J U D G E M E N T

This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986, alleging deficiency in service, as well as, unfair trade practice against the OP as the OP had repudiated the insurance claim of the Complainant arbitrarily and whimsically on flimsy pretext.

The brief fact of the case of the Complainant is that he is the owner of the vehicle being no. WB-41F-1753, which was under the coverage of an insurance policy obtained from the OP. The said vehicle was covered under valid route permit for plying the same on the route between Guskara to Asansol, issued by Regional Transport Authority, Burdwan. The insurance policy was valid for the period from 01.07.2013 to 30.06.2014.  On 27.08.2013 when the vehicle was

1

proceeding on its usual route then it met with an accident and capsized. At that place four lanes of NH-2 converted into two lane road. When the bus driver was proceeding from four lane into two lane then another vehicle from the other side with high speed suddenly came in front of the bus for getting four lane road and the driver had no other alternative than to swipe the bus as such it dashed a roadside poll and capsized. There was no other cause for the alleged accident. Due to such accident the bus got several damages and nearly ten passengers got injury. The bus was put in the workshop after getting release from police custody. Thereafter claim was lodged before the OP and accordingly the OP had appointed surveyor, who inspected the vehicle for several times. After completion of survey work the Complainant visited the office of the OP on several occasions requesting for settlement of his claim, but the OP by issuing a letter dated 18.06.2014 had repudiated the claim with allegation of over loading. The Complainant has stated that during material time of accident there were 25-30 passengers. The Complainant had never violated any terms of the insurance policy, so such repudiation of the claim on such imaginary ground can be termed as deficiency in service and unfair trade practice on behalf of the OP. Due to such illegal action of the OP the Complainant has been suffering mental pain and agony along with financial loss. The Complainant had to incur expenses to the tune of Rs. 1, 60,000=00 towards the repairing cost of the damaged vehicle and so the Complainant is entitled to get the said amount as compensation from the OP. The cause of action of the present complaint arose on 18.06.2014 when the claim was repudiated by the OP. Therefore finding no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying direction upon the OP for making payment of Rs. 1,60,000=00 to him due to deficiency in service and unfair trade practice and Rs.50,000=00 towards mental pain, agony and litigation cost.

2

The petition of complaint has been contested by the OP by filing written version wherein the OP has denied the entire allegation as made out in the Complaint. The OP has stated that the alleged accident took place due to overloading i.e. due to excess carriage beyond the permitted seating capacity and as such there is clear breach of the policy condition. According to the OP during accident there were about 90 passengers in the bus in question and some passengers were also on the roof of the said bus, but the seating capacity in the said bus was 38 as per policy copy. So excessive overloading was one of the main contributing causes of the alleged accident. The driver of the overloaded bus while trying to overtake another milk van ahead of it had lost the control and smashed the concrete pillar of the right side of the road and overturned. Overloading of the passengers led to correspondingly higher momentum of the said bus in question, which could not control the brakes and led to impacts that caused the damage including the alleged deaths and physical injuries of several persons. The braking system of the questioned bus could not cope adequately the high momentum caused by heavy overloading. The alleged accident took place due to excessive carriage beyond the permitted seating capacity and as such there is clear breach of the policy condition and for such breach the OP is not liable to pay any compensation to the Complainant and so the claim is not payable. The OP has further contended that the report of the Investigator, Mahesh Thakkar of Commercial Investigation Bureau dated 12.09.2013 shows that he had undertaken verification from the police authority and from some local people near the spot of the occurrence and it was gathered that Asansol bound insured bus named Suhana Travels was carrying 90 passengers from Natunhat overtook a milk van on the stretch on NH-2, but swerved to the right to avoid crater or vehicle coming from opposite direction and rammed into a concrete pole under Budbud PS jurisdiction. The bus overturned on impact and 9 commuters died as many as 30 passengers got injury and some of whom were stated to be critical. The news of the reported

3

accident carrying 90 passengers and death/injuries of the commuters were published in the daily newspapers namely Sambad and Bartaman etc. accordingly. The OP has mentioned that it is only liable to pay compensation to the Complainant when the risk is covered by the policy and not beyond that. The OP had issued the policy subject to the terms, conditions, exceptions and limitations thereof. As the insurance claim of the Complainant was repudiated rightly as per the terms and conditions of the policy, hence there was no deficiency in service or unfair trade practice on behalf of the OP. The Complainant with a view to gain an unlawful relief has filed this untenable, vexatious and misconceived complaint, which is liable to be dismissed with cost of Rs.10, 000=00 as per the Section 26 of the Consumer Protection Act.

The Complainant has filed evidence on affidavit; Investigator’s report is also filed. The OP has filed written notes of argument. The Investigator filed evidence on affidavit, which was cross-examined by the Complainant by filing questionnaire and the Investigator has filed replies accordingly. Both parties have filed several documents and papers in support of their respective contentions and several rulings to corroborate their cases.

At the very outset it is to be adjudicated as to whether the Complainant can be regarded as consumer or not within the Consumer Protection Act. Admittedly the Complainant obtained an insurance policy for his vehicle against payment of due premium. Therefore the OP-being insurer is a service provider and the Complainant is a consumer as his vehicle was under the coverage of the insurance policy. As the cause of action of this complaint arose within the jurisdiction of this Ld. Forum and the complaint was filed within two years from the date of cause of action hence the complaint is maintainable from the point of its territorial

4

jurisdiction as well as limitation. Admittedly the Complainant has prayed for relief of an amount which did not cross the pecuniary jurisdiction of this Ld. Forum, so the complaint is well maintainable from the pecuniary jurisdiction.

Now we are to adjudicate as to whether the Complainant is entitled to get any relief or not. We have carefully perused the record, documents filed by the parties as well as several Rulings filed by the contesting parties in support of their respect contentions. It is seen by us that admittedly the vehicle of the Complainant was under the coverage of an insurance policy, obtained from the OP against payment of due premium, said vehicle enjoyed valid route permit also, within the validity of the insurance policy 27.08.2013 the vehicle met with an accident and capsized while it was coming on the valid route, the accident took place as the vehicle dashed a roadside poll,  due to such accident the vehicle got damage severely and some passengers got injury, the bus was put in the workshop for its necessary repairing, insurance claim was lodged, surveyor/investigator appointed, report submitted, the claim was repudiated by the OP and the same was duly intimated the Complainant by issuing letter dated 18.06.2014. The allegation of the complainant is that though he had never violated any terms and the conditions of the subject policy, the OP had repudiated the claim in arbitrary manner and on flimsy ground stating that at the material time of accident the vehicle was overloaded and according to the OP it was carrying about 90 passengers, which is out and out a false statement. According to the Complainant only to avoid for making payment/claim, the OP has taken imaginary ground, which is a glaring example of deficiency in service and unfair trade practice.  Praying for relief this complaint is filed. On the other side the case of the OP is that the alleged accident took place due to overloading i.e. due to excess carriage beyond the permitted seating capacity and as such there is clear breach of the policy condition. According to the OP during accident there were about 90 passengers in the bus in question

5

and some passengers were also on the roof of the said bus, but the seating capacity in the said bus was 38 as per policy copy. So excessive overloading was one of the main contributing causes of the alleged accident. According to the OP as there is clear breach of the policy condition the OP is not liable to pay any compensation to the Complainant and so the claim is not payable. The OP has further stated that the claim has been repudiated in view of the Investigator’s report. The OP has prayed for dismissal of the complaint with cost. The OP has mentioned that as the claim was rightly repudiated as per the terms and conditions of the policy, the same cannot be regarded as deficiency in service and/or unfair trade practice on its behalf.

In the petition of complaint the Complainant has mentioned that upon receipt of his claim form one Surveyor was appointed by the OP, who inspected the vehicle and ultimately submitted his report. But from the record no Surveyor’s report is available. On the contrary, it is seen by us one Sri Mahesh Thakkar being an Investigator of Commercial Investigation Bureau was appointed by the OP to investigate the claim under the policy, who after completion of investigation had duly submitted the investigation report on 12.09.2013 before the OP. Therefore the averment of the Complainant is not correct. During hearing the Ld. Counsel for the Complainant has submitted that the report submitted by the Investigator cannot be accepted as there is no such provision in the Insurance Act, 1938 to appoint an Investigator for assessing the loss and damage of insured article. The Complainant has filed the Xerox copy of the said Act, from where it is evident in 64 UM that licensed Surveyors and Loss Assessors should be appointed to assess the loss and damage of the insured goods/article. In the case in hand admittedly no Surveyor was appointed by the OP, one Investigator was appointed to assess the loss and damage. The Ld. Counsel for the OP has failed to show us as to whether any provision exits in the Insurance Act for appointment of an Investigator to assess

