Sikkim

south

CC/01/2015

Santosh kumar Gupta - Complainant(s)

Versus

The Manager/ Concerned Authority, Shriram genaral insurance pvt limited - Opp.Party(s)

Prasun Adhikari

07 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
SOUTH SIKKIM AT NAMCHI

​
CONSUMER COMPLAINT CASE NO. 01 OF 2015
DATE OF FILING OF COMPLAINT: 09.04.2015
DATE OF FINAL ORDER : 07.08.2015

PRESENT:- 1. Prajwal Khatiwada, President
2. B.B.Rai, Member
3. Saraswati Pradhan, Member

Santosh Kumar Gupta,
S/o Ramji Prasad Gupta,
R/o Jorethang Bazar,
P.O Nayabazar, P.S Jorethang,
South Sikkim
.…...…Complainant
-Versus-
1. The Manager,
Shriram General Insurance Company Limited,
E-8, Epip, Sitapura Industrial Area,
Jaipur, Rajasthan – 302 022
2. The Branch Manager,
Shriram General Insurance Company Limited,
1st Floor of Panna Villa, 6th Mile Tadong,
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Opposite Entel Motors, P.O Tadong,
Gangtok, East Sikkim
…......Opposite Parties/Respondents
FOR THE COMPLAINANT : Ld. Counsel Shri
Prasun Adhikari
FOR THE OPPOSITE PARTIES : ex parte
O-R-D-E-R
1. This is to decide a complaint filed by the
Complainant Santosh Kumar Gupta under Section 12 of
the Consumer Protection Act, 1986 claiming deficiency in
service on the part of the Opposite Parties(OPs)/insurers.
He has, accordingly, prayed for compensation to the tune
of ₹ 5,16,187/- under various heads.
2. Briefly stated, it is the case of the Complainant that
he is the registered owner of a Tata truck bearing
registration No. SK-04D/0252 which was insured with
the OPs(insurer) vide insurance policy No.
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10003/31/15/085667(Exhibit-1) with validity from
25.05.2014 to the midnight of 24.05.2015.
3. The said vehicle met with an accident on 14.02.2015
at Melli-Jorethang road, 10th Mile(South Sikkim) while
coming from Siliguri(West Bengal). It was proceeding to
Jorethang. It sustained damages in the said accident. It
was driven by his(Complainant's) authorized driver Tek
Bir Karki at the time of the accident. A General
Diary(GD) report regarding the accident was also lodged
by the Complainant before the Jorethang Police
Station(PS) which came to be registered as GD
No.142/B/JPS dated 14.02.2015.
4. According to the Complainant, he even informed the
OP No.2 about the accident through his mobile phone on
the same day. He also lodged a complaint regarding the
accident through the toll free contact number 1800 300
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30000 of the OPs(as also indicated in the concerned
policy of insurance-Exhibit-1) on the following day of the
accident i.e., 15.02.2015, on which his complaint was
registered as Complaint No.201718. He was advised to
contact the local branch i.e., the OP No.2.
5. Accordingly on 17.02.2015 the Complainant
appeared before the OP No.2(local branch) on which he
was advised to provide the estimate(for the cost likely to
be incurred in the repair of his damaged vehicle) and the
photographs of the vehicle. He submitted the required
estimate prepared by a workshop at Siliguri namely
HILL BODY GARAGE(for ₹ 1,78,987/-) and the
photographs of the accident vehicle at the Siliguri branch
of the OPs(as advised by them).
6. Unfortunately, on 02.03.2015 the Complainant was
informed by the OP No.2 that no compensation/damages
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would be paid to him since the insurance policy was void
ab initio.
7. The Complainant repeatedly contacted the OPs but to
no avail. Left with no option, he sent a legal notice to the
OP No.2(with a copy to the OP No.1) through his
Advocate on 03.03.2015 demanding that his claims be
settled within seven days of the receipt of such notice
failing which legal action would be taken.
8. On 19.03.2015 the Complainant received a
letter(Exhibit-11) from the authorized signatory of the OP
No.1 wherein it was stated that there was some
miscommunication between its branch and the
Complainant. The Complainant was, accordingly, advised
to visit the nearest branch(OP No.2). When the
Complainant visited the nearest/local branch(OP No.2) he
was (again) requested by the said branch to visit the
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Siliguri branch.
9. The Complainant then visited the Siliguri branch of
the OPs where he was informed that the OPs were ready
to pay only a sum of 70,000/- ₹ as total compensation for
the concerned damages. There was, however, no
