This case arose out of application U/s 12 of the Consumer Protection Act, 1986.
The case of the complainant is that Dipak Kr. Basak owner of vehicle/ Mahindra & Mahindra (Bolero) being Registration No:-BR37H/5083, Chassis No:-MA1WG2GHKE2B58044, Engine No:-GHE4B69837 and got it insured with O.P/Insurance Company vide Policy No:-OG-18-2449-1801-00000518, valid from 08.10.2017 to 08.10.2018.
That on 16.12.2017 when the vehicle was returning home from bridegroom private party from Malda driven by his atomized driver at about 12:30 a.m on N.H.31 under P.S-Gazol at Vill-Bagsorai a lorry bearing No-WB59A/2929 was coming with high speed in rash and negligent manner dashed the Bolero vehicle as a result the Bolero vehicle was badly damaged. On the date of incident the vehicle was used by his relative only for private purpose. On 18.12.2017 a written complaint was lodged to local P.S and Gazol P.S case No-841/2017 U/s 279, 338, 304 A of IPC was started.
That the matter was intimated to O.P/Insurance Company and claim No-OC-18-2404-1801-00001791 was registered by O.P.
After getting verbal assurance from the O.P the damaged Bolero vehicle was repaired at Yusuf Motors, Dalkhola and the owner paid repairing charges Rs.542541/- on 28.12.2017.
After repairing claim with proper documents and estimate was submitted and Surveyor of O.P surveyed and submits report. The complainant received a repudiation letter on the ground that the vehicle was used for Hire. For deficiency of service complaint is filed with prayer to direct the O.P to pay repair charges of Rs.542541/- with interest from the date of accident, compensation Rs.50,000/- for harassment, mental pain and agony, litigation cost of Rs.5,000/-.
O.P/Insurance Company contested the case by filing W.V stating that the Bolero vehicle of the complainant was insured with O.P/Insurance Company as a Private Car Package Policy, valid from 08.10.2017 to 07.10.2018, subjected to its terms, conditions and limitations thereof.
That on receiving claim intimation on 28.12.2017 of the alleged accident of the vehicle dated 16.12.2017 O.P had deputed surveyor to assess and verify the loss and an Investigator to investigate the damage of the vehicle. On scrutiny of the claim documents it was observed that the complainant had intimated the O.P after 12 days of alleged accident which is clear violation of condition No-1 of Insurance Policy.
On verification of claim documents and as per the report of the investigator it was observed that at the time of accident said Bolero Vehicle was used for commercial purposes & used for hire and reward which is also clear violation of limitations as to use of the policy. The complainant and his driver have breached the terms & conditions of the policy and provisions of M.V.Act.
The O.P sent a letter dated 17.01.2018 asking the complainant as to why the claim should not be repudiated on above grounds but complainant did not give reply, therefore the claim of the complainant was validly repudiated vide letter dated 25.01.2018.
That without prejudice to its defence and without admitting its liability, it is submitted that liability of O.P will not be more than loss assessed by Surveyor i.e Rs.2,92,512/- if the claim is admissible, as per terms and conditions of the policy but for their violation the complainant is not entitled to get any amount and the complaint is liable to be dismissed.
Point for consideration
- Whether there was any deficiency of service on the part of O.P/Insurance Company which gives rise cause of action of the case?
- Whether the complainant is entitled to get the relief(s) claimed in the petition of complaint?
D e c i s i o n w i t h r e a s o n s
It is not disputed that Dipak Kr. Basak (original complainant-since deceased) was the owner of vehicle/ Mahindra & Mahindra (Bolero) being Registration No:-BR37H/5083, Chassis No:-MA1WG2GHKE2B58044, Engine No:-GHE4B69837 and got it insured with O.P/Insurance Company by Private Car Package Policy vide No:-OG-18-2449-1801-00000518, valid from 08.10.2017 to 07.10.2018(Midnight), subjected to its terms, conditions and limitations thereof.
The case and evidence of the complainant side is that on 16.12.2017 when the vehicle was returning home from bridegroom’s private party from Malda driven by his(Dipak Babu’s) atomized driver at about 12:30 a.m on N.H.31 under P.S-Gazol at Vill-Bagsorai, a lorry bearing No-WB59A/2929 was coming with high speed in rash and negligent manner dashed the Bolero vehicle, as a result the Bolero vehicle was badly damaged & father of the deceased driver lodged a written complaint on 18.12.2017 to local P.S and Gazol P.S case No-841/2017 U/s 279/338/304 A of IPC was started & the matter was intimated to O.P/Insurance Company and claim No-OC-18-2404-1801-00001791 was registered by O.P.
The case & evidence of O.P side is that it received claim intimation on 28.12.2017 i.e after 12 days of alleged accident dated 16.12.2017, in clear violation of condition No-1 of the Insurance Policy.
Condition No:1 runs as :-
Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy.
