Hon'ble Mrs. Rumpa Mandal, Member.
The legal battle between the parties summarized through their respective pleadings are reproduced herein below to the effect that the complainant Sri. Kalyan Kumar Majumdar for his self employment purchased one commercial vehicle temporarily bearing no WB73T5298 (Bolero Plus) with the financial assistance of Mahindra Mahindra Finance Company Ltd. The Complaint also got his vehicle insured from the Iffco Tokeyo General Insurance Co. Ltd. through their local agent vide policy No#1-8SGQIXOP400 policy#: 69840955 for the period from 28.02.2017 to 27.02.2018 and the value of the said yearly premium was Rs.30,379.72/- on 12.08.2017 terrible flood appeared & vast area affected due t over flooded with water and the complainant had no proper time for shifting the vehicle. This fatal natural incident had been published in Uttarbanga Sambad dt.13.08.2017. The said incident occurred during the validity of the insurance policy. Complainant having found no other alternative way, sent a rapid massage to the Iffco Tokeyo General Insurance Co. Ltd through telephone which is printed in the policy deed as well as with the OP No.4. The said vehicle had been brought with the other at O.P. No.4 i.e. Khokhen Motors works Pvt. Ltd. and O.P. No.4 started for repairing the said vehicle as per instruction of O.P. No.1 & 2. Thereafter, Complainant received a massage from O.P. No.4 and it revealed that a bill for mending of the vehicle amounting to Rs.3390/- including tax and got another information. Complainant attended at O.P. No.4 to fetch the mended vehicle from O.P. No.4 on 12th January, 2018. But after arrival before the O.P. No.4 an estimated bill had been prepared with amount Rs.1,40,775/- for activities and fetching the vehicle on hearing the unethical activities & silence of OPs complainant become extremely sorrow within the period of insurance claim. Complainant admitted to pay of Rs.33,090/- but not for Rs.1,40,775 at any cost. In spite of several contacts all efforts made by complainant went in vain due to non-co-operation of O.Ps and the said vehicle is lying till at garage of O.P. No.4. Finding no other alternative complainant files this complaint petition before this Commission. So, according to the Complainant, the act of the OPs are illegal and there is deficiency in service on the part of the OPs. So, the complainant has prayed for direction upon OP to provide insurance claim amount of Rs.1,40,775/- Rs.1,00,000/- for his deficiency in service and Rs.1,00,000/- for his mental pain & agony and Rs.15000/- for cost of litigation.
The O.P. No.1, 2, & 3 contested the case by filing written version evidence on affidavit and written argument. It was admitted fact on behalf of the O.P. that the said vehicle was duly insured with them. The O.P. No. 4 filed written version dated 16.01.2020 which is mentioned vide Order No. 12. Thereafter, O.P. No.4 did not take any steps. So, the case has been heard ex-parte against O.P. No.4 dated 30.05.2022 vide order No.32.
The positive defence case in brief is that the disputed vehicle was purchased with a loan from Mahindra Finance, Siliguri Branch which is hypothecated with Mahindra Finance. So the financer is a necessary party. In absence of the financer the case is bad for non-joinder of parties. Similarly, the dealer Sona Wheels is also a necessary party in absence of then the case is bad for defect of parties. The vehicle was purchased and insurance was done through online SIliguri Office. So, the entire subject matter is within the jurisdiction of Siliguri. Hence, this Commission has no local jurisdiction. Similarly, the vehicle was registered temporarily with RTO Siliguri under Alipurduar therefore it is barred by jurisdiction. The Complainant did not inform to the OP that the vehicle was given to Khokon Motors. The Complainant informed the matter in dispute to the OP after 74 days, so there is no deficiency in service since it is the duty of the owner to inform the insurance company within 24 hours. So there is no deficiency in service due to violation of terms and conditions of the insurance policy.
After getting information the OP sent a surveyor Mr. Bebekanda Bhaduri. So there is no deficiency in service by the OP. Since it is report of the surveyor that vehicle was sink in to the water and water entered in the engine, so the claim is not admissible. Any mechanical problem is not the burden of insurance company which actually lies upon the manufacturer i.e. Mahindra & Mahindra. The Op claimed that the case is liable to be dismissed with cost.
The specific allegation of the Complainant and the respective denial thereof by these O.Ps vis-à-vis this specific defence case of the OP persuaded this Commission to ascertain the following points in dispute.
Points for Determination
- Whether the case is maintainable or not?
- Whether the Complainant is entitled to get relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The O.Ps challenging this case as not maintainable on the ground that the Complainant purchased the said vehicle for commercial purpose and as such he is not a consumer.
