Orissa

Cuttak

CC/54/2018

Sandeep Kumar Mohanty - Complainant(s)

Versus

The Divisional Manager,New India Assurance Company Ltd - Opp.Party(s)

R K Pattanaik

25 Nov 2019

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                C.C No.54/2018

                               

Sandeep Kumar Mohanty,

At:Pithapur,Tarachandpatna,Dalmill Lane,

PO:Talatelengabazar,Dist:Cuttack,Odisha.                                   …Complainant.

 

                                Vrs.

       

      

 The Divisional Manager,

The New India Assurance Co. Ltd.,

Cuttack Branch Office,At/PO:Jhanjirimangala,

Kathajodi Road,Cuttack.                                                                   … Opp. Party.

               

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     08.05.2018

Date of Order:   25.11.2019

 

For the complainant:          Mr. R.K.Pattnaik,Adv. & Associates.

For Opp.Party:                      Mr. N.B.Das,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

 

                The complainant having attributed deficiency in service and unfair trade practice to the O.P. has filed this case against him seeking appropriate relief in terms of his prayer in the consumer complaint.

1. The facts of the case of complainant stated in brief are that the complainant had purchased a Hyundai Grand I-10 Sportz car from the dealer OSL Hyundai situated at Cuttack for his personal use. It was duly registered by the R.T.O,Cuttack.  The purchase of the said car was financed by H.D.F.C Bank,Cuttack.  He also obtained the insurance policy under private car package policy from the O.P on payment of premium of Rs.20,565/- to protect  his vehicle from accidental hazards or accident.  The insurance policy number of the vehicle was 11300031160300452106 which commenced from 4.7.2016 to 3.7.2017 and the assured sum under the said policy was Rs.6,48,658/-.  Annexure-1 series are the photo copy of the document of the said policy bond and premium payment receipt.

While the said policy was in force, the vehicle of the complainant met with an accident on 31.8.16 near village Kantabada under Chandaka police station in the district of Khorda.The front portion of the vehicle was completely damaged.The occupant of the said vehicle got seriously injured. Innocent person at the spot also died of accident.The complainant reported the matter at local Police station and accordingly P.S Case No.99/2016 dt.31.8.16 U/S-279,304A IPC was registered.Annexure-2 is the photo copy of the F.I.R in that case.It is also stated that the fact of accident of the vehicle was intimated to the O.P, Insurance Company.

The O.P thereafter deputed a surveyor to the spot for assessment of the loss.The damaged vehicle was also taken to the authorized dealer-cum-repairer M/s. OSL Hyundai, Cuttack for repair and final assessment on the advice of the surveyor.The said repairer has given an estimate for repair amounting to Rs.43,155/- including labour charges and charges for spare parts.Annexure-C is the photo copy of the estimate filed by the repairer.

It is important to leave a mention here that after assessment of the loss, the said surveyor sent the report to the O.P. and no copy of such survey report was given to the complainant.It is stated that the O.P has therefore violated the IRDA Regulation of Policy Holders Protection of Interest (Regulation-2002).

On 15.5.2017 the O.P issued a letter to the complainant stating that the claim of the complainant was not legally sustainable for the reason that at the relevant time of accident, the subject vehicle committed a breach of policy condition by violating the rule-3 of Central Motor Vehicle Rules,1989 since the car in question was driven by the complainant who was then possessing a learner’s license.On that ground the claim of the complainant was repudiated.Annexure-4 is the photo copy of the said repudiation letter dt.15.5.17.

It is pertinent to note here as stated by the complainant that learner’s license is as good as an effective license since the same is being issued by the respective Regional Transport Authority who is authorized to issue it and therefore the rejection of the claim made by the complainant in the instant case amounted to violation of terms and conditions of the policy and non-consideration of the provisions of the M.V.Act.The O.P also lost sight of the fact that the complainant was not driving the vehicle without a license; rather the complainant was accompanied by a driver having effective D.L who was sitting in the rear seat of the said vehicle. There was also clear identification mark on both front and back glass of the said vehicle.In spite of it repudiation of the claim of complainant has caused serious mental agony and harassment to him for which the O.Ps are liable to compensate him in addition to the other reliefs sought for in the complaint petition.

It is therefore prayed that the O.P may be directed to pay Rs.43,155/- towards accidental loss together with interest @ 9% per annum as well as Rs.10,000/- for compensation and Rs.10,000/- towards litigation cost in the interest of justice.

