OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI-03

C.C.35/2013

Present:-

1) Md.Sahadat Hussain, A.J.S.         - President

2) Smti ArchanaDekaLahkar            - Member

3) Md Jamatul Islam                         - Member

Mrs Biswarupa Bhattacharjee                                            -Complainant

D/O- Shri Bimalendu Bhattacharjee,

R/O- Capital Complex, Dispur,P.O- Dispur Sachivalaya,

P.S- Dispur,Guwahati-781006

Dist-Kamrup(M),Assam

-VS-

1) The New India Assurance Co.Ltd.                                     -Opp.party

Registered Head Office at 87,Mahatma Gandhi Road,

Fort,Mumbai-400001,Maharasthra,

Represented by its Chairman-cum-Managing Director

2)  The Divisional Manager ,

The New India Assurance Co.Ltd.

Fancy Bazar Branch,

Gunahari Market, 2^nd floor ,

Fancy Bazar ,S.S.Road , Guwahati-781001

Dist-Kamrup(M), Assam  

Appearance:

Ld advocate Mr Mritul  Deka  for the complainant and Ld advocate Mr Abinash Talukdar  for the opp. parties.

Date of oral argument -20/08/2018

Date of judgment        - 01/10/2018

JUDGMENT

This is a proceeding U/S- 12 of the Consumer Protection Act, 1986

1. The complaint filed by Mrs Biswarupa Bhattacharjee against the New India Assurance Co.Ltd. , Mumbai & the Divisional Manager, New India Assurance Co.Ltd. ,Fancy Bazar branch ,Guwahati was admitted  on 02/04/2013 and notices were served on the opp. parties and the opp. Parties filed the joint written statement on 09/04/2014 .Thereafter , the complainant filed evidence on affidavit and she was cross-examined by the Ld. counsel of the opp. Party side , but the opp. Party side failed to file evidence in affidavit after getting several adjournments; and in result ,the stage of filing evidence by the opp. Party side is closed vide our order dtd. 10/01/2018 .Thereafter , Ld. advocate Mr Rupam Sarma filed written argument for the complainant and Ld. advocate Mr Jocky John  filed written argument for the opp. parties;  and finally on 20/08/2018 ,we heard the oral argument of Ld advocate Mr Mritul Deka for the complainant and of Ld advocate Mr Abinash Talukdar for the opp. parties,  and fixed the day of 05/09/2018 for delivery of judgment , but on that day the judgment was not delivered due to absence of  one of the member and next date fixed was 14/09/2018 but on 14/09/2018 , the President was on casual leave and finally  today we deliver the judgment which is as below-

2. The case of the complainant, in brief, is that her vehicle (Stage Carriage Bus) bearing Registration No-ML-09-3696 , which was insured with Opp.Party No-1 vide Policy No-530900/31/07/01/00003149 ( Passenger Car Carrying Vehicle ) which was effective from 21/12/2007 to midnight of 20/12/2008 , on , 21/10/2008 at about 2.30 PM  had met with an accident on reaching Sohryngkham , a place between Shillong -Jowai in N.H-44, while it was on the way from Guwahati towards Dharmanagar(Tripura) and information about the accident was intimated to the Sohryngkham Out Post of Madanriting P.S , East Khasi Hills (Meghalaya) and Madanriting police station registered a case vide P.S Case No-90 01/11/2008 under Sec-279/427/338 /304-A of IPC and Opp.Party No-2 was also informed by him vide letter dtd.22/10/2008 ; and Opp.Party No-2 also got the vehicle inspected through MVI of the office of the DTO,East Khasi Hills,Shillong,  who submitted his report on 24/10/2008 to the O/C of Sohryngkham outpost, where it was mentioned that the body of the vehicle was fully damaged and  battery , engine & gear box suspected for internal damage . Senior Divisional Manager of Opp.Party No-2  got copy of police investigation from Sohryngkham Police Outpost and the said report, it was written  that the cause of accident due to break failure, for which, the driver could not control the vehicle .The DTO, Imphal, West Manipur informed Opp.Party No-2 that DL of  driver of her vehicle Basanta Nath Singh  is a valid licence who is authorized  to drive heavy vehicles including passenger carrying vehicle;  and the DL of the said driver was found to be valid from 10/03/2006 to 09/03/2009 . He approached Opp.Party No-2  for settlement of the claim, but Opp.Party No-2  vide letter dtd. 12/04/2011 informed him that the DL No-F-243/88/K(WZ) issued to her driver Sri Basanta Nath Singh in lieu of DL-296891 /MS issued by DTO , Imphal,West Manipur is not a valid DL  at the material time of accident,  and accordingly her plea has been turned down by the appropriate  authority as per terms and condition  of the policy .Then she, vide letter dtd.06/05/2011 and letter dtd.27/06/2011,  informed Opp.Party No-2  that the driver Sri Basanta Nath Singh has genuine DL at material point of time and she also prayed to review  the issue of the claim filed by her  and settle her claim , but  the opp. Parties did not consider her request and illegally and arbitrarily  rejected her claim . She  claimed Rs.7,70,000/-  (IDV of the vehicle) and Rs.77,000/- as interest on it @10% per annum from 12/04/2011 and a sum  of Rs.1,00,000/- as compensation for causing mental agony to her .She is a consumer within the meaning of Section -2(A) of Consumer Protection Act,1986 .Her  claim was turned down by approval authority of Opp.Party No-1;  and her requests, through letter dtd. 06/05/2011 and 27/06/2011, for reviewing the order and for reconsidering  her claim was not considered by opp. parties, and thereby they commited deficiency of service  towards her . The complaint was filed within  the period of limitation  as described under Sec-24A of  the Act .The DL  No-F-243/88/K (WZ)  issued by DTO , Kamrup,Guwahati  is a genuine DL which was valid from 10/03/2006 to 09/03/2009 authorizing  him to drive heavy vehicle  including P.S.V which was issued to him on  the basis of DL No-296891/MS  on 12/07/1984 issued by DTO, Imphal , West Manipur;  and during effectiveness of that DL ,the DTO,Kamrup issued the DL No-F-243/88/K(WZ) , which was valid at the time of the said accident and as such the opp. parties are liable to pay her IDV (Rs.7,70,000/-) plus interest of Rs.77,000/- at the rate of 12% per annum  w.e.f 12/04/2011 and Rs.1,00,000/- as compensation for causing mental agony to her.

