OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.119/08
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
3) Md. Jamatul Islam - Member
Mrs.Sahnaz Ahmed -Complainant
Daughter of Late Sirajuddin Ahmed
And wife of Mr.A.Ahmed
House No. 38
Pragati Path,Hatigaon, Sijubari
P.O.Guwahati-781038, Assam.
-vs-
1) The Oriental Insurance Co.Ltd. -Opp.Parties
Divisional Office, Chapaguri Road
P.O.and District- Bongaigaon, Assam.
2) The Regional Manager,
The Oriental Insurance Co.Ltd.
G.S.Road,Ulubari,Ghty-7
District-Kamrup (Metro), Assam
Appearance : 1)Ld.advocate Mr.H.K.Gogoi for the complainant .
2)Ld.advocate Ms.Piyali Mitra for the opp.parties.
Date of oral argument - 23.08.18
Date of judgment - 28.09.18
JUDGMENT
This is a case u/s 12 of Consumer Protection Act, 1986
1) The complaint filed by Mrs.Shehnaz Ahmed against Oriental Insurance Co.Ltd. Divisional office, Bongaigaon was admitted on 18.11.2008 and notices were served upon the opp.parties and they also filed their written statement, but the complaint was once dismissed for default on 19.7.13 , but it was restored to file for contest in view of order dtd. 18.11.16 passed by Hon’ble State Commission in FA 25/2014. In this case the complainant filed her evidence in affidavit and she was also cross examined by the opp.party side. The opp.parties side filed evidence of one Sri Balen Sarmah in affidavit and he was cross- examined by the complainant side. The opp.party also adduced oral evidence of one Mr.Jogesh Das . Finally Ld.advocate Mr.Himanta Kr.Gogoi filed written argument on behalf of the complainant and Ld.advocate Mr.S.S.Choudhury filed written argument for the opp.parties .Thereafter, on 23.8.18, Ld.advocate Mr.H.K.Gogoi filed additional written argument and forwarded oral argument for the complainant and Ld.advocate Mrs. Piyali Mitra forwarded oral argument for the opp.parties. The day of 13.9.18 was fixed for delivery of judgment , but on that day, we failed to deliver the judgment for technical reasons , but today, we deliver the judgment which is as below.
2) The case of the complainant, in brief, is that, the vehicle of the complainant bearing registered No. As-01 Y-6763, Engine No. 483 DL 51 ATZ 701308 and chassis No. 446154 ATZ 904105, which was insured with the opp.party vide policy No. 322300/4/31/6476/2007 from 24.2.2007 to 23.2.2008 covering all risk was hired by three youths on 3.7.07 from Ganeshguri Taxi Stand to take them to Tezpur , but on the way the said youths stopped the vehicle and forced the driver to get down and took way the vehicle. Being informed by the driver about the incident, the complainant lodged FIR at Dispur P.S. who investigated the case by registering as Dispur P.S. Case No. 835/2007 under section 406/384 IPC. The complainant also reported the opp.party about the incident; and Opp.Party No.1 appointed investigator to investigate the matter and the latter investigated the matter and submitted report to the opp.parties admitting the fact of theft or extortion of the said vehicle by miscreants from the driver. By losing her vehicle, she suffered financial loss and also failed to make the payment of monthly installments and in result the interest in the loan has been increasing causing huge financial loss to her . She filed claim before the opp.parties submitting all requisite documents including police final report by her letter dtd. 4.4.2008. The opp.parties, by writing a letter to her, asked her to write a letter to DTO, Kamrup to transfer the said vehicle in favour of Opp.Party No.1 on its trace out by the police to facilitate settlement of her claim, and she also sent such letter to the DTO , Kamrup on 16.4.2008 with a copy to Opp.Party No.1 , but Opp.Party vide letter dtd. 3.10.2008 informed her that they closed the file of her claim as “No Claim” on the ground that her driver did not have effective licence at the time of incident as he did not hold PSV endorsement in his driving licence, which debarred him to drive any public service vehicle, which is a violation of terms and condition of the policy. The said order of the opp.parties is patently illegal and void initio in view of the fact that the claim is based on theft or extortion of her vehicle and consequently drivers licence has nothing to do with settlement of her claim. The driver had valid driving licence to drive LMV and he was not disqualified to have PSV endorsement and if such endorsement is required to drive her vehicle at relevant time, then also requirement of insurance policy stands duly satisfied and as such her claim can not be repudiated on that ground. Her vehicle was registered under social scheme under the provisions of Motor Vehicle Act,1988 and Rules framed there- in All Assam Tourist Taxi Scheme of Govt.of Assam and on that view also the repudiation of her claim is not sustainable in law. The opp.parties admitted the theft of the vehicle , but delayed settlement of the claim for about nine months for want of final report and after receiving the final report in the month of April ,2008, they requested her to write to the D.T.O. to transfer the vehicle in the name of Opp.Party No.1 after its trace out, and as such the opp.parties can not be allowed to shift their stand from time to time to suit their oblique purposes. The opp.parties are hence liable to pay the full insured value to her i.e. Rs.4,25,000/- with interest @ 18% p.a. from 3.7.2007 till date of filing of this complaint i.e. Rs.96,625 /- with compensation of Rs.50,000/- for causing harassment as well as cost of the proceeding and future interest from the date of filing of the complaint.