Defence case is that on receiving intimation O.P deputed an IRDA licensed Surveyor to asses and verify the loss and an Investigator to investigate the damage of the vehicle, and on verification of claim documents and as per the report of the Investigator, it was observed that at the material time of accident, the vehicle-in-question of Dipak Babu was used for commercial purposes and used for hire and reward, in clear violation of limitations as to use of the policy.
Limitations as to Use:-
The policy covers use for any purpose other than:
- Hire or Reward, b. to f.………………..
Specific case of O.P is that Dipak Babu and his driver have breached the terms & conditions of the Insurance Policy and provisions of M.V.Act by using the vehicle for commercial purposes and for hire and reward. So O.P sent letter dated 17.01.2018 to Dipak Babu asking him as to why his claim should not be repudiated on above ground but he did not give reply to that letter, therefore his claim was repudiated vide letter dated 25.01.2018.
Thus burden lies on the complainant(s) side to prove that the vehicle was not used for commercial purposes and for hire and reward, as they claimed that the vehicle was used for private purposes.
It appears that One Ganga Kamti lodged a written complaint to the OC, Gazol P.S dated 18.12.2017 stating that at the time of accident his son Binod Kamti was driving the Bolero vehicle of Dipak Babu & due to the accident his son/Binod Kamti & i. Bapi Mazumdar (22), ii. Subhankar majumder (21) iii. Bhupal Mazumdar (48) iv. (Puja Mazumdar (18), V. Suchitra Mazumdar (17), Vi. Rashmoni Mazumder (14) vii. Pradip Mazumdar (40), Viii. Arun Mazumdar (60) i.e all passengers of Bolero vehicle received serious injuries and were taken to Malda Medical College and Hospital where his son Binod Kamti had died.
On receipt of said written complaint Gazol P.S Case No-841/17 dated 18.12.2017 U/s 279, 338, 304 A IPC was started vide GR No:-5541/17 and Final Report/Charge Sheet No:-597/18 dated 27.12.2018 was submitted against Md. Akil, driver of truck No-WB59A/2929. The IO received the injury report of injured persons (passengers) i. Puja @ Aparna Mazumdar (16), ii. Suchitra Mazumdar (17), iii. Pradip Mazumdar(41), iv Rashmoni Mazumdar (13), all of saher P.O-Bagdab, P.S-Chakulia, Dist-Uttar Dinajpur v. Arun Mazumdar (63) of P.S-Jora Bagan, Kolkata-5, from Malda Medical College & Hospital and then collected two PM report of deceased i. Bapi Mazumdar (23) of Sharer, Bagdab ii. Binod Kamti (42)of Basatpur, Chakulia, Uttar Dinajpur and also collected PM report of deceased Gopal Mazumdar (48) of Saher, Chakulia, Uttar Dinajpur, from SSKM Hospital, Kolkata.
It appears that Dipak Kumar Basak had died on 27.04.2021 and his wife and two sons, legal heirs and successors have substituted as complainant. Save and except Vivek Kumar Basak no one came forward to corroborate him that on the date of accident the vehicle of Dipak Babu was used by his relatives only for private purpose. How the above named persons/passengers of several addresses related with Dipak Kumar Basak there is no sufficient evidence. Vivek is not a competent person to say so.
O.P side produced all related documents and investigation report which disclosed, Version on insured on claim: on 15.12.2017 my vehicle BR37H/5083 Mahindra Bolero car going from Vill:-Kanki to Malda, Bulbulchandi with 10 passengers including driver for attend marriage ceremony. After finishing the marriage ceremony my driver and 09 passengers come back Bulbulchandi to Malda with said car. On their journey at about 1:30 a.m at near Gazol Toll gate said Bolero lost its control and hit another truck and driver Binod Kanti and 03 passengers were died. Observation on social network analysis as follows: the insured clearly submit a written declaration that at the time of the accident the vehicle was used commercial purposes. At the time of the accident the vehicle was over seating. All time the vehicle used for commercial purposes form Kanki stand. It is fact in this accident driver and three passengers had died and other passengers seriously injured.
It is not proved that O.P/Insurance Company gave verbal assurance, so the vehicle which was repaired at a cost of Rs.542541/-, rather it appears that vehicle was repaired by Dipak Babu as per his own wish, so he has to bear the repair cost of Rs.542541/- personally.
The case of the O.P that without prejudice to its defence and without admitting its liability it is submitted that liability of O.P will not be more than loss assessed by IRDA licensed Surveyor i.e Rs.292512/- if the claim is admissible as per terms and conditions of the policy, appears to us honest statement.
Under above facts and discussion, we are of the view that the Bolero vehicle No:-BR37H/5083 of Dipak Kr. Basak was used for commercial purposes, started journey from Kanki stand, in violation of limitations as to use of the policy and the complainant(s) is/are not entitled to get any relief, for clear violation of limitations as to use of the policy as well as for delayed intimation in violation of the condition No:1 of the policy and in violation of the provision of M.V.Act.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-06/2019 be and the same is dismissed on contest against the O.P.No-1 but without any cost.
Let a copy of this order be given to the parties free of cost.
