West Bengal

Paschim Midnapore

CC/75/2017

Smt. Chandana Pal - Complainant(s)

Versus

The Manager, Cholamondalm MS General Insurance Co.Ltd. - Opp.Party(s)

Asim Kumar Dutta

10 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.                             

      

      Bibekananda Pramanik, President,

    Pulak Kumar Singha, Member,

and

    Sagarika Sarkar, Member. 

 

Complaint Case No.75/2017

 

Smt. Chandana Pal, W/o-Nantu Pal, Vill-Bila,

P.O.-Santbankura, P.S.-Garhbeta,

District-Paschim Medinipur..………..……Complainant.

Vs.

1. The Manager, Cholamondalm MS General Insurance Co. Ltd.,  Chhabildas Tower, 3^rd Floor, 6A, Midleton Street, Kolkata-700006;
2. The Manager, Cholamondalm MS General Insurance Co. Ltd.,  

                     Atwal Estate Building Tower, 1^st Floor, OT Road, Kharagpur,

                                  P.S.-Kharagpur(T),Dist-Paschim Medinipur;

3. The Manager, Indusind Bank Ltd., Chandrakona Road, Branch,  Vill-Chandrakona Road, P.O.-Santbankura, P.S.-Garhbeta,

                       District-Paschim Medinipur...……….….Opp. Parties.

                                                    

                For the Complainant  : Mr. Ashim Kumar Dutta, Advocate.

                For the O.P.                 : Mr. Pinaki Sengupta, Advocate.

 

Decided on:10/11/2017

                               

ORDER

            Pulak Kumar Singha, Member : 

 

                     Complainant files  this case u/s 12 of the C.P. Act, 1986.

  In short the case of the complainant is that the complainant is the owner of Truck bearing no. WB-33D/1868 which was insured with O.P. no.2 having valid insurance for the period from 28/09/2016 to 27/09/2017. The above noted truck met with an accident

                                                                                                                                                   Contd……………P/2

 

                                                                                                ( 2 )

on 15/02/2017 for which the front portion was totally damaged and said damaged vehicle was placed in a garage of Shree Automotive Pvt. Ltd., Howrah for the purpose of repairing. Complainant had intimated the matter of accident to the O.P. no.2 and O.P. no.2 sent a spot surveyor who inspected the vehicle and asked to submit estimate, driver’s D.L. and relevant papers. Complainant also comply the advise of surveyor and knocked the door of  O.P. no.2 on several occasions but O.P. no.2 did not  pay heed the claim of the complainant.  Finding no way the complainant reached before this for getting relief as prayed for.

O.P. nos. 1 and 2 contested the case by filing written objection denying the allegations of complainant, stating inter alia that the complaint is not maintainable, during intimation, complainant informed that Tufan Hasda was the driver on the relevant point of time but submitted D.L. of another driver, the complainant suppressed the actual fact of the case, this O.P. has no deficiency of service to settle the claim, this O.P. pray for dismissed of the case.

O.P. no.3 contested the case by filing written statement stating inter alia that the complaint is not maintainable, the complainant taken financial assistance from O.P. no.3 for purchasing the truck and said loan amount is still unpaid, the O.P. also pray for dismissal of the complaint.                           

                                                                                                   

                                              Points for decision :-

1. Is the complaint maintainable ?
2. Are the opposite parties 1 & 2 deficient in service ?
3. Is the complainant entitled to get relief as prayed for ?    

