DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

 

CASE   NO:   CC- 84 of 2020.

 

1. Smt. Soma Debnath(Shil),

W/O. Late Balai Shil

 

2. Smt. Usha Rani Shil,

W/O. Lt. Jogesh Shil,

(Both are residing at West Tara Nagar, Mohanpur),

P.S.-Sidhai, Dist.-West Tripura, Pin-799211 ….......................................Complainants.

 

 

 

-VERSUS-

 

 

 

1. The Divisional Manager,

Oriental Insurance Company Ltd.

Of 48/B, H.G. B. Road, Agartala,

P.S.-West Agartala, Dist.- West Tripura,

Insurer of the vehicle No.TR-01-AB-5396(Scooty),

P.O.-Agartala, Pin-799001..................................................................... Opposite Party.

 

 

    __________PRESENT__________

 

 SRI RUHIDAS  PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA. 

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

 

SRI SAMIR  GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA. 

 

 

C O U N S E L

 

For the Complainant : Sri Suman Kumar Banik,

  Sri Arindam Roy Chowdhury,

  Advocates.

 

For the O.P.  : Sri Prahlad Kr. Debnath,

  Advocate. 

 

JUDGMENT  DELIVERED  ON : 15/06/2022.

J U D G M E N T

          The Complainants Smt. Soma Debnath(Shil) & others, set the law in motion by presenting the complaint petition U/S. 12 of the Consumer Protection Act, 1986 complaining deficiency of service by the O.P.

The Complainants case, in brief, is that the Complainant  No.1 & 2 are the wife and mother of the deceased Balai Shil respectively and the vehicle bearing Registration No.TR-01-AB-5396(Scooty) was insured with the Oriental Insurance Company Ltd. vide Policy No.322797/31/2019/2136 which the coverage of the said policy was from 18/03/2019 to 17/03/2020. On 18/09/2019 at about 20.00 hrs. to 20.30 hrs. while deceased Balai Shil reached at near Kamalghat bridge at that time another vehicle bearing its registration No.TR-01-AD-7147(Motor Cycle) which was coming from opposite direction rashly and negligently driven by its driver, the driver of the said motor cycle lost his control over the said motor cycle and dashed the said scooty bearing its registration No.TR-01-AB-5396 and met with an accident. As a result of the same Balai Shil i.e. registered owner of the said scooty sustained grievous injury in his various parts of his body. At the relevant point of time the injured Balai Shil was taken to AGMC & GBP Hospital, Agartala, where he was admitted as an indoor patient but during treatment in the said hospital he succumbed to his injury on that day i.e. on 18/09/2019 at about 12.10 night. Thereafter the wife of the deceased namely Soma Debnath(Shil) made a written complaint against the driver/rider of the vehicle bearing lregistration No.TR-01-AD-7174(Motor Cycle) to the O/C Lefunga Police Station, District-West Tripura, which was registered as Lefunga P.S. Vide FIR No.040/2019 U/S. 279/394(II) of IPC. And 184 of the M.V. Act. After lodging of FIR, Soma Debnath(Shil), W/O. Lt. Balai Shil went to the office of the O.P. which is situated in the above mentioned address to submit a written intimation along with relevant documents and the staff of the Oriental Insurance Company Limited received the written intimation from Complainant No.1 but did not provde her any receipt of that intimation. Even after repeated visits by present Complainant. The O.P. advised the Complainant No.1 to visit the office later on. On 08/07/2020 the present Complainants through their engaged Advocate Sri Suman Kumar Banik served a legal notice through registered post to the O.P. for settlement of the insured claim and to disburse the same amongst the legal heirs of the deceased i.e. present Complainants of the instant case. But after receiving the said legal notice dated 08/07/2020, the O.P. replied to the engaged counsel of the complaint by the letter dated 9th July 2020 stating that since no intimation and no supporting papers/documents as required has been received by the O.P. for claiming benefit under the policy, so the question of disbursing the insurance claim does not arise.  But on receipt of the legal demand notice the O.P. Insurance Company neither gave any response nor has shown any interest to settle the claim. Hence there is a clear deficiency in service on the part of O.P. Insurance Company. 

So, being aggrieved and dissatisfied by the conduct of the O.P.,  the Complainant alleging deficiency of service has filed the instant complaint before this Commission claiming the cost of insurance benefit of owner cum driver of the said vehicle & compensation of Rs. Rs.17,00,000/-(Rs.15,00,000/- + Rs.2,00,000/-) along with interest @12% P.A. from the date of accident till realization of the same.

Hence, this case. 

2. On the other hand O.P. contested the case by filling written statement. 

        In the written statement the O.P. submitted para-wise reply to the complaint in seriatim. Mostly, O.P. denied and disputed the averments made in the complaint.  