justification given for it. The Complainant refused to
accept the said amount.
10. According to the Complainant, his vehicle is parked
in the premises of the above workshop(HILL BODY
GARAGE) which is charging ₹ 300/- per day as the
parking fee(since 14.02.2015). He has already paid an
amount of ₹ 9,600/- to the said workshop as the parking
fee and the remaining are still to be paid. He would also
claim that due to his vehicle being damaged he is
suffering a loss of ₹ 2,500/- per day(barring Sundays)
which he used to earn on a daily basis when the vehicle
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was in use.
11. As per the Complainant, he had also approached the
Insurance Regulatory Development Authority(IRDA) on
11.03.2015 pursuant to which the Grievance Manager of
the OPs had contacted him. However, his grievances were
not addressed.
12. The Complainant has, accordingly, approached this
Forum claiming compensation/damages as follows:-
SL.
NO.
HEADS AMOUNT
1. Estimated Cost for repairing the accident vehicle at HILL BODY
GARAGE, Siliguri
₹ 1,78,987/-
2. Parking Charge @ ₹ 300/- per day since 14.02.2015 till the filing
of the complaint
₹ 14,700/-
3. Loss of income @ ₹ 2,500/- per day due to the detention of the
vehicle in the above workshop since 14.02.2015(excepting
Sundays)
₹ 1,12,500/-
4. Travelling expenses incurred while visiting the Branch Offices of
the OPs at Gangtok and Siliguri and other incidental expenses
₹ 10,000/-
5. Non-pecuniary damages - for mental pain and agony/harassment ₹ 2,00,000/-
Total ₹ 5,16,187/-
13. It may be mentioned here that initially only the OP
No.2(Gangtok Branch Office) was arraigned as the OP by
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the Complainant. Later, the OP No.1 was added as a party
with the permission of this Forum(granted vide order
dated 11.05.2015, at Serial No.03) as the concerned
insurance policy was purportedly issued on its behalf. The
complaint was also amended accordingly.
14. After the amended complaint was filed notices were
issued to the OPs on which their Counsel appeared before
this Forum and filed his Vakalatnama on their behalf.
Unfortunately, the OPs took no steps in the matter and
even stopped appearing. Vide order dated 21.07.2015, at
Serial No.08, it was ordered that they shall be proceeded
ex parte.
15. The following points were framed for determination
after hearing the Complainant through his Ld. Counsel
and on careful perusal of the complaint and the
accompanying documents:-
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1. Whether the complaint is maintainable?
2. Whether the vehicle of the Complainant met with an
accident on 14.02.2015 at Melli-Jorethang road, Near 10th Mile,
South Sikkim?
3. Whether the concerned vehicle was insured with the
Opposite Parties at the time of the alleged accident?
4. Whether any terms and conditions of the concerned
insurance policy was violated in the present case?
5. Whether the Opposite Parties are liable to cover the
concerned expenses incurred by the Complainant on the repair
of his vehicle. In other words, are they liable to compensate
him?
6. Whether the Complainant is entitled to the reliefs prayed
for by him?
16. The Complainant examined only himself in support
of his case. He also relied on many documents. After he
closed his evidence his Ld. Counsel was heard at
length(on final arguments). A written synopsis of
arguments was also filed by the Ld. Counsel.
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17. During the arguments, Ld. Counsel for the
Complainant contended, amongst other things, that the
Complainant has been able to prove his case through
cogent evidence. As per the Ld. Counsel, the neglect and
deficiency in service on the part of the OPs have been
established. Further, the claims of the Complainant have
remained unassailed as the OPs never contested the
matter. Ld. Counsel also invited our attention to the
various documents filed in the matter by the Complainant.
18. We have given our anxious and thoughtful
consideration to the submissions put forward by the
Counsel for the Complainant and have carefully gone
through the evidence/materials adduced by the
Complainant.
19. The point No.2 shall be taken up first.
“2. Whether the vehicle of the Complainant met with an accident on
14.02.2015 at Melli-Jorethang road, Near 10th Mile, South Sikkim?”
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20. It has been the case of the Complainant that his Tata
truck bearing registration No. SK-04D/0252 met with an
accident on 14.02.2015 at the Melli-Jorethang road, near
10th Mile, South Sikkim and sustained damages. While
examining himself before this Forum he has categorically
deposed about it on oath. He has also put forward
documentary evidence which clearly establish the factum
regarding the concerned accident(and the fact that the
vehicle/truck was damaged in the accident). In fact, it is
noted that after the concerned accident a General
Diary(GD) report was made by him before the Jorethang
PS. The report was made on the same day. He has
identified/proved Exhibit-4 as the copy of the concerned
GD report. A perusal of Exhibit-4 would reveal that it is
regarding the concerned accident. The official seal of the
Jorethang PS can also be seen on it. Apart from Exhibit-4
above, the Complainant has filed the photographs of the
vehicle(Exhibit-7 in eight numbers) which fortify his
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case(the damages sustained by the vehicle can be seen in
Exhibit-7). The above documents, as also the oral
evidence of the Complainant, have remained
uncontroverted. As a matter of fact, the OPs did not try to
refute his claims despite being aware of it and despite
having been present before us initially. We have no reason
to doubt the credibility of the Complainant's case. It has,
therefore, been clearly established that his Tata truck met
with the concerned accident on 14.02.2015 and sustained
damages. Point No.1 is accordingly decided in the
affirmative.
21. Points No.3 and 4 shall be taken up now.
“3. Whether the concerned vehicle was insured with the Opposite
Parties at the time of the alleged accident?
4.Whether any terms and conditions of the concerned insurance
policy was violated in the present case?”
22. It has also been the case of the Complainant that his
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vehicle was duly insured with the OPs. In fact, he has
produced the original policy/certificate of insurance
before us. Exhibit-1 is the said policy/certificate. A
perusal of the same would reveal that it is in respect of the
accident vehicle and has been issued by(on behalf of) the
OP No.1. The name of the Complainant has been
indicated therein as the concerned insured
(owner). Further, the engine and chassis numbers
of the accident vehicle have also been
indicated as 6BTAA125HP901D62745565 and
MAT38814191D08510, respectively, which tally with the
numbers appearing in the Certificate of Registration of
the said vehicle(Exhibit-2) which has also been filed in
the matter. The policy is seen to be covering 'own
damages(which would include the damages sustained by
the vehicle due to accident), personal accident of the
owner/driver and the liabilities in respect of third parties.'
The Schedule of Premium would indicate that an amount
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of 10,470/- has been ₹ paid by the Complainant as the
premium for 'Own Damage.' The policy is seen to be
valid from 25.05.2014 to 24.05.2015(the accident in this
case occurred on 14.02.2015 i.e., well within the period
covered). The OPs made no efforts to assail Exhibit-1.
Suffice it to say, it is clear that the accident vehicle was
duly insured with the OPs, particularly the OP No.1, at
the time of the accident. Point No.2 is accordingly
decided in the affirmative.
23. So far as the violation of the terms and conditions of
the concerned insurance policy is concerned, there is
nothing to even faintly suggest the same. As pointed out
above, the OPs did not consider it appropriate to contest
the case of the Complainant. Going by the unassailed
evidence of the Complainant the vehicle was being driven
by his authorized driver Tek Bir Karki at the time of the
accident. He has also filed a copy of the driving licence of
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his driver(i.e., Exhibit-3) which indicates that his driver
had a valid driving licence (with validity upto 18.03.2016)
and was authorized to drive light motor vehicles and
transport vehicles(which includes a goods carriage
vehicle).1 The accident vehicle in the present case falls
within the category of goods carrier as indicated in its
Certificate of Registration(Exhibit-2). This would thus
mean that the accident vehicle was being driven by an
authorized person. Exhibit-2(Certificate of Registration)
would reveal that the tax concerning the vehicle was paid
upto 11.06.2015. Needless to say, the relevant documents