After perusing the pleading it transpires that the Complainant categorically stated in Para No.05 that the Complainant arranged to ply the said commercial vehicle for maintaining his livelihood. The OP in reply to the said positive assertion stated categorically that is out of the knowledge of the OP. Thus the OP has made an evasive denial. Accordingly, the claim of the Complainant that is was purchased for earning his livelihood stands well established.
In regard to the other objections raised by the OP, after perusing the pleadings of the parties and the evidence on record the Commission comes to the findings that the case is not barred by limitation and maintainable in its present form and prayer.
Point No.1 is accordingly answered in favour of the Complainant.
Points No.2 & 3.
These points relate to the ascertainment as to the entitlement of the relief claimed.
The main defence of the OP in regard to the specific claim of the Complainant is that there was machinery problem which is not covered under the insurance. It is just an engine problem. There was no damage. Since it was kept under unsafe condition so it was damaged. The insurance company is fully dependent upon the surveyor. After verification it was found that the car was not started due to heavy flood. The insurance company is not liable for mechanical defect of the said vehicle.
On the basis of the aforesaid objections raised by the O.Ps let us have a close scrutiny and assessment of the evidence on record.
The Complainant in order to substantiate the case proved different documents in course of evidence. It is the admitted position that the disputed vehicle was insured. Annexure-A is the insurance policy of the said vehicle in the name of the Kalyan Majumdar. Annexure-B is the certificate of registration. Annexure-C is an important document being a report of local news paper of the relevant time dated 13th August, 2017 of Uttarbanga Sambad containing a head line that the entire Alipurduar was flooded and under water.
The said situation caused inundated area the disputed vehicle was also soaked with water. This situation was beyond the control of the Complainant. A natural disaster like flood is out of control of the human being. Insurance for a vehicle is usually done to prevent damage from unforeseen situation like fire, flood, earthquake etc.
Therefore the defence plea that insurance company is not liable for mechanical defect is not acceptable.
Ld. Advocate for the Complainant rightly argued that the said defect of not starting the car was caused due to heavy flood.
The OP also contended that there was about 74 days delay. After perusing Annexure-E it transpires that the Complainant left no stone unturned for redressal of his grievance. Annexure-F also being a letter dated 24.10.17 which also discloses about different correspondences for early settlement of the claim dispute.
Annexure-G, H & I are different letters sent by the Complainant to the O.Ps for settlement of t claim dispute.
Annexure-G further discloses about the charge of vehicle wherein the Complainant was asked to pay the said bill. Annexure-J1, J2 and Annexure-K corroborate the claim of the Complainant.
In addition to all the aforesaid documents, the best document in this regard is the survey report filed by the OP being Annexure-A wherein it is admitted that this is flood related claim but the insured lodged this claim after two months. This is delay intimation case.
Thus, the survey report admits that it is flood related dispute. Now about the delay the Complainant filed a case law being reported in 2015 CJ 360NC wherein it was decided that insurance claim must be settled or rejected within two months.
Ld. Advocate for the Complainant argued that the O.Ps did not inform to the Complainant that the claim was repudiated.
In the said case law it was also decided that reasonable time for settlement is two months. Therefore relying upon the said decision on the plea of the report about repudiation of the claim is not acceptable.
Ld. Defence Counsel in referred to a decision reported in (2017) 3WBLR (CPNC) 170 wherein it was held that if the car is for commercial purpose the case is not maintainable. Against the said decision the Complainant filed a ruling reported in 2015 CJ 360 (NC) wherein it was held that if the vehicle is used for earning livelihood it is not commercial purpose.
Ld. Defence Counsel also referred to another decision reported in (2002) 2 WBLR (CPNC) 670 wherein it was held that claim repudiated as fraudulent civil Court will be proper Forum. Complaint dismissed.
The case law does not apply because as per survey report that claim is genuine but due to delay the claim was repudiated. In view of the facts of the reported case and the case in hand the said case law is not applicable.
In view of the aforesaid discussion and findings reached thereon the Commission comes to the conclusion that the Complainant successfully proved the case up to the hilt.
Points No. 2 & 3 are accordingly decided in favour of the Complainant.
In the result the Complainant case succeeds on contest.
Hence, it is
Ordered
That the complaint case No. CC/91/2019 be and the same is allowed on contest with cost of Rs.5000/-.
The Complainant do get an award for Rs.1,40,775/- towards insurance claim, Rs.25,000/- towards deficiency in service and Rs.10,000/- towards mental pain and agony.
The O.P. No. 1,2,3 & 4 are jointly and/or severally liable to pay Rs.1,80,775/- (Rupees One Lakh eighty thousand seven hundred and seventy five only) to the Complainant 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 Final Order till the date of realization. The case is finally disposed of.
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 is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