      In the written statement O.P. submitted that on 09/07/2020, a registered with A/D letter has been sent in response to the Advocate notice dated 08/07/2020, asking for immediate necessary information & supporting documents of the incident occurred on 18/09/2019 but the Complainant has not submitted any required document in respect to claiming of benefit under the Policy. So, there was no deficiency of service on the part of the O.P. but it was the Complainant for whose non cooperation the claim could not be settled. It is also stated that the Complainant is not entitled to get the insured amount Rs.15,00,000/- which is covered for the owner cum driver of the alleged vehicle and still O.P. is ready to settle the claim on the said insured amount if necessary documents are submitted. In the additional written statement O.P. further submitted that there was no helping driver during driving of the accidental vehicle when the alleged vehicle and husband of the Petitioner was driving with the Learner License and the claim is bad for breach of the Policy conditions. O.P. also submitted that as per policy terms and condition the Complainants are not entitled to get the policy benefits and thus there was no deficiency of service by the O.P., Oriental Insurance Company and the instant complaint is liable to be dismissed. 

EVIDENCE ADDUCED BY THE PARTIES:-

Complainant No.1 has examined herself as PW-I and she has submitted two examination-in-Chief i.e. one for herself and another for Sri Samir Debnath by way of Affidavit. In this case the complainant produced 9 documents comprising 16 sheets under a Firisti dated 31/12/2021. The documents are Certified Copy of FIR, Ejahar, P.M Report & Charge sheet, Copy of Registration of the vehicle No.TR-01-AB-5396, Copy of Insurance Certificate of the vehicle No.TR-01-AB-5396, Copy of Learner's licence namely deceased Balai Shil, Copy of Aadhaar Card namely deceased Balai Shil, Copy of death certificate namely deceased Balai Shil, Copy of Voter Card namely Smt. Soma Debnath(Shil), Copy of Survival Certificate of deceased Balai Shil & Copy of Driving licence of namely Samir Debnath. On identification the documents are marked  as Exhibit-I Series.

          On behalf of the O.P. one witness namely Sri Gopal Krishan, Divisional Manager of the Oriental Insurance Co. Ltd., Post Office Chowmuhani, Agartala, P.S.-West Agartala, Dist.-West Tripura was examined.  O.P. has produced documents comprising 18 sheets under a Firisti dated 16/05/2022. On identification the documents are marked  as Exhibit-A Series.

POINTS TO BE DETERMINED:-

    On perusal of the pleadings of both parties and having regard to the evidence adduced by the parties, the following points are to be determined:

    (i). Whether there is deficiency of service on the part of the O.P. towards the Complainant?

    (ii) Whether the complainant is entitled to get any compensation/ relief as prayed for?

ARGUMENTS OF BOTH SIDES :-

      We have heard arguments from both sides. At the time of argument, Learned Counsel of the Complainant submitted that the Complainant  No.1 & 2 are the wife and mother of the deceased Balai Shil respectively and O.P. is the insured of the vehicle bearing Registration No.TR-01-AB-5396(Scooty) with the Oriental Insurance Company Ltd. vide Policy No.322797/31/2019/2136 which the coverage of the said policy was from 18/03/2019 to 17/03/2020. On 18/09/2019 at about 20.00 hrs. to 20.30 hrs. while Lt. Balai Shil reached at near Kamalghat bridge at that time another vehicle bearing its registration No.TR-01-AD-7147(Motor Cycle) which was coming from opposite direction rashly and negligently driven by its driver, the driver of the said motor cycle lost his control over the said motor cycle and dashed the said scooty bearing its registration No.TR-01-AB-5396 and met with an accident. At the relevant point of time the injured Balai Shil was taken to AGMC & GBP Hospital, Agartala, where he was admitted as an indoor patient but during treatment in the said hospital he succumbed to his injury on that day i.e. on 18/09/2019 at about 12.10 night. Thereafter the wife of the deceased namely Soma Debnath(Shil) made a written complaint against the driver/rider of the vehicle bearing registration No.TR-01-AD-7174(Motor Cycle) in to the O/C Lefunga Police Station, District-West Tripura, which was registered as Lefunga P.S. Vide FIR No.040/2019 U/S. 279/394(II) of IPC. And 184 of the M.V. Act. After lodging of FIR, Soma Debnath(Shil), W/O. Lt. Balai Shil went to the office of the O.P. which is situated in the above mentioned address to submit a written intimation along with relevant documents and the staff of the Oriental Insurance Company Limited received the written intimation from Complainant No.1 but did not proved her any receipt of that intimation, even after repeated visits by present Complainant. The O.P. advised the Complainant No.1 to visit the office later on. On 08/07/2020 the present Complainants through their engaged Advocate Sri Suman Kumar Banik served a legal notice through registered post to the O.P. for settlement of the insured claim and to disburse the same amongst the legal heirs of the deceased i.e. present Complainants of the instant case. But after receiving the said legal notice dated 08/07/2020, the O.P. replied to the engaged counsel of the complaint by the letter dated 9th July 2020 stating that since no intimation and no supporting papers/documents as required has been received by the O.P., so the question of disbursing the insurance claim does not arise.  But on receipt of the legal demand notice the O.P. Insurance Company neither gave any response nor has shown any interest to settle the claim. Learned Counsel of the Complainant submitted that sufficient evidence were adduced in support of the claim and Complainants have been able to justify their claims. 