of the accident vehicle(including the driving licence of its
driver) are seen to be in order(as required by the terms of
the concerned policy) at the time of the accident. There is,
therefore, nothing to indicate that there was any violation
of any of the terms and conditions of the concerned
insurance policy on the basis of which the OPs,
particularly the OP No.1, could avoid their liability to
1 According to Section 2(47) of the Motor Vehicles Act, 1988 “transport vehicle” includes a good carriage
vehicle
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cover the expenses likely to be incurred in the repair of
the accident vehicle. Point No.4 is accordingly decided in
the negative.
24. The points No.1 and 5 shall be taken up now.
“1. Whether the complaint is maintainable?
5. Whether the Opposite Parties are liable to cover the concerned
expenses incurred by the Complainant on the repair of his vehicle. In other
words, are they liable to compensate him?”
25. We have already come to the findings above that the
accident vehicle was duly insured with the OPs,
particularly the OP No.1, and that no terms and conditions
of the concerned insurance policy was violated in this
case. The Complainant has claimed, amongst other
things, the reimbursal of the expense incurred by him on
the repair of his vehicle as duly covered by the concerned
insurance policy(though in his complaint he has not
mentioned that the vehicle was actually repaired his
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evidence would show that the vehicle was later repaired
by him and the amount of ₹ 1,78,987/- was paid by him to
the concerned workshop). He has proved that the said
expense was incurred by him. In fact, he has filed the
money receipt for the concerned amount issued to him by
the owner of the above workshop i.e., Exhibit-12, which
has remained unassailed. The Complainant has also
proved the deficiency in service and neglect on the part of
the OPs despite having been immediately informed about
the concerned accident. In fact, according to him, the OP
No.2 was informed about the accident over the mobile
phone on the same day of the accident(14.02.2015). He
even lodged a report/complaint on the following
day(15.02.2015) through the toll free number of the OPs
on which his complaint was registered as Complaint
No.201718. On 17.02.2015, he appeared before the OP
No.2 on which he was advised to provide the estimate and
the photographs of the accident vehicle. He, accordingly,
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submitted the estimate prepared by the concerned
workshop above and the photographs to the Siliguri
branch of the OPs as advised by them. He has identified
Exhibit-5(in two pages) as the photocopy of the
concerned estimate submitted by him at the Siliguri
branch(Exhibit-5 has also remained unassailed and
indicates the repairs required). Surprisingly, on
02.03.2015 he was informed that no compensation would
be paid to him since the concerned insurance policy was
void ab initio. Left with no option, he sent a legal notice
to the OPs on 03.03.2015 but to no avail. He has
identified Exhibit-8(in three pages) as the office-copy of
the said legal notice and Exhibits 9 and 10 as the
concerned postal receipts. The postal receipts would show
that the concerned legal notice(with a copy) were sent to
the OPs. The Complainant had even lodged a complaint
before the IRDA on 11.03.2015 on which the Grievance
Manager of the OPs contacted him. It was however to no
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avail. On 19.03.2015, he received a letter from the
authorized signatory of the OPs(i.e., Exhibit-11)2 vide
which he was advised to contact the nearest branch. The
OPs had also mentioned in the said letter that there was
some miscommunication between the branch and him. In
pursuance of such advice he(Complainant) visited the OP
No.2 which requested him to visit the Siliguri branch of
the OPs. Finally, when he visited the Siliguri branch he
was informed that the OPs were willing to pay him only ₹
70,000/- as compensation for the damages. There was,
however, no basis for it and, as such, the Complainant
refused to accept it. The above claims of the Complainant,
which have been reiterated by him before us on oath, have
remained unrefuted and go on to show the repeated
harassment suffered by him at the hands of the OPs. It is
also surprising to note that no Surveyor was deputed for
