DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK

Dated the 17th day of January, 2018

C.D Case No. 115 of 2015

Sri Madhab Malik

S/o: Late Kartik Malik

Vill: SahadaHaripur

Po: SahadaSamil

Ps: Bhadrak (T)

Dist: Bhadrak

                                                  ……………. Complainant

            (Versus)

 1. Branch Manager,

 Universal Sampo General Insurance Co. Ltd.

1^st Floor, 98, Kharavelanagar

KeshariTalkis Complex

Bhubaneswar- 751001

2. The Branch Manager

Indian Overseas Bank, Bhadrak Branch

At/Po/Ps/Dist: Bhadrak

                                                                 …………..Opp. Parties

For the Complainant: Sri J. B. Agasti&

Others

For OP No.1:AdvSri Amarrendraku Panda

For the OP No. 2: AdvSri D. Nayak

Date of hearing: 26.09.2016

Date of order: 17.01.2018

SRI RAGHUNATH KAR, PRESIDENT

The complainant has filed this complaint against the O.Ps in respect of the deficiency of service caused by them against the complainant is to the effect that the complainant is the owner of the tractor bearing Regd. No. OD-22A-9099 which stands recorded in the name of the complainant. The said tractor was capsized and met an accident on 01.01.2015 and the complainant has spent Rs 1,14,000/- (Rupees one lakh forty thousand) only for the said tractor.The said tractor was damaged and most of the measure part was broken due to the accident. The complainant informed to the OP No. 1 a surveyor was appointed for enquiry & serve. The complainant repaired the tractor himself on spending Rs 1,14,000/- .  The said surveyor appointed by the OP No. 1 was present at the time of repairing.The tractor was prepared at Sri Gobinda Tractors,Charampa, Bhadrak. The complainant has received the bills of expenditure for reparation such as follows.   

But the OP No. 1 estimated the Rs 1,14,550/-. The said OP did not pay the amount to Sri Gobinda Tractors, Charampa, Bhadrak.The complainant sent a legal notice on 23.05.2015 to pay the said expenditure amount to the complainant but still the OP No. 1did not turn up and paid the bill amount. The complainant has also stated that the policy No. 241653853585.00-000 was validat the time of the said tractor. On 09.03.2015 the OP No. 1 sent a letter to the complainant to submit the documents in connection with the alleged vehicle. The complainant has done so. The OP No. 1 received the same, examined the same but did not pay a single pie to the complainant for the expenditure.

In view of the aforesaid fact that the O.Ps have seriously caused deficiency of service against the complainant. Obviously the complainant suffered from mental agony & high BP due to the deficiency of service, miscarriage, & negligence of the OP. The cause of action arose OP No. 1 sent a letter to the complainant & the complainant has received the same & also on 23.05.2015 when the legal notice was served upon the OP No. 1. Hence the complainant sought for the relief of.

A. The OP No. 1 be directed to pay all the expenditure money i.e. Rs 1.14.000/- (One lakh fourteen thousands) only and also to pay @ 9% interest to the complainant from the date of filing to till realization.

B. The cost of the proceeding be given to the complainant.

C. The O.Ps be directed to pay Rs 5000/- (Five thousand) only for his mental agony and other tension.

D. Any other relief be given to this complainant which the Forum feels fit and proper.

Documents filed by the complainant (Xerox copy).

