BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
KAMRUP
C.C.No.62/2013
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Sri subrata Sinha - Complainant
S/0 Late P.C.Sinha
P.O.Tura Bazar
District –West Garo Hills.
T/A C/O Amit Motor Finance Co.
S.R.C.B. Road, Fancy Bazar
Guwahati-1 (Assam)
-vs-
I) The Oriental Insurance Company Ltd. - Opposite parties
Regional Office, G.S.Road
Ulubari, Guwahati-7 (Assam)
(Insurance Policy No..313207/31/2011/3104
Valid from 26.11.2010 to 25.11.2011)
Appearance
Learned advocate Sri A.R.Agarwala, Sri R.K.Agarwala,Sri P.Patowary, Sri M.Talukdar and Sri N.Alom R.K. for the complainant .
Learned advocate Smti Swarnali Shyam Choudhury, Sri G.Gogoi, Smti Piyali Mitra for the opposite party .
Date of filing written argument:- 23.10.2019. 11.2.2020
Date of oral argument:- 22.10.2020
Date of judgment: - 29.12.2020
JUDGMENT
1) This is a complaint u/s 12 of the Consumer Protection Act, 1986 filed by one Sri Subrata Sinha against Oriental Insurance Company. The fact of the case briefly narrating is that complainant being a registered owner of Tourist Maxi Cab bearing Registration No. ML-08-B/7872, which was duly insured with the opp.party M/S Oriental Insurance Company Ltd. having its Regional Office at Ulubari, Guwahati-7 Assam and Policy No..313207/31/2011/3104 Valid from 26.11.2010 to 25.11.2011 . The policy copy of the complainant is annexed with the record .
2) According to the complainant on 21.11.2011 at around 3:05 p.m. the vehicle met with a serious accident at Uparhali near Forest Beat Office on N.H. 37 under Bijoy Nagar P.S. district Kamrup, Assam . The policy vide G.D.E. No. 397 dated 21.11.2011 and observed all the formalities and vehicle was examined by M.V.I. Annex.3 as the copy of police report is annexed with the complaint.
3) It is submitted that accident was duly intimated with the insurer opp.party by the Financier of the vehicle M/S Ajit Motor Finance Co. on 23.11.2011 and the opp.party was requested to depute the surveyor to assess the loss and insurance company have registered a claim vide No. 313207/31/2012/000083.
4) The complainant have subsequently submitted all the vouchers on amount spent for repairing of the accidental vehicle. The insurer company deputed its surveyor to assess the loss and all the relevant documents required by the insurer were submitted in time by the complainant for settlement of the claim at the earliest, but insurer company repudiated the claim by letter dtd. 4.1.2013 alleging that certified copy of D.T.O. , Nalbari the D/L No. F/39/NB/2007 is invalid and that is why the claim settlement authority of the insurance company was decided to repudiate the claim.
5) In the aforesaid circumstances the claimant submits that repudiation of the claim by insurance company was baseless. Their allegation is totally false , mis-leading and it is nothing but for the purpose of harassing the complainant. The opp.party is allegedly trying to avoid genuine liability and payment.
6) It is further submitted that there is no breach of terms and conditions of the insurance policy and it is alleged that certified copy of D/L verification report issued by D.T.O. , Nalbari dtd. 23.8.2012 as written that Sri Mrinal Kr. Nath of Barpeta Road (Investigator of the opp.party) stating that D.L. was issued in the name of Manik Das is authorized to drive L.M.L, M.M.V, I/C P.S.V. only renewed up to 23.1.2007 old D/L No. 917/NB/93, has been damaged. It has been mentioned that Driving License No. F/39/NB/2007 was originally issued by Licensing Authority , DTO, Kamrup vide D/L No. 917/93/K (WZ) and re-recorded at DTO, Nalbari and D.D.L. was issued on 24.1.2007 by D.T.O.Nalbari , and again it was renewed upto 6.1.2011 and finally renewal was done by DTO, Nalbari by giving validity upto 5.1.2014 . Xerox copy of driving license of Manik Das was annexed with the complaint petition.
7) On the basis of foregoing allegation it is submitted that D/L of the complainant’s driver was regularly renewed after a gap of every 3 (three ) years which was issued by Transport Authority in “Professional Driving License” and having such license the cause of repudiation of the claim is illegal and Nalbari D.T.O. have never denied the renewal of the driving license from their end and nor stated that D/L was invalid.
