DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PURULIA



CONSUMER COMLAINT No. 03 OF 2007



Date of filing: 19th January 2007

Date of Order: 6th March 2009



Complainant Opposite Party

Smt. Lila Rani Dutrta 1. TheNational Insurance Co. Ltd,

W/oSri Bishnu Kanti Dutta, Through its Regional Manager,

Sayer Para,Ketika, Purulia, 3, Middleton Street,Kol-71

P.O., P.S & Dy- Purulia, 2.The Divisional Manager

TheNational Insurance Co. Ltd

Apcar Garden, Asansol,

P.O., P.S- Asansol, Dt- Burdwan

3. The Branch Manager

TheNational Insurance Co. Ltd,

Purulia Branch

G.N.Mukherjee Street, Purulia

P.O., P.S, Dt- Purulia



Present: 1. Shri R.N. Sarkar, President.

2. Sri A. Sinha, Member.

3. Smt. S. Sengupta (Santra), Member.





For the Complainant : Sri P. Roy, Adv.

For the O.Ps. : M.H.Ansury, Adv.





Order No. 38, dated 06.3.2009/C.C.No. 03 of 2007





Undisputed facts of the case are that the complainant owns the vehicle AMBASSADOR car bearing No. WB 56A-6294 which was covered by the risk through the policy under the O.P.No.1 for the period from 27.9.2003 to midnight of 26.9.2004 with sum assured of Rs. 1,70,200=00. On 02.62.2004 the said vehicle met with an accident near Gobindapur More under Kenda P.S. within Purulia District when Manik Kumar the driver of the vehicle was

proceeding towards Manbazar from Purulia to attend marriage ceremony of his near relative. The matter was reported to local P.S. and a case was registered. On being intimated about the accident the O.Ps. appointed Surveyor to assess the extent of damage to the car. Ultimately after taking unnecessary time the O.Ps. repudiated the claim on the ground that the driver Manik Kumar was driving the vehicle without valid and effective driving license. The complainant approached before this Forum alleging deficiency in service and claimed damage costs of the vehicle, compensation and costs.



O.P.No.2&3 opposed the contention of the complainant by filing written version contending inter alia that the vehicle was carrying more than permissible capacity of the passengers excluding the driver and Manik Kumar had no driving license at the time of accident. The complainant violated the terms and condition of the policy. Therefore, the insurance company rightly repudiated the claim of the complainant and there was no deficiency in service on the part of the O.Ps. Both the O.Ps. prayed for dismissal of the complaint with costs.



Upon the pleadings of the parties the following issues have framed:



1. Whether the complainant suffered loss and damage for repudiation of claim by the O.P.?

2. Whether there was any deficiency in service on the part of the O.Ps. for settlement of the claim made by the complainant?

3. To what other relief the complainant is entitled to?



In order to substantiate the case both parties examined one witness each and the complainant produced the documents marked Exhibit “1” to “6” whereas the documents produced by the O.Ps. marked Exhibit “A” to “F”.



Issue No.1 to 3: -

All the issues are taken up together for consideration as they are interlinked.



It is not in dispute that the complainant insured the vehicle under the O.Ps. by opening the policy (Ext. “D”) for the period from 27.9.2003 to midnight 26.9.2004 and the alleged accident took place on 02.6.2004 for which FIR was lodged at local P.S. (Ext. “E”). It is no longer in dispute that the complainant is a consumer under the O.Ps.



In course of argument it is ventilated on the part of the O.Ps. that the O.Ps. rightly repudiated the claim as the vehicle in question was carrying more than four passengers and the driver had no driving license. Two fold arguments have been advanced by the Ld. Advocate for the O.Ps. that FIR (Ext. “E”) clearly indicates that seven passengers sustained severe injuries and they were treated at hospital and the accident occurred due to rash and negligent driving by the driver of the said vehicle. Secondly, it is contended referring the letter of the Investigator dated 27.10.2005 that on verification the Investigator found that DL No. 3126/02 does not exist in the name of Manik Kumar. Therefore, that DL produced by the complainant is fake. Since no driving license was issued from D.T.O., Bokaro in the name of Manik Kumar, the claim of the complainant was rightly repudiated. The carrying of passengers more than permissible capacity violates the terms and condition of policy. The complainant is not entitled to any relief asked for.



To assail that contention Ld. Advocate appearing for the complainant has submitted that the O.Ps. failed to establish by adducing cogent or reliable evidence that the vehicle was carrying seven numbers of passenger or fare paying passengers at the time of accident and no cross-examination put forward to the P.W.1 on this point. Ld. Advocate appearing for the complainant also referred to a decision reported in 2000 (1) CPR 10 (NC) where it has been held that insurance company would not be justified in repudiation of claim merely on the ground that the vehicle was carrying excess passengers when cause of accident was totally unrelated to carrying of excess passengers. It is also further argued on behalf of the complainant that since the original DL was submitted to the insurance company along with Claim Form, the report submitted by the D.T.O., Bokaro on 25.10.2008 in connection with the letter of this Forum clearly indicates that DL No. 3126/02 is in the name of Shri Manik Kumar, S/o. Lambodar Kumar.