3) The pleading of the opp.parties is that their deputed investigator investigated the driving license of the driver of the complainant and found that, the driving licence of the said driver vide DL No.2736/99/K(W)/Z issued by DTO , Kamrup was invalid at the time of accident and on being further investigation by their another investigator , Jogesh Das, it was found that, the said driver was authorized to drive Motor Cycle and LMV only , but he was not authorized to drive Public Service Vehicle like the vehicle of the complainant, which was registered as passengers carrying vehicle, and the said driver did not hold PSV endorsement in his driving licence at relevant point of time to drive any PSV and the act of driving by the driver the vehicle of the complainant is violation of terms and condition of the insurance policy as per rule 3 of Central Motor Rules ,1989and as such they repudiated the claim of the complainant on that ground and therefore the repudiation order is not illegal and in result they are not liable to pay any compensation to the complainant.
4) We have perused the pleading and evidence of the parties and found that it is both side’s admitted facts that -
i) The Tata Sumo vehicle bearing registration No. AS-01-Y-6763, Engine No. 483 DL 51 ATZ 701308 and chassis No. 446154 ATZ 904105 belong to the complainant , which was insured with opp.party namely, Oriental Insurance Company Ltd. vide policy No. 322300/4/31/6476/2007 from 24.2.2007 to 23.2.2008 had been stolen away by miscreants on 3.7.07, after hiring it from Ganeshguri taxi stand and forcefully dropping the driver from the vehicle.
ii) Regarding the theft of the vehicle, the complainant lodged FIR at Dispur Police Station vide Dispur P.S. case No. 835/2007 u/s 406/384 IPC and the Police investigated the case and she also informed the opp.parties about the theft and the opp.party investigated about the theft as well as the driving licence of the driver by appointing investigator and the investigator submitted the report to the opp.party.
iii) The complainant formally lodged claim with the opp.parties and the opp.parties after receiving the claim along with all relevant documents, directed the complainant to write a letter to the D.T.O.Kamrup for registering the concerned vehicle in the name of Opp.Party No. 1 , if it would be traced out, and the complainant also sent a letter requesting the D.T.O., Kamrup to do so.
iv) The opp.party repudiated the claim of the complainant, which they informed the complainant vide letter dtd. 3.10.08, on the ground that driver of the complainant had not effective licence at the time of accident as he did not have P.S.V. endorsement in his driving licence, which barred him to drive any public service vehicle including the vehicle of the complainant and as such driving the said vehicle by the complainant on the relevant day is violation of terms and condition of the insurance policy.
v) The investigator of the opp.party after investigating the driving licence of the driver of the complainant, found that the driver of the complainant Md.Jabbar Ali Akand has driving licence vide driving licence No. 272776/99/L (W/Z) issued by D.T.O., Kamrup, Guwahati and by virtue of that driving license he was authorized to drive motor cycle and light motor vehicle only and there is no endorsement of PSV i.e. permission to driver public service vehicle.
vi) The vehicle of the complainant is a public service vehicle for carrying passenger on him. The vehicle of the complainant is only source of her livelihood and she has been running transport business by appointing Md.Jabbar Ali Akand as her driver in her said vehicle.
Thus it is crystal clear that the theft committed to said vehicle of the complainant on 3.7.07, while it was being driven by the driver Md.Jabbar Ali Akand and the said vehicle was insured with opp.,party at that time, and the said vehicle was used by the complainant for her livelihood, and that after theft of the said vehicle, it was not traced out till now. So, it is seen that the lost of the said vehicle by the complainant, the complainant seems entitled to get compensation from her insurer (the opp.party), but the insurer repudiated her claim vide order dtd.3.10.2008 stating that the complainant violated the terms and condition of the policy as the driver had driving the said vehicle without having P.S.V. endorsement to driver public service vehicle.