1. Legal notice- 2 sheets- Anx- 1 along with postal receipt.

2. Letter sent by the OP No. 1- Anx- 2.

3. Certificate of registration vide No OD-22A-9099- Anx- 3.

4. Certificate of registration- 1 sheet- Anx- 4.

5. Invoice- 1 sheet- Anx- 5.

6. Bills 12.01.2015- 1 sheet- Anx- 6.

7. Xerox copy of bills on dt.10.01.2015- 1 sheet-Anx- 7.

8. Labor charges on 20.01.2015- 1 sheet- Anx- 8.

9. Cost of estimate issued on 01.01.2015- 2 sheet- Anx- 9.

The OP No. 1 has challenged the maintainability of this case as well as there is no cause of action to bring this case against the OP No. 1.Neither the OP resides nor carries business or has a business office in the territorial jurisdiction. The OP No. 1 has denied the averments made in the complaint vide Para No. 4 & 5. The OP has also denied the Para No. 2 & 3 of this complaint.The complainant admit in Para No. 3 of the complaint that as per terms & conditions of the policy the OP No. 1 is not liable to pay any amount for loss & damage of the vehicle bearing Regd. No. DR-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer).The OP No. 1 had asked the complainant to submit the driving license of his driver Ganesh Prasad Behera vide letter No. 09.03.2015 & on letter dt. 23.03.2015 Senior Manager, Allahabad Bank, Bhadrak requested his to advice the borrower having endorsement to drive transport vehicle. But instead of complying requirements under the policy in question service of Advocate notice against this OP is meaningless since it does not comply the requirements or fulfill the terms & conditions of policy. All letters are attached and marked as Annexure- 1.It is a fact that the complainant has obtained a miscellaneous vehicle package policy bearing No. 2316/53853585/00/000 against his vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer) for the period from 16:20 on 07.02.2015 to midnight of 06.02.2016 subject to terms and conditions of the policy. On 03.01.2015 the complainant intimated the OP No. 1 to depute a surveyor to in spite the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer) since it is damaged due to accident on 01.01.2015 at Sabarang. On receiving the intimation the OP No. 1 provided the claim from to the complainant then and there with a request to submit the same after duly filled in and signed by him along with estimate of loss, photo copies of RC Book, fitness certificate, permit, DL of his driver and copy of FIR as soon as possible for further course of action. On receiving the claim intimation the OP No. 1 requested to its Zonal Office at Kolkata to appoint a surveyor cum loss assessor to survey the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer) and assess the loss caused due to accident on 01.01.2015. On receiving the request of the OP No. 1, Zonal Office of this OP appointed a surveyor cum loss assessor Er. S.K. Parhi on 05.01.2015 to survey the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer) and assess the loss caused due to the alleged accident. On 15.01.2015 the complainant submitted the claim from along with estimate of loss with the OP No. 1. On receiving the claim form and estimate of loss, the OP No. 1 provided same to the deputed surveyor/ loss assessor Er. S.K. Parhi for his reference at the time of survey and assessment of loss/damage of the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer) caused due to the alleged accident.After due survey and inspection of the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer) deputed surveyor/ loss assessorEr. S.K. Parhi submitted his report with the OP No. 1 on 28.02.105 assessing the loss Rs 54,000/- caused due to the alleged accident after deduction, policy excess and salvage and all the facts and circumstance into consideration. On 02.03.2015 the complainant submitted the invoice No. 216 & 217 dt. 10.01.2015 and 12.01.2015 respectively, bill towards labor charges, photo copy of RC Book of the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer), photo copies of smart card of certificate Registration of the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer), photo copy of permit No. OR-22/GV-PP/154/2014 and photo copy of D/L No. 838/03-04/BDK in the name of his driver Ganesh Prasad Behera and photo copy of the fitness certificate of the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer).

