28,345/-.
After lodging such claim to the above O.P, Insurance Company the Surveyor of the said Insurance Company came at Cooch Behar and surveyed the above vehicle and took away the Original Estimate issued by Bablu Motor Works along with other documents to the satisfaction of the said Surveyor. After that the vehicle was repaired by the said Automobile Garage by paying a sum of Rs.28,345/- to the said Garage and the Complainant took delivery the vehicle.
It is the case of the Complainant that pursuant to the claim lodged before the above O.P, Insurance Company, the Complainant requested them to make early Payment of Rs.28,345/- as per the estimate of Bablu Motor Works towards re-imbursement of the claim amount for indemnification of the loss sustained by the Complainant due to the above accident.
It is the further case of the Complainant that by a letter dated 19/12/2014, the O.P. Insurance Company have repudiated the said claim on flimsy ground, as mentioned in the said letter and the said ground shown by the O.Ps are not tenable in view of the established principle of law as observed by the Hon’ble National Commission.
By such repudiation of the claim as aforesaid and non-payment of the claim amount, the O.Ps Insurance Company adopting deficiency in service and also an unfair trade practice for which the Complainant suffering from mental pain & agony and financial loss.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps to pay (i) Rs.28,345/- as re-imbursement of cost of repairing of the said vehicle, (ii) Rs.20,000/- as compensation for mental pain & agony, (iii) Rs.6,000/- for interest on un-paid claim and (iv) Rs.5,000/- towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, the Branch Manager, Cholamandalam MS General Insurance Co. Ltd., Siliguri Branch has contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.Ps is that the office of the O.P. No.2 at Siliguri and issued one insurance policy for vehicle bearing Regd. No. WB - 63/5790 from Siliguri office and the entire subject matter jurisdiction at Siliguri, so the petitioner present case is suffering from lack of local jurisdiction and liable to be dismissed with cost for such harassment. The complainant is here by required to produce and proof the F.I.R. and the Charge Sheet police report.
It is also crystal clear from the claim petition of the Complainant that the vehicle bearing Registration No. WB - 63/5790 i.e. Light Passengers Vehicle as per Motor vehicle Act, 1988 for which the aforesaid vehicle of the Complainant is a commercial vehicle, so the Complainant claim petition is not maintainable in the eye of Law.
The O.Ps further contended that the Complainant must be produce and prove for his vehicle the Registration Certificate, Authorized Letter, Road permit, valid Driving License of the driver and also Insurance Policy of the alleged vehicle bearing Reg. No. WB - 63/5790 (TATA ACE Magic) and in default it shall be presumed that there was statutory violation as per terms & condition of insurance policy as such this answering O.Ps have no liability to indemnify and no claim would be made with these answering O.Ps.
It is the case of the O.P., Insurance Company that the Complainant submitted a claim vide No.3368051090 to these answering O.P for his vehicle bearing Regd. No. WB – 63/5790 that his vehicle involved an accident and for that need the repairing of cost, after received the claim information from the Complainant as per rule of Insurance Act and I.R.D.A. norms these answering O.P give appointed one surveyor for survey the vehicle. After receiving the survey report of the said surveyor it was found that at the time of occurrence the Complainant’s vehicle bearing Regd. No. WB - 63/5790 carrying over load passenger which is not permit as per Registration Certificate and as per Insurance Policy for that these answering O.P send a letter dated 19/12/2014 to the offending vehicle owner that his claim is reproduced due to “Limitations as to use”. Therefore, there was no any deficiency in service from the part of the O.Ps.
After getting such letter dated 19/12/2014 issued by the O.P Company, the Complainant neither any correspondence with these O.P Company or not to submitted any documents i.e. F.I.R., Investigation Police officer report.
It is pertinent to mention here that as per the Motor vehicle Act, 1988 the Certificate of Registration for the vehicle bearing Reg. No. WB – 63/5790 which was issued by the R.T.A., Cooch Behar was clearly maintained the seating capacity was 7 (Seven) including driver and according to the said Registration Certificate, these answering O.P issued the Insurance Policy total seating capacity 7 (Seven) including driver for which it is the duty of owner maintain the Law and terms & condition of the insurance policy. As per the Registration Certificate, seating capacity of the said vehicle bearing Regd. No. WB – 63/5790 is 7 seater including driver but, the said vehicle was carrying the passengers more than seating capacity, it is serious violation and not maintainable according to the Motor vehicle Act, 1988 for which the owner of the vehicle violated the terms & condition of Insurance Policy. So this case is not maintainable against this answering O.Ps in the eye of Law. The O.P., Insurance Company further stated in their W/V that the surveyor’s/investigator report it is the one of the part of evidence regarding such claim for which the insurance company fully dependent on the said report. Therefore, there was no any deficiency in service from the part of the O.Ps.
By putting all these, The O.P. No.1, 2 & 3 prayed for dismissal of the case with sufficient cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
The complainant submit relevant document by making annexure 1to 8 and the OP-1,2&3 submits their relevant documents including Surveyor report and Investigator report by making annexure A and B.
Point No.1.
Evidently, the vehicle of the Complainant was insured with the O.P–I Insurance Company and the O.P-I Insurance Company issued a policy in favour of the Complainant against certain payment. The OP 2&3 are the representative of the company.
Thus, the relation between the Complainant and the O.P so established from the record we have no hesitation but to hold that the Complainant is a consumer the O.P Insurance Company under U/S 2(1)(d) of the C.P. Act, 1986.
Point No.2.
