Sri. Apurba Kr. Ghosh.........President.

The Complainant has filed the case against the O.Ps under section 12 of the Consumer Protection Act and praying for the following order/relief under section 12 of Consumer Protection Act.

1. Direction against the O.Ps to pay a sum of Rs. 3,69,000/- to the complainant together with interest @ 9 % per annum from the date of filing of this Application till the date of recovery of entire amount.
2. Direction against the O.Ps to pay a sum of Rs. 500/- per day to the complainant from the date of repudiation of award i.e. since 30.07.2013 till the date of award.
3. Direction against the O.Ps to pay a sum Rs. 50,000/- for mental pain, agony and harassment caused to the complainant.
4. Any other relief/ reliefs to which the Complainant is legally entitled.

BRIEF FACT OF THE COMPLAINT

1. The complainant is a businessman engaged in the transport business/ he purchased LPT 1109 manufactured by TATA Motors having engine No. 497TC93FQZ818876, Chassis No. MAT 41640397 F 11369 on hire purchase agreement with Karnataka Bank Ltd. at the time of purchasing the vehicle, the Karnataka Bank Ltd. negotiated and as such the complainant purchased the insurance policy offered by the OPs.
2. That after payment of entire loan amount the complainant continued with the said insurance for his vehicle and the complainant went on plying the vehicle for his livelihood and source of income.
3. That the vehicle having Registration No. WB73/B4552 was proceeding towards Sikkim, met with an accident at Geil Khola under Kalimpong PS on 03.05.2012 at 11:55 PM when the said vehicle went down the slope and entered into River Teesta.
4. That as a result of that accident, both the driver of the vehicle namely Nima Sherpa and helper died and the body of the helper was found on the spot but the body of the driver was recovered near Kalijhora on 08.05.2012 and after recovery of the said dead body of the driver Nima Sherpa was sent for Autopsy to North
   Bengal Medical College and Hospital.
5. That the autopsy report contained a remarks that, in the abdomen of the deceased driver fluid was found which had alcoholic like smell.
6. That the said incident was reported to the OPs by the complainant over phone using the Toll Free no. provided in the insurance policy and in pursuance to that the OPs had appointed one Sankar Dey as Surveyor to assess the loss.
7. That the said surveyor who was appointed by the OPs had assessed the loss to the tune of Rs. 3,69,000/- .
8. That, the said claim of the complainant was negated by the OPs who assign the reasons as per report of the autopsy surgeon suggestive findings given in the autopsy report by their written letter dated 30.07.2013
9. That the complainant on several occasions and finally on 20.09.2013 requested the OPs by his letter tried to convince the OPs for settlement of claim but of no result.
10. That the suggestive remarks given by the autopsy surgeon cannot be the basis of negating the claim of the complainant in absence of any biochemical test to ascertain the true nature of the fluid and the petitioner submits that, almost all food article given out, some form of alcohol while being digested in the stomach.
11. That the negation of the claim of the complainant by assigning fictitious grounds is arbitrary high handed and amounts to deficiency in service.
12. That the acts and omission of OPs have resulted in pecuniary loss of livelihood and mental agony to the complainant.
13. That the cause of action of present case arose on 30.07.2013 when the OPs informed the complainant regarding repudiation of the said claim and which is continuing from day to day since then within the jurisdiction of this Commission.
14. That the complainant had filed a consumer case being no. 104/2014 which was dismissed for default and thereafter the complainant being influenced by mistake of facts attempted to get the same restored by way of approaching the State Forum by way of revision but the same was dismissed on the ground of limitation and thereafter the petitioner being advised to file the present application.

To prove the case the Complainant has filed the following documents:-

1. Consent Letter
2. Consent cum Discharge voucher
3. Registered Post with AD
4. Insurance Copy.
5. Certificate of Registration
6. Tax Token
7. Certificate of Fitness.
8. Permit
9. Driving License
10. Post Mortem Report.

