Hon'ble Mr. Haradhan Mukhopadhyay, President.
The fact of the case of the Complainant in a few words is that the Complainant Sri Sabyasachi Kar purchased one Motor Vehicle TATA Pick Up Van (Goods Vehicle) from OSL Automotive Pvt. Ltd., Cooch Behar on 30.04.19 with the financial help of O.P. No.2, Mahindra & Mahindra Finance Service Limited. Subsequently OSL Automotive Pvt. Ltd., applied for registration of the said vehicle before the RTO Cooch Behar. The Number of the vehicle is WB-63-B-1803 and Chassis No.MAT464607KSD04403. After receiving full insurance premium of Rs.23,147/- the O.P. No.1 Magma General Insurance Company Limited issued policy bearing No.P0020000100/4103/826858 for the period from 13.09.19 to 12.09.20 against the said vehicle. On 14.01.20 at about 12.30 A.M. in the night the said vehicle of the Complainant went to Ghughumari and when reached bridge, due to high fog the said vehicle dashed the culvert of the bridge and was fully damaged. The Complainant informed the said accident to the O.Ps against which the O.P. No.1 asked him to submit the vehicle to the garage namely Aryan Engineering work at Cooch Behar. The said engineering workshop gave an estimate for repairing to the tune of Rs.2,62,400/-. Subsequently, the O.P. No.1 started insurance claim process and sent investigator Manish Kohli of MST investigation who collected all the documents from the Complainant. The Complainant contacted with the O.P. No.1 for realisation of insurance claim for damage of the vehicle but the O.P. No.1 did not release the damage claim intentionally till today but did not reject the insurance claim. Thereafter the Complainant lodged a written complaint to the O.P. No.1 on 30.03.21 which the O.P. No.1 received on 12.04.21. Due to long lapse of time the vehicle was damaged in the garage against which the garage authority demanded extra charge due to long time parking of the damaged vehicle. The Complainant thus suffered financial loss due to not repairing the vehicle and payment of EMI to the O.P. No.2. The Complainant had to incur a total cost of Rs.3,24,200/- for the repairing and cost of garage of the Aryan Engineering work. The O.P. No.1 did not disburse the insurance claim for which the said vehicle also could not ply on the road from 14.01.20 to 01.07.20. The aforesaid acts and misdeeds of the OP resulted in deficiency in service and caused mental pain and agony to the Complainant. The cause of action arose on 13.09.19, 14.01.20, 12.04.21 and is still continuing. The Complainant therefore prayed for an award against the O.Ps for Rd.3,24,200/- towards repairing cost, Rs.3,000/- per day for not plying of the vehicle on road, Rs.2 Lakhs towards deficiency in service and Rs. 20,000/- towards litigation cost.
O.P. No.2 preferred not to contest the case and as such the case is heard ex-parte against O.P. No.2 Mahindra & Mahindra Finance Service Limited. The O.P. No.1 Magma General Insurance Company Limited contested the case by denying most of the facts and allegation in their written version. The positive defence case in a nutshell is that the insurance policy as started by the Complainant is right but it was unregistered vehicle bearing No. WB-63-B / 1803. Statement made in Para- 1, 2 and 3 is admitted. The Complainant stated that the vehicle met with an accident on 14.01.20 but from the record it would be found that the owner of the vehicle stated in his claim form the date of accident as 14.02.20 and he deposited fees for the vehicle registration at RTO on 24.01.20. Thus the Complainant owner has misrepresented the date for misleading insurance company to process the claim. The Complainant violated the terms and conditions of insurance policy, Motor Vehicle Acts and Rules by plying the vehicle in public place without registration. The OP repudiated the claim on the ground that the vehicle was unregistered and misrepresentation of fact. The said repudiation of claim was intimated on 20.08.20 and 24.08.20. The Complainant is not entitled to get any relief. The OP claimed that the complaint case is liable to be dismissed with cost.
The pleadings of the parties the positive claim of the Complainant and its denial by the O.Ps led this Commission to ascertain the following points in dispute for proper adjudication of this case.
Points for determination
- Whether the Complainant is a consumer under the C.P. Act?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The O.P. No.1 challenged the status of the Complainant on the ground that he is not a consumer. After perusing the written version it is found that the O.P. No.1 stated in his written version about purchasing the said Motor Vehicle by the Complainant and the meeting of the vehicle with the unfateful accident on the unfateful day being 14.01.20 through his investigation report. The said investigation also discloses the policy number and policy period. The Complainant also proved the insurance policy being Annexure- D which is valid from 13.09.19 to 12.09.20. The accident appears to have taken place on 14.01.20, well within the validity of the insurance period. Whether repudiation of the claim is justified or not that would be ascertained under point No. 2 & 3 but the pleadings as well as the documents in the case record clearly reveals that the relation between the Complainant and the O.Ps falls within the purview of the C.P. Act and the Complainant should be considered as consumer under the C.P. Act.
Accordingly Point No.1 is answered in affirmative and decided on behalf of the Complainant.
Point No.2 & 3.