The Intermediary of the OP-I company Mr. Subhankar Paul (OP-2) CIFCO coochbehar whose code number is 201351368166 (Annexure-I) of the O.P Insurance Company is situated at Cooch Behar town and total valuation of this case is Rs.59,345/- which is less than maximum limit of Rs.20,00,000/-.
So, this Forum has territorial and pecuniary jurisdiction to try this case.
Point No.3 & 4.
Admittedly the vehicle of the Complainant insured with the O.P-I Company Ltd. being Policy No.3368/00523164/000/028 valid from 30/06/2014 to 29/06/2015. (Annexure-B).
It is the case of the Complainant that his vehicle bearing No.WB-63-5790 (Tata ACE Magic) met an accident and overturned the vehicle on 19/10/2014 at Patai more, Kharija Sonarai, P.S. Kotwali. The Complainant was driving the vehicle at the material point of time of accident. One stranger namely Mr. Atul Karjee informed the above matter of the accident to the Kotwali P.S by lodged an F.I.R (No 986, dt 19.10.2014,u/s 279/337/338 I.P.C, G.R Case No.973/14) within a short time of accident. The complainant also informed the matter to the O.P. Insurance Company Ltd and lodged claim No. 3368051090.The vehicle damaged badly and need to service for which the damaged vehicle brought to the Bablu Motors Works. The total cost of repairing assessed by the workshop is Rs.28,345/- and preferred claim to the O.P Company. On the basis of the surveyors report dated 28/11/2014 the The Insurance Company informed the complainant On 19/12/2014 by saying that “there were more than seating capacity traveling in the insured veichel including the driver ”so, they did not settle the case due to “Limitation as to use “. The accident occurs within the valid period of the policy i.e. from 30/06/2014 to 29/06/2015.
According to the chronology of facts of this case the date of accident is 19/10/2014. The surveyor submit the report 28/11/2014. The company repudiated the claim by letter dated 19/12/2014. On 12/03/2015 the complaint has been filed. On 13/04/2015 company engaged an investigator. The investigator submit his report on 05/05/2015. 0n 03/12/2015 the O.P No -1,2 &3 have filed an application for issuance of summons against(1) Atul Karjee (2) Sushma Ishar (3) Enakshi Roy , independent witness of the O.Ps. On 05/02/2016 ld.Agent of the O.Ps files evidence on affidavit of the one independent witness of Sri Atul Karji. From this fact it is not clear that why the company appointed their investigator after filing the case against them ? Why independent witnesses not come forward after receiving the notice from the forum? Why not the OPs boldly mention or emphasize on the FIR of the accident ?
The complainant claim the total reimbursement of cost of repairing of the vehicle and others. The surveyor also admitted the damage and his settlement proposal amount was much less then the claim of the complainant. The original estimate and other document was took away by the surveyor. The OPs never condemn the fact.
The representative of the OPs 1.Surveyor 2.Investigator submits their report to this forum by which the major facts of the case 1. Accident 2. Damage of the car is established. But, the company rejected the claim of the complainant on the ground that the insured vehicle was overloaded. That is the ground where the complainant claim his suffering from mental pain and agony and deficiency in service in the part of OPs.
The OPs condemn all the allegation raised by the complainant through their written version, evidence and also in written argument.
Mr. Atul Karji submits an Evidence on affidavit through the Ld agent of the O.Ps. But, did not come in front after receiving the notice from this forum. The O.Ps demand about the reckless driving of the vehicle by the complainant is not established.
In this juncture, reliance has been placed upon the ruling reported in CIVIL APPEAL NOS.49-50 OF 2016(Arising Out of SLP (C) Nos.37534-37535 of 2013) cited by the Ld. Agent for the Complainant where in Honorable In In In this juncture, reliance has been placed upon the ruling reported in CIVIL APPEAL NOS.49-50 OF 2016(Arising Out of SLP (C) Nos.37534-37535 of 2013) cited by the Ld. Agent for the Complainant where in Honorable Supreme Court observed that Overloading of a vehicle cannot be the sole ground for an insurance company to reject claims for damages caused to the vehicle in a road accident, the Supreme Court has ruled while quashing National Consumer Disputes Redressal Commission (NCDRC)'s order that loss caused to overloaded vehicle wont be compensated.
A bench of Chief Justice T S Thakur and V Gopala Gowda held that carrying more passengers than the permitted seating capacity in a insured vehicle does not amount to a fundamental breach of the terms and conditions of the policy and the insurance company could not eschew its liability towards the damage caused to the vehicle.
With his W/Ar. O.Ps submitted a copy of judgement passed by the Hon’ble SCDRC, Dehradun. But it is not considered.
In the light of the above discussions, we hold that the act and conduct of the O.Ps to our estimation must be termed deficiency in service that come within the purview of deficiency in service and accordingly that comes within the ambit of section 2(1)(g) of Consumer Protection Act, 1986. Thus, considering the facts and circumstances also relied on the documents made available in the record we are inclined to hold that the Complainant is entitled to get claim amount and also compensation for deficiency in service of the opposite party.
Hence,
it is ORDERED that,
the present Case No. CC/27/2015 is allowed on contest against all OPs with litigation costs of Rs. 5,000/-.
The O.Ps are hereby directed to pay the Complainant Rs. 28,345/- with interest @9% P.A. from the date of filing the present case i.e. 12/03/2015 till realization. The O.Ps are further directed to pay Rs.5,000/- as compensation to the complainant for deficiency in service of the O.Ps, caused mental agony of the Complainant. The ordered amount shall pay to the Complainant by the O.Ps jointly and or severally within 45 days failure of which the O.Ps shall have to pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
