OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.44/05
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
Sri Sankar Kr.Das - Complainant
Vill-Amranga (Barihat),
P.O.Amranga, Dist: Kamrup, Assam
-vs-
The Branch Manager - Opp. party
The Oriental Insurance Company Ltd.
CBO-II, G.S.Road, Ulubari.
Guwahati-7
.
Appearance-
Learned advocates for the complainant- Mr.Thaneswar Deka.
Learned advocates for the opp.party- Ms.Mamoni Choudhury,
Ms.Sudarsana Thakuria
Date of argument- 28.2.2017
Date of judgment- 15.3.2017
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Sri Sankar Kr.Das against Branch Manager, Oriental Insurance Co.Ltd. CBO-ii Ulubari (Guwahati) was admitted on 12.1.2005 and notice was served upon the opp.party and they also filed written statement. The complainant filed his evidence in affidavit and he was cross-examined by opp.party side of ld counsel. Opp.party side filed the evidence of Sri Tapash Choudhury in affidavit and he was also cross-examined by ld counsel of the complainant side. Thereafter, both sides’ ld counsels filed their respective written argument and also forwarded their oral argument on 6.4.2006, and then this forum delivered the judgment on 2.4.2006; and against that judgment, the complainant side preferred appeal before the Hon’ble State Commission , which was registered FA 63/2006 and Hon’ble State Commission ,on 17.2.2011 delivered a judgment and remanded the case for fresh trial recording evidences of both the parties and to give fresh judgment. After remand of the case, the complainant filed additional affidavit (evidence) on 22.4.14 and he was also cross-examined by ld counsel of the opp.party, but, the opp.party side declined to adduce further evidence. Finally, both sides filed fresh written argument. After that we also, on 20.2.17, heard the oral argument of ld advocate Mr.Thaneswar Deka for the complainant and of ld advocate Mrs. Mamoni Choudhury and Mrs.Sudarshna Thakuria for the opp.parties; and today we deliver our fresh judgment which is as below-
2) The gist of the pleading of the complainant is that Sri Sankar Kr.Das is the registered owner of a truck bearing No. AS-01/Q/9853. The said truck had met with an accident on 23.3.04, and substantial damage it had sustained due to the accident. The complainant immediately reported the occurance to the police and the opp.party as well . He got the truck repaired and submitted his claim with the opp.party. The opp.party appointed an investigator who on completion submitted the investigation report . The claim was repudiated by the opp.party on the basis of the investigation report with the plea that the driving licence of the driver was a fake one. Prior to the present occurance in question, his truck had also met with an accident on 25.2.04 and his claim was settled by the opp.party at Rs.15,000/- (Rupees fifteen thousand)only. It has also been stated that the accident of the present case took place within one month of the first accident had occurred. In both the case the driver was the same and one person having the same driving licence and same being renewed by the competent authority .
3) The gist of the pleading opp.party(M/S Oriental Insurance Company Ltd., Ulubari branch) is that their surveyor found that the driver of the concerned vehicle had no valid driving licence at the time of accident and what he was possessing is a fake licence as it appears from the report of their surveyor and the report of D.T.O., Mokokchung, Nagaland. As the driver of the complainant did not have valid licence on the date of the accident, the complainant is not entitled any compensation from them, not to speak of compensation to the tune of Rs.98,000/-. The complainant is liable to be dismissed.
4) From the record, it is found that this forum had, after recording of both sides’ evidence as well as after hearing argument of both sides’ ld counsels, on 2.6.06, passed judgment in this case and allowed the complaint and directed the opp.party to pay the complainant Rs.15,000/- as repairing cost of his vehicle, Rs. 2,000/- as compensation and Rs.1,000/- as litigation cost; and against that judgment, the complainant filed an appeal before the Hon’ble State Commission ,Assam and it also admitted appeal as F.A 63/2006 and partially allowed the appeal vide its judgment 17.2.2011, but remand the case for giving fresh judgment after giving chance to the parties to adduce fresh evidence, but Hon’ble State Commission upheld the decision of this forum that the complainant is entitled to get repairing cost, compensation etc. ,but the commission directs this forum to reexamine the evidence of the parties on the quantum of repairing cost only. So, this forum is not required to give fresh judgment on other points.
5) We have perused both sides’ evidence and it is found that the licence of the driver of the complainant Sri Dilip Ch.Das was renewed by D.T.O., Kamrup, but the said renewal order was not challenged by the opp.party. So, when the very fact of renewal of the driving licence of the driver remains unchallenged, it is our opinion that the driving licence possessed by the driver on the day of accident was a valid and genuine licence.
6) 2ndly from evidence, it is also found that the said truck was being used by the complainant for his livelihood which was his only source of his livelihood . Thus, it is found that the very act of engaging the said truck by the complainant in earning money can not be said the vehicle was used for commercial purpose, rather it must be held that the said vehicle was being used by the complainant for his self-employment only. Thus, we hold that the complainant used the said vehicle for his self-employment only at the time of the accident.
7) Thirdly, it is also undisputed that at the time of accident, the vehicle was insured with the opp.party vide policy No.321/204/ 01355 /31/ 2104/2517 dtd. 20.3.2004. So, we hold that the vehicle had insurance coverage at the time of the accident which the complainant done with the opp.party.
