FINAL ORDER / JUDGEMENT

Sri. Apurba Kr. Ghosh ……….President

The Complainant have filed this case against the OPs u/s 11 & 12 of the Consumer Protection Act 1986 and praying for the following order / reliefs:-

1. Direction against the O.Ps. to replace the vehicle by a new one or return the insured value of the vehicle amounting to Rs. 5,60,000/- only to the complainant.
2. Direction against the OPs to pay a sum of Rs. 2,50,000/- to the complainants towards compensation for harassment and mental pain, agony suffered by her.
3. Direction against the OPs to pay a sum of Rs. 50,000/- to the complainants towards professional fees of the lawyer and other expenses of the proceedings.
4. Any other relief/reliefs to which the complainants are entitled as per law.

   BRIEF FACT OF THE COMPLAINT

1. That the complainants are the peace loving and law abiding citizen of India.
2. That, Md. Yasin who was husband of the petitioner No. 1  and father of the petitioners No. 2 to 6 was  the registered owner of the vehicle (LMV Car) bearing Registration No. WB-14-AA/5320, having Chasis No. MAZBXXMRTBCY4196, having Engine No. CY41698, Maker Name Ford India Ltd. Fiesta Classic Titanium, year of manufacturing 2012.
3. That, the petitioner No. 1 is wife petitioners No. 2 to 5 are the daughters and petitioner No. 6 is the son of the deceased Md. Yasin who inherited the said vehicle by virtue of law of inheritance.
4. That, on 04.06.2015 the said Md. Yasin along with his wife (petitioner No. 1) went to Thakurganj Bihar on his vehicle and while they were returning from Thakurganj to Siliguri at 12.45 PM they met with an accident with a vehicle bearing in registration No. BR-37/E1368 at Zilebia More, Gas Godown, P.O. & P.S.- Thakurganj, Dist.- Kishanganj and both of them sustained injuries and subsequently the husband of the petitioner No. 1 had died.
5. That, due to the said accident the  vehicle of Md. Yasin became damaged and the complainant No. 1 informed the incident of accident to the OP no. 1 as the vehicle of Md. Yasin being in No. WB-74-AA/5320 was duly insured with the OP No. 2 and the same was covered with insurance policy having policy No. FOP1088286000100 which was valid from 28.02.2015 to 27.02.2016.
6. That the premium of Rs. 13,937/- was duly paid by Md. Yasin for the assured value of the vehicle amounting to Rs. 5,60,000/- only.
7. That, after the accident the incident of accident was informed to the OP No. 2 over phone but as per his advice the matter was informed in writing.
8. That, on 23.06.2015 the complainants had submitted all the relevant documents along with claim application to the OP no. 1 as per its demand and the claim was being in No. PV00227657.
9. That, after the accident the surveyors of the OP had verified the vehicle, took its photographs, admitted by the surveyors that the vehicle had been damaged fully and the authorized service center of Ford India Ltd. had also declared that, the vehicle was not in repairable condition.
10. That, since the date of the accident the vehicle is lying with the authorized service center of Ford India Ltd. Namely M/s Bansal Automotive Pvt. Ltd. and several communication was made between the complainants and the OP’s in respect of the claim of the insured value of the vehicle and on every occasions the OP’s assured the complainant’s that, they will get the insured value of the vehicle.
11. That, despite receiving all the relevant papers from the complainants the OP’s have started to harass the complainants by demanding papers and on 08.07.2016 the OP’s issued a letter in the name of the deceased Md. Yasin demanding documents knowing fully well aware that, he has already died/ again the complainants  in compliance of the letter of the OP’s visited the office of the OP No. 2 and again submitted all the documents to the satisfaction of the OP No. 2.
12. That, on 09.01.2017 the OP’s have again sent letter to furnish some documents which the complainants have again submitted all the documents and thereafter the complainant No. 1 on several occasions visited the office of the OP No. 2 when he told that the matter was on process.
13. That, in the month of January 2018 the OP No. 2 demanded the NOC from the financier of the vehicle as at the thime of accident the vehicle was hypothecated to Mahindra Finance and on 23.03.2018 the complainant had paid the settlement amount to Mahindra Finance, Obtained NOC and the complainant had communicated to the OP No. 1 and the OP’s have started calling the complainants to visit their Regional Office at Kolkata and Head Office at Chennai and on 23.05.2018 the complainant No. 1  went to Kolkata office of the OP No. 1/ again submitted documents but the regional office denied to put endorsement after receiving those documents.
14. That, thereafter the complainants have made several communications with the OP’s through  mail for settlement of the claim and they replied that, they will respond within three working days and they asked to submit the policy number, contact number though the same  were previously supplied to them.  
15. That, the vehicle is still now lying in the service center of Ford India Ltd. and the same is not in repairable condition but they neither settled the claim nor denied the same which is unfair trade practice of the OP’s.
16. That, the cause of action of this case arose on 28.02.2015 when the vehicle was insured by the OP’s and issued insurance policy being in No. FOP1088286000100 and on 04.06.2015 when the vehicle met with an accident and police started Thakurganj P.S. Case No. 151/15 and on 22.06.2015 when the incident of accident was informed and on 23.06.2015, 08.07.2016, 09.01.2017 when they issued letters, on 23.05.2018 when the complainant No. 1 visited the Regional Office of the OP’s at Kolkata, on 07.06.2018 when the OP’s have  made reply to the mail of the complainants on 18.06.2018 when the complaints have issued notice to the OP which was duly received on 20.06.2018 and 19.06.2018 and on each & every day when the petitioner  had visited the office of the OP No. 2.

In support of the complaint the complainant has filed the following documents:-

1. Registration Certificate of vehicle (LMV Car) bearing Registration No. WB-74-AA/5320 in the name of Md. Yasin.
2. Insurance policy, having Insurance Policy No. FOP 1088286000100 which was valid from 28.02.2015 to 27.02.2016 in respect of Vehicle, bearing Registration No. WB- 74-AA/5320.
3. Death Certificate in the name of Md. Yasin.
4. Accident Report dated 17.08.2015 issued by the Motor Vehicle Inspector, Kishanganj.
5. Letter dated 22.06.2015.
6. 6 numbers of Mail communications.
7. Letter dated 08.07.2016 issued by the Ops.
8. Letter dated 09.01.2017 issued by Ops.
9. Settlement letter dated 23.03.2018 issued by M & M. Financial Service Ltd.
10.  Advocate Notice dated 18.06.2018.
11.  2 numbers of postal receipts.
12.  2 numbers of A/D.

Notice was issued from this Commission which was served upon the OPs. On receipt of notice the OP No. 1 has appeared before this Commission through Vokalatnama filed its written version, denied all the allegations of the complainants.

In the written version the OP no. 2 has stated that, the complaint is not maintainable either in facts or in law/ the complaint is premature/ the complainant has no cause of action/ for want of documents the OP’s have neither rejected nor admitted the claim and in absence of necessary documents the OP’s are unable to process the claim. It is also stated in the W/V of the OP No. 2 that, previously private car package policy was issued by the OP’s in favour of Md. Yasin in respect of the vehicle Ford Fiesta Classic bearing in Registration No. WB-74-AA- 5320 for the period of coverage 28.05.2015 to 27.05.2016 subject to terms and conditions of the policy ( Document No. 1). It is also stated by the OP no. 2 that, the complainant lodged a claim with respect to accident which was occurred on 04.06.2015 vide claim form and there was delayed intimation of the claim and the claim was reported on 07.01.2016 (Documents No. 2)/ The OP’s have arranged for survey of the vehicle on the same day of intimation on 07.01.2016 who assessed at net loss of Rs. 4,52,846/- (Document No. 3)/Thereafter OP’s have sought for certain documents through letter dated 24.03.2017 (Document No. 4) / that, the complainant did not submit the claim documents and thereby violated the policy condition NO. 1/  the claim is still pending for requisite documents from the complainants and the OP’s have not any deficiency of service as well as restrictive trade practice. The OP No. 2 has referred decision of II (2010) CPT 237 (NC).

By filing the written version the OP No. 2 has stated that the complaint is premature, without having any cause of action the complainant has filed this case and the complainant is not entitled to receive the entire IDV of the vehicle and only entitled to get the assessed amount as determined by the surveyor and the compensation/costs sought for are highly exaggerated and not tenable.

Despite receiving notice the OP no. 1 did not file any written version, evidence as well as brief notes of argument and that’s why the case is preceding ex-parte against the OP no. 1.

Having heard the Ld. Advocate of both the sides and on perusal of the complaint, written version, documents of the parties the following points are taken to be considered/decided by this Commission.

POINTS FOR CONSIDERARTION  

1. Whether the Complainants are a consumer?
2. Whether the case is maintainable under the C.P. Act?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainants?
4. Is the Complainants entitled to get any award and relief as prayed for as per the prayer of her Complaint?

Decision with Reasons

 All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

The Complainants were given liberty to file their evidence. In order to prove the case the complainants have adduced written evidence in the form of an affidavit. In the written evidence the complainants have corroborated the entire contents of the complaint.

At the time of argument Ld. Advocate of the complainants argued that, the complainants have been able to prove the case against the OP’s by producing written evidence and also by producing several documents. It is further argument of the complainants that, immediately after the incident of the accident the complainants have intimated the incident to the OP’s not only verbally but also in writing as per direction of the OP No. 2. He also argued that on several occasions the complainant No. 1 supplied all the required documents to the OPs for settlement of claim of insurance which they acknowledged but they neither repudiate the claim nor they disburse any claim amount in favour of the complainants though it is within their knowledge that the incident of accident was happened within the effective policy period.

The OP No. 2 with a view to falsify the case of the Complainants adduced evidence in the form of an affidavit. In the written evidence the OP No. 2 has stated that, the complainant has no cause of action to file the case and the case is premature one and that’s why the complainants are not entitled to get any relief. The OP No. 2 has further argued that several letter was issued in the name of the complainants asking to file relevant documents but the complainants have not filed those documents and that’s why the claim of the complainants have not been settled and there was no deficiency of service on the part of the OP’s. It is further argument of the OP No. 2 that, there was huge delay in lodging the claim and after getting information of accident they appointed a surveyor who after considering the survey has submitted his report by assessing of net loss of Rs. 4,52,846/- and the complainants are not entitled to get the entire IDV of the vehicle and only entitled to get the assessed amount as determined by the surveyor.

Having heard the Ld. Advocate of both the sides and on perusal of the evidence of the parties including the complaint, written version, documents of parties it is admitted fact that, deceased Md Yasin was owner of a vehicle bearing registration No. WB-74-AA/5320, having chasis No. MAZBXXMRTBCY41696, having Engine NO. CY41698, Makes Ford India Ltd. Fiesta Classic Titanium, Year of manufacture 2012. It is also admitted fact that on 04.06.2015 when the said Md Yasin was returning Siliguri with is vehicle he met with an accident and died. It is further admitted fact by the OP’s that, on the date of the accident the vehicle was having effective insurance policy as the policy was valid on and from 28.02.2015 to 27.02.2016. It is further admitted fact that, during the life time of Md Yasin he has paid a sum of Rs. 13,937/- towards premium of the said policy for the assured value of the vehicle amounting to Rs. 5,60,000/-. It is also admitted fact that, the complainants have intimated the OP No. 2 regarding the intimation of death of Md Yasin and claim being in No. PVOO227657 was initiated. It is also admitted fact that, surveyor was appointed who submitted his report by assessing the net loss of Rs. 4,52,846/-. It is also admitted fact that till today the insurance claim of the complainants has not been settled with the OP’s.

Only dispute in this case is whether there was deficiency of service on the part of the OP’s who allegedly not disbursing the claim amount of the complainants.

Let us see how far the complainants have been able to prove the case against the Ops or not?

From the insurance policy certificate cum policy schedule it reveals that, the policy certificate was issued in favour of the husband of the complainant No. 1 and in that policy certificate the insured value of the vehicle was of Rs. 5,60,000/-. From the said policy certificate it also reveals that, the said policy certificate was issued on 28.02.2015  and accident took place on 04.06.2015 i.e. within 4 months from the date of issuance of the policy certificate it was happened. But from the surveyor report it is found that the surveyor assessed the net loss of Rs. 4,52,846/- . In the said surveyor report is  not specifically explained as to how the insured value of the vehicle which was of Rs. 5,60,000/- on 28.02.2015 became Rs. 4,52,846/- within a period of 4 months. It is also not explained by the OP’s as to how the assessed value of the vehicle has been decreased of Rs. 1,07,154/- within 4 months from the date of issuance of Policy Certificate.. It is needless to mention here that if any surveyor intends to reduce the value of any vehicle he will have to assign proper reasons. But in the case in hand the surveyor did not assign any such reasons to substantiate the grounds for reducing the assured value of the insured vehicle.

Considering all we are of the view that, the complainants have been able to prove the case against the OP’s and there was deficiency of service on the part of the OP’s who deliberately did not disburse the insurance claim of the complainants. We are also of the view that, both the OP’s are jointly as well as severally liable to pay the awarded amount to the complainants.

Hence, it is therefore,

O R D E R E D

That the instant Consumer Case being No. 88/2018 is hereby allowed on ex-parte against the OP No. 1 and on contest against the OP No.2.

The OP’s are directed to pay a sum of Rs. 5,60,000/- (Rupees Five Lakh Sixty Thousand) only to the complainants towards the insurance claim of the vehicle. The OP’s are also directed to pay a sum of Rs. 50,000/- (Rupees Fifty Thousand) only to the complainants towards compensation for deficiency of service as well as unfair trade practice and also for causing mental pain, agony to the complainants. The OP’s are also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the complainants towards cost of legal proceeding and OP’s are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only in the Consumer Legal Aid Account of this Commission. The OP’s are further directed to pay interest @ 5% per annum with effect from the date of filing of this case till making payment of the awarded amount to the complainants. The OP’s are directed to pay the awarded amount within 45 days from this Day by issuing 6(six) account payee cheques of equal amount in the name of complainant No. 1. Complainant No. 1 is directed to deposit the share of any minor children in any profitable scheme of Nationalized Bank or Post Office till they attain majority. But the complainant No. 1 is given liberty to withdraw interest thereof for the welfare of those minor.

The OP’s are directed to pay the awarded amount within 45 days from this day failing which the complainants will have the liberty to take steps as per law.

Let a copy of this order be given to the parties free of cost.