This case arose out of application U/s 12 of the Consumer Protection Act, 1986.
The case of the complainant is that she purchased a Mahindra & Mahindra Scorpio M2 DICR vehicle being Registration No:-WB60K/7045, Chassis No:-MA1TH2GNKEA91713, Engine No:-GHE4A77712 and got it insured with O.P.No-1/Insurance Company vide Policy No:-OG-20-2414-1801-00000313, valid from 20.06.2019 to 19.06.2019 midnight, sum assured Rs.5,00,000/- through O.P.No-2/Agent Arijit Saha.
That on 20.06.2019 when the brother-in-law of the complainant was going towards Purnia on his friend’s marriage party upon N.H.31 at that time one vehicle bearing No:-NL01Q/6105 suddenly dashed the complainant’s vehicle and her vehicle was badly damaged.
That immediately her husband lodged a written complaint before the IC sadar Purnia P.S and case No:-313/19 dated 20.06.2019 U/s 279, 337 of IPC was started.
That the complainant informed the matter to the Insurance Company through a letter and the Insurance Company duly received the same. Thereafter complainant shifted the vehicle at Khokon Motor Works Pvt Ltd, Siliguri, Dist-Darjeeling, for proper repairing who quoted amount Rs.10,36,911/-.
That the complainant submitted claim for the loss suffered due to accident with O.P who told her to submit all necessary document for settlement of the claim and she submitted all necessary documents along with Claim Form to the office of the O.P. But O.P/Insurance Company repudiated her claim by a letter dated 01.10.2019 on the ground of “over sitting” and use of the vehicle for “commercial purpose.”
Due to negligent act of the O.P the complainant has been suffering from financial loss, mental pain and agony thus she lodged the case with prayer for direction upon the O.Ps to pay sum assured amount to Rs.5,00,000/- with interest from the date of loss, compensation of Rs.90,000/- and litigation cost of Rs.10,000/-.
O.P.No-2/Arijit Saha did neither appear nor contest the case.
O.P/Insurance Company contested the case by filing W.V stating that upon intimation from the complainant about the damage of insured vehicle due to road traffic accident Insurance Company duly registered the claim, deputed a Surveyor/Investigator to assess the damage and also investigate alleged accident in details, who went to the spot and came to know from the owner of the vehicle that there was 10 passengers including driver in the said vehicle at the time of accident. As per RTO, the sitting capacity of said vehicle is 09 including driver. As per RTO the vehicle registered as a private car but at the time of accident the vehicle was Hire and Reward so the vehicle was used as a commercial purpose at the time of accident. Assessor assess the loss of said vehicle amounting to Rs.2,56,998/-.
That the driver Umar Faruk has been implanted in this case subsequently, actually the driver Alamgir Alam was driving the said vehicle at the time of accident. The vehicle was insured with O.P as a Private Car Package Policy but the driver Alamgir Alam (nick name Mr. Kalu) S/o-Mr. Latif, of the said vehicle has breached the terms & conditions of the Insurance policy and Alamgir Alam @ Kalu holds no DL at the time of accident . Since the driver & the owner of the vehicle has violated the terms & conditions of both the Insurance policy and M.V.Act the complainant is not entitled to get any relief. O.P.No-1 prays for dismissal of the case.
Point for consideration
- Whether there was any negligent act 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 the complainant purchased a Mahindra & Mahindra Scorpio M2 DICR vehicle being Registration No:-WB60K/7045, Chassis No:-MA1TH2GNKEA91713, Engine No:-GHE4A77712 and got it insured with O.P.No-1/Insurance Company vide Policy No:-OG-20-2414-1801-00000313, valid from 20.06.2019 to 19.06.2019 midnight, sum assured Rs.5,00,000/-, which is a Private Car Package policy.
Though complainant stated that she purchased the vehicle through O.P.No-2/Agent Arijit Saha but she has not prayed any relief against O.P.No-2 & O.P.No-2 find as an unnecessary party in deciding this case.
It is also not disputed that said insured vehicle being Registration No:WB60K/7045 met with an accident in the midnight on 20.06.2019 at O point Purnia near Indian Oil Petrol Pump and in this accident said vehicle was damaged.
The complainant’s case is that on 20.06.2019 when her brother-in-law was going towards Purnia on his friend’s marriage party upon N.H.31 at that time one vehicle bearing No:-NL01Q/6105 suddenly dashed the complainant’s vehicle.
Admittedly, TP Mukesh Prabhu Das reported it to Purnia Sadar P.S and F.I.R/GDE No:-313/19 dated 20.06.2019 U/s 279, 338 of IPC was registered & the complainant informed the matter to the Insurance Company & the complainant submitted necessary documents along with Claim Form to the office of the O.P/Insurer and O.P/Insurer deputed a Surveyor/Investigator to investigate and report in order to settle the complainant’s claim.