Notice was issued from this Commission which was duly served upon both the OPs. On receipt of notice the OPs have appeared before this Commission through Vokalatnama to contest this case and they filed W/V. In the W/V the OPs have denied all the material allegation of the complainant and have stated that only to extort excessive amount of compensation the complainant has filed this case on some false allegations knowing fully well aware that the driver of the said vehicle was driving the vehicle in a intoxicated state and violets the specific provisions of the insurance policy. In the W/V they have also stated that, the instant case is not maintainable either in law or in facts/ the complaint is barred by law of limitation and the case is liable to be dismissed/ there is no cause of action against the OPs / that the complaint is frivolous, vexatious and harassive / the complaint is not maintainable against the OPs and the same has been made in gross abuse of the process of law and the question as to the maintainability in respect of the said petition goes to the root as also the jurisdiction of this Commission to try, determine and entertain the same against the OPs. The OPs have stated that, the contents of Para no. 1 to 7 of the complaint are matter of record and the complainant is bound to prove the same and the contents of Para no. 8 and 9 of the complaint are admitted by the OPs / contents of Para no. 10 to 12 of the complaint are partly correct and admitted by the OPs to the extent that the loss value was assessed by surveyor appointed by the OPs at the tune of Rs. 3,69,000/-  but the same is always subject to be admitted by the OPs considering the policy terms and conditions as well as statutory provisions of the MV Act and in case of any such violation of policy terms and conditions and any sort of violation of statutory provision of MV Act is not liable to pay the same or any part thereof. The contents of Para no. 13 of the complaint are strongly disputed by the OPs / the contents of Para no,. 14 -15 of complaint are totally false as there was no deficiency in service in any manner whatsoever / contents of Para no. 16 of the complaint is partly correct with regard to the cause of action which arose on 30.07.2013 when the OPs informed the complainant regarding repudiation of the claim of the complainant but the remaining statement made in Para no. 16 is denied and disputed by the OPs . The OPs have also stated that the complainant is not entitled to get any such relief from the OPs as there was a serious breach and violation of the terms and condition of the policy in question and the complaint is not maintainable in law which deserves to be dismissed in limine on the grounds of limitation period. They also stated that, from the documents filed by the complainant it was admitted that, the vehicle in question was duly insured with the OPs but the same was always subject to certain terms and conditions, exclusions and definitions contained therein and in the instant case from the post mortem report of the deceased driver who was driving the vehicle at the material point of time of accident was under the influence of alcohol which itself tantamount to the violation of law and the claim is not payable due to violation of law which itself amounts to violation of the policy in question though the surveyor had assessed the total loss value at the tune of Rs. 3,69,000/-. They also stated that, they repudiated the claim of the complainant vide letter dated 30.07.2013. By filing the W/V the OPs have prayed for dismissal of this case.

Having heard the Ld. Advocate of both the parties and on perusal of the written complaint, W/V and documents filed by the complainant the following points are to be considered by this Commission.

                                    Points for consideration   

1. Whether the Complainants is a consumer?
2. Whether the case is maintainable under the C.P. Act 1986?
3. Whether there is any deficiency in service on the part of the Principal O.Ps. as alleged by the Complainants?
4. Is the Complainants are entitled to get any award and relief as prayed for as per the prayer of their Complaint?

Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

In order to prove the case the complainant has filed written evidence in the form of an affidavit wherein he categorically stated / corroborated the contents of the complaint. In written deposition, the complainant has specifically stated that, he purchased the vehicle for the purpose of business as well as for his livelihood. He also corroborated that the vehicle was duly insured with the OPs which met with an accident and due to such accident the driver as well as helper of the vehicle had died. He further corroborated that, he raised a complaint with the OPs over mobile phone no. given in the insurance policy documents. In the written deposition the complainant has further corroborated that his claim was repudiated by the OPs and the grounds stated therein. He also filed above mentioned documents to prove his case.

At the time of argument, Ld. Advocate of the complainant argued that, the complainant has been able to prove the case not only by filing written deposition but also by filing documents before this commission. He further argued that, the complainant in his written deposition has specifically corroborated his case which has been supported by his documents annexed with the complaint.

At the time of argument Ld. advocate of the OPs argued that the case is not maintainable in law as well as fact and the case is barred by law of limitation. He also argued that the policy condition has already been violated as the autopsy surgeon during holding post mortem examination find that in the abdomen fluid was found with alcoholic smell. He further argued that previously another case was filed by the same complainant which was dismissed for default and against that order the complainant preferred appeal before the Hon’ble State Commission and the said appeal was also dismissed on the grounds of limitation period. He praying for dismissal of the instant case.

Having heard the Ld. Advocate of both the side and on perusal of the entire record we find the following admission of both the parties.

1. The complainant is owner of the vehicle in question.
2. That the vehicle was duly insured with the OPs.
3. The vehicle met with an accident on 03.05.2012.
4. That at the time of accident the driver of the vehicle name Nima Sherpa and helper had died.
5. That the accident was taken place within the effective policy period.
6. That the OPs had appointed one surveyor name Sankar Dey to assess the loss.
7. That the surveyor submitted his report assessed the loss to the extent of Rs. 3,69,000/- .