3. The pleading of the Opp.Party No-1& 2, in brief, is that the complaint is false and frivolous .It does not disclose any cause of action  against them. They repudiated the claim of the complainant after careful consideration . The complainant violated the terms and conditions of the policy by allowing a person to drive her vehicle, who did not possess a valid DL  ; and as such they are not liable  to satisfy the claim of the complainant and therefore  they repudiated the claim. The vehicle was insured with them vide Policy No-530900/31/07/01/00003149 which was  valid from 21/12 /2007 to midnight  of 20/12/2008 .It is  true that the complainant intimated them about the accident on 22/10/2008 .Their investigator after investigation  came to conclusion that the DL  of the driver of the complainant was not genuine at the relevant  time and hence  they rightly repudiated the claim  of the complainant for violation  of policy conditions by  the complainant,  and as such repudiation  of the claim of the complainant is not an act of deficiency of service towards the complainant ,and as such the complaint is liable to be dismissed.

4. After perusing the pleading as well as evidence of the parties,  we have  found that both sides admit that i) the vehicle of the complainant, which is a passenger  carrying commercial vehicle ,bearing Registration No-ML 09- 3696, was insured  with Opp.Party No-1 through Opp.Party No-2 vide Policy No-530900/31/07/01/00003149 dtd. 21/12/2007 , for the period of 21/12/2007 to 20/12/2008 ,ii) the said vehicle met with an accident on 21/10/2008 at 2.30PM over NH-44 at Village- Sohryngkham ,a place between Jowai and Shillong , while it was going to Dharmanagar and sustained substantial  damage and the police of outpost of Sohryngkham of out post of Madanriting Police Station of East Khasi Hills investigated  the accident  registering a case vide PS Case No-9001/11/2008 , U/S-279/427/338/304-A IPC and got the vehicle inspected through MVI  of office of DTO ,East Khasi Hills , Shillong ,who submitted his report on 24/10/2008 stating that the body fully damaged , battery ,engine and gearbox suspected of internal damage . Thus , it is clearly established that the vehicle of the complainant had met with an accident at Sohryngkham a   place between Jowai and Shillong , over NH-44 on 21/10/2008 at 2.30PM while its driver Sri Basanta Nath Singh  was driving from Guwahati  To Dharmanagar (Tripura) and  the said accident had taken place  during effectiveness of Policy No-530900/31/07/01/00003149 dtd.21/12/2007 issued by Opp.Party No-1 (New India Assurance Co.Ltd.)  through Opp.Party No-2  and that vehicle sustained substantial damage .

5. Now ,question is that how much damage , the said vehicle sustained .The  complainant  states in his complaint that  the vehicle was fully damaged making it to scrap value and it is lying in  the very spot of the accident. After perusing  the MVI  report, we have found that MVI, who examined the vehicle reports that he found that the body of the  said vehicle was fully damaged and the battery , the engine and gear box suspected for internal damage .It is found that the opp. party side does not deny that the said vehicle was fully damaged in the said accident but their ground of repudiation of  the claim is that at the time of accident , its driver did not have genuine  driving licence.So, it is clearly established that in the said accident , the said vehicle of the complainant was completely damaged converting it to scrap value.