8) It is further alleged that endorsement on the bottom of the letter issued by Sri Mrinal Kr.Nath D.T.O. concern and produce official records and registers , but without doing so such application is baseless and the assessment made by the surveyor is not correct and actual loss was higher than loss assessed by the surveyor .
9) It is again alleged that the grounds given in the repudiation of the claim are not valid and is made only for non-payment of claim though the insurer has collected huge premium to cover untoward incident. It is further alleged that there is no breach of policy condition and hence repudiation of the claim is without applying the mind and hence amounts to deficiency of service by the opp.party.
10) The non-settlement of the claim within time and ultimately repudiation caused harassment and loss of business to the complainant . The complainant therefore, prayed to direct the opp.party to pay the cost of the insured vehicle amounting to Rs.2,00,000/- with compensation of Rs.25,000/- and to pay Rs. 1,00,000/- , total Rs.3,25,000/- and to pay interest @ 12% after 3 months from the date of loss till payment.
11) The proceeding was started and the opp.party appear and contested by filing written statement . The opp.party contented that complaint is barred by limitation and this forum have no jurisdiction to entertained the complaint as the insurance issuing office is at Siliguri (North Bengal). As such instant petition is liable to be dismissed for want of jurisdiction.
12) It is further submitted that complaint petition is liable to be dismissed u/s 27 of the Consumer Protection Act. It is submitted further that after receipt of the claim opp.party deputed their licensed surveyor Sri Nikhil Ranjan Sarma for inspection of the damaged vehicle and an investigator Sri Mrinal Kr.Nath to verify the driving license and the driver Sri Manik Das regarding genuineness . It is submitted that as per policy condition the driver to hold effective and valid license both in terms of period of validity and the class of vehicle that is being driven at the time of accident.
13) It is further submitted that liability of the insurance company is condition precedent before making any payment. The company have assessed the loss, but surveyor report is subject to the terms and condition to limitation of policy. It is mentioned in the written statement that as per investigation report DL No. F-39/NB/2007(Prof) has been verified from D.T.O. Nalbari and found that driving license is issued to Sri Manik Ch.Das and he is authorized to drive M/C, LMV to HMV i.c. PSV renewed upto 23.1.2007 the original driving license No. 917/NB/93 was damaged.
14) It is therefore, submitted that on the date of accident driving license was invalid and it was renewed upto 23.1.2007 whereas accident took place on 21.11.2011. The opp.party submits Annex.I letter of D.T.O. Nalbari in support of the pleading. For this reason the opp.party took the plea that claimant has violated the principal clause of driving license and for that reason their repudiation has merit. For the reason of not-having valid driving license of the driver, the opp.party repudiated the claim stating that it is the burden of the complainant to prove that his driver was having valid and effective driving license.
15) The opp.party further submitted documents as Annex.2 & 3 regarding survey report and inspection report. The opp.party therefore, submits that they have after due enquiry was taking up process for payment etc. have ultimately found that claim need to be repudiated and they have informed the claimant vide letter dtd. 4.1.2013 and therefore it is further submitted that the claim need to be dismissed after verifying the driving license etc. of the driver of the complainant.
16) Reasons for decision
After considering the pleading of the parties as discussed above we are of the view that following issues are to be considered for decision of the claim.
Issue No. I - Whether suit is not within the jurisdiction of this Forum.
Issue No. II- Whether the driving license of the driver of the vehicle concern is not valid for which the claim need to be repudiated.
17) So far Issue No. I is concern we have taken due consideration of the provision of sec.11 clause 2(a) which read as under
a) “ the opp.party or each of the opp.parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business of has a branch office or ) personally works for gain, or ”.
In our present case the opp.party No. 1 had Regional office at Guwahati of Oriental Insurance Company , Ulubari, Guwahati and at the same time the complainant is also temporarily residing at Guwahati. There is no adverse view of the parties about the address and their carrying its business having branch office etc. within the jurisdiction of this forum. As such, issue No. 1 is decided in negative and this forum has jurisdiction over the subject and over the dispute.
18) So far issue No. II is concern it is necessary to determine whether there was any driving license of the driver at the relevant time of accident. We have carefully considered the written argument placed on record by the complainant side whether it has been submitted that the surveyor of the opp.party submitted his report stating that everything in order and assess the loss to the tune of Rs.67,140/- after verification.