On receiving the aforesaid documents the OP No. 1 forwarded the same to its Zonal Office at Kolkata for settlement of claim and on receiving the same they scrutinized the said documents and ascertained that the complainant has registered his tractor having Engine No. 391354STA00641A, Chassis No. WXTA31418033083 manufactured by Swaraj and Trailer having Chassis No. HE532014 manufactured by HITEC Bhadrak as Transport vehicle under certificate of Regd. No. OD-22A-9099 and OD-22A-9100 respectively. Further it is ascertained that the complainant is holding a permit No. OR-22/GV-PP/154/2014 granted by Secretary Regional Transport Authority Bhadrak to carry goods in all motorable roads of Odisha except prohibited roads for the period from 11.03.2014 to 10.03.2019. Thus the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer) is a Transport as defined U/s 2 (47) of the motor vehicle Act. But on verification of photo copy of D/L No. 838/03-04/BDK in the name of Ganesh Prasad Behera submitted by the complainant it is ascertained that he is authorized to drive motor cyclewith gear and Tractor only for a period of 20 years i.e. from 27.09.2003 to 26.09.2023. Hence the OP No. 1 emphatically states that Ganesh Prasad Behera, driver of the complainant was not processing effective/adequate driving license to drive the vehicle Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer) at the time of alleged accident. Because the vehicle bearing Regd. No. OD-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer) is a Transport vehicle but he is not authorized to drive such class of vehicle at the time of alleged accident for which this OP asked the complainant to submit the Transport Driving License of Ganesh Prasad Behera vide letter dt. 09.03.2015 and thereafter received a request letter dt. 23.03.2015from the Sr. Manager of Allahabad Bank, Bhadrak Branch, Bhadrak to settle the claim in favour of the bank and on receiving the said letter this OP forwarded the same to Zonal Office for their reference and necessary action. On receiving the letter dt. 23.03.2015 of the Sr. Manager of Allahabad bank, Bhadrak Branch, Bhadrak forwarded by the OP No. 1 Zonal Office of this OP wrote a letter to Sr. Manager of Allahabad Bank, Bhadrak Branch, Bhadrak explaining the necessity of the driving license having endorsement/authorization to drive Transport vehicle with a request to advise the complainant to submit the D/L of his driver Ganesh Prasad Behera having endorsement/authorization to drive Transport vehicle to proceed onward for settlement of claim. But the complainant did not submit the same for which after a long awaiting when the complainant did not submit the D/L of his driver Ganesh Prasad Behera having endorsement/authorization to drive transport vehicle, for which the Zonal Office of this OP closed claim file of the insured complainant as “No Claim” since claim file can be kept open for indefinite period as per the guide lines of I.R.D.A i.e. claim is to be settled within one calendar month of receipt/submission of survey/loss assessment report. Ganesh Prasad Behera, driver of the insured complainant was not possessing effective/adequate driving license to drive the vehicle OD-22A-9099 (Tractor) and OD-22A-9100 (Trailer) at the time of alleged accident. Because the vehicle bearing Regd. No. OD-22A-9099 (Tractor) and OD-22A-9100 (Trailer) constitute a Goods Carriage under Section- 2 (14) of consequently a Transport vehicle under Section- 2 (47) of the motor vehicle Act. 1988. But he is not authorized to drive such class of vehicle at the time of alleged accident and such the insured-complainant is guilty of negligence and failed to exercise responsible care in fulfilling the terms & conditions of policy regarding use of vehicle by a person having effective driving license. Hence the OP No. 1 is not liable to indemnify the insured-complainant against loss or damage to the vehicle insured under policy No. 2316/53853585/00/000 for the period from 16:20 on 07.02.2015 to midnight of 06.02.2016. The O.P No. 1 has filed the following documents.

1. Copy of insurance policy bearing No. 2316/53853585/01/000 for the period from 07.02.2015 to midnight of 06.02.2016- Annexure- 1.

2. Photo copy of claim form- Annexure- 2.

3. Photo copy of certificate of registration of the vehicle bearing Regd. No. OD-22A-9099 (Tractor)- Annexure- 3.

4. Photo copy of certificate of registration of the vehicle bearing Regd. No. OD-22A-9100 (Trailer)- Annexure- 4.

5. Photo copy of fitness certificate against the vehicle bearing Regd. No. OD-22A-9099 (Tractor)- Annexure- 5.

6. Photo copy of fitness certificate against the vehicle bearing Regd. No. OD-22A-9100 (Trailer)- Annexure- 6.

7. Photo copy of permit No. OR-22/GV-PP/154/2014 issued by Secretary Regional Transport Authority- Annexure- 7.

8. Photo copy of D/L No. 838/03-04/BDK in the name of Ganesh Prasad Behera- Annexure- 8.

9. Photo copy of survey report of the deputed surveyor Er. S.K. Parhi- Annexure- 9.

10. Photo copy of the the letter dt. 09.03.2015 issued by the Zonal Office of the OP No. 1 addressing to the complainant- Annexure- 10.

11. Photo copy of the letter dt. 23.03.2015 issued by Sr. Manager, Allahabad Bank, Bhadrak Branch, Bhadrak- Annexure- 11.

12. Photo copy of the letter dt. 20.04.2015 of the Zonal Office of the OP No. 1 addressing to Sr. Manager, Allahabad Bank, Bhadrak Branch, Bhadrak- Annexure-12.

The OP No. 2 has filed his written version challenging the maintainability of this proceeding. He has also challenged the mis-joinder & non-joinder of the necessary & proper parties. He also challenged the cause of action of this case. He has also challenged that the complaint is vague & barred by limitation with suppuration of material facts & the complaint is devoid of merit. The complainant does not come within the definition of “Consumer” within the meaning of Sec- 2 (1) of CP Act.& deficiency of service has not been caused by the OP No. 2. He has partly admitted the averments of Para No. 1, 2, 3, 4, 5 & 6 are partly correct & partly wrong. He has challenged whether the present complainant is the owner of the vehicle or the said tractor was capsized & got accident & for which the complainant spent for the sum of Rs 1,14,000/-.

The fact is that the OP No. 2 is a body corporate duly constituted under the banking companies (Acquisition and Transfer of undertaking Act, 1970 and the present OP No. 2 neither financed the vehicle nor the present complainant has taken loan from the present OP rather it reveals from the R.C Book and Insurance policy the Branch Manager, Allahabad Bank, Bhadrak Branch has financed the vehicle. That, the present OP has no legal responsibility to full fill the illegal demand of the complainant. It is pertinent to note that the claim of the complainant is not coming within the scope, purview and jurisdiction of consumer Forum).

Hence he has prayed for dismissal of the case. The OP No. 2 has filed the Xerox copies of following documents.

1. Decisions of Supreme Court- 4 sheets.

2. Accident claims zonal- 20 sheets.

The OP No. 2 has promised to file the copy of the registration certificate & insurance policy & other documents would be filed at the time of hearing but no such documents are available in the case record.

OBSERVATIONS

We have already gone through the averments made in the complaint & the written version’s, as well as the documents filed both the parties. The OP No. 1 has admitted regarding the occurrence of accident which was held on 01.01.2015. After the occurring of the said accident the complainant has not lodged any FIR in the local police station. The complainant has not filed the any copy of the policy bond. The OP No. 1 has challenged the cost of the repairing Rs 1,14,000/- which is ainflated bill arranged by the complainant. The complainant has not filed the driving license of the driver who was driving the vehicle.

Any way the OP No. 1 in his written version has admitted the occurrence of the accident & damage of the vehicle. As soon as the complainant informed to the OP No. 1 in respect of the accident, he deputed a surveyor or loss assessor who has assessed the actual & reasonable cost of repairing or replacement of parts damaged of the insure tractor, due to the alleged accident to the tune of Rs 54,000/- after deduction of depreciation, salvage & policy assess as per the term & condition of the policy. The OP No. 1 has filed the Xerox copies of the policy bond which is not clearly visible to read.So we are not able to read the driver column of the policy bond. The complainant has filed the Annexure- 5, 6 & 7 which are the invoices of Sri Gobind Tractors. He has filed the Xerox copies of those documents, if the original documents would have been filed the same should have been exhibited. The veracity of the documents could have been determined by exhibiting the same but the complainant has not done so.  Those documents do not come under the public documents or the private documents. Hence the complainant has failed to prove the same documents.

It is admitted that the complainant has requested the OP No. 1 to pay the cost of the damage but he remainedsilent& did not take any suitable step to indemnify the loss of the complainant. Rather when the complainant sent a legal notice to the OP, he remained silent& did not send any reply to the concerned advocate of the complainant through his advocate or by person. IN the Para No. 7 of the written version filed by the OP No. 1 it is written that “The complainant admits in Para No. 3 of the complaint that as per the terms & conditions of policy the OP No. 1 is not liable to pay any amount for the loss/damaged of his vehicle bearing Regd. No. DR-22A-9099 (Tractor) attached with OD-22A-9100 (Trailer).”The OP No. 1 has failed to prove in this Forum how he is not entitled to pay the compensation amount of the damage of accident. The OP No. 1 has avoided the report of his own surveyor & became silent having  received the legal notice of the complainant. The OP No. 1 has also defied to pay the cost of the damage to the complainant.

As per the above observations we have found that the OP No. 1 has caused deficiency of service being silent about the claim of the complainant & not sending any reply to the complainant of the legal notice. Hence it is ordered;

6698606. ORDER

The OP No. 1 is here by directed to pay Rs 54,000/- as the cost of the damage of the vehicle. He is also directed to pay Rs 10,000/- towards the cost of the mental agony & harassment, and he further directed to pay Rs 5,000/- to the complainant towards the cost of the litigation. The OP No. 2 is exempted from any deficiency of service caused to the complainant. The OP No. 1 shall have to carry out of this order within 30 days on receipt of the same.

This order is pronounced in the open Forum on this day of 17^th January, 2018 under my hand and seal of the Forum.