8) In this case, the complainant, C.W. by filing additional affidavit states that now he basing on the documents obtained from the opp.party revised his claim to Rs.1,47,245/- in place of Rs.98,000/- and that the documents obtained from the opp.party, which are photostate copies are Exhibit No.11 to 20, and that exhibit No. 21 is the DTO s report on the accident, Exhibit No.22 the letter intimating the opp.party about the accident, Exhibit No.23, the surveyor report dated 29.3.2004, Exhibit No.24 the final survey report dated 29.4.2004. The opp.party side is not disputing genuineness of Ext. 21 to 24 but disputing genuineness of Ext. 11 to 20 and they also have not filed any additional evidence after remand the case , but base on their earlier evidence. The opp.party side is found to have cross-examined C.W. on filing additional affidavit, and in cross-examination C.W. states that he does not remember how much amount he had paid to Mirza Body Builder and that Exhibit No.15 (bill) Mirza Body Builder does not show the amounts specifically headwise and he has not called the author of Exhibit 14 (estimate of repairing cost) to prove Exhibit 14. The opp.party sides’ plea is that Exhibit 14,15,16,17,18 & 19 are manufactured documents and not based on actual damage and expenditures. After perusing Exhibit 16 to Exhibit 19 , it appears to us that Exhibit 16 shows that the complainant paid Rs.23,912/- to Anand Motors, Guwahati (A.T.Road) on 23.4.04 for purchasing some spare parts, Exhibit 17 shows that the complainant paid Rs.14,717/- to M/S Eastern Traders on 21.4.2004 for purchasing certain spare parts, Exhibit 18 shows that he paid Rs.4,004/- to M/S Orient Motors on 26.4.2004 for purchasing certain spare parts and Exhibit 19 that he paid Rs.37,113/- to M/S N.P.Enterprise on 23.4.2004 for purchasing certain spare parts. It is seen that the estimate of damage done by Mirza Body Builder vide Exhibit 14 is not proved by the complainant. Secondly, it is found that the complainant has no authority to get the estimate of damage and repairing charge done by engaging private agency. The surveyor of the opp.party is the proper agency for doing such estimate. Thirdly, it is also found that the managers of Mirza Body Builder and other spare parts shops are not examined by the complainant to prove the fact that he had actually paid the amounts mentioned in Exhibit 14 to 19 . He also states in cross that he does not remember what amount he paid to Mirza Body Builder. Thus, it is not established that the complainant had actually paid amounts mentioned in Ext. 14 to 19 to the persons concerned garage and spare parts shop.
After perusing Ext.23 , it is found that it is preliminary survey report of survey done on 23.3.2004 (the day of accident) by the surveyor of the opp.party and the complainant is not disputing genuineness of the said report. After perusing Ext.24, it is seen that, it is the final survey report of the final survey done on 29.4.2004 by the surveyor of the opp.party. The complainant is found not disputing genuineness of that report, nor filing objection against that survey report and nor requesting for fresh final survey .This conduct of the complainant infers that he accepted the preliminary survey report as well as the final report of the surveyor of the opp.party without objection. In the final survey report, the surveyor of the opp.party assessed the net loss to the tune of Rs.54,152.81 only .It is already found that the complainant has no authority to make assessment of damage of his own and he also fails to prove the payment of alleged bills to the concerned parties. So, in such situation, we must hold that the complainant had spent amounts in repairing his vehicle not beyond the amount assessed by the surveyor of the opp.party, which is Rs. 54,152.81 only . So, we hold that the complainant is entitled only to get Rs. 54,152.81 as compensation for damage of his vehicle in the said accident from the opp.party. It is found the record that the complainant lodged the claim with the opp.party , but the opp.party vide letter dated (5.3.2005 (Exht.8) rejected the claim on the ground that the driving licence of the driver was fake one. It is also found that this forum, had vide its judgment dated 2.6.2006 held that the driving licence possessed by the driver was genuine and this finding is also upheld by the State Commission, vide its judgment delivered on 17.2.11, in F.A. 63/06. Therefore, we again hold that the act of repudiation of the claim of the complainant in its totality is an illegal act and that also amounts to deficiency of service towards the complainant. 2ndly, we also found that by rejecting the claim of the complainant in totality by the opp.party , they put the complainant in mental agony and also caused harassment to him; and so we hold that they are liable to pay atleast Rs.10,000/- to the complainant as compensation for putting him in mental agony and causing harassment to him .On the other hand, for the fault of opp.party, the complainant was compelled to prosecute the opp.party before this forum. Hence, the opp.party is liable to pay the complainant atleast Rs.10,000/- as cost of the proceeding.
9) Because of what has been discussed as above, the complaint against the opp.party is allowed on contest and the opp.party is directed to pay Rs. 54,152.81/- (Rupees fifty four thousand one hundred fifty two and eighty one paisa)only to the complainant as cost of repairing his vehicle after the alleged accident with interest at the rate of 6% per annum from the date of filing of the complainant (12.4.2005) and also to pay Rs.10,000/-(Rupees ten thousand) only as compensation for putting him in mental agony and causing harassment to him along with Rs.10,000/-(Rupees ten thousand) only as cost of the proceeding. They are also directed to pay the awarded amount within two months and, in default, the other two amounts shall also carry interest at the same rate.
Given under our hands and seals in this day of the 15thMarch, 2017.
( Smti Archana Deka Lahkar) (Md.S.Hussain)
Member President