It is also admitted that the Surveyor/Investigator, went to the spot, investigated, recorded statement of the complainant Mrs. Sanjida Nasrin & an eye witness Mr. Bijay Mahaldar & submits investigation report.
Mrs. Sanjida Nasrin (Complainant) stated that the vehicle was going from Vill:-Pachvia, Raiganj to Purnia (Bihar) to attend a marriage party with some peoples & that at the time of accident the driver was Umar Faruk and Co-driver was Allamgir Alam, S/o-Mr. Latif (Nice name was Kalu) and in this incident 04 passengers were injured but driver & Co-driver not injured.
The report shows that the Surveyor tried to meet injured persons but met Mr. Bijan Mahalder who stated in Video that on 19.06.2019 at about 10:30 AM they went down Vill:-Pachvia to Purnia for attend a marriage programme with WB60K/7405 Mahindra Scorpio vehicle taken on rent against Rs.3,000/- and the accident was happened in the midnight on 20.06.2019 at about 1:10 AM and at the time of accident 10 passengers including driver in the insured vehicle and Mr. Alamgir Alam (Nice name Mr. Kalu) S/o-Mr. Latif was driving the said vehicle at the time of accident.
The claim of the insurer is that Umar Faruk has been implanted in this case subsequently, actually the driver Alamghir Alam @Kalu was driving the insured vehicle at the time of accident who had no valid DL at the relevant time.
Except statement of Mr. Bijay Mahalder nothing found that Alamgir Alam @ Kalu drove the insured vehicle at the time of accident. The complainant stated that the insured vehicle was driven by Umar Faruk & his name has been depicted in the Motor Insurance Claim Form. Though in answer to question No:12 (of the questionnaire) complainant stated that she has deposited DL of Umar Faruk, it is not produced, still the benefit of doubt may be given to the complainant.
In the Motor Insurance Claim Form the names of the injured persons/rider of the insured vehicle are described i. Taniya Kumari, ii. Sulachna Devi, iii. Suriti Devi & iv. Puja Kumari. In answer to the question No:8 & 16 the complainant denied by stating that no passenger was carrying by the vehicle on the date of alleged accident dated 20.06.2019. Question No:14 runs as – Did the complainant mentioned the name of brother-in-law’s friend for whose marriage the vehicle was used and also mentioned the name of her Brother-in-law in her complaint? To which she answered: Yes. But name of her Brother-in-law or her Brother-in-law’s friend is not disclosed either in the petition of complaint or in evidence. The status of aforementioned 04 persons/riders of the insured vehicle on the date of accident dated 20.06.2019 can be determined only by their statement/evidence but they are not called for by the complainant to examine herself/themselves.
In absence of their examination their status appears to be mere passenger of the insured vehicle-in-question. 4 numbers or 10 numbers of passengers/rider, as it might be, of the insured vehicle on 20.06.2019 the only presumption would be the vehicle was used for commercial purpose.
It appears that vide letter dated 01.10.2019 O.P/Insurance Company make observation:-
- As per statement, at the time of accident 10 passengers are in the vehicle including driver, as per RTO, the sitting capacity of the said vehicle is 09 including driver. Hence, at the time of accident over sitting occurred.
- As per RTO, the vehicle registered as a private car, but at the time of accident the vehicle was Hire & Reward, so the said vehicle was used as commercial purpose at the time of accident.
As per policy General Exceptions, 3(a) the Company shall not be liable in respect of being used otherwise than in accordance with the limitations as to use. It is therefore further evident that the above reported loss does not fall under the preview of the policy coverage.
In view of the above kindly clarify within 07 days as to why your claim should not be repudiated.
Same letter dated 14.10.2019 was given to the complainant.
On the self same contents letter dated 01.11.2019 was served to the complainant adding further that-
We have not received any response or positive reply to our letter dated 01.10.2019 & 14.10.2019 which would have enabled us to assess the liability to your above mentioned reported claim.
Therefore, in view of the above noted facts we express our in ability to be of any assistance on this occasion and hence your claim stands repudiated.
For any further clarification please feel free to contact us. Assuring best of our services as always.
Under above facts and discussion, we are of the opinion that the repudiation of claim by O.P/Insurance Company on the ground of- Limitations as to Use (used for commercial purpose)in violation of terms and conditions of M.V.Act and Insurance policy is proper and no negligent act was done by O.P/Insurance Company, consequently the complainant is not entitled to get the relief as prayed for.
Hence, it is
O R D E R E D
that the C.C-03/2020 be and the same is dismissed on contest against O.P/Insurance Company and ex-parte against Arijit Saha without any cost.
Let a copy of this order be given to the parties free of cost.