                             Decision with reasons

All the points are taken together for the sake of convenience, brevity and consideration. It is admitted that truck in question was insured with O.P. nos. 1 & 2 and with the valid insurance period said truck met with an accident and got badly damaged. The matter of accident was informed to the O.P. no.2 and investigator was appointed by O.P. no.2 who inspected the damaged vehicle and asked the complainant to submit  estimate for repairing cost, driver’s  D.L. and other documents. Complainant submitted claim Form along with required documents to the O.P. no.2. The damaged vehicle is kept in a registered garage since 18/02/2017 for repairing but as the investigat after after inspection did not gave instruction to garage authority to dismental the damaged portion of the vehicle for which the said vehicle is still waiting as unrepaired condition. But O.P. no. 1 & 2 did not settled the claim due to mismatch the name of driver as per claim. To prove

                                                                                                                                                               Contd……………P/3

 

                                                                                   ( 3 )

his case complaint adduced evidence with affidavit and submitted documents which are (marked as exhibit 1 to 7) respectively. He also cross examined by O.Ps. Complainant also adduced another witness namely Tapan Ghanteswari as P.W.-2  who stated that he was driving the vehicle in question on the date of  occurrence and produced original driving licence which is (marked as  exibit-3). Moreover he also produced authorization letter signed by the owner of the vehicle which is marked as (exibit-4). P.W.-2 also cross-examined by O.Ps. On the other hand O.Ps. did not adduce any witness on their behalf.

It appears from the written statement and written argument of O.P. Nos. 1 & 2 that the complainant informed that Tufan Husda was the driver on the date of accident but the O.Ps. could not  established that Tufan Husda was the driver of the damaged vehicle by adducing any documentary or any cogent evidence. This O.Ps. are in their cross-examination of witness mere gave only suggestion on that point which has no evidentiary value.  

It reveals from the survey report produced by O.P.no.1 & 2, that surveyor after inspection of the damaged vehicle in question assessed proposed  repairing cost of Rs.3,24,333/- in his survey report.

In view of the discussion here in before we find that complainant has proved his case on, the other hand O.Ps. are fail to prove their defence. We find from the case record and documents that the complaint case is maintainable, O.Ps. are deficient in service and complainant is entitled to get an order.  We find from the case records that the damaged vehicle is still lying on the authorized repairing garage of Howrah since 18/02/2017 and as dismental order was not given by the investigator, so garage authority did not dismental the damaged vehicle for repairing, for which complainant has to pay monthly rent for keeping the vehicle to the garage authority and he is suffering monitory loss for not plying the vehicle on road, O.Ps. rather fail to prove their defense and repudiation of driver’s clause and as per law O.Ps. cannot shifted their onus or burden to the shoulder of the complainant where complainant denies the allegation or statement of O.Ps. It is fact that truck in question is in idle condition of a garage about nine months for which complainant has to suffer huge monitory loss. In various judgments Hon’ble  National Commission opined that in case of violation of certain policy condition claim can be settled by the insurance Co. on non-standard basis. But here O.Ps. fail to prove their case or defen.

O.P.no.3 is a finance company who gave loan  to the complainant. It appears from the documents that authorized repairing centre/garage of Asoke Layland Company assessed  estimated cost of repairing Rs.4,81,886/-and surveyor assessed loss of

                                                                                                                                                        Contd……………P/4

 

 

( 4 )

Rs.3,24,333/-. It also revels from the Insurance policy that IDV is mentioned in the policy of Rs.17,01,000/-.

In view of the discussions herein above we think that complainant is entitled the amount assessed by the surveyor alongwith compensation for mental pain harassment and  financial loss.

Complainant has no claim against O.P. no.3.  So, no order is passed against O.P. no.3.                                       

                      Hence, it is,

                                                 Ordered,

                          that the complaint case be and the same is allowed on contest against the O.P. nos.  1 & 2.   O.P. nos. 1 & 2 are directed to pay jointly or severally Rs.3,24,000/- along with compensation of Rs.40,000/- and Rs.5,000/- as litigation cost to the complainant within one month.

Failure to comply the order O.P. nos. 1 & 2 shall be liable to pay Rs.5,000/-  as penal damage to the Legal Aid Fund of this Forum till full realization of this order.

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

           Dictated and Corrected by me

                              Sd/-P.K. Singha                          Sd/- S. Sarkar                            Sd/-B. Pramanik.

                                    Member                                    Member                                       President

                                                                                                                                       District Forum

                                                                                                                                   Paschim Medinipur