6. The next moot question is whether the driver of the vehicle, Sri Basanta Nath Singh had valid driving licence  at the time of the alleged accident . In this respect, the complainant’s  plea is that on the day of the accident , the driver Sri Basanta Singh  had valid and genuine driving licence bearing No-F-243/88/K(WZ) issued by DTO ,Kamrup(WZ)  and before that he had valid driving licence issued by DTO,Imphal,West   (Manipur) ; which was D/L  No- 296891/MS issued on 12/07/1984; but the plea of the opp. parties is that at relevant  time, the driver of the said vehicle did have valid and genuine driving licence  and the driver did not have authority to drive the said type of vehicle.

The complainant, in his evidence ,states that his driver Sri Basanta Nath Singh had initially obtained D/L No-296891/Ms from DTO ,Imphal (West Manipur ) and surrendering the said D/L , he obtained D/L No-F-243/88/K (WZ) from DTO ,Kamrup ,West ,Guwahati, which was valid from 10/03/2006 to 09/03/2009 .He further states that DTO,Imphal West (Manipur),by writing a letter, informed the opp. party that they issued D/L NO-296891/MS to the driver of the complainant authorising him to drive heavy vehicle including passenger carrying vehicle which was issued on 12/07/1984 and renewed on 24/03/2012 .It is found that Ext-11 is the said letter . It is also found from Ext-12 that DTO of Kamrup (WZ)also wrote a letter to the opp. parties on their enquiry that they had issued D/L No-F-243/88/K (WZ)to the connected driver his driver on 10/03/2006, which was valid from 10/03/2006 to 09/03/2009 authorising the said driver to drive M/C,LMV,HMV including PCV .We have perused Ext-11 & 12 and found that the DTO,Imphal West (Manipur) on 18/08/2010, sent a letter to Opp.Party No-2and the DTO,Kamrup(West Zone) wrote Ext-12(letter dtd. 24/12/2011 ) to Opp.Party No-2 while the latter enquiredabout genuineness and validness of the D/Lof the driver of the complainant . We have found that opp. Party side does deny these letters . So, it must be held that Ext-11 & 12 fully support the version of the complainant, which is thaton the day of alleged accident,his driver had valid driving licence and had also authority to drive heavy passengercarrying vehicle like the vehicle of the complainant .Thus ,it is crystal clear that, on the day of the accident , the driver of the complainant , Sri Basanta Nath Singh had valid driving licence to drive the said vehicle (bus) of the complainant, meaning thereby that the complainant had not violated any terms and condition of the insurance policy.

7. It is already found in above discussion , that in the said accident , the vehicle of the complainant was  completely damaged converting it into scrap. Hence, the complainant is entitled to get Rs.7,00,000/- which is the undisputedly  the Insured Declared Value of the said vehicle, which the opp. party had accepted at the time of issuing the policy . Therefore , basing  our discussion  as above , we hold that the opp. parties are liable to pay said amount  of Rs.7,00,000/- (Seven Lakhs) to the  complainant as  a  compensation  for loss of his vehicle  in the accident . The opp. parties repudiated her claim  on the ground  which they have  failed to prove  Therefore, as per our opinion the act of  repudiation of  the claim of the complainant  by the opp. party is a clear case of deficiency of service and also an act of unfair trade practice . Therefore , the opp. parties are liable to pay Rs.7,00,000/- (Seven lakhs)  to the complainant as compensation for loss of his vehicle in the said accident with interest @6% per annum from the date of filing claim (22/10/2008) .The opp. parties is also liable to pay Rs.10,000/- to the complainant as compensation for causing  harassment to him by illegally  repudiating his claim .They are also liable to pay Rs.10,000/- to the complainant as cost of the proceeding.
8. Because of what has been discussed as above , we hold that the complainant has sufficient cause of action against the opp. parties and succeeded  to prove his case against the opp. parties which she has succeeded  to prove . Accordingly the complaint  against  the opp. parties is allowed on  contest and the opp. parties are directed to pay to the complainant Rs.7,00,000/-(Rupees Seven Lakhs only) as compensation  for total damage of his vehicle  in the said accident along with interest @6% per annum  from the date of filing of the complaint (22/10/2008) and also to pay her Rs.10,000/- as compensation for causing  harassment to her  and another amount of Rs.10,000/- as cost of the proceeding , to which,  both the opp. parties are jointly and severally liable . They are  directed to pay the awarded amount  within 45 days, in default, other two amounts shall also carry interest at the same rate from this day.

            Given under our hands  and seals  today on this day of 1^st  October, 2018.

(Smt Archana Deka Lahkar)                (Md.Jamatul Islam)                 (Md.Sahadat Hussain)                                                                           Member                                               Member                                  President