BEFORE THE DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM, SOUTH SIKKIM AT NAMCHI
Dated : 06.07.2018
Consumer Complaint Case No. 02 of 2016
Sunil Kumar Gupta,
Son of Late Kedar Prasad Gupta,
Resident of Jorethang Bazaar,
P.O. & P.S. Jorethang,
South Sikkim
… Complainant
-Versus -
The Manager,
Bajaj Allianz General
Insurance Company Ltd.,
Saharan House, 2nd floor,
Above ICICI Bank, 2nd Mile,
Sevoke Road,
Siliguri, West Bengal
… Opposite Party
For the Complainant: Ld. Counsel,
Shri Amitabh S. Rai.
For Opposite Party Ld. Counsel,
Shri Bhupendra Giri.
J U D G M E N T
The Complainant has filed the instant complaint against the Opposite Party Under Section 12 of the Consumer Protection Act, 1986 praying therein that this Forum may direct the Opposite Party to make payment/compensation for damages to the tune of ₹ 9,00,000/- (Rupees nine lakhs) only, along with loss of daily earning of ₹ 2,00,000/- (Rupees two lakhs) only and ₹ 1,00,000/- (Rupees one lakh) only for mental tension and harassment.
2. The case of the Complainant, in a nutshell, is that the Complainant is the registered owner of Tata truck bearing registration No. SK-04-D-0861 (hereinafter referred to as the 'said vehicle'). The said vehicle of the Complainant was insured with Bajaj Allianz General Insurance Company Limited (Opposite Party) vide Policy No. OG-14-2404-1803-00003984. The said Policy was valid and effective from 20.03.2014 to midnight of 19.03.2015 (hereinafter referred to as the 'said insurance policy'). For the insurance of the said vehicle, the complainant paid a final premium of ₹ 32,577/- with third party liability and for operation/maintenance for eight persons. It is further stated that the total sum insured for the said vehicle was ₹ 9,00,000/- (Rupees nine lakhs) only and for the said purpose an amount of ₹ 32,577/- was paid to the Opposite Party by the Complainant as premium for the general insurance of the said vehicle. That the Complainant used to utilize the said vehicle for carrying goods in the State of Sikkim and West Bengal and used to earn ₹ 4,000/- or more per day.
3. It is further stated that the Complainant had appointed/engaged Shri Madan Kumar Biswakarma, son of Late P.B. Biswakarma, resident of Mazigaon, South Sikkim as driver and Late Sanjok Rai, son of Shri Gautam Rai, resident of Shingla, Shanti Busty, West Bengal as handy boy of the said vehicle.
4. That the said vehicle was kept by Shri Madan Kumar Biswakarma and Late Sanjok Rai for the purpose of carrying goods with a direction and understanding that the said vehicle will not be illegally used by them. It is stated that on 01.01.2015, the handy boy of the said vehicle i.e. Late Sanjok Rai secretly took its key and without the notice of its driver and owner drove it towards Char-Charey, Jorethang Melli Road. On the way and in the process of his unauthorised and illegal driving, Late Sanjok Rai also gave lift to five persons on the said vehicle. It is further stated that while reaching Char-Charey, the said vehicle which was being driven by its handy boy i.e. Late Sanjok Rai met with an accident and fell down 150 feet below the road into the bank of river Rangeet causing serious injuries to its 4 occupants viz Shri Bibek Rai, Miss Ashma Chettri, Miss Regina Darjee and Shri Amrit Rai, while the other occupant viz Anmol Chettri and the handy boy Sanjok Rai died on the spot. After receiving information about the accident, the driver of the said vehicle Shri Madan Kumar Biswakarma immediately lodged FIR against the handy boy Sanjok Rai before the Jorethang Police Station. On the basis of the FIR, Jorethang Police Station Case No. 01/2015 dated 01.01.2015 under Sections 279, 338 & 304 A of the Indian Penal Code, 1860 was registered against the handy boy Sanjok Rai and taken up for investigation.