19) We have duly considered and took a conscious look over the documents . Ext. D the letter dated 23.8.2012 nowhere the word certified is mentioned . Moreover the bottom of the letter read as follows- “Returned in original with the intimation that the D/L No. F 39/NB/07 issued in the name of Sri Manik Das. He is authorized to drive M/C, LMV & HMV i/c PSV only . Renewed up to 23.1.2007 old D/L No. 917/NB/97 has been damaged. Sd/- DTO Nalbari dated 10.9.2012 . Again if we look into Ext.-E, Report of above investigator dtd. 3.10.12 in regards to D/L No. F/39/NB/2007 (PROF), it is mentioned at the lower part of the letter that “…. From the Registrar and certificate of the D.T.O., Nalbari, it is seen that the Driving license was authentic and nothing found against it.
20) If we considered above two documents as pointed out by the complainant, it is found that note of the D.T.O. of Ext.D does not indicate the fact that new driving license No. F 39NB07 issued in the name of Manik Das was renewed up to 23.1.2007 and old license was damaged . This report of the D.T.O., Nalbari on Ext. D is not found consistent with the oral testimony of D.W. 1. D.W. 1 further stated clearly that driving license submitted by the surveyor was valid up to 5.11.2014 and we have gone through Ext.5, the report of the surveyor in this regard. This documents testified as Ext.5 is found inconsistent and contradictory view noted on an application submitted by the opp.party in this regard as Ext.D.
21) It is argued by the complainant referring to the evidence of the D.W.1 that they have not verified the D/L No. 917/93/K(W) and opp.party have failed to produce D.T.O.Nalbari as witness or his authorized staff to prove the fact that driving license submitted by the claimant in respect of Manik Ch.Das was invalid or not renewed. As such the burden of prove which lies upon the opp.party is not prove to the extent for the purpose of holding an adverse view contradicting Ex.5 which has been duly appreciated by the investigator of the insurance company itself while submitted his report. As such, the declaration made by the opp.party that driving license of the driver in respect of the accidental vehicle was not renewed for which they have repudiated the claim.
22) We have taken notice the report of the surveyor available on the record which mentioned that he has checked and verified from original driving license of Mr. Manik Das bearing driving license No. F 39/NV/2007 authorized to drive M/C, LMV, MMV, HMV, I/C, PSV date of issue 21.7.1990 and valid up to 5.1.2014. Having such a report on record , it is difficult to hold in adverse view without contradiction and without having any authenticate evidence to hold a view otherwise.
23) From the evidence on record and from the argument placed by the parties it is found that the driver had two numbers in respect of his driving license ,one was original issued by D.T.O. Kamrup which was re-recorded by the D.T.O. Nalbari w.e.f. 24.1.2007 and duplicate D/L and renewed was done on 6.11.2011 and renewed up to 5.1.2-14.
24) We have however considered the written argument placed on record by the opp.party . The question of verification of driving license by the owner does not arises as it is not the responsibility of the owner of vehicle and check the driving license to the extent as it is required for the issuing authority and other authorities.
25) We have already considered the report Ext.D and Ext.E and also the oral testimony of Smti Madhu Chandra Dhar of Oriental Insurance Company and having found in consistent evidence to hold a view that accidental vehicle was driving by a person that having effecting driving license as required under insurance policy testified as Ext.A.
26) In such a situation it is held that opp.party have failed to prove the fact conclusively that driver of the accidental vehicle was having no valid driving license at the time of accident. Hence the repudiation of the claim made by the opp.party is found not maintainable.
27) In the result issue no. II is in favour of the complainant and the opp.party is directed to make the payment of the claim as per assessment made and prepared by the surveyor which has been testified by the opp.party at Ext.B .
28) The damage assessed by the surveyor was Rs.64,000/-(Rupees sixty four thousand) only . Hence we are of the view that the aforesaid amount of assessment need to be paid to the complainant by the opp.party along with interest @ 6% from the date of repudiation till the date of payment.
29) Secondly the opp.party is further directed to pay compensation of Rs.30,000/-(Rupees thirty thousand)only for mental agony and physical harassment caused to the complainant along with cost of the proceeding amounting to Rs.10,000/- (Rupees ten thousand)only .
30) The opp.party is directed to make the payment within 45 days from the date of judgment failing which the opp.party will have to pay interest upon the entire decretal amount @ 12% per annum from the date of judgment till realization.
Given under our hand and seal of the District Forum, Kamrup, this the 29th day of December, 2020.
Member Member President
Smt A.D.Lahkar Md J.Islam Shri A.F.A Bora