2. The O.P contested the case by filing written version.  At the outset it is stated that the case was barred by limitation and there was no cause of action to file the case.

It is interalia stated that the complainantviolated the policy conditions in view of rule-3 of the Central Motor Vehicle Rules,1989 as revealed from the explanation called for from the complainant to show cause as to why such claim was not to be repudiated vide letter no.550200/claims/2017/50 dt.20.4.17.Photo copy of the said letter has been filed and marked as Annexure-A.Annexure-B is the photo copy of the reply dt.5.3.17 given by the complainant in response to Annexure-1.When no satisfactory reply was given by the complainant, the claim was repudiated vide letter no.122 dt.15.5.17 by the O.P.Annexure-C is the photo copy of the said repudiation letter.It is also stated that the concerned surveyor had been to the spot and made assessment of loss at Rs.36,000/-.Copy of the said survey report as well as of the claim form have been filed and marked as Annexure-D series.It is important to leave a mention here, as the O.P in his written version has categorically stated that there was no mention of the presence of any person accompanying the complainant having a valid and permanent driving license and in order to make some unlawful gain such concocted facts have been made out.Since there was no materials to establish that there was any deficiency in service or/and unfair trade practice on the part of the O.P, the case merits no consideration and hence may be rejected.

3. We have heard the learned counsels from both the sides and gone through their pleadings together with the annexures filed in this case.
4. The short question that falls for consideration in this case is whether the repudiation of the claim of the complainant vide Annexure-    is legally justified or not ?

It is submitted by the learned counsel for the O.P that the repudiation of the claim of the complainant is very much legal and justified in as much as the complainant has violated the policy conditions in view of Sec-3(b) of the Central Motor Vehicle Rules,1989.It is categorically submitted that the complainant was driving the vehicle while he was in possession of a learner’s license and no other person was present in that vehicle having an effective driving license to take control of the driving at the time of need.That apart, it is also stated that the death of an innocent person was caused because of the rash and negligent driving of the complainant for which G.R.Case No.890/2016 arising out of Chandaka Police Station, Bhubaneswar has been filed by the wife of the deceased.The learned counsel for the complainant has fairly submitted that since the learner’s license has been issued to the complainant in accordance with the provision of law and by the authority who is legally authorized to do it, such learners license is as good as an effective license.So far as the presence of holder of an effective driving license is concerned, it is categorically stated that such effective driving license holder S.Mohanty was very much present and sitting in the rear while the complainant was driving the vehicle in question under the supervision of the latter.Therefore the repudiation of the claim of the complainant on the ground of violation of the provisions of Sec-3(b) of the Central Motor Vehicle Rules,1989 is not warranted by law.

5. The presence of the person holding an effective driving license in the vehicle while the complainant was driving it was very much essential as required under the provisions of law stated above.  In the instant case there are no sufficient materials to prove that the holder of the effective driving license was sitting in the rear of the vehicle driven by the complainant save and except the letter made in reply by the complainant to the show cause, issued by the O.P.  The records in G.R.Case No.890/16 in its entirety including seizure list of the offending vehicle as submitted by the learned counsel for the O.P. does not reveal the presence of such holder of the effective driving license in the vehicle at the relevant time.  Such person having an effective driving license has not come forward to make a statement either before the police or before this authority in this regard.  That apart, it is also fairly argued by the learned counsel for the O.P. that it is imperative that the instructor holding an effective driving license to drive the vehicle should sit in the vehicle in such a position as to control and stop the vehicle when so required.  Even if for the sake of argument it is stated that the said holder of the effective driving license was sitting in the rear of the vehicle.  It was not the proper compliance of the provisions of law that he was occupying the right position to control and stop the vehicle when needed.  In that view of the matter, it is clearly held that no such person having an effective driving license was ever present in the vehicle as stated by him.  The entire case is therefore held to be the outcome of afterthought.  The argument advanced by the learned counsel for the O.P in absence of anything to the contrary has force in it.  Hence it is held that there was breach of policy conditions by the complainant as stated above and he has failed to prove deficiency in service on the part of O.P in repudiating the claim.  Hence ordered;

                                                                                   ORDER

The case be and the same is dismissed on contest against the O.P.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 25^th day of November,2019  under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                      President.

                                                                                                              (Smt. Sarmistha Nath)

                    Member(W)