          On the other hand Learned Counsel of the O.P. submitted that there is no fault on the part of the O.P. as well as there is no deficiency of service and complaint is liable to be dismissed. Learned Counsel of the O.P. submitted that on 09/07/2020, a registered with A/D letter has been sent in response to the Advocate notice dated 08/07/2020, asking for immediate necessary information & supporting documents of the incident occurred on 18/09/2019 but the Complainant has not submitted any required document in respect to claiming of benefit under the Policy. So, there was no deficiency of service on the part of the O.P. but it was the Complainant for whose non cooperation the claim could not be settled. It is also stated that the Complainant is not entitled to get the insured amount Rs.15,00,000/- which is covered for the owner cum driver of the alleged vehicle. In the additional written statement O.P. further submitted that there was no helping driver during driving of the accidental vehicle when the alleged vehicle and husband of the Petitioner was driving with the Learner License and the claim is bad for breach of the Policy conditions. O.P. also submitted as per the policy terms and condition the Complainants are not entitled to get the policy benefits and thus there was no deficiency of service by the O.P., Oriental Insurance Company to settle the instant claim as per terms and conditions and the instant complaint is liable to be dismissed. Learned Counsel Mr. Debnath further submitted that the evidence of the PW-2 namely Sri Samir Debnath is not at all believable and it was made after thought. During police investigation the driving license of Sri Samir Debnath was not seized, even in the ejahar his name was not mentioned as helping driver. So, the evidence given by Sri Samir Debnath is not trust worthy. He further submitted that the Complainants have failed to prove that at the time of driving the Scooty there was any helping driver with valid license and as such deceased Balai Shil has violated the terms and conditions of the Policy and as such claim petition is liable to be dismissed.  

 

DECISION AND REASONS FOR DECISION:                                     

        For the sake of the convenience both the points are taken up  together for decision. 

          We have carefully gone through the complaint petition as well as written statement submitted by the parties. We have also meticulously gone through the evidence as well as documents adduced from both parties. From the evidence as well as pleadings we find that there is no dispute about having learner license by the decease Balai Shil. From Exhibit-1 series documents i.e. FIR(Ejahar), we find that Smt. Soma Debnath(Shil), Complainant No.1 lodged the Ejahar on 21/09/2019 on the following day of the accident. On perusal of the Ejahar we do not find any statement that her husband was accompanied with Sri Samir Debnath who deposed as a witness in support of the claim. The documents exhibited from the side of the O.P. which are marked as Exhibit-A series included seizer list and statement of witness recorded by I.O. Under Section 161 Cr. P.C. as well as charge sheet submitted by the I.O. in connection with the Lefunga P.S. Charge Sheet No. 36/2020 dated 31/10/2020 in connection with FIR No.2020/LFG/040 dated 21/09/2019.     

          On perusal of the list of witnesses submitted by I.O. in the charge sheet we do not find the name of Sri Samir Debnath ever cited as eye witness or his driving license was seized by the I.O. in connection with that accident case. 

        On perusal of the statement of eye witnesses recorded by the I.O. we find that deceased Balai Shil was alone at that time of driving his Scooty and there was no pillion rider along with Balai Shil. Hence, the evidence deposed by the witness Sri Samir Debnath is not at all trust worthy and it is not a believable evidence. In this regard it is pertinent to mention that the decision of the Hon'ble State Commission passed in the Divisional Manager Vs. Smt. Apu Malakar judgment dated 25/02/2020 is not befitted in the instant case.     

7.    Since, deceased Balai Shil had a learner license  and he was driving his Scooty without taking help of any licensed driver, he has violated the terms and conditions of the policy and as such we do not find any deficiency in service on the part of the O.P. 

      Accordingly, the complaint is liable to be dismissed and no cost.                  

Supply a certified copy of the judgment to both the parties  free of cost.

    Announced.

 

 

SRI  RUHIDAS  PAL

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

 

 

DR (SMT)  BINDU  PAL

MEMBER, 

DISTRICT CONSUMER DISPUTES 

REDRESSAL COMMISSION, 

WEST TRIPURA, AGARTALA

 

SRI SAMIR  GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA.