Date of filing:27.04.2016 Date of disposal:13.02.2018
Complainant: 1. Sreea Dutta Gupta, D/o. Lt. Debasis Dutta Gupta.
2. Smt. Swapna Dutta Gupta, W/o. Lt. Debasis Dutta Gupta.
Both are resident of QTR No.324B, Loco Colony, Sadhanpur Road,
(Near Loco Hospital), P.O., P.S. & Dist.-Burdwan.
-VERSUS-
Opposite Party: 1. The Branch Manager, Bajaj Allianz General Insurance Company Ltd., G.T.
Road, Birhata (Near IDBI Bank), P.O., P.S. & Dist.-Burdwan.
2. The Divisional Manager, Bajaj Allianz Insurance Company Ltd., Mani
Square, 6th floor, 164/1, Maniktala Main Road, Mani Square Premises
No.41, Canel Circle Road, Kolkata-54.
3. The Zonal Manager, Bajaj Allianz Insurance Company Ltd., GE Plaza,
Airport Road, Yerawada, Pune-411006.
4. The Branch Manager, Rudra Hyudai, Ushagram, G.T. Road, Asansol-3, P.S.-
Asansol, Dist.-Burdwan.
Present: Hon’ble President: Smt.Jayanti Maitra(Ray).
Hon’ble Member: Miss Nivedita Ghosh.
Hon’ble Member : Dr. Tapan Kr. Tripathy.
Appeared for the Complainant: Ld. Advocate, Suman Bez.
Appeared for the Opposite Parties No.1 to 3: Ld. Advocate, Soumalya Ganguli.
Appeared for the Opposite Parties No.4: Ld. Advocate, Subrata Ghosh.
JUDGEMENT
This is a case U/s. 12 of the C.P. Act for an award directing the O.Ps. to pay accidental death benefit of Rs.2,00,000/-, to pay Rs.3,00,000/- for repairing cost of the vehicle, to pay Rs.1,35,000/- for car parking charges, to pay Rs.20,000/- as compensation for mental pain, agony and harassment and to pay Rs.10,000/- as litigation cost to the complainant.
The complainants’ case in short is that the O.P. No.1, 2 & 3 is General Insurance Company who sell its policies having its head office being the O.P. No.3 and also having its branch office being the O.P. No.1. That for the purpose of marketing and selling of their various general insurance policies the O.P. No.1 to 3 have engaged the various agents and the O.P. No.4 being a renounced Hyundai Car selling dealer having authorized show room, is also one of their agent.
The predecessor of these complainants Mr. Debasis Dutta Gupta @ Debashis Duttagupta, S/o. Lt. Himangshu Duttagupta @ Himansu Bikash Dutta Gupta @ Hinansu Kr. Dutta Gupta resident of QTR No.324B, Loco Colony, Sadhanpur Road (Near Loco Hospital) P.O., P.S. & Dist.-Burdwan, for his personal use and enjoyment purchased a Hyundai EON Car bearing registration No.WB-42AB-7646 from the O.P. No.4 and also being attracted by some words of O.P. No.4 with regards to the policy of the O.P. No.1 to 3, also purchased a general insurance policy from the O.P. No.1to 3 company through their agent O.P. No.4 on 20.10.2014 being policy No.HBZ/11173651 under policy No.OG-15-2420-1801-00000679. Be it mentioned here that the said car was hypothecated to the State Bank of India, University Branch, Burdwan.
Unfortunately, on 4.12.2014 in the morning Mr. Debasis Dutta Gupta along with his one of friend namely Sujit Das by driving his car started his journey from his home to Hatgobindapur for his certain work. While crossing the area at Ganja a white colour ambassador bearing No.WB 02AB-7646 rash and negligently collided the vehicle of Mr. Debasis Dutta Gupta and fled away as a result he sustained severe injuries and after shifting into hospital he was declared brought dead. Fortunately Sujit Das after sustaining some simple injuries he could survive. On sudden demise of said Debasis Dutta Gupta the complainants were thrown in a dark den and as the deceased was the only earning member of his family they had to suffer a lot both mentally and physically.
