JAGANNATH BAG, MEMBER The present appeal is directed against the Order, passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata , Unit -II, on 10.02.2015, in Execution Case No.
EA/186/2014 arising out of the order dated 26.06.2014 in CC No. 318 of 2013 .
The complaint case was allowed on contest against OP Nos. 1 and 2 / Appellants herein and ex parte against OP No. 3.
As stated in the petition of complaint , the Complainant purchased a Motor Insurance Policy for his commercial vehicle No. 25E-6624 from the OP Insurance Company. The vehicle met with an accident on 15.12.2012. As the Insurance Company did not settle the claim, a complaint petition was filed . The Ld. Forum below allowed the complaint with cost against the OPs and with direction upon OP Nos. 1 and 2 / Appellants herein to settle the claim of the Complainant after receiving a survey report in the matter of assessment of loss and repairing of the vehicle. The Insurance Company found from the Surveyors report that the vehicle was plying without valid permit at the time of the alleged accident. The claim was repudiated . Hence, the execution case has been initiated by the Dhr./ Complainant/Respondent.
Ld. Forum below by its order dated 10.02.15 observed, inter alia, that the JDr. has violated the spirit of the order dated 26.06.2014 and accordingly directed the JDr. to submit loss assess statement at first for repairing of the vehicle and total cost of repairing .
Being aggrieved by the order of the Ld. Forum below dated 10.02.2015 in EA No. 186 of 2014 , the present Appellant has come up before this Commission with prayer for setting aside the order and dropping the execution proceedings permanently .
The moot point of the Execution Case is that the JDrs / the OPs have not complied with the order of the Ld. Forum below even after receipt of the Surveyors report .
Ld. Advocate appearing for the Appellant submitted that in compliance with the order of the Ld. Forum below in the Complaint Case No. 318 of 2013 , the Appellant sent a letter to the Complainant along with a claim form and a copy of Surveyors report . The Surveyors report included the fact that at the time of accident , the vehicle was not having valid permit and as such , the claim preferred by the Complainant can not be entertained and accordingly , the execution proceedings can not stand . In support of his argument Ld. Advocate for the Appellant cited the orders of the Honble National Consumer Disputes Redressal Commission as reported in 2013 (1) CPR 378 (NC) , 2014 (2) CPR 757 (NC) , 2014 (2) CPR 422 (NC) and 2015 (1) CPR 478 (NC) , emphasizing the point that no vehicle can be plied in violation of terms and conditions of insurance policy, as also violation of provisions of the m v act , 1988.
Ld. Advocate appearing for the Respondent / DHr. submitted that the only point that should have been dealt with by the Surveyor was regarding the quantum of damage and the cost of repairing of the vehicle and nothing else .The final order of the Ld. Forum below was never challenged . It was specifically mentioned in the order of the Ld. Forum below dated 26.06.2014 that there was no question of repudiation of claim by the OPs under any circumstances. That being the main spirit of the order and the Appellant having repudiated the claim of the DHr. in violation of the direction of the Ld. Forum below, the Execution proceeding has been initiated . The order of the Ld. Forum below reached finality in the complaint case in the absence of any challenge .
The present appeal against the execution case is malafide and not sustainable under law. The appeal is liable to be dismissed.
Decision with Reasons: We have gone through the memorandum of appeal together with copies of the impugned order of the Ld. Forum below dated 10.02.15 , the petition in Execution Case No. 186 of 2014 , the order of the Ld. Forum below dated 26.06.2014 in CC NO. 318 of 2013 , the prayer of the JDr.
filed before the Ld. Forum below on 23.12.2014 , the Motor Survey Report filed by the surveyor on 15.08.2014 and other documents.
The fact goes that the Appellant/ JDr. has not challenged in any appeal the order of the Ld. Forum below in the complaint case. They never expressed their grievance or dissatisfaction against any observation or direction of the Ld. Forum below . They appointed a Surveyor who in his report mentioned, inter alia, that at the time of accident on 15.12.2012 there was no valid permit of the vehicle and citing such illegal act on the part of the Respondent / DHr., the Appellant / JDr. declined to entertain the insurance claim. The order of the Ld. Forum below in the complaint case appears to have given no scope for repudiation of the claim of the Complainant excepting for the fact that the Surveyors assessment about the damage and cost of repairing for the vehicle would decide the amount to be paid towards settlement of the claim . That being the position , the Appellant Insurance Company does not have the liberty to raise any ground for repudiation of the claim. There appears to be no other option for them to release the amount as assessed by the Surveyor in his report.
We are of the considered view that the appeal against the execution proceedings does not succeed. Hence, Ordered that the appeal be and the same is dismissed on contest . The impugned order stands as it is . There shall be no order as to costs.
[HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER