Date of filing :- 21/07/2015
Date of Order :-05/07/2017
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM (COURT)
B A R G A R H
Consumer Complaint No. 44 of 2015.
Gajapati Nayak, aged about 64(Sixty four) years, S/o-Nilakantha Nayak,
Kakaya Nayak, aged about 60 years W/o- Gajapati Nayak,
Chanda Nayak, aged about 25 Years, daughter of Gajapati Nayak,
All are resident of C/o Ditikrushna Sahu, A.K.Febrications, at- Ward No.18, Bandutikra Chowk, Po/Post /Dist- Bargarh (Odisha) Pin-768028 .... ... .... ....Complainant.
The National Insurance Co Ltd. Represented through it’s Branch Manager, At-Canal Avenue, Po/Ps/Dist-Bargarh.
..... ..... ..... .... Opposite Party.
Counsel for the Parties.
For the Complainant:- Sri J. Sarangi, Advocate with other Advocates.
For the Opposite Party:- Sri A. K. Dash, Advocate with other Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r(w).
Dt.05/07/2017 -: J U D G E M E N T :-
Presented by Sri K.P. Mishra, President:-
Brief fact of the case:- In pursuance to Sec. 12 of the Consumer Protection Act 1986 the Complainant preferred to file the complaint pertaining to the allegation of deficiencies of service on the part of the Opposite party as envisaged hereunder.
One Basanta Kumar Nayak(deceased) S/o the Complainant No 1(one), No.2(two)and brother of No.3(three) has purchased one new Hero Honda Spelender Motor Cycle bearing engine No., Chassis No-HAI0EHB9F 02131, MBLHAI0ADB9F 02375 respectively and got it insured with the Opposite Party insurance company by paying Rs.1064/-(Rupees thousand sixty four)only as premium which includes an amount of Rs.50/-(Rupees fifty)only for covering of personal accident to owner cum driver limited to an amount of Rs.1,00,000/-(Rupees one lacs) only and also got it registered in the RTA Bargarh and was allotted with the Regd No. OR-17-J-2626 for the same.
In furtherance to the case of the Complainant, on Dt.05.05.2012 while the said Basanta Nayak was traveling on N.H.6(six) from Godbhaga side to Bargarh as a pillion rider sitting on the same being driven by one Subash Nanda, met with an accident being hot by an incoming Truck bearing Regd. No.OR-11-J-5719 under the jurisdiction of Godbhaga out post of Attabira Police Station causing the instant death of the said Basanta Nayak the insured and caused severe bodily injury to the Driver of his said motor cycle thereby.
Immediately there after a police case was registered vide P.S. Case No-82/Dt.5.05.2012, which is pending in the court of S.D.J.M. Bargarh and consequent upon such accidental death of the insured namely Basanta Kumar Nayak the Complainants being his parents and legal heirs, claimed before the Opposite Party for an amount of Rs,1,00,000/-(Rupees one lakh)only as admissible claim as per the policy made by the deceased during his life time at the time of insuring his said vehicle with the Opposite Party along with an additional insurance for the personal accident Benefit for owner cum driver and for which had paid Rs.50/-(Rupees fifty)only as premium for the same in addition to the insurance of the vehicle amounting to paid Rs.1014/-(Rupees one thousand fourteen)only. But as per their contention the Opposite Party instead of paying the same, asked them to furnish the Driving License of the deceased Basanta Kumar Nayak.
As per the contention made by the Complainant that the deceased has got his driving license but since he was all along carrying the same with him and has been lost some where in the spot of the accident and could not be produced and in such circumstances their claim be settled by referring the proposal form submitted by the deceased, wherein there must be the reference of driving license, but the Opposite Party neither settled the claim nor gave the proposal form to them rather consistently repeated the same version for furnishing the said license, it is pertinent to mention here that though the M.A.C.T claim has already been settle in the mean time but the Opposite Party did not take any step to settled the claim even after several persuasion verbally, by writing & and praying through R.T.I. application praying for the claim amount and for production of proposal form, which tentamounts to the repudiation of the said claim as such the complaint before the forum praying for release of the insured amount of Rs.1,00,000/-( Rupees one lakh)only with 12%(twelve percent) interest per annum along with an amount of Rs.20,000/-(Rupees twenty thousand)only as compensation for their mental agony and harassment as have undergone caused by the deficiency of service and unfair trade practice on the part of the Opposite Party. And in support of their such case have relied on some documents as follows.
Photostate copy of the Insurance Policy.
The Application of claim made by the Complainant .
The letter of the opposite party asking for the production of the driving license of the deceased.
The reply letter of the Complainant with Postal receipt.
R.T.I. application made by the complainant,asking for the supply of the proposal form.
Xerox copy o the FIR, FINAL FORM and P.M report of the deceased .
The legal heirs certificate of the deceased Basanta Kumar Nayak.
Perused the Complainant and the documents filed on their behalf and after hearing their counsel the Forum was pleased to admit the case and notice was served on the Opposite Party to appear and file their version.
Accordingly the Opposite Party appeared through his Advocate and filed it’s version, the gist of the version in short is a total evasive one, in it’s version it has raised objection upon the maintainability of the case in several ground such as principle of estoppels, limitation, non-joinder and misjoinder of necessary party and besides that has also objected the case of the Complainant as a concocted, frivolous and vexatious claim as such has claimed to dismiss the same under the prescribed provision of the Act U/s 26 of the Consumer Protection Act 1986 on the following ground.
The Opposite Party while admitting the alleged insurance policy of the vehicle with it and has also admitted to have received the premium for the said alleged purpose of the Complainant, but has categorically denied it’s liability for making any payment only on the ground that the Complainant has violated the terms and condition of the agreement entered in to by the deceased by not supplying with the valid Driving license of the insured, in as much as the Opposite Party has admitted all other allegation of the Complainant such as the payment of the motor accident claim Tribunal has already been made to the Complainant but in spite of that has declined to make any compensation only on the ground that the Complainant has failed to provide them with the driving license of the deceased.
Having gone through the Complaint, the version, and the documents filed by both the Parties and having gone through their respective written arguments and hearing both the counsels of the respective parties some issues have come up before us for proper adjudication of the case as mentioned below.
Whether the Complaint is maintainable in view of the facts and Law ?
Whether the Opposite Party has committed deficiencies of service and has committed un-fair trade practice.
Whether the Complainant is entitled for compensation.
With reference to the point of maintainability of the case, while dealing with the same it came to our notice that in it’s version it self the Opposite Party has admitted to have received the extra amount of premium of Rs.50/-(Rupees fifty)only in liew of the personal accident benefit to the owner cum driver and also it is crystal clear from the Policy Bond issued by the Opposite Party in table number six that person entitled to drive, & the relevant portion of the same is, any person including insured provided that a person driving holds an effective driving license at the time of the accident and so on, so in this context it can be safely concluded that the owner (insured ) was traveling on his vehicle concerned as pillion driver and another person was driving the same at the time of accident who was having a valid driving license which is evident from the material available in the P.S. Case wherein the same has been seized and so far as the driving license of the deceased owner is concerned the Complainant has categorically approved that he knew that his son was having a valid driving license and was always carrying the same so also at the time of the accident but as the accident was so serious that it was missed some where in the spot which could not be traced out and also it is quite but natural that when some body has lost his son in accident at that time it would be natural for him to be serious about the care of his son not for his license or for any thing else, and the same statement of the Complainant is supported with an affidavit, also he has repeatedly asked for the proposal form filled of by the deceased at the time of commencement of the policy but the Opposite Party has failed to produce the same in time, further more it was submitted in the Forum at the last stage of the hearing of the case, but however even then on perusal of the same there is no mention of any such matter relating to the license, so had it been so that the deceased was not having the same it should have been mentioned in the body of the said form and the Opposite Party should not have received the said extra amount of Rs.50/-(Rupees fifty)only for the said purpose, further more we are amazed of the circumstances as to what prevented him being a responsible organization to ascertain about the same from the R.T.A. Bargarh specially when they dispute with the statement of the Complainant. So taking all circumstances in to our consideration we are of the view that the case of the Complainant is quite clear and maintainable in view of the facts and Law. Hence our view goes accordingly in favor of the Complainant.
Secondly while dealing with the points as to whether the Opposite Party has committed deficiencies in giving service, and have committed unfair trade practice against the Complainant. As we have already discussed elaborately with regard to the question of maintainability of the case, in furtherance to our such view it reveals from the record and from the averment made by the Complainant on hearing and having gone through the written memo of arguments advanced by both the side of counsels, the Complainant has repeatedly applied before the Opposite Party to supply them with the proposal form of the deceased owner insured to verify and to ascertain regarding the driving license or to settle the claim of Rs.1,00,000/-(Rupees one lakh)only in liew thereof but it is seen from the materials available in the record the Opposite Party has not taken any steps to that effect rather consistently insisted for production of the driving license in stead of verifying from the concerned authority or settling the claim nor supplied the relevant proposal form in time even after asking for the same through R.T.I. application to the Complainant, and at time of argument stage of the case has submitted the same before the same in an incomplete form, which of such action of the Opposite Party tentamounts to deficiencies of service and un-fair trade practice too, so in our view s in answering the point is that the Opposite Party has committed un-fair trade practice and also deficient in giving required service to the Complainant, hence answered accordingly in favor of the Complainant.
Thirdly with regard to the entitlement of the Complainant for the compensation amount as prayed for before the Forum, as we have already given our logistic view in the forgoing paragraphs, there is sufficient materials before us in the record to hold that the Complainant is entitled for the compensation as they have prayed for, as such the answer is affirmative in favor of the Complainant. Hence order follows.
O R D E R
In view of facts and circumstances of the case, the complaint is allowed against the Opposite Party, hence the Opposite Party is directed to pay an amount of Rs.1,00,000/-(Rupees one lakh)only with 9% (nine percent) interest per annum from the date of filing of the case till the date of Order to the Complainant within thirty days from the date of receipt of the order and also directed to pay an amount Rs.5,000/-(Rupees five thousand )only as compensation in lieu of the mental agony and harassment undergone during these period by the Complainants within the same period of thirty days of the receipt of the order, in default of which an interest would accrue upon the total amount @ 18% (eighteen percent) per annum till realization of the same.
The order is pronounced in the open Forum to-day i.e on Dt-05.07.2017, and the case is disposed off accordingly.
Typed to my dictation
and corrected by me.
(Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree, I agree,
(Ajanta Subhadarsinee) (Sri Pradeep Kumar Dash)
M e m b e r. M e m b e r.
