West Bengal

Bankura

CC/18/2018

Pradip Ghosh - Complainant(s)

Versus

Bajaj Allianz General Insurance Co. Ltd. - Opp.Party(s)

Jayanta Kumar Mukhopadhyay

07 Dec 2023

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

  Consumer Complaint No. 18/2018

        Date of Filing: 06-03-2018

Before:                                        

1. Samiran Dutta                             Ld. President.      

2. Siddhartha Sankar Bhui            Ld. Member.                            

 

For the Complainant:  Ld. Advocate Jayanta Kr. Mukhopadhyay

For the O.P.: Ld. Advocate Chandi Charan Adhvaryyu                                                                             

Complainant

Pradip Ghosh, S/o Sankar Chandra Ghosh, R/o Kusumtikri, P.O.Sukhadali, Sarenga, Bankura

Opposite Party 

 1.Authorized Signatory, Bajaj Allianz General Insurance Co., Ltd., Bankura Branch

2.M/s Mahindraa & Mahindra Financial Services Ltd.                                                                                                                                                                                                                                                                                                

FINAL ORDER / JUDGEMENT                   

                                                                                                                                        

Order No.42

Dated:07-12-2023

Both parties file hazira through advocate.

The case is fixed for argument.

After hearing argument/written argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that he is the registered owner of one Mahindra & Mahindra Bolero vehicle bearing Registration No. WB 68 U 9178 duly insured with O.P. No.1/Insurance Co. Policy No. being OG-17-2419-1801-00000584 valid from 27/12/2016 to 26/12/2017 financed by O.P. No.2. On 20/03/2017 at about 10 a.m. said vehicle met with a road accident near Piralgari More within the jurisdiction of Sarenga P.S. giving rise to Sarenga P.S. Case No.14 of 2017, dt.01/04/2017 u/s 279/337/338/427 IPC in which the vehicle was badly damaged, brought for repairing and service at an authorized service center costing Rs.7,68,537/- as per service quotation. The incident was duly reported to the O.P. No.1/Insurance Co. by preferring claim application but the same was repudiated by O. P. No.1/Insurance Co. by letter dt.27/11/2017 stating therein that the damaged vehicle was being driven by the Complainant himself who has no valid Driving Licnense and that the vehicle was hired/rewarded by one Mrs. Sandhya Giri.

O.P. No.1/Insurance Co. contested the case by filing a written version reiterating the same point of repudiation of the claim.

O.P. No.2/Finance Co. also submitted a written version stating that they have no business in this case.

                                                                                                                                                                                       Contd……p/2

                                                                             

Page: 2

.                                                                                        -: Decision with reasons: -

Having regard to the facts of the case, submission, contention and documents on both sides the Commission finds that there is no dispute with regard to the factum of accident and the damage of the vehicle but the dispute arises between the parties is with regard to the quantum of compensation and entitlement of the claim with respect to the identity of the Driver. To substantiate the complaiant case the complainant has produced the service quotation bill for Rs.7,68,537/- and also the seizure list of the Driving License of Rajib Kumar Hatui under seizure list dated: 05/04/2017 prepared by Sarenga P.S. Though the F.I.R. is silent as to the name of the Driver but the Police authority in course of investigation seized the Driving License in connection with the above referred accident case from the accused Driver Rajib Kumar Hatui.

On the other hand Ld. Advocate for the O.P./Insurance Co. has referred the detailed investigation report of the Surveyor dated: 12/06/2017 in which it is disclosed that the Complainant Pradip Ghosh was driving the vehicle as he was injured along with his brother Barun Ghosh and the stranger occupier Mrs.Sandhya Giri. The presence of Rajiv Kumar Hatui as Driver of the vehicle has been ruled out in the said report as the injury report collected from the concerned BPHC there is mention of only three injured persons namely the Complainant, Barun Ghosh and Mrs. Sandhya Giri. According to Surveyor’s report if said Rajib Kumar Hatui was the Driver of the vehicle at the relevant time he must have received injuries like other co-occupiers.

It is a well settled position of law that Surveyor’s report is not sacrosanct and not the last and final word. It is also not binding upon the Commission. In case of any dispute regarding the identity of the Driver the Commission may ascertain on its own on the basis of available records. In this case the O.P./Insurance Co. has relied upon the Surveyor’s report to establish the fact that Rajib Kumar Hatui was not the Driver of the vehicle at the time of the accident but the Complainant himself was driving the same but the Police in course of investigation has sent up said Rajib Kumar Hatui as the accused Driver in the said accident case. In fact Surveyor’s report is a departmental report submitted in connection with the settlemenf of claim whereas the Police investigation report is a statutory report submitted before the Court of law relying upon which criminal trial proceeds. In this case seizure list has been prepared by the concerned Police authority on 05/04/2017 i.e. immediately after occurrence but the Surveyor’s report had been submitted on 12/06/2017 much later to the date of occurrence.

The Commission has no obligation to accept the Surveyor’s report but it cannot ignore the seizure list prepared by a Public Servant in due process of law. Both the Surveyor’s report and the seizure list have evidentiary value but the probative value lies with the seizure list.

The occurrence takes place on 20/03/2017 but the F.I.R. was lodged on 01/04/2017 and the claim intimation was made on 02/05/2017 but such delay is normal as the claimant including his brother was injured and hospitalized in the accident.

                                                                                                                                                                                           Contd…. p/3

                                                                                                          Page: 3

Considering from this point of view the Commission is inclined to hold that Rajib Kumar Hatui was the Driver at the time of the accident who has valid Driving License on record.

Assuming but not admitting if the Commission accepts the Complainat Pradip Kumar Ghosh as the Driver at the relevant time of the accident then it will go against the Police Investigation which is not desirable and permissible under the law. In other words it can be said that the Commission has the option to accept or reject the Surveyor’s report but it cannot ignore the Police Report as it will give rise to contradictory findings.

The O.P./Insurance Co. has failed to substantiate the defence case that the vehicle was hired/rewarded by the stranger occupier Mrs. Sandhya Giri as there is no cogent evidence to that effect. The O.P./ Insurance Co. has also failed to produce materials with regard to the assessment of loss and damage in the Surveyor’s report.

In absence of any material to the contrary and proper supporting bill of repairing cost the Commission fixes the extent of damage and loss of the vehicle to the tune of Rs.5 Lakh.

Accordingly the case succeeds.

Hence it is ordered……..

That the case be and the same is allowed in part on contest but without cost.

The O.P. is directed to pay to the Complainant Rs.5 Lakh within one month from this date I/D law will take its own course.

Both parties be supplied copy of this order free of cost.

 

 ____________________                _________________         

HON’BLE   PRESIDENT          HON’BLE MEMBER