5) Now, the moot question is that whether the repudiation order is lawfull and just ? Admittedly the driver of the complainant has no P.S.V.endorsement in his driving license and he is authorized to drive motor cycle and LMV. The complainant side Ld.advocate Mr.Gogoi submits that the complainants driver is entitled to P.S.V. endorsement and as such he can drive P.S.V. i.e. the vehicle of the complainant . The Ld. Advocate Mr.Gogoi further submits that in the case of theft of the vehicle, the nature of the driving licence has no bearing even in the case of fake licence , the insured is entitled to compensation for lost of vehicle in theft. In support of his argument, he refers some case laws and on the other hand the opp.party sides’ Ld.advocate Ms. Pyali Mitra submits that as the complainant driver has no P.S.V.endorsement in his driving license he has no authority to drive public Service Vehicle including the vehicle of the complainant and as such driving the vehicle of the complainant by him on that day amounts to violation of terms and condition of the insurance policy by the complainant, and in consequence, the complainant is not entitled to get any compensation for loss of his vehicles in the said theft.
i) Admittedly, the claim filed is in the connection of payment of compensation by the insurer for the loss of the vehicle of the insured in a theft, but it is not a case of compensation for damage of the vehicle as result of meeting accident. Now, moot question is that in the claim of compensation for the loss of the vehicle due to theft, where the nature of the driving licence of the driver of the vehicle on the day of theft is bearing upon the settlement of the claim of the insured.
ii) We have perused the case laws referred by the opp.parties Ld.advocate- (i) Laxmi Engineering Works -vs- P.S.G.Industrial Ltd.1995 STPL (CL)282(SC).
iii) National Insurance Company Ltd.(petitioner)-vs-Jagdish Prasad Sarma,
Respondent, 2015 STPL 10083 NC DRC (disposed of by National Commission). We have perused the above said judgment and found that Hon’ble Supreme Court in Laxmi Engineering Works case gives their decision in respect of definition of Consumer in respect of a claim of compensation for selling defective goods; hence the decision of the Hon’ble Supreme Court , in that case has no bearing on the case in our hand. Secondly, in Amal Sai and another -vs- United Insurance Co.Ltd.,2013, STPL, 2572 NC and National Insurance Co.Ltd.-Vs- Jagdish Prasad Sarma,2015 STPL 10083 NC DRC National Commission gives decision in respect of claim of compensation for damage of the vehicle in accident, and as such, the decision of the Nation Commission given in the said cases has no bearing in the case in our hand.
iv) We have perused S.Ayappa-vs- United India Insurance Co.Ltd., 2013 legal eagle Supreme Court 436 etc. and found that Hon’ble Supreme Court holds that in respect of damage claim by third party in a motor accident which was driven by a driver without having licence to drive that type of vehicle then insurer is liable to pay compensation to the third party, but insurer is entitled to recover the amount from the insurer for violation of condition of insurance policy. This decision is not applicable in our present case. In National Insurance Co.Ltd.-vs- Nitin Khandelwal,2008 Eagle (Sc) 7-3, Hon’ble Supreme Court observes that in a case of the theft of the vehicle the nature of use of the vehicle cannot be looked into and the insurer cannot repudiate the claim on the basis of nature of the vehicle. This decision of Hon’ble Supreme Court infers that if a commercial vehicle (P.S.V.) is driven by a driver having no P.S.V. endorsement of the insurer then also the insurer is liable to pay compensation to the insured for the loss of his vehicle in theft and lack of authority to drive the said vehicle by the concerned driver does not amount to violation of terms and condition of the policy. Basing on the decision of the Hon’ble Supreme Court in National Insurance Co.Ltd.-vs- Nitin Khandelwal(2008) II-SCC 259, we are of opinion that when P.S.V. vehicle is lost in theft, then the fact of not having P.S.V. endorsement i.e. permission to drive Public Service Vehicle in the driving licence of the driver does not amount to violation of terms and condition of policy, meaning thereby that on that on ground of not having PSV endorsement, the insurer can repudiate the claim of compensation for loss of the public service vehicle in a theft. Therefore, we, hold that the repudiation of the claim of the complainant is done by the opp.parties is a arbitrary and illegal order. Therefore, we hold that the opp.parties are liable to pay the I.D.V. of the vehicle as compensation to the complainant for loss of her vehicle in the said theft. Admittedly, the I.D.V. of the vehicle on the day of accident was Rs. 4,25,000/-. By not paying that amount, the opp.parties committed deficiency of service towards the complainant, and hence the opp.parties are liable to pay the said amount to the complainant with interest @ 12% per annum from the date of filing this complaint (29.7.13). They are also liable to pay another amount of Rs.10,000/- as compensation for causing harassment to her which they caused by refusing to settle her claim in spite of her repeated request, and are also liable to pay Rs.10,000/- for cost of proceeding.
6) Summing up our discussion as above, we hold that the complaint has merit . Accordingly, the complaint against the opp.parties is allowed on contest and they are directed to pay the complainant Rs.4,25,000/- as compensation for loss of her vehicle in the said theft with interest @12% per annum from 3.7.2007 and also to pay her Rs.10,000/- as compensation for causing harassment and Rs.10,000/- as cost of the proceeding, to which , they are jointly and severally liable. They are directed to pay the awarded amount within 45 days , in default, other two amounts shall also interest at the same rate.
Given under our hands and seals on this day of 28th September ,2018.
(Smt. Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain) Member Member President