Having regard to the submission of both sides we now refer the evidence adduced by the parties. P.W.1 is the complainant who stated on oath that the vehicle in question is private one. She put the documents marked Exhibit “1” to “6”. She admitted that Manik Kumar was driving the vehicle at the time of accident. She denied that on the date of accident the vehicle was packed beyond capacity. O.P.W.1 during cross-examination has admitted that he himself interrogated the FIR maker to find out the cause of accident. No attempt was made on his part to know the names and address of the passengers. He did not take any attempt to contact the police about carrying number of passengers. No instruction was given to the Surveyor for verification and inspection on driving license. He produced the Surveyor Report dated 29.9.2005. The assessment was done by the Surveyor without dismantling of the vehicle. He also admitted that the claim was repudiated on the ground that the driving license of the driver was fake. He further admitted that he received the DL number issued by D.T.O., Bokaro from this Forum.



From the evidence adduced by the parties it is now abundantly clear that except the statement of FIR no independent witness came forward to support the case of the O.Ps. that the accident occurred due to carrying of excess passengers in view of the decision referred to by the Ld. Advocate for the complainant. We are unable to accept the contention of the Ld. Advocate for the O.Ps. that the vehicle was carrying more than the permissible passengers at the time of accident.



The next point which is vital in this case is the stand taken by the O.Ps. that the driving license was fake in view of the report dated 27.10.2005 submitted by the Investigator. This letter was not exhibited but on a bare look of this document we find that the report does not contain any supporting documents whereas the report submitted by District Transport Office, District: Bokaro, Jharkhand dated 25.10.2008 and document dated 12.8.2006 (Ext. “3”) made it clear that driving license No. 3126/02 is in the name of Manik Kumar who alleged to have drove the vehicle at the time of accident. Sufficient reliance can be placed upon these document but no reliance can be placed upon the letter dated 27.10.2005 produced by the O.Ps. Accordingly, we hold that the stand taken by the O.Ps. cannot be accepted at all.



As hold by SC in the case of Swan Singh reported in AIR 2004 SC 1513 mere fake driving license is not itself defence available to the insurer against either the insured or 3rd party. Since the O.P. tries to avoid its liability it has to prove the breach of policy condition i.e. disqualification of driver. No doubt that the O.P. has failed to established that facts as provided u/S 149 of the M.V Act.



Considering the submissions of both sides and documents on record we hold that Manik Kumar had effective driving license at the time of accident and the O.Ps. failed to honour of the claim application filed by the complainant. The act of the O.Ps. clearly suffers from deficiency in rendering service to the complainant by repudiation of claim and the Repudiation of claim is arbitrary and unjustified.



Next question arises for consideration is about to the extent of damage caused to the vehicle due to such accident. It is not in dispute that after being intimated about the accident the O.Ps. appointed a Surveyor who submitted his report on 29.9.2005. According to the complainant due to such accident the vehicle has been totally damaged and in support of his contention the complainant produced the mechanic report dated 11.6.2004 (Ext. “4”). This report (Ext. “4”) does not appear to have assessed to the extent of damage. From the Surveyor report dated 29.9.2005 we found that approximate net loss plus towing is Rs. 97,836=00. From the report of the Surveyor we found that Surveyor was not allowed for dismantling the vehicle which was kept at insured’s premises. As desired by the insured the loss was evaluated on visible inspection as insured remained adamant. As per this assessment vehicle found repairable replacing damaged parts. Details are shown in the assessment. The Surveyor in this report clearly stated the reason for not dismantling of the vehicle. During inspection he found the car badly damaged and appeared consistent with the cause and nature of accident.



In absence of other documents regarding assessment of damage caused to the vehicle, we have no other alternate but to accept the report of surveyor.



From the narration of the above facts it is clear that the complainant claimed compensation for the damage of his vehicle from the O.P. but no estimate cost have been filed except the document (Ext 4).



In view of the aforesaid discussion and materials on record we hold that the complainant is entitled to have an order of award and the complaint deserves to be allowed.



In the premises the complaint succeeds.



All the issue are decided accordingly.



Proper fees have been paid.



It is, therefore,



O r d e r e d



That the complaint is allowed on contest against the O.Ps.



The O.Ps are directed to pay Rs. 97,836/- to the complainant towards damage caused to the vehicle in question together interest @10% p.a. from the date of filing of the complaint i.e. 19.1.07 and Rs. 2,000/- towards litigation cost within 30 days from the date of this order failing which interest is payable @ 10% p.a. on entire decreetal amount from 19.01.07 till final payment is made.



A certified copy of this order be supplied to the parties free of charge.



Member Member President

A.K.Sinha S.Sengupta (Santra) R.N.Sarkar