This case of the complainant is that he is the registered owner of a Mahindra Scorpio vehicle bearing registration no. WB 42Q 9064 which was insured with the opposite party under the Private Car Package Policy, the coverage period of the insurance being 29.12.2013 to 28.12.2014 and in May 2014 the complainant and his close friend decided to go to North Bengal for a tour and accordingly they fixed 18.5.2014 for their journey and but on that very date the complainant suddenly fall ill and they decided not to join with his friend then his friend decided go alone and the complainant allowed him to use car for this trip and accordingly the complainant also issued an authorization letter for the said purpose. Thereafter the said vehicle of the complainant met with an accident on 21.5.2014 causing severe damage and the said fact was intimated by one Akash Bagh to I/C Bidhan Nagar, P.S.-Pansidewa, Dist.- Darjeeling and accordingly said complaint was registered vide G.D.E. no. 615 dt. 21.5.2014 and a case being Phansidewa P.S. case no. 153 of 2014 dt. 21.5.2014, u/s 279/337/338/304A IPC has been started. During this said case police seized the said vehicle and to that effect a seizure list was also prepared and after commission of mechanical examination a report was also submitted on 22.5.2014 stating that “there is no mechanical failure with the vehicle”.
The complainant duly informed the above facts to the office of the opposite party over telephone and the matter was registered with claim no. OC1524041801-0000023 on 22.5.2014 and the formal claim was also lodged through an intimation letter dt. 10.6.2014 being claim no. C.N.OC-15-2401-1801-00003958 along with all the relevant papers and documents necessary for processing his claim and on the basis of his claim the complainant was issued one claim form from the office of the opposite party and the complainant lodged an insurance claim for the loss of this vehicle due to accident and the opposite party also caused necessary survey of the vehicle.
Thereafter the complainant received one letter dt. 21.8.2014 from the opposite party stating inter alia that the vehicle of the complainant at the material point of time of accident was been used for hire and reward and the opposite party also ask for clarification as to why the claim of the complainant should not be repudiated.
The complainant also states that he sent a notice dated 09/01/2015 through his Ld. Advocate addressing the Opposite Party with all the clarifications on his part and with a request for re-settlement of the claims of the complainant but inspite of receiving the same the Opposite Party did not pay any heed to the same and thereafter a considerable period has been elapsed but the Opposite Party neither took any steps for settlement of the claim nor communicated anything to the complainant in this regard and the Opposite Party neither settled nor repudiated the claim of the Complainant.
Complainant filed the complaint petition praying directions upon the opposite party to pay sum of Rs. 4,00,500/- towards insurance claim with interest @ 18% p.a. with effect from 14.7.2009 and to pay sum of Rs. 50,000/- for causing willful harassment, mental agony and anxiety and unfair trade practice and to pay sum of Rs. 5000/- as litigation cost and to give any other relief or reliefs as deem fit and proper.
The opposite party contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that no cause of action at all arose for filing the case against the Opposite Party as stated in the statements in para-14 and acts of the Opposite Party are a gross negligent and deficiency in service and the petitioner is liable to strict proof the same with documentary evidence and it is in particular denied that there was any deficiency on the part of the Opposite Party.
The Opposite Party also states that the facts remains are that soon after getting the claim the Opposite Party Insurance co deputed an independent surveyor to assess the loss, Opposite Party also appointed the Investigator to find out the true facts of the case and after detailed Investigation documents it revealed that the vehicle was used for hire or reward at the material time of loss of the vehicle and two occupants of vehicle i.e. Manish Verma and Ganesh Panja have confirmed that vehicle was taken on hire at the time of loss and be it mentioned there that the complainant have entered into an agreement with Bajaj Allianz General Insurance Company Ltd by signing the proposal form and purchased a Private Car-Package Policy but as per Investigation findings the vehicle was used at the material time of accident as hire and reward which violated the terms and conditions of the Policy. The Policy always been issued by any insurance Company with its schedules and terms and conditions, even the certificate cum policy schedule quite categorically speaks with regard to the limitation as to use of vehicle. The petitioner has violated the terms and conditions of the policy by plying his private vehicle on hire and reward basis and thus the Opposite Party Insurance Company has rightly repudiated the claim and question of settling the claim does not arise at all and the opposite party prayed to dismiss the complaint and pass such order/ orders as deem fit and proper.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.
Complainant and opposite party filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite party heard in full.
From the discussion herein above, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer of the opposite party or not?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled to get relief or not?
DECISIONS WITH REASONS
All the points are taken together for easiness of the discussions of this case.
1). In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here in is a consumer of the opposite party.
2).Both the complainant and the opposite party are residents/having their office addresses within the district of Hooghly. Considering the claim amount of the complainant as per prayer of the petition of complaint it appears that those are not exceeding Rs.50,00,000/-. So, this Forum/commission has territorial/pecuniary jurisdiction to entertain and try the case.
3).The complainant in his argument stated that he is the registered owner of a Mahindra Scorpio vehicle bearing registration no. WB 42Q 9064 which was insured with the opposite party under the Private Car Package Policy, the coverage period of the insurance being 29.12.2013 to 28.12.2014 and in May 2014 the complainant and his close friend decided to go to North Bengal for a tour and accordingly they fixed 20.5.2014 for their journey and but on that very date the complainant suddenly fall ill and they decided not to join with his friend then his friend decided to go alone and the complainant allowed him to use car for this trip and accordingly the complainant also issued an authorization letter for the said purpose. Thereafter the said vehicle of the complainant met with an accident on 21.5.2014 causing severe damage and the said fact was intimated by one Akash Bagh to the I/C Bidhan Nagar, P.S.-Pansidewa, Dist.- Darjeeling and accordingly said complaint was registered vide G.D.E. no. 615 dt. 21.5.2014 and a case being Phansidewa P.S. case no. 153 of 2014 dt. 21.5.2014, u/s 279/337/338/304A IPC has been started. During investigation of the case police seized the said vehicle and to that effect a seizure list was also prepared and after commission of mechanical examination a report was also submitted on 22.5.2014 stating that “there is no mechanical failure with the vehicle”.
The complainant duly informed the above facts to the office of the opposite party over telephone and the matter was registered with claim no. OC1524041801-0000023 on 22.5.2014 and the formal claim was also lodged through an intimation letter dt. 10.6.2014 being claim no. C.N.OC-15-2401-1801-00003958 along with all the relevant papers and documents necessary for processing his claim and on the basis of his claim the complainant was issued one claim form from the office of the opposite party and the complainant lodged an insurance claim for the loss of his vehicle due to accident and the opposite party also caused necessary survey of the vehicle. Thereafter the complainant received one letter dt. 21.8.2014 from the opposite party stating inter alia that the vehicle of the complainant at the material point of time of accident was been used for hire and reward and the opposite party also asked for clarification as to why the claim of the complainant should not be repudiated.
The complainant also states that he sent a notice dated 09/01/2015 through his Ld. Advocate addressing the Opposite Party with all the clarifications on his part and with a request for re-settlement of the claims of the complainant but in spite of receiving the same the Opposite Party did not pay any heed to the same and thereafter a considerable period has been elapsed but the Opposite Party neither took any steps for settlement of the claim nor communicated anything to the complainant in this regard and the Opposite Party neither settled nor repudiated the claim of the Complainant.
Soon after getting the claim this opposite party insurance Company deputed an independent surveyor to assess the loss or that opposite party appointed the investigator to find out the true facts of the case or that after detailed investigation documents it revealed that the vehicle was used for hire or reward at the material time of loss of the vehicle or two occupants of vehicle i.e. Manish Verma and Ganesh Panja have confirmed that vehicle was taken on hire at the time of loss. As per investigation findings the vehicle was used at the material time of accident as hire or reward which violated the terms and conditions of the policy by plying the said private vehicle on hire and reward basis or that the Opposite party has rightly repudiated the claim or question of settling the claim does not arise at all.