assessing the concerned damages which means right since
the beginning the OPs had no intention at all to honour
2 Exhibit-11 has remained unassailed and proves that the OPs were aware of the concerned accident and the
nature of damages/claims involved
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the contract of insurance. Suffice it to say, there has been
gross deficiency in service on the part of the OPs despite
being the insurer of the accident vehicle. It is unfortunate
that instead of taking appropriate steps in the matter and
addressing the grievances of the Complainant the OPs
simply indulged in harassing him by making him visit
different branch offices. They have clearly neglected to
take appropriate steps(which include covering the
expenses for the concerned repairs) as required by the
terms of the concerned insurance policy. Considering the
deficiency in service above, the wilful neglect and the
harassment given to the Complainant the present
complaint is clearly maintainable and the OPs, being the
insurer and having failed to put forward anything worthy
on the basis of which they could avoid their liability
under the concerned contract/policy of insurance, are
liable to compensate the Complainant Santosh Kumar
Gupta. Points No.1 and 5 are decided accordingly.
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26. Point No.6.
“6. Whether the Complainant is entitled to the reliefs prayed for by
him?”
27. As held above, the OPs, particularly the OP No.1,
are liable to compensate the Complainant. First of all,
they have to reimburse the amount of ₹ 1,78,987/- which
is the total expense incurred by the Complainant on the
repair of his vehicle. Apart from the said expense, the
Complainant has claimed that he had to pay ₹ 300/- per
day(total ₹ 14,700/-) for having parked his vehicle in the
premises of the concerned workshop(since 14.02.2015).
He has produced the concerned money receipts for such
payment (in two nos.) i.e., Exhibits 13 and 14. A perusal
of these exhibits would reveal that the Complainant had
to indeed pay ₹ 9,600/- plus ₹ 5,100/- as parking charges.
These exhibits/money receipts have also remained
unassailed and we have no reason to doubt the same. The
Complainant has even claimed that as his vehicle was not
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in use for quite sometime he had to suffer loss of ₹
1,12,500/-(at the rate of ₹ 2,500/- per day). It may,
however, be mentioned here that he has not been able to
sufficiently/objectively prove that his vehicle was
otherwise earning ₹ 2,500/- per day. However,
considering the fact that it was a goods carrier vehicle we
consider it appropriate to award a lump sum amount of ₹
25,000/- to him for financial loss obviously suffered by
him due to its non-user. The Complainant has also
claimed ₹ 2,00,000/- as non-pecuniary damages for
mental pain and agony/harassment caused to him by the
action and inaction on the part of the OPs. Considering
the nature of the case we consider it appropriate to award
an amount of ₹ 20,000/- for mental pain and
agony/harassment suffered by him(as is evident from
what has been discussed earlier above).3 Finally, a claim
of ₹ 10,000/- has been made by the Complainant as the
3 It may be mentioned here that in the case of Ghaziabad Development Authority, Appellant v. Balbir Singh,
Respondent (2004) 5 SCC 65 the Hon'ble Supreme Court has been pleased to observe at paragraph 6 that 'the
provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to
redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or
services but also to compensate a consumer for injustice suffered by him.'
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travel expenses and incidental charges incurred by him
while visiting the different branch offices of the OPs.
Since we have already awarded an amount of ₹ 20,000/-
for mental pain and agony/harassment we do not consider
it appropriate to accept the said claim of ₹ 10,000/-,
moreso, when no document/fare-bill has been placed
before us.
28. Resultantly, we find the Complainant entitled to
damages/compensation to the tune of ₹ 1,78,987/- + ₹
25,000/- + ₹ 20,000/- + ₹ 14,700/- = ₹ 2,38,687/- from the
OPs, particularly the OP No.1. Further, interest at the rate
of 9% per annum shall be paid on the said amount from
the date of filing of the complaint i.e., 09.04.2015, till the
full and final payment.
29. The awarded amount shall be paid by the OPs within
six weeks from today.