6

the loss and damage of the insured article, rather he submitted that there is no such provision in the Insurance Act, 1938. The Ld. Counsel for the OP has further submitted that upon receipt of a claim form one Investigator is appointed to know the actual truth that whether any incident/accident or whatever it may has been occurred or not. But whether the Investigator is empowered to submit a report assessing the loss and damage, we did not find any provision in the Insurance Act, 1938. So it was the duty of the OP to appoint one Surveyor/Loss Assessor to assess the loss and damage of the damaged insured vehicle after getting knowledge or information from its Investigator that actually accident occurred and the insured vehicle got damage severely due to that accident. So the OP has itself violated the provision as enumerated in the Insurance Act, 1938. So the report of the Investigator cannot be accepted, based on which the repudiation of the claim has been made by the OP.

It is seen by us that the claim of the Complainant was repudiated on the ground that during material time of accident the insured vehicle was carrying about 90 passengers, which was admittedly beyond the terms and the conditions of the insurance policy and according to the OP due to such overloading accident took place and as there was breach of the policy condition, the Complainant is not entitled to get any relief. On the other hand, the contention of the Complainant is that at the time of accident there were 25-30 passengers in the bus, which is within the limit of the policy condition. Now we are to adjudicate whether there were either 25-30 passengers or 90 passengers.

Though we are not inclined to accept the Investigator’s report as Surveyor’s report in view of the Insurance Act, 1938, but as it is filed in the record we are to discuss on the said report on different angle. In the evidence, as well as, in the report the Investigator has mentioned that ‘he had undertaken verification from

7

the police authority and from some local people near the spot of occurrence and it was gathered that Asansol bound insured bus was carrying about 90 passengers from Natunhat overtook a milk van on the stretch on NH-2 but swerved to the right to avoid crater or vehicle coming from opposite direction and rammed into a concrete pole under Budbud P.S. jurisdiction. The bus overturned on impact and nine commuters died. As many as 30 passengers were injured, some of whom were stated to be critical. The news of reported accident, carrying 90 passengers and death/injuries of the commuters were published in most of the daily newspapers’. The Complainant has cross-examined the Investigator by way of filing questionnaire and replies filed by the Investigator accordingly. In the answer the Investigator has stated approval from IRDA is not required. But we have noticed from the Insurance Act, 1938 (64UM) that no person shall act as a Surveyor or Loss Assessor unless he holds a valid license issued to him by the Authority. In the case in hand not being a Surveyor or Loss Assessor the Investigator after completion of entire inspection and investigation had filed his report, but whether he had approval from IRDA or not, answer has not been given by him properly and clearly as no approval number is mentioned by him in view of questions put before him (Q-1&2). In respect of Q-3,5,6,7,8,11 and 16 the Investigator replied in the negative which means that he did not obtain any written statement from the local people where the incident occurred, not get any picture of the damaged vehicle, did not visit the garage where the bus was placed for repairing, inspite of getting the name of injured passenger from the newspaper, on which he relied on, he did not bother to collect evidence from her, not met with the injured persons at BMCH, where the injured passengers were brought for treatment and did not collect any list of injured from BMCH. In respect of Q-9 he could not say anything. From the replies it is evident he inspected the damaged bus while the same was standing in the compound of Budbud Police Station.

8

Upon careful perusal of the documents we are to say that though the insurance claim has been repudiated by the OP based on the report on the ground that the Complainant had breached the terms and conditions of the policy as during material time of accident the alleged insured bus was carrying about 90 passengers, but in respect of such averment no convincing documentary evidence has been placed before us from where we can easily draw the conclusion that the Complainant had violated the policy terms and condition fully knowing that in the insurance policy permission was given for 37 passengers including driver and cleaner. Admittedly the Complainant has mentioned that during accident there were 25-30 passengers in the bus, but the OP has submitted that about 90 passengers were in the said vehicle, so now the burden of proof lies upon the shoulder of the OP to prove its contention. But we have noticed that the OP has failed to prove such averment by adducing cogent and convincing document. Therefore in our view the OP has repudiated the insurance claim of the Complainant whimsically, not properly. So such whimsical repudiation and inaction on the part of the OP can easily be termed as deficiency in service on its part and for such deficiency in service the OP is liable to pay compensation to the Complainant. It is true that admittedly as the grievance of the Complainant had not been redressed by the OP, the Complainant had to approach before this Ld. Forum by filing this complaint praying for some relief and redressal and had to incur some expenses. For this reason we are of the view that the Complainant is also entitled to get litigation cost from the OP.

The Ld. Counsel for the OP has relied on several Rulings in support of its contentions i.e.

1. Revision Petition no-2636/2010 (NC)
2. IV (2014) CPJ 635 (NC)
3. IV (2014) CPJ 632 (NC)
9.  
4. IV (2014) CPJ 102 (Chhat)
5. IV (2014) CPJ 356 (NC)
6. IV (2014 CPJ 115 (Del)

We have carefully gone through all the Rulings filed by the OP and in our view the said Rulings are not applicable in the case in hand because most of those cases violation of the terms and conditions of the insurance policy/agreement are proved, the Ops have successfully proved overloading by producing documentary evidences, surveyors were appointed to assess the loss and damage of the insured article/goods, nexus has been proved by and between the accident and overloading, persons were travelling in goods vehicle, vehicle was used as taxi instead of light goods vehicle etc. But in the case in hand no Surveyor was appointed to assess the loss and damage of the insured vehicle and the OP has failed to prove that accident took place due to overloading in the questioned bus. Therefore we are not in a position for coming to a conclusive decision that the Complainant himself had breached the terms and conditions of the insurance policy.

The Ld. Counsel for the Complainant has also relied on some judgments i.e.

1. 2014 (4) CPR 548 (NC)
2. 2014 (1) CPR 19 (Uttara)
3. 2014 (1) CPR 21 (A.P.)
4. 2012 (2) CPR 228 (NC)
5. 2012 (2) CPR 231 (NC)
6. 2013 (1) CPR 292 (Ker)
7. Revision Petition no-3107/2010
8. 2014 (1) CPR 61 (NC)
9. 2013 (2) CPR 564 (NC)
10. 2012 (2) CPR 84 (NC)
11. 2009 (2) CPR 10 (NC)
10.  

We have carefully perused those judgments and in our view Ruling no-(i) is applicable in the case in hand wherein it has been held by the Hon’ble Commission that allegation of the OP should be proved by him/it. Ruling nos. (viii, ix, x, xi) are not applicable in the case in hand because violation of the terms and the conditions of the insurance policy has not been proved by the OP and the OP could not prove overloading in the bus. Therefore direction for settlement of the insurance claim to the OP on non-standard basis does not arise at all.   Other cited Rulings though applicable partly but the same need not be explained as we are not at all satisfied with the contention of the OP. 

In the prayer portion the Complainant has prayed for repairing cost of the damaged insured vehicle to the tune of Rs.1, 60,000=00, but in support of his claim no document is filed by him to show us that for repairing purpose he had to pay the said amount to the workshop/garage. As no bill/voucher is forthcoming, we are not in a position to allow the amount of Rs.1, 60,000=00 as prayed for by the Complainant. But admittedly challenging the repudiation letter this complaint is filed and as in our considered view the repudiation was not proper, we are inclined to direct the OP for settlement of the insurance claim of the Complainant lodged by him.

Going by the foregoing discussion, hence, it is

O r d e r e d

 that the complaint is allowed in part on contest with cost. The OP shall settle the insurance claim of the Complainant as lodged within a period of two months from the date of passing of this final order. The Complainant is directed to extend co-

11

operation to the OP, if requires. The OP is further directed for making payment of Rs.10, 000=00 to the Complainant towards compensation due to unnecessary harassment, mental agony, pain and financial loss and Rs.3, 000=00 as litigation cost within a period of 45 days from the date of passing of this order, in default, the Complainant will be at liberty to put the entire decree into execution as per provisions of law. With the above-mentioned observation the complaint is thus disposed of accordingly.

                   (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                 President       

                                                                                                          DCDRF, Burdwan

                      (Silpi Majumder)

                             Member

                    DCDRF, Burdwan

                                                    (Durga Sankar Das)                           (Silpi Majumder)

                                                           Member                                              Member    

                                                      DCDRF, Burdwan                            DCDRF, Burdwan