The only dispute on the side of the OPs is that the complainant has filed this case long after expiry of the period of limitation and the policy condition has been violated by the driver who was found dead when the autopsy surgeon find alcohol like fluid in his abdomen as the driver was under the influence of alcohol.

Now let us see how far the complainant has been able to prove its case or how far the OPs have been able to falsify the case of the complainant.

From careful perusal of the record it reveals that previously another case was filed before this commission by the complainant which is also admitted by the complainant. It is also admitted by the complainant that the said previously filed complaint was dismissed for default and thereafter the complainant has filed this case again. It is not denied by the OP’s that, the instant case has not been admitted by this commission. On the other hand it is not explained on the side of the OP’s as to what prevented them from challenging the admission order which was passed by this commission when the complainant filed this complainant afresh.

On the other hand it is settled provisions of law that, the consumer Protection Act is a beneficial legislation and has to be construed leniently and the Hon’ble Supreme Court in the case of National Insurance Company Ltd. versus Hindustan Safety glass works Ltd in 2017(5) SCC 776 has held that, the provision of limitation in the Act cannot be strictly Construed to disadvantage a consumer in a case. It was also held that, the dispute concerning a consumer, it is necessary for  the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who placed at a disadvantage vis-a-vis the supplier of service or goods. From the above discussion it can safely be presumed that the allegations of the OP’s are that the instant case is barred by law of limitation is not tenable.

Another vital grounds of the Op’s is that, in the post mortem report of the driver the Autopsy Surgeon opined that, in the abdomen of  the deceased driver a fluid was found which had “Alcohol like Smell”. But the Autopsy Surgeon has not stated specifically that he /she find Alcohol in the abdomen of the deceased driver i.e. it may be alcohol but not must. From the said opinion of the Autopsy Surgeon it is proved that, the autopsy surgeon had the doubt in his mind as to whether alcohol was actually found in the abdomen or not. Mere Surmised of the Autopsy Surgeon does not ipso facto proves the existence of alcohol in the abdomen of the deceased driver since when no chemical test was done to ascertain the nature of the fluid which was allegedly found in the abdomen of the deceased driver more over from the record it is admitted fact by both the parties that, the incident of accident was taken place on 03.05.2012  and dead body of the deceased driver was recovered on 08.05.2012 from the river Teesta near Kalijhora and Post mortem was done on 09.05.2012 and that’s why it can also be presumed that during the period of six days there was every possibility that the alcohol like smell could be found due to the fermentation of food in the abdomen since when the dead body was recovered after five days from the water of Teesta river and therefore the claim of the Op’s about the existence of alcohol in the abdomen is not accepted.

 From the record it further reveals that surveyor was appointed by the Op’s who assessed the value of loss to the extent of Rs.3,69,000/- and on receipt of the said loss assessment report consent letter as well as consent cum discharge voucher was prepared by and between the complainant and the Op’s which are filed by the complainant. In that regard there is no denial on the side of the Op’s which presumes the direct admission of the Op’s regarding the quantum of loss assessed by the surveyor appointed by the OP’s. Considering all we are of the view that, the grounds assigned by the Op’s for repudiation of claim of the complainant are not convincing and thereby we are also of the view that, there was deficiency in service on the part of the OP’s as well as restrictive trade practice towards the complainant. Accordingly we are also of the view that, the complainant has been able to prove the case against the Op’s and he is entitled to get the relief.

 Hence,

It is therefore,

O R D E r E d

That the instant Consumer case being in No. 64/2017 is hereby allowed on contest but in part. Both the OP’s are jointly as well as severally liable to pay the awarded amount. The OP’s are directed to pay a sum of Rs. 3,69,000/-(Rupees Three Lakh Sixty Nine Thousand)only to the complainant towards loss assessed by the surveyor along with interest @4% per annum with effect from the date of filing of this case till making payment of the entire amount. The OP’s are also directed to pay a sum of Rs.50, 000/-(Rupees Fifty Thousand) only to the complainant for deficiency in service and for causing mental pain, agony as well as cost of legal proceedings. The OP’s are further directed to pay a sum, of Rs.10, 000/- in the Consumer Legal Aid Account of this Commission.

The OP’s are directed to pay the awarded amount within 45 days from this day failing which they will have to pay interest at the rate of 9% per annum till making payment of the entire amount and in that case the complainant is given liberty to prefer execution case against the OP’s.                            
 

Let a copy of this order be given to the parties free of cost.