Consumer Complaint No.76 of 2016
Date of filing: 28.4.2016 Date of disposal: 30.12.2016
Complainant: Arun Kumar Sannigrahi, S/o. Late Surya Narayan Sannigrahi, resident of RA-91, Apollo Avenue, Sector 2B, Bidhannagar, Durgapur – 713 212, District: Burdwan.
-V E R S U S-
Opposite Party: Divisional Manager, United India Insurance Company Limited, Divisional Office, 3rd Administrative Building, 2nd Floor, City Centre, Durgapur – 713 216, District: Burdwan.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party: Ld. Advocate, Tapan Kumar Jash & Kazi Md. Hossain.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986, alleging deficiency in service, as well as, unfair trade practice against the OP as the OP has arbitrarily and illegally repudiated his legitimate insurance claim based on flimsy pretext.
The brief fact of the case of the Complainant is that being a registered owner of Ambassador car he obtained policy for the said car which was valid for the period from 01.08.2013 to 31.07.2014. During validity of the insurance policy the car met with an accident on 23.05.2014 about 12.30 P.M. on NH-2 near Kota More while the Complainant was going to Burdwan for his
personal purpose from Durgapur by the said car driven by a driver and in the said accident the front portion of the car got total damage. The Complainant informed the matter to the local Police Station and entered the fact in GD entry being no-1046 dated 27.05.2014. The Complainant also informed the incident to the OP on 09.06.2014 and lodged the claim form before the OP on 20.06.2014 along with relevant papers and documents and estimate. Upon getting the information and claim form the OP appointed one surveyor cum loss assessor for survey, who inspected the damaged vehicle and submitted his report to the OP. After discussion with the Surveyor the Complainant agreed to accept the claim on net of salvage basis assessment of Rs.1,58,500=00 and submitted a consent letter on 04.08.2015 about the said assessment to the OP. The damaged car is lying under the custody of the OP. But the OP without considering the report of the Surveyor and consent letter of the Complainant repudiated the claim of the Complainant on 21.11.2014 on the ground that the driver of the said vehicle was not holding effective driving license at the material time of accident which is illegal, improper. According to the Complainant such act performed by the OP clearly indicates the deficiency in service and unfair trade practice on its behalf. On 27.02.2015 the Complainant sent an application to the Regional Manager, Customer care Department, United India insurance Company Limited, Kolkata through registered post seeking redressal of his grievance, but the Complainant did not get any response from his end and thereafter the Complainant filed a complaint before the Insurance Ombudsman, Kolkata against the OP for repudiation of his claim. The Ld. Ombudsman after hearing the complaint was pleased to pass an order as ‘NIL’ and closed the complaint by giving liberty to move fresh application at any Forum/court vide letter date 15.01.2016. Being dissatisfied with the order of the ld. Ombudsman the Complainant has filed the instant complaint. Due to such illegal repudiation of his claim the Complainant has been suffering from mental pain, agony and harassment. Having no alternative the complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OP to pay a sum of Rs.2,02,500=00 towards the damage of the insured car in respect of the policy, Rs.50,000=00 as compensation due to mental pain, agony, harassment and loss of earnings and litigation cost of Rs.10,000=00 to him.
The petition of complaint has been contested by the OP by filing written version contending that the car of the Complainant was insured with this OP under Passenger Commercial Vehicle not exceeding six passengers package policy for the period from 01.08.2013 to 31.07.2014 subject to the terms, conditions, exceptions and limitation as to use and own damage of the said car was covered by the said policy. The OP received the information from the Complainant on 20.06.2014 about the accidental damage of the insured car and immediately the OP issued claim form. The Complainant submitted duly filled up claim form to the office of the OP on 20.06.2014. After receiving information and claim form the OP appointed Mr. Asoke Kumar Mukhopadhyay, Surveyor & Loss Assessor to assess the loss of the said car. The Surveyor surveyed the vehicle and collected documents from the Complainant He submitted report on 18.04.2014 to this OP assessing loss and damage to the tune of Rs.1,58,500/- on net salvage basis along with the consent letter of the Complainant dated 04.08.2014. Thereafter the OP appointed Mr. Abhijit Chattopadhyay, an investigator for verification of driving license of the driver Biswajit Mondal and the said investigator accordingly collected the particulars from the Licensing Authority, Durgapur dated 10.10.2014 and submitted his report along with D.L. particulars issued by the said authority on 14.10.2014. It is submitted by the OP that after considering the report of the Surveyor and the D.L. particulars found that the driver of the questioned vehicle was not holding an effective driving license as classified in the RC book. The said vehicle was carrying passenger, so the vehicle is a transport vehicle and though the driver was driving the transport vehicle holding a non-transport driving license and without having any authorization from the Licensing authority to drive the transport vehicle. Thus the insured has violated the terms and the conditions of the policy and due to such violation on the part of the insured the claim of the complainant was repudiated legally and properly. Not only that the information of repudiation was duly intimated to the Complainant by issuing repudiation letter. So as there is no deficiency in service and unfair trade practice on its part, the Complainant is not at all entitled to get any relief as sought for. The complaint filed by the Complainant is baseless, malafide, motivated and vexatious one. Prayer is made by the OP for dismissal of the complaint with cost.
The Complainant has adduced evidence on affidavit along with some documents in support of his contention. The Complainant filed documents by way of firisty.
We have carefully perused the record; documents and the Rulings filed by the ld. Counsel for the Complainant and the OP and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that there are some admitted facts in the case in hand i.e. the Complainant is a registered owner of Ambassador car, he obtained policy for the said car which was valid for the period from 01.08.2013 to 31.07.2014, during validity of the insurance policy the car met with an accident on 23.05.2014 about 12.30 P.M. on NH-2 near Kota More, the said car was driven by a driver, in the said accident the front portion of the car got total damage, the Complainant informed the matter to the local Police Station, he also informed the incident to the OP on 09.06.2014, lodged the claim form before the OP on 20.06.2014 along with relevant papers and documents and estimate, upon getting the information and claim form the OP appointed one Surveyor cum loss assessor for survey, the Surveyor inspected the damaged vehicle, submitted his report to the OP on 18.04.2014, after discussion with the Surveyor the Complainant agreed to accept the claim on net of salvage basis assessment of Rs.1,58,500=00, the Complainant submitted a consent letter on 04.08.2015 about the said assessment to the OP, the OP appointed an investigator for verification of driving license of the driver, the investigator accordingly collected the particulars from the Licensing Authority, Durgapur dated 10.10.2014, he submitted his report along with D.L. particulars issued by the said authority on 14.10.2014, after considering the report of the Surveyor and the D.L. particulars it was found by the OP that the driver of the questioned vehicle was not holding an effective driving license, on that ground the claim of the Complainant was repudiated by the OP and issued repudiation letter dated 21.11.2014, the Complainant had to run from pillar to post for his claim, but to no effect, being dissatisfied with the action of the OP the Complainant filed a complaint before the Insurance Ombudsman, Kolkata against the OP for repudiation of his claim, the Ld. Ombudsman after hearing the complaint was pleased to pass an order as ‘NIL’ and closed the complaint by giving liberty to move fresh application at any Forum/court vide letter dated 15.01.2016. Hence this complaint is initiated by him against the OP praying for certain relief.
The allegation of the Complainant is that the OP has illegally repudiated his legitimate insurance claim inspite of Surveyor’s report and recommendation. The contention of the OP is that as the vehicle is a transport vehicle and the driver was holding non-transport license, hence the Complainant has violated the terms and the conditions of the policy. So according to the OP due to breach of contract the Complainant is not entitled to get any amount as prayed for.
Now we are to see as to whether the Complainant is entitled to get any amount due to damage of his insured vehicle or not. Admittedly at the time of accident there were six passengers in the questioned vehicle. As the vehicle was carrying six passengers, according to the OP the vehicle is a transport one. It is further an admitted fact that the driver, who was on the steering at the material time of accident holding a non-transport driving license. According to the Complainant the Ambassador car cannot be termed as transport vehicle, rather non-transport one and as the driver was holding non-transport driving license at that time, hence breach of contract does not arise at all. As per the Insurance Act there are two types of license i.e. LMV & HMV. In the instant complaint the driver was holding license for Light Motor Vehicle. In this respect the Ld. Counsel for the Complainant has relied on the judgment passed by the Hon’ble High Court, Gujrat, in the case of New India assurance company Limited vs.Bhikhabhai Desaibhai Rathod & Others, decided on 06.05.2013, reported in 2013 (4) T.A.C.582 (Guj). We have carefully perused the said judgment and it is seen by us that the subject matter is almost same and identical with the case in hand. In the paragraph no-2 of the said judgment it has been observed as follows:-
‘The main dispute involved in this case is whether the driver had valid license or not at the time of accident. In this regard, while perusing Section 2(21) of the Act, it reads as under:-
2(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not excess 7500 kilograms. So, as per the above definition light motor vehicle means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller, the unladen weight of any of which, does not exceed 7500 kgs. It transpires that pursuant to the amendment Act No-50 of 1994 with effect from 14.11.1994, the weight of 6000 kgs was enhanced to 7500 kgs……… ‘
In the instant complaint it is not the case of the OP that during accident the weight of the vehicle exceeded 7500 kgs. Therefore in our view the abovementioned judgment is applicable in the instant complaint and we can draw the conclusion based on the said Section of the Act that the questioned vehicle being a transport vehicle can be termed as light motor vehicle and the driver was holding the driving license of light motor vehicle. Therefore it cannot be said that the Complainant has violated the terms and conditions of the policy.
Admittedly, after survey of the damaged vehicle the Surveyor appointed by the OP submitted his report on 21.11.2014 assessing the loss and damage to the tune of Rs.1,58,500/-. As the OP did not appoint second Surveyor after rejecting/setting aside the report dated 21.11.2014, hence the same is binding on the OP. In this respect we may refer to the judgment passed by the Hon’ble National Commission, decided on 27.02.2015, in the case of Iffco-Tokio General Insurance Company Limited vs. Beena Raghav, reported in III (2015) CPJ 75 (NC), wherein it has been held that Surveyor is appointed under the statutory provisions of the Section 64UM(2) of the Insurance Act, 1938. In terms of the said Section the Surveyor is an independent professional engaged by the insurance Company to assess the loss suffered by the insured in respect of any insurable items/goods/property. The report prepared by the Surveyor is significant and bears evidentiary value which cannot be ignored and dismissed as such saying that the ‘assessed loss cannot be considered trustworthy’ without giving any reasons for coming to this conclusion. Apart from this Ruling there are plethora of judgments passed by the Hon’ble Apex Court and the Hon’ble National Commission wherein it has been held that the Surveyor’s report being an important document cannot be brushed aside without assigning any reason.
Having regard to the abovementioned observation we are of the view as in the instant complaint we do not have any authority to set aside or dismiss the said report.
The Ld. Counsel for the OP has relied on the judgment passed by the Hon’ble National Commission, reported in 2013 (2) CPR 45 (NC), in the case of Sukhbir Singh Dhanda vs. ICICI Lombard General Insurance Company Limited. We have gone through the said judgment and in our view the said ruling is not applicable as the fact of the said case is not same and identical with the instant case.
So in our opinion the repudiation of the insurance claim by the OP can be termed as deficiency in service as the repudiation was not made properly and legally. Due to such deficient service the OP is under obligation to pay compensation to the Complainant and as the grievance of the Complainant had not been redressed by the OP before initiation of this complaint and the Complainant has to incur some expenses for filing this complaint, hence in our considered view the Complainant is also entitled to get litigation cost from the OP.
Be it mentioned that the Complainant has prayed for Rs.2,02,500=00 towards the damage of the said vehicle, but as the Surveyor assessed the loss to the tune of Rs.1,58,500=00 and the Complainant being agreed with the said amount submitted his consent letter to the OP, hence the Complainant cannot travel beyond the Surveyor’s report and his letter.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed in part on contest with cost. The OP shall pay a sum of Rs.1,58,500/-to the Complainant towards the insurance claim in respect of the damaged insured vehicle within 45 days from the date of passing of this judgment, in default the amount shall carry interest @8% p.a. for the default period. The OP is further directed to pay a sum of Rs.3,000/- as compensation due to harassment, mental agony and pain and litigation cost of Rs.1000/- to the Complainant within 45 days from the date of passing of this judgment, in default the Complainant will be at liberty to put the entire decree into execution as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
