This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for an order directing the O.P. to pay a cost of Rs.1,92,790/- for damage of the vehicle being No.WB-59/6310 and also for compensation of Rs.25,000/- for harassment and deficiency in service and litigation cost of Rs.10,000/- and any also prays for other relief or reliefs, which he is entitled to.

The fact of the case is that the complainant purchased insurance policy in his vehicle, WB-59/6310. The policy No.313501/31/2013/2804 valid from 28.07.2012 to 27.07.2013. The vehicle met with an accident on 28.01.2012 at 7:30 PM and was extensively damaged. The damage was assessed and examined by the ‘Mantu Garage’ at Raiganj and the damage was repaired after replacing some parts. Petitioner then submitted his claim before the O.P. after proper estimate and with documents. The assessor of the company also assessed the damage and submitted the report and issued letter with request to sign and return the report. O.P. is aware of the fact of the accident and the damage of the vehicle but refused the claim repudiating the same on the ground that the insured vehicle did not have any valid driving license and violating M.V. Act and Rules. Complainant claimed that the driver was with valid license at the time of accident and O.P. illegally repudiated the demand as the insurance relates to the vehicle and not the driver. Therefore the petitioner files this case with the above mentioned prayer.

O.P./ insurance company contested this case by written version. Admittedly that the complainant being owner of the vehicle in question, being No. WB59/6310 purchased the policy and the terms & conditions of the policy in the ‘driver’s clause’ is clear that the driver should hold effective driving license at the time of accident, but the driver had no valid license on that date i.e. 28.01.2012 and met with the accident violating M.V. Act and Rules as well as terms and condition of the policy. Therefore, the O.P. is not liable to pay any damage or compensation of the insured vehicle. That there is no cause of action, petitioner cannot claim deficiency in service and is not entitled to any damage, compensation, and litigation cost etc. and O.P. prays for dismissal of this case.

To establish the case the complainant has relied upon affidavit-in-chief sworn in by him as P.W.-1 and relied upon some documents. O.P. also filed documents and adduced evidence as D.W.-1.

DECISIONS WITH REASONS

Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, arguments advanced by the lawyers of both sides, the Ld Forum has come to the findings as follows: -

Admittedly the complainant purchased the policy. The said vehicle met with an accident and FIR was lodged on 31.08.2012. P.W.-1 deposed accordingly and submitted the copy of the FIR and particulars of the registration of the vehicle, the insurance policy, the fitness certificate etc. The vehicle was seriously damaged in the effect of the accident. The receipts of Mantu Body Builder regarding repair and replacement of some parts, estimate of repairing charge, actual charge incurred, all the receipts are filed. The manner as to how the accident occurred has not been challenged rather it is admitted that the vehicle got damaged in the impact of the accident on 28.08.2012. P.W.-1 also admitted that the assessor of the company examined the vehicle, submitted his report assessing damage and cost of repair. The report of the surveyor, Sri Sujit Kumar Sarkar, in details, containing 04 (four) pages goes to show that as against the original estimate Rs.1,70,025/- the surveyor assessed for total Rs.59,400/- including labour charges, cost of spares, towing charges, less depreciation and salvage. Actually there is no dispute regarding the surveyor’s report, it is also fact that surveyor’s report has sufficient substantial evidentiary value, should be given due consideration unless otherwise proved. The only challenge by the O.P./ company of the claim of damages repudiating the claim is on the issue that the vehicle in question was driven by a person, who has no valid and effective license. The driving license of the driver, Rabin Mahato in original is submitted before this Forum, which is valid till 28.06.2015. Moreover, following the said accident on 28.05.2012 and damage of the vehicle, WB-59/6310, the driver himself lodged FIR on 31.08.2012 at Krishanganj PS and the said copy of the FIR is also filed. O.P. never stated in W.V. and never deposed that the driving license of said Rabin Mahato is a fake one. So, in absence of any authentic evidence to show that driving license produced by the complainant is fake, the argument of O.P. that the driver did not possess a valid and effective license at the time of accident, such argument is not tenable. Moreover, O.P. files copy of a driving license. It is the extract of the driving license, a copy of Transport Department that the validity of the license (Transport) is up to 28.08.2012. The photograph of the driving license submitted by the complainant did not tally with the photograph of the extract of driving license filed by the O.P. Moreover, the driving license No. of the driver of the complainant is different from the driving license No. supplied by the O.P. Therefore in the light of the judgment passed by Hon’ble National Commission as reported in 2015 (2) CPR 136 (NC), the O.P. failed to prove that the driving license of the driver Rabin Mahato supplied by the complainant is fake or not authentic. There is no iota of evidence either oral or documentary to challenge this driving license of the complainant’s driver.

O.P. repudiated the claim only on the ground of driving license, the evidence of D.W.-1 only challenges the validity of the license and claim that it was valid up to 28.06.2012 before the accident. Therefore this Forum on careful observation of the evidence on record and documents particularly the driving license of driver of complainant in original holds that the driver has valid and effective license at the time of accident.

Now the quantum of damages, the complainant is entitled to for the damage suffered and expenses incurred for repair of the vehicle should be taken into consideration. The report of surveyors, practically, has not been challenged by the complainant at the time of hearing of the case. Hon’ble National Commission on many of its judgments hold that the assessment of damages made by independent surveyor does not generally called for any interference in absence of any authentic evidence that it suffers from any infirmity or irregularity. In order to scrub the report strong reasons are required. The surveyor in his report assessed the damages the net loss of Rs.59,400/-. This Forum also on perusal of the said report finds that the cost of spears, labour charges, etc. was assessed and depreciation and salvage was rightly considered less the total cost. We do not find any reason to discard the said net loss assessed to the tune of Rs.59,400/-.   The complainant is therefore is entitled to realize this amount as damages from the O.P./ insurance company, which is minimum in our considerate view. The complainant is also entitled to get compensation for mental harassment and pain to the tune of Rs.10,000/- and also for litigation cost to the tune of Rs.5,000/-, which will not be insufficient and unreasonable in our opinion. Therefore the complaint succeeds in part.

Fees paid is correct. Hence, it is

ORDERED,

That the consumer complaint being No. CC-31/2015 be and the same is allowed on contest, in part against the O.P./ insurance company.

O.P./ Oriental Insurance Company Limited is directed to pay Rs.59,400/- as cost of damages for repair of the vehicle being No.WB-59/6310 and compensation of Rs.10,000/- with litigation cost of Rs.5,000/- altogether Rs.74,400/- (Rupees Seventy Four Thousand Four Hundred) only within one month from the date of passing of this order, failing which it will carry interest at the rate of 9% per annum, till realization otherwise the complainant is at liberty to proceed with the law.

Let copies of this order be supplied to the parties free of cost.