5. It is further stated that that driver Shri Madan Kumar Biswakarma had clearly mentioned in the FIR that the said vehicle was driven by the handy boy Sanjok Rai without his permission and the same later met with an accident resulting severe injuries to four occupants and death to its handy boy and one occupant. After receiving information about the unauthorized driving of the said vehicle and about the accident, the Complainant immediately informed the settlement officer for his immediate claim concerning the accident of the said vehicle. It is stated that the Complainant requested the Opposite Party to take immediate necessary steps for their liabilities to pay the insured amount of the said vehicle. After some communications, on 02.01.2015, the surveyor of the Opposite party visited the place of accident and took some photographs of the said vehicle which was lying in the place of accident i.e. at Char-Charey, Jorethang Melli Road, in the bank of river Rangeet. The surveyor also admitted the fact that the said vehicle has been extensively damaged. After one week of the visit of the said surveyor of the Opposite Party, the Complainant was directed by one Shri Niloy Roy, investigator/Advocate of the Opposite Party to appear before his office at Siliguri, West Bengal.
6. It is further submitted that as per the directions of Shri Niloy Roy, the Complainant met him in Siliguri Branch office and handed over the entire documents pertaining to his claim of net loss of ₹ 9,00,000/- (Rupees nine lakhs) only against the accident of the said vehicle.
7. That the Complainant waited for the response of the Opposite Party thinking that his claim would be accepted and that he would be compensated for the said vehicle by the Opposite Party. But the Opposite Party did not make any written communication concerning the payment of the claim of the Complainant against the accident of the said vehicle, hence the Complainant during the first week of September, 2015, personally approached to the Office of the Opposite Party at Siliguri, West Bengal but Opposite Party verbally informed to the Complainant that his claim has been declined.
8. It is stated that the said vehicle was having package policy and the IDV (Insured Declared Value) mentioned in it is ₹ 9,00,000/- (Rupees nine lakhs) only.
9. It is also the case of the Complainant that all the documents of the said vehicle were valid and effective at the time of accident and the said vehicle was insured with the Opposite Party covering the period of accident. There was no violation of the terms and conditions of the policy.
10. It is further stated that the said vehicle is damaged irreparably. The Complainant has suffered loss of income from the said vehicle. It is further stated that the said vehicle of the Complainant is a commercial vehicle. At the relevant time the said vehicle was earning ₹ 4,000/- or more per day. As such the Opposite Party is liable to pay ₹ 4,000/- per day towards the daily income from the date of the accident till the final disposal of the complaint. It is stated that if the claim had been settled timely, the Complainant could have purchased a new vehicle. Due to deficiency on part of the Opposite Party, the Complainant has faced huge financial loss, hence, the instant complaint.
11. The Opposite Party filed the written objection, inter alia, denying and disputing the claims put forth by the Complainant. It is submitted that the complaint on account of alleged deficiency in services, is not sustainable but a misconceived one and is legally not maintainable. It was further submitted that there is no deficiency in service on the part of the Opposite Party and that the Complainant is not entitled to any relief or reliefs from the Opposite Party. It is contended that the Complainant has not approached this Forum with clean hands.
12. The Opposite Party further stated that the said vehicle was insured with their company. But it is clear from the averments of the Complainant that the deceased handy boy was duly appointed and employed by the Complainant. The said vehicle had been handed over to the driver and handy boy by the Complainant himself to do all the necessary works pertaining to transportation of all goods carrying from authorized places as such handy boy was also an authorized person to have care and custody of the said vehicle along with its keys. The said handy boy used to reside with driver from long time and as such the handy boy was in permissive possession as an authorized in-charge of the said vehicle and its keys.
13. It is further submitted that the handy boy being authorized by the complainant and the driver, had drove the said vehicle with their consent. But in order to escape from the legal liabilities, the driver of the said vehicle has lodged the FIR against the deceased handy boy. It is submitted that the said vehicle was registered as a goods carrier with seating capacity of 2+1 person only. At the relevant time, the said vehicle was driven by the deceased handy boy and five persons were also the occupants of the said vehicle as unauthorized passengers. The handy boy did not have any effective and valid licence at the time of accident.
14. It is submitted that the Opposite Party does not want to admit any liability. But if at all it is liable then also it cannot be more than the loss assessed by IRDA licensed surveyor.
15. On the basis of the pleadings and after hearing Ld. Counsel for the parties, this Forum framed the following issues :
“(i) Whether the present complaint is maintainable?
(ii) Whether the Complainant has violated the terms and conditions of the policy?
(iii) Whether the Complainant is entitled for the claim as claimed by him in the complaint?”
16. Ld. Counsel Shri Amitabh S. Rai appearing for the Complainant reiterated the contentions made in the pleadings and it was urged that the Complainant is the owner of the said vehicle, which was insured with the Opposite Party Company on 14.03.2014 vide the said insurance policy (Exhibit-8). It is further argued that the Complainant had appointed/engaged Shri Madan Kumar Biswakarma, son of Late P.B. Biswakarma, resident of Mazigaon, South Sikkim as driver and Late Sanjok Rai, son of Shri Gautam Rai, resident of Shingla, Shanti Busty, West Bengal as handy boy of the said vehicle. The said vehicle was kept by Shri Madan Kumar Biswakarma and Late Sanjok Rai for the purpose of carrying goods. On 01.01.2015, the handy boy of the said vehicle i.e. Late Sanjok Rai secretly took its key and without the notice of its driver and owner drove it towards Char-Charey, Jorethang Melli Road. While reaching Char-Charey, the said vehicle which was being driven by its handy boy Late Sanjok Rai met with an accident and fell down 150 feet below the road into the bank of river Rangeet. The handy boy Sanjok Rai and one occupant died on the spot and other four occupants who were given the lift by handy boy were caused serious injuries. After receiving information about the accident, the driver of the said vehicle Shri Madan Kumar Biswakarma immediately lodged FIR against the handy boy Sanjok Rai before the Jorethang Police Station. On the basis of the FIR, Jorethang Police Station Case No. 01/2015 dated 01.01.2015 under Sections 279, 338 & 304 A of the Indian Penal Code, 1860 was registered against the handy boy Sanjok Rai. Exhibit-2, Exhibit-3, Exhibit-4, Exhibit-6, Exhibit-7, Exhibit-8, Exhibit-9, Exhibit-10, Exhibit-11, Exhibit-12, Exhibit-13 and Exhibit-14 are the Certified copies of Charge-sheet, Report submitted by PI Santosh Baniya, FIR lodged by driver Madan Kumar Biswakarma, Deposition of Madan Kumar Biswakarma in F.R. Case No. 61 of 2015, Attested copy of driving licence of authorized driver Madan Kumar Biswakarma, Insurance Policy of the said vehicle, Certificate of Registration of the said vehicle, Goods Carrier Permit of the said vehicle, Pollution Under Control Certificate, Copy of the order sheet dated 04.08.2015 and 13.08.2015, Letter written by the Complainant to the Manager, Bajaj Allianz General Insurance Co. Ltd. dated 18.02.2015 and Original letter dated 05.02.2014 sent by the Opposite Party respectively. It is argued that the evidence of the Complainant, his witnesses and the documents clearly establish the case of the Complainant. Hence, the Complainant prays that the compensation may be granted as prayed for.
17. Per contra, Ld. Counsel Shri Bhupendra Giri for the Opposite Party, while putting forth his arguments, submitted that the complaint filed by the Complainant is legally not maintainable. There is no deficiency in service on the part of the Opposite Party and that the Complainant is not entitled to any relief or reliefs from the Opposite Party. The Complainant has not approached this Forum with clean hands. It is submitted that the accident occurred due to the unauthorized driving of the handy boy. The driver of the said vehicle in order to escape from the legal liabilities, has lodged the FIR against the deceased handy boy. The said vehicle was registered as a goods carrier with seating capacity of 2+1 person only. At the relevant time, the said vehicle was driven by the deceased handy boy and five occupants were in the said vehicle as unauthorized passengers. The handy boy was not having any effective and valid licence at the relevant time of accident. While arguing this, Ld. Counsel for the Opposite Party re-iterated the entire facts mentioned in the written objection and submits that the Complainant is not entitled to any relief from the Opposite Party. It is argued that the Complainant has not filed any book of accounts and documents to show that the said truck was earning ₹ 4,000/- or more per day. Ld. Counsel, therefore, prays for dismissal of the complaint on this ground.
18. Ld. Counsel further argued that if the Opposite Party is at all liable then also it will not be more than loss assessed by IRDA licensed surveyor. It is submitted that the claim of the Complainant is excessive, unwarranted and too high. Hence, Ld. Counsel for the Opposite Party prays for rejection of the instant complaint.
19. In order to decide this issue, the pleadings, Evidence of the Complainant, his witnesses, Evidence of Opposite Party as well as the documents and the submissions made by the Ld. Counsel for the parties were considered. Exhibit-2, Exhibit-3, Exhibit-4, Exhibit-6, Exhibit-7, Exhibit-8, Exhibit-9, Exhibit-10, Exhibit-11, Exhibit-12, Exhibit-13 and Exhibit-14 are the documents relied on by the Complainant.
20. The Complainant has pleaded that on 01.01.2015, without the notice of driver Madan Kumar Biswakarma including the Complainant, the handy boy Late Sanjok Rai secretly took the key of the said vehicle. The said handy boy drove the said vehicle towards Char-Charey, Jorethang Melli Road. On the way and in the process of his unauthorized and illegal driving, Late Sanjok Rai also gave lift to five persons on the said vehicle. While reaching Char-Charey, the said vehicle met with an accident. The Certified copy of the FIR (Exhibit-4) dated 01.01.2015 lodged by Madan Kumar Biswakarma before Jorethang Police Station informing about the accident clearly establishes that there occurred an accident involving the said vehicle. The Certificate of Registration (Exhibit-9) of the said vehicle produced before this Forum clearly establishes that the said vehicle was registered in the name of the Complainant and he is the registered owner of the said vehicle. The Complainant in his Evidence on Affidavit (Exhibit-15) and Complainant’s witness No. 3 Madan Kumar Biswakarma in his Evidence on Affidavit (Exhibit-5) clearly stated that Madan Kumar Biswakarma was the authorized driver of the Complainant to drive the said vehicle. The Complainant and his witnesses including PI Santosh Baniya clearly establish that Mr. Madan Kumar Biswakarma was the authorized driver of the said vehicle. The evidence of the witnesses as well as the contents of Exhibit-7 clearly establish that Driving Licence of the authorized driver was issued by Licensing Authority, Government of Sikkim and was valid and effective at the relevant time. But the said vehicle was driven by the handy boy Sanjok Rai without the permission of the driver and the owner of the vehicle. As such no fault is attributable, either to the driver or the Complainant. The cause of accident was that the handy boy took the key of the said vehicle without the permission of the authorized driver and the Complainant and when he drove the vehicle, accident occurred. At the relevant time, the handy boy took the key of the said vehicle and drove the said vehicle towards Char-Chary, Jorethang Melli road carrying five other occupants. The evidence of the Complainant’s witnesses No. 2 PI Santosh Baniya who investigated the Criminal Case registered against the handy boy Sanjok Rai supports the contentions of the complainant. He deposed, “...My investigation revealed that on 01.01.2015 the complainant Madan Kumar Biswakarma (driver of the said truck) had parked the said truck at Jorethang Mazigaon and gone to church on the eve of New Year. Later, his handy boy Sanjok Rai who used to stay with him at Mazigaon took out the key of the truck from driver’s room without any information to the driver (complainant) and drove the said truck towards Charcharey (Jorethang-Melli Road) carrying five other occupants. Later, on reaching Charcharey the vehicle met with an accident and fell below the road about 150 feet on the bank of river Rangeet totally damaging the vehicle. Therefore, causing serious injuries to four occupants and causing death of two occupants including the handy boy Sanjok Rai...” [Emphasis added]
The said vehicle was insured with Bajaj Allianz General Insurance Company Limited (Opposite Party) vide the said insurance policy (Exhibit-8). On perusal of the said insurance policy it is seen that the same was valid and effective from 20.03.2014 to the midnight of 19.03.2015 and it was a package policy. Therefore, it is clear that the said vehicle was insured with Opposite Party and the said insurance policy was valid and effective covering the period of accident. The Goods Carrier Permit (Exhibit-10) issued by the office of Motor Vehicles Division, Transport Department, Government of Sikkim at Gangtok proves that the said vehicle was authorized to ply in the State of Sikkim. The entire documents produced before this Forum clearly establish that the said vehicle was having valid documents at the time of the accident.
21. The Opposite Party has not disputed the accident and that the said vehicle was duly insured with the Opposite Party when the alleged accident had occurred. The Opposite Party also admitted the said fact. However, the Opposite Party took the plea that the said vehicle was driven by the handy boy with due permission of the authorized driver and the Complainant (owner of the vehicle). The driver of the said vehicle lodged FIR stating that the handy boy Late Sanjok Rai took the key of the vehicle and drove the vehicle towards Char-Charey only to escape from his legal liability. As such Opposite Party is not liable for the payment of any compensation. Finally, Ld. Counsel for the Opposite Party contended that the amount claimed by the Complainant is excessive, unwarranted and too high. As per the said insurance policy Exhibit-8, the said vehicle was having package policy and the Insured Declared Value mentioned in Exhibit-8 is ₹9,00,000/- (Rupees nine lakhs) only. Ld. Counsel for the Opposite Party filed list of documents along with three documents. The said documents were not exhibited by Shri Sourabh Sarkar, the witness for Opposite Party while giving his evidence. The pleadings as well as the documents on records including the evidence of PI Santosh Baniya establish that the said vehicle fell below the road about 150 feet on the bank of river Rangeet and was totally damaged during the said accident. The Complainant claim was for total loss and damage of the said vehicle. Shri Sourabh Sarkar, the witness for Opposite Party does not know the entire facts of the case including the claim of the Complainant. As per him, he was not aware of the documents in connection with this case as the same were not supplied to him. He further admitted that neither the Opposite Party nor himself as a witness have submitted any document to deny the claim of the Complainant.
22. On perusal of the documents relied on by the Complainant, it is seen that Exhibit-8 is the said insurance policy of the said vehicle. The said insurance policy indicates that it was issued on 14.03.2014 and was valid up to the midnight of 19.03.2015. It is evident from the document that the said insurance policy Exhibit-8 was valid on the date of the accident. Exhibit-9 is the Registration Certificate of the said vehicle which was valid on the date of the accident. Hence, the registration of the vehicle was valid on the date of the accident which occurred on 01.01.2015. Exhibit-7 is the attested copy of the Driving Licence of Madan Kumar Biswakarma, authorized driver of the said vehicle. The said Driving Licence was issued on 02.06.2007 and valid up to 01.06.2027. The said vehicle was not driven by him. It was driven by the handy boy Sanjok Rai after taking the key without the knowledge of the authorized driver as well as the owner of the said vehicle. Exhibit-4 is the certified copy of the FIR, which establishes the accident. The contents of the complaint, documents on records and the written objection of the Opposite Party establish that the Complainant is the owner of the said vehicle bearing Registration No. SK-04-D-0861 and the said vehicle met with an accident on 01.01.2015. The pleadings, evidences of the witnesses and the documents produced before this Forum by the Complainant also establish the actual damage of the said vehicle.
23. The claim of the Complainant is that the said vehicle met with an accident and is irreparably damaged. The said fact has been established by the Complainant and his witnesses particularly the evidence of PI Santosh Baniya. He deposed that the said vehicle met with an accident and fell below the road about 150 feet on the bank of the river Rangeet and was totally damaged. It is not disputed that the said vehicle was duly insured with the Opposite Party when the accident had occurred. The Opposite Party also admitted the said fact. The Opposite Party only took the plea that the said vehicle was driven by the handy boy with due permission of the driver and the owner of the vehicle. Further, the assessment of the vehicle was excessive, unwarranted and too high. However, we have already discussed about the same in paragraph 21 supra.
24. In view of the pleadings and the exhibited documents on record, this Forum is of the opinion that the Complainant is the 'consumer' of the Opposite Party. It is clear that non payment of the damage as claimed by the consumer/Complainant is clear deficiency of the service to the Complainant by the Opposite Party. All the documents filed by the Complainant were perused and considered by the Forum and found to be valid when the accident occurred. Hence, the Opposite Party is liable to pay compensation to the Complainant.
25. The Complainant has not mentioned the purchase price of the said vehicle. The insured declared value of the said vehicle is ₹ 9,00,000/-. In consideration of the entire evidence and documents on record, all the issue Nos. 1, 2 and 3 are decided in favour of the Complainant and against the Opposite Party. In consequence of the issues decided in favour of the Complainant, it is found that the Complainant is entitled as under:
i. Total cost of the vehicle bearing
Registration No. SK-04-D-0861
(truck): ₹ 9,00,000/-
ii. Pecuniary loss: ₹ 50,000/-
iii. Mental tension and
Harassment: ₹ 25,000/-
iv. Cost of the legal proceeding ₹ 25,000/- ____________________________________________________
Total ₹ 10,00,000/-
26. In the result, this Forum directs that the Opposite Party, shall pay the compensation of ₹ 10,00,000/- (Rupees Ten Lakhs) only, to the Complainant, within a period of two months from the date of this Judgment. Failing which, the Opposite Party, shall pay the interest @ 10% per annum on the said sum, to the Complainant, from the date of filing of the Complaint i.e., 03.08.2016, till full and final payment.
Pronounced in open Forum.
(Jyoti Kharka)
President, DCDRF
South Sikkim, at Namchi
(P.C. Rai)
Member, DCDRF
South Sikkim, at Namchi
WITNESSES EXAMINED BY THE COMPLAINANT:
1. CW-1 Shri Sunil Prasad.
2. CW-2 PI Santosh Baniya.
3. CW-3 Shri Madan Kumar Biswakarma.
4. CW-4 Shri Sunil Kumar Gupta
(Complainant).
LIST OF THE DOCUMENTS FILED AND RELIED BY THE COMPLAINANT:
1. Exhibit-1
(in three pages) Evidence on Affidavit of CW-1.
2. Exhibit-2 Certified copy of charge- sheet.
3. Exhibit-3 Report submitted by CW-2.
4. Exhibit-4 Certified copy of FIR lodged by CW-3.
5. Exhibit-5
(in three pages) Evidence on Affidavit of CW-3.
6. Exhibit-6 Certified copy of Deposition of CW-3.
7. Exhibit-7 Attested copy of driving licence of CW-3.
8. Exhibit-8 Insurance policy.
9. Exhibit-9 Registration Certificate.
10. Exhibit-10 Goods Carrier Permit.
11. Exhibit-11 Pollution under Control Certificate.
12. Exhibit-12 Copy of order sheet dated 04.08.2015 and 13.08.2015.
13. Exhibit-13 Letter written by the Complainant to the Opposite Party dated 18.02.2015.
14. Exhibit-14 Letter dated 05.02.2014 sent by the Opposite Party to the Complainant.
15. Exhibit-15
(in eight pages) Evidence on Affidavit of the Complainant.
WITNESSES EXAMINED BY OPPOSITE PARTY.
1. Shri Sourabh Sarkar OP’s witness.
DOCUMENTS EXHIBITED BY THE OPPOSITE PARTY.
1. Exhibit-A Authorization Letter issued by the Opposite Party to Shri Sourabh Sarkar.
2. Exhibit-B
(in three pages) Evidence on Affidavit of Opposite Party’s witness Shri Sourabh Sarkar.
(Jyoti Kharka)
President, DCDRF
South Sikkim, at Namchi
(P.C. Rai)
Member, DCDRF