The PRIVATE CAR PACKAGE POLICY SCHEDULE speaks that insured name ABHISHEK NAG, policy Number OG-14-2417-1801-00002877 dated 30.12.2013, being Regn. No. WB 42Q 9064, own damage premiumRs.7285/-& others.
The letter dated 21.08.2014 of the Bajaj Allianz General Insurance Company Limited speaks that the claim of the complainant was repudiated on the ground that the vehicle was used for hire or reward at the material time of loss of the vehicle which is a violation to the policy terms and conditions.
The advocate letter dated 9th January, 2015 in which the complainant requested the Branch Manager, Bajaj Allianz General Insurance Company Limited to settle the claim of the complainant within 15 days from the receipt of this letter.
The Authorization Letter dated 11.04.2014 speaks that the complainant authorized Indrajit Malakar to drive the impugned vehicle.
Photocopy of the registration certificate of the impugned vehicle filed.
Photocopy of FIR filed from which it is transparent that an accident took place under Phansidewa P.S. and a Police case being No.153/2014 started in that connection. But no final report filed till date.
No evidence came from the passenger of the impugned vehicle present during the period of accident. Although the opposite alleged that two occupants of vehicle i.e. Manish Verma and Ganesh Panja have confirmed that vehicle was taken on hire at the time of loss. The dispute cropped up in between the complainant and opposite party when the opposite party repudiated the claim of the complainant in respect of repairing the damaged vehicle on the ground that the complainant hired the vehicle when the accident took place. Not a single document or affidavit of any person filed from which we can infer that the vehicle used for hire & reward. Only from the report of the investigator the opposite party repudiated the damage claim of this Complainant for which the complainant compelled to prefer the recourse of this Forum/ Commission. The opposite party Insurance Company even went to deny existence of the insurance policy and pleaded that as per the allegations made in the complaint, the policy was of ‘PRIVATE CAR PACKAGE POLICY’ which debars user of the alleged vehicle for hire & reward. It is the contention of the opposite party that the subject vehicle which was insured as private vehicle was being used for hire i.e. commercial purpose in violation of the terms and conditions of the policy. It is also argued that from this it is clear that vehicle was being used against the condition of the insurance contract for hire and reward. The opposite party insurance company has not examined any witness nor it has produced any cogent evidence to establish that the subject vehicle at the time of accident was being used for hire and reward. So we do not find any breach of condition of Insurance agreement by the complainant. The PRELIMINARY MOTOR SURVEY REPORT dated 20.7.2014 speaks that owing to the accident the insured vehicle had suffered huge damage and it is assessed amounting to Rs.6,23,594/- in total. Another estimate dated 10.07.2014 by Madhab Garage assessed a sum of Rs.6,83,024/- for repairing the damaged vehicle.
Now we address ourselves to the contention of the Insurance Company that the vehicle was taken on hire. To avoid its liability towards insured, the Insurance Company has to prove that the insured had taken the vehicle in question on hire for reward and the breach of the policy was so fundamental in nature to repudiate the claim. The Hon’ble Supreme Court in catena of cases held that the onus shifts on the Insurance Company to establish that there was a breach on the part of the policy holder. Keeping in view the aforesaid reasons, we are of the considered view that the repudiation of the claim/ not settling the claim by the Insurance Company unjustified and the complaint petition is allowed and we find it a fit case to direct the Insurance Company to pay an amount Rs.4,00,500/- prayed by the complainant towards Insurance claim for reimbursement cost of accidental damage of vehicle No. WB 42Q 9064 along with cost & compensation.
ORDER
Hence, it is ordered that the complaint case being no. 127 of 2015 be and the same is allowed on contest against the opposite parties with a litigation cost of Rs.10,000/- to be paid to the complainant.
The opposite party is further directed to pay a sum of Rs.4,00,500/- for reimbursement of cost of accidental damage within 45 days from the date of passing this order.
The opposite party is further directed to pay compensation amounting to Rs.30,000/- for causing mental pain & agony of this complainant within the stipulated period.
At the event of failure to comply with the order the opposite party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