Both the points are very closely interlinked with each other and as such these are taken up together for convenience and brevity of discussion.
While deciding the question as to whether the Complainant is entitled to get the relief prayed for, regard being had to the oral and documentary evidence adduced by the Complainant. The Complainant in order to substantiate the case proved the necessary documents. In addition to the oral evidence in the form of evidence on affidavit adduced by the Complainant Sabyasachi Kar, documentary evidence by means of different Annexures from A to H are proved. Annexure- A is the invoice for purchasing the said Motor Vehicle. Annexure-B is the form for the registration of the vehicle against which a sum of Rs.5,431/- was paid on 24.01.20 wherein the name of the financer is written as Mahindra & Mahindra Finance Limited who is the O.P. No.2 of this case. This O.P. No.2 preferred not to contest the case and as such the case is heard ex-parte against O.P. No.2.
The Complainant also proved Annexure-C being the copy of tax invoice for a sum of Rs.7,30,850/- at an instalment of Rs.15,550/- total instalments 47. The Complainant also proved the insurance policy which is admitted by the O.P. No.1 for the period 13.09.19 to 12.09.20. Annexure –F further discloses that the said vehicle was submitted to the Aryan Engineering Work wherein total charges for repairing was imposed for Rs.2,62,400/-.
O.P. No.1 also files some documents wherefrom it is revealed that there is substance towards the claim of the Complainant in as much as most of the facts and claim are admitted by the O.P. No.1. MST investigation report dated 22.07.20 discloses own damage investigation report of MST investigation authority being date of report dated 22.06.20. The said MST investigation report clearly discloses the genuinity of policy number, policy period, name of the insurer and type of the vehicle bearing registration No. WB 63 B 1803. In fact it is the best document for the entire case. Although the O.P. No.1 challenged that at the material point of time of the accident the vehicle was not insured yet the said claim does not help the OP in as much as the investigation report of the O.P. No.1 actualy supports the case of the Complainant. The said investigation report discloses so many things of which the final conclusion is very much important. The said conclusion of the investigation discloses inter alia that the vehicle was registered in the name of Sabyasachi Kar and his driver Mr. Amul Hossain was driven the subject vehicle at the time of the mishap. Clause-2 also discloses that insurer’s driver Mr. Amul Hossain was driving the subject vehicle. When he reached Ghughumari bridge, Cooch Behar then the subject vehicle hit into the unknown trolley due to fog and the subject vehicle got damaged.
The O.P. No.1 took the defence plea that the Complainant has misrepresented by disclosing the date of accident and the date of registration. But the investigation report disclosed that the vehicle was registered.
That confusion has been removed from the final report in as much as the conclusion is drawn to the effect that “as per our investigation and supporting proofs available, the accident happened and the insurer suffered from the loss”.
Thus the Investigating Authority gave their final opinion about the happening of the accident and justification towards claim of the Complainant since the insurers suffered from the loss.
Ld. Advocate for the Complainant argued that the date was inadvertently written as 14.10.20 instead of 14.01.20.
The argument has reasonable force in as much as the investigation report clearly discloses that the vehicle met with accident on 14.01.20.
It is also the defence plea that the Complainant did not supply all the documents required for the claim.
After perusing the case record it transpires further that the MST investigation issued the reminder on 06.07.20 and 13.07.20 which the Complainant denied on the ground that he neither received such letter nor did receive any information of repudiation. As regards the first defence it is found that the said reminder was issued to one Mr. S. Akther of Gurgaon as far as the postal receipt is concerned. The O.P. No.1 could not prove any postal receipt or any documents to show that the said reminder and the repudiation letter dated 20.08.20 was issued to the Complainant. On the contrary Annexure-G clearly discloses that the Complainant issued reminder against the claim of the insurance on 30.03.21.
Plain reading of the claim form of the Complainant reveals that the date of accident seems to have been written inadvertently as 14.02.20 instead of 14.01.20. In fact the investigation report removed the discrepancy wherein the date of accident and the genuinity of the loss and the insurance claim supported the Complainant’s case.
Thus in the back drop of the aforesaid discussion and observation made therein I reasonably come to the inference that the Complainant successfully proved the case up to the hilt. Point No. 2 & 3 are thus answered in affirmative and decided in favour of the Complainant.
Consequently the complaint case succeeds on contest.
Hence, it is
Ordered
That the complaint case No. CC/40/2021 be and the same is allowed on contest with cost of Rs.10,000/- against the O.P. No.1 and ex-parte against the O.P. No.2.
The Complainant do get an award of Rs.3,24,200/- towards repairing cost of the vehicle, Rs.1 Lakh towards deficiency in service and Rs.10,000/- towards litigation cost.
The O.P. No.1 & 2 are jointly and/or severally liable to pay the compensation. The O.P. NO.1 & 2 are directed to pay a sum of Rs.4,34,200/- to the Complainant within the 30 days from the date of passing the award till the date of realisation thereof failing which the Complainant shall be entitled to recover the award money together with interest @ 6% per annum till the date of its realisation.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