Due to that accident the vehicle was vividly damaged. During investigation the concerned police officials seized the schedule mentioned vehicle on damaged condition. After obtaining the court’s order the same was released to these complainants and the same was sent to the O.P. No.4 for getting it repaired. The complainants asked the O.P. to make an estimate of cost of such repair, the O.P. No.4 rather its officials always consoled this complainants that they shall prepare the same soon and shall also sent it to this complainants as well as the O.P. No.3. But till date this complainants never received any such from the O.P. No.4. The complainant No.1 placed a claim on 10.3.2015 against the said insurance policy before the O.P. Insurance Company. But it is quite unfortunate for these complainants when O.P. No.1, 2 & 3 repudiated their claim by sending some letters dated 20.2.2015, 28.5.2015 and finally on 5.6.2015 to these complainants upon some fatal ground stating that the deceased said Debasis Dutta Gupta @ Debashis Dutta Gupta during driving was holding a ‘Learner’s License’ bearing No.WB42/LL/203918/14-15 issued by the Licensing Authority on 17.11.2014 valid till 16.5.2015 and he was not assisted by a Permanent/Effective License Holder at the material point of accident therefore in lieu of the provision of Motors Vehicle Act, the deceased Debasis Dutta Gupta violate the terms and conditions.
These complainants further stated that the deceased Debasis Dutta Gupta being well assisted by one of his friend namely Sujit Das who was having a valid driving license bearing No.WB 411-9970042451 and deceased Debasis Dutta Gupta having a ‘Learner’s License’ bearing No.WB42/LL/203918/14-15 at the time of accident. The complainant No.2 lodged FIR before the concerned police station which has been registered as the Burdwan P.S. Case No.57/2015 and accordingly even after holding an investigation the concerned investigating officer filed the charge sheet against the offending vehicle. Therefore, this complainants firmly belief and there is every reason for their such belief that the O.P. General Insurance Company only somehow repudiated the legitimate claim of these complainants.
That since after placing their claim along with all original certificate and documents in respect of the policy mentioned in the schedule below on 10.3.2015, the complainant o.2 for days only had to visit the office of the O.P. No.1 & 4 and even asked the said O.Ps. to do something but all her efforts went in vein and the witty O.P. Insurance Company after harassing the complainant No.2 repudiated the claim vide their letter dated 5.6.2015. Finding no other alternatives the complainants filed this case before this Forum for relief as stated above.
The O.P. No.1, 2 & 3 have jointly contested this case denying inter-alia all the material allegations of the complainant and stating that the complainant enjoyed a private car package policy bearing No.HBZ/11173651 under policy No.OG-152420-1801-00000679 in respect of Hyundai bearing No.WB 42AB 7646 for coverage of insurance from 20.10.2014 to 19.10.2015 and an amount of Rs.12,464/- was also paid as premium to O.P. Thus the insured and insurer entered into contract as per the terms and condition of the said policy and it is binding to both the parties. That it is submitted that as per police record the alleged accident took place on 4.12.2014 whereas the complaint over the alleged accident was lodged on 17.01.2015 vide Burdwan P.S. Case No.57/2015 and information was not given immediately after the accident. The reason shown for delay for filing the complaint was not convincible. These O.Ps. submit that the case of the petitioners is stage managed and for the purpose of getting the claim a false case was foisted. As the deceased Debasis Dutta Gupta was driving the car all alone on the date of the accident the complainant made this delay to put another person falsely in the car named Sujit Das who is having a valid driving license, so that they can claim their requisite amount. That it is surprising that t he complainant have not forwarded any letter regarding the incident of accident to the O.P. and reported only after 77 days from the date of occurrence from the incident of accident and thus same is in iolation of condition No.1 of the policy.
These O.ps. also stated that in the seizure list which is prepared in regard to this accident which took place on 4.12.2014, the ASI of police , Mr. Shyama Prosad Mondal of Burdwan P.S. has not seized any Driving License of Sujit Das and from this it is also clear that Mr. Sujit Das was not present on the day of accident because if he was present there on that day then the concerned ASI has obviously seized the driving license of Mr. Sujit Das and without prejudice to our defense and without admitting any liability, it is submitted that complainant has also not produced the driving license of Mr. Sujit Das to the concerned ASI of police.
In the inquest report bearing UD case No.1547/14 dated 4.12.2014 there is no mentioning of the name of Mr.Sujit Das who the complainant is claiming to be assisting the deceased for driving the car by deceased on the day of the accident Mr. Das was not present with the deceased in the car. These O.Ps. came to know from the driver of the car, Sri Mithu Prasad and some villagers of the place of accident t that the car of the deceased collided with an road side tree and also stated that the deceased alone was driving the car and no other person was present inside the accidental car. So, it is clear that the complainant has stated false story in front of the Ld. Forum to get the claim amount. On 20.2.2015 these O.Ps. forwarded one letter to the complainant stating that there is a delay in intimating the claim to the O.P. by the complainant and also to provide a valid reason for the delay to the O.P. On 30.3.2015 the O.Ps. again forwarded one letter to the complainant stating again that there is a delay of 77 days in intimating the claim to the O.P. by the complainant and also to provide a valid reason for the delay to the O.P. and the O.P. also mentioned that they have not received any response or positive reply of their earlier letter dated 20.2.2015
On 28.5.2015 the O.P. again forwarded one letter to the complainant stating that the O.P. found from the relevant documents that the deceased Debasis Dutta Gupta who was holding a learner’s license was driving the said vehicle without any assistance on the date of accident and which is a violation to the policy terms and conditions and Rule 3 of Central Motor Vehicles Rules. On 5.6.2015 the O.Ps. sent a letter to the complainant stating that the claim of the complainant was repudiated by the O.P. due to the abovementioned reason.
These O.Ps. also stated that after receipt of claim, O.ps. have deputed the investigator to investigate the case. The investigator has investigated the case in detailed and found that deceased was alone there in insured vehicle at the time of accident. Investigator has filed detailed investigation report with detailed statements of person and recorded video to prove that deceased was alone there in vehicle at the time of accident. It is also stated by the O.Ps. that O.P. insurance company has deputed surveyor to assess the loss and said surveyor has submitted the report. As per Section-III, personal accident cover for owner-driver should be registered owner, having valid driving license and his name should be appeared in the policy but in present case, driver-owner was not having valid driving license on the date of loss. Hence, complainant is deserved to be dismissed.
The O.P. No.4 contested this case by filing written version and stating that this O.P. Rudra Hyundai is the authorised dealer of Hyundai and a sister concern of Rudra Automobiles Pvt. Ltd., a Company incorporated under the Company’s Act. The O.P. No.4 has been running their dealership business with sales and service with fame and reputation and also has been earning their reputation days after days. That Mr. Debasis Dutta Gupta, since deceased who is the father of complainant No.1 and husband of complainant No.2 came to the office of this O.P. and purchased a Hyundai EON blue colour bearing Registration No.WB42AB 7646, Chassis No. MALA351BLEM323574 and Engine No.GBLAEM182432. The said vehicle was covered under Insurance Policy issued by Bajaj Allianz Insurance Company Ltd. That said vehicle met with an accident on 4.12.2014 and after a long time deputed the said vehicle to the workshop of this O.P. on 03.03.2015. After receiving the said vehicle the mechanical team of this O.P. examined the vehicle and prepared the estimated cost towards the repairing of the vehicle. As the said vehicle was covered under insurance policy, so this O.P. made arrangement of all the official formalities for insurance claim of the said vehicle. Ultimately, when this O.P. came to learn that the insurance company has repudiated the claim of the complainant, then this O.P. has no other alternatives but to request the complainant for work order as per estimated of repairing cost of the said vehicle. But the complainant days after days have been avoiding one plea to other and did not make a single response against the request of this O.P.
This O.P. further stated that this O.P. No.4 has already supplied the estimated cost for repairing of the vehicle to the complainant and requested for several times for providing work order to this O.P. for repairing the said vehicle. But the complainant did not pay any heed to the request of the O.P. Moreover, this O.P. also told the complainant that if the complainants did not agree to repair the said vehicle in the workshop of this O.P., then they may take return the said vehicle because the vehicle has been unnecessarily occupying the place in the workshop. It is to be noted that the workshop of this O.P. is a rented one and this O.P. has to pay huge rent per month for this workshop to the landlord. But this time also no positive response came from the side of the complainants. Thereafter this O.P. sent a reminder to the complainants vide letter dated 4.8.2015 requesting to pay parking charges of the vehicle @ Rs.250/- per day for unnecessary occupying of the vehicle in their garage and o take return the said vehicle from the workshop. This O.P. also stated that the said vehicle has been lying idle in their workshop for a long time and due to such idleness the said vehicle might be damaged and for such damage, this O.P. would not take any responsibility. But inspite of receiving the said letter, not single response came from the side of the complainants.
The complainants have unnecessarily made a party to this O.P. intentionally just to harass this O.P. and nothing else. In the four corner of the complaint, there was not a single whisper of allegation against this O.P. As such, the complaint petition lodged by the complainants before this Ld. Forum is liable to be dismissed against this O.P. with cost.
DECISION WITH REASONS
To prove the case the complainant No.2, the wife of the deceased has filed her evidence on affidavit as PW-1 where she has stated all her case as per the complaint petition and relief prayed for. One Sujit Das also filed his evidence as PW-2 in support of the case of the complainant.
The O.Ps. have adduced evidence of Arijit Chakraborty on behalf of O.P. No.1, 2 & 3 and also adduced evidence of Biswajit Ghosh, Investigator with the report of investigation along with photographs after investigation. Complainant put her questionnaires to the O.Ps. and O.P. No.1, 2 & 3 also replied to the questionnaires of the complainant. More over both parties filed their written argument.
After going through the petition of complaint and the documents filed by the parties and relying upon the arguments advanced by the parties this Forum come to the conclusion as follows :-
It is admitted position that the deceased insured Debasis Dutta Gupta purchased the policy in question Hyundai Eon Car bearing No.WB 42AB7646. The complainant stated that the insured met with an accident while he was driving the said car with his Learner License. The accident occurred on 4.12.2014 as per the complaint. The accident is the result of rash and negligent driving of another car which dashed against the vehicle of the insured and the vehicle was seriously damaged and the driver insured Debasis Dutta Gupta died following the accident.
The O.P. No.1, 2 & 3 are the Insurance Company and O.P. No.4 is the service centre of the Hyundai car where after obtaining the seized damaged vehicle was sent for getting it repair. It is also admitted that deceased insured purchased the policy for his vehicle and following the accident the wife of the deceased placed a claim on the policy on 10.3.2015 from O.P. Insurance Company but the claim was repudiated finally on 5.6.2015 on the ground that deceased was holding Learner Driving License valid till 16.5.2015 violated the terms and conditions of the policy and he was not assisted by a permanent and effective license holder at the time of accident under the M.V. Act, Sub-section 2(a) of Section 75 and Section 3 of the M.V. Rules.
To prove her case the complainant has filed the documents like FIR lodged by the daughter of the deceased on 17.1.2015. The delay in filing FIR, sufficient cause shown that due to sudden demise of sole earning member of the family in the accident the family was totally disrupted in mental sock and agony. However, the police investigated the case and submitted the copy of the FRT. Complainant filed copy of the written complaint and formal FIR being No. 57 dated 17.1.2015 as well as inquest report prepared in UD Case No.1547 of 2014 dated 4.12.2014 at Burdwan Medical College and Hospital where the inquest was held. In the police report as well as in the inquest report specifically mentioned that the accident occurred due to rash and negligent driving of an unknown vehicle and the case was started U/s.279/337/2014A/ 427 IPC and insured died of occurrence is shown as on 4.12.2014 at about 7 hours and FIR received on 17.1.2015. The UD Case following the death of the insured is also on 4.12.2014 at 11.05 hours being UD Case No.1547 of 2014, where there is specifically mentioned that an unknown vehicle dashed the vehicle of the decease very negligent manner causing death of the insured.
In the charge sheet being No.709/2015 dated 30.09.2015 U/s. 279/337/304A/427 IPC mentioning incident of accident on 4.12.2014 and written complaint received on 17.1.2015 and also relying upon UD Case No.1547 of 2014 dated 4.12.2014 the investigation was taken by the ASI, Shyamapada Mondal who recorded the statement of witness U/s. 161 CRPC after visiting place of occurrence the police officer seized the damaged vehicle of the complainant and returned the same afterwards following the Ld. Court’s order. Police took several attempts to identify the offending unknown vehicle but no result came out. I.O. collected inquest report, P.M. report and submitted FRT No.80 of 85 dated 31.3.2015 U/s. 279/337/304A/427 IPC.
It is also mentioned later that on the prayer of the complainant and as directed by the Ld. CJM, Burdwan the Burdwan Police took up further investigation. I.C., Burdwan P.S. during further investigation met with complainant and witnesses and examined them U/s. 161 CRPC and police found a prima-facie charge well established against the offending driver namely Tapan Kumar Das and submitted charge sheet U/s.279/337/304A/427 IPC vide charge sheet No.790/2015 dated 30.9.2015.
In this Forum O.P. Insurance Company discarded the version of the complainant and in the written version as well as their evidence stated that complainant has alleged false story of accident. That the vehicle in question was dashed by negligent and rash driving by another vehicle. On the other hand the O.P. stated that from some villagers of the place of accident O.P. Insurance Company came to know that the deceased insured while driving the car with his Learner’s License and not being accompanied and assisted by another effective license holder driver collided with road side tree with his car. That no other persons were present inside the accidental car. O.P. further stated that the Insurance Company deputed investigator who after investigation submitted a detailed report and found the fact of colliding with a road side tree and also recorded statement of the persons, recorded video to prove that deceased was alone in the vehicle etc. The O.P. Insurance Company repudiated the claim as per the policy condition that the driver/owner was not having valid Driving License.
On the other hand to prove the case the complainant adduced evidence of Sujit Das who depose on oath that he being a professional driver having effective driving license was sitting by the side of the insured deceased Debasis Dutta Gupta at the time of accident when offending vehicle hit their vehicle in rash and negligent manner. He also received injuries though not severe and loss consciousness. Later he came to know that insured was taken to the hospital. That was examined by the police following death of insured in the accident. PW-2 is also named as witness in the charge sheet.
From the argument advanced by the parties it appears to this Forum that factual disputes regarding the manner of accident cannot be established by the surveyor’s report because police report is more important to establish the fact before the court of law. Ld. Lawyer of the complainant cited of decision of Hon’ble Supreme Court 2013 SCC NCDRC, 985. Moreover, the O.P. Insurance Company repudiated the claim but in the letter of repudiation, there is no mention of delay of information and this ground cannot be taken as a plea at the later stage to avoid liability. More, the delay in lodging FIR has been explained by the complainant.
The ground of repudiation that the deceased was holding a Learner License and was not accompanied by another driver with effective driving license. In this regard Ld. Lawyer for the complainant cited the decision of Apex Court as reported in 2016(3) SCC 100, Lakhsmi Chand Vs. Reliance General Insurance Case that ‘breach of policy terms and the burden of prove to establish the same lies on the insurer. Moreover, alleged breach should be fundamental in nature and not only casual relationship with accident which need to be established by the insurer’. There is no evidence from the part of the Insurance Company that the deceased was not accompanied by any other driver with effective driving license. The factual dispute cannot be proved by the surveyor’s report which is prepared following the investigation of survey after about 90 days of the accident. The Surveyor, Biswajit Ghosh submitted his report dated 29.3.2015. No where in the police report in UD Case, inquest report is mentioned that the vehicle in question was damaged after colliding with a road side tree as reported by the surveyor after collecting evidence from hearsay evidence of some villagers after 90 days of the occurrence. Even the surveyor claims that he has found broken object of the damaged car and accidental impression near road side tree after 90 days of the occurence. The questionnaires put to the O.P. and O.P. necessarily gave vague answer.
O.P. cited reference regarding delay of information 2012 CPJ 1, Chandigarh and the decision of NCDRC 2016 (1) CPJ 12 and 2014 (III) CPJ 162 (NC) that the deceased has no valid license at the time of accident. All these decisions are not applicable to this case.
Therefore, we find that the complainant has been able to establish her case that insured Debasis Dutta Gupta having a Learner License was driving the car being accompanied by PW-2, Sujit Das having effective driving license and his car was seriously damaged on 4.12.2014 when the offending ambassador car rash and negligent manner collided the vehicle of the deceased and he was shifted to the hospital and declared death. The vehicle in question was seriously damaged and the same is lying in unrepaired condition since 20.10.2014 at the garage of O.P. No.4 and there was no work order upon the O.P. No.4 for repairing the damaged vehicle. The report of final survey dated 26.2.2015 prepared by Surveyor, Avijit Dutta as discussed in details after inspection of the damaged car and estimated the net loss of Rs.2,29,641/- after deducting depreciation amount of Rs.32,284/-. Therefore, we do not fine anything from the evidence of O.P. to discard the net assessed loss. Petitioner is therefore, entitled to receive net assessed amount as per surveyor’s report dated 26.2.2015. The complainant is entitled to get death benefit of the deceased, insured owner of the vehicle (U/s.III for owner-driver of M.V. Act) in terms of the policy amounting to Rs.2,00,000/-. We also hold that the complainant unnecessarily suffered and harassed mentally due to non-settlement of claim. Therefore, if a sum of Rs.15,000/- is allowed as compensation for such harassment it will also met the ends of justice. The complainant is further allowed a sum of Rs.5000/- as litigation cost. Thus the complaint case succeeds on contest but in part. C.F. is paid. Hence, it is
Hence, it is
Ordered
that the consumer complaint case be and the same is allowed on contest against the O.P. No.1 to 3 Insurance Company and dismissed on contest against the O.P. No.4.
The O.P. No.1 to 3 Insurance Company are directed to pay Rs.2,29,641/- towards damages of the vehicle to the complainant.
The O.P. No.1 to 3 Insurance Company are also directed to pay Rs.2,00,000/- towards death benefit of the deceased insured.
The O.P. No.1 to 3 are further directed to pay Rs.15,000/- towards compensation for mental pain, agony and harassment to the complainant and also to pay Rs.5000/- towards litigation cost to the complainant.
The above all directions be complied within 45 days from this date of order, failing which 10% interest will be carried on total awarded amount.
The complainant is at liberty to execute this order in accordance with law.
Let the copies of this order be supplied to the parties free of cost.
Jayanti Maitra (Ray)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
Jayanti Maitra (Ray)
President
D.C.D.R.F., Burdwan
(Nivedita Ghosh) (Dr. Tapan Kr. Tripathy)
Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
