West Bengal

Birbhum

CC/11/2016

Sahanaj Lila, W/O Lt K.F. Ahmed - Complainant(s)

Versus

Branch Manager, IFFCO Toki Gen INS Co Ltd - Opp.Party(s)

Sanjit Kr Acharya

09 Jan 2019

ORDER

The case of the Complainant Sahanaj Bibi in brief is that her husband Kazi Firaj Ahamed   purchased an Insurance Policy being No. 82712751 for the vehicle being Engine No. JC8E1146882, Chassis No. ME4JC583LC8147599 and the said policy was covered PA (Personal Accident) claim of owner driver sum assured Rs. 1,00,000/.

It is the further case of the Complainant that the insured vehicle being No. WB-54L-953 met with an accident on 24/12/2013 and the owner cum driver i.e. the Insured sustained injury when he was driving the vehicle and there after he was taken to Rampurhat SD Hospital, Rampurhat, Birbhum wherein he died on 25/12/2013.  The complainant being wife of the insured and being the beneficiary of the insured she gave the death intimation of the insured and then submitted claim form along with all the relevant documents for settlement of personal account insurance claim of the complainant.  But the O.P No. 1 did not consider the claim of the complainant and they repudiated the insurance personal accident claim of the insured through their letter dated 02/03/2015 illegally and arbitrarily.  The O.P No. 1 repudiated the claim of the complainant to deprive her from her legitimate claim.

Hence this case for directing the O.P No. 1 to pay Rs.1,00,000/  is death claim of the insured with interest 18% P/A since 25.12.2013 to till realization.

O.P General Insurance Co. Ltd. has contested the case by filing W/V denying all material allegation of complainant contending inter-alia the case is not maintainable and the complainant has no cause of action to being the case.

It is the specific case of O.P that the complainant had made a claim that Kaji Firaj Ahamed met with an accident on 24/12/2013 caused by a Backhoe Loader bearing registration No. JH-04F-2344 and subsequently he had died.  An FIR was lodged by Kaji Ershed Hussain son of the Kaji Abdus Saddam in this regard in Sikaripara Police Station vide FIR No. 08/2014 on 07/01/2014.  In the FIR it was clearly mentioned that at the relevant time of the accident the deceased Kaji Firaj Ahmed was standing beside his Motorcycle on the left side of a road when the Backhoe Loader bearing registration No. JH-04F-2344 dashed him as a result of which he sustained grievous injuries and subsequently died.

It is the further case that the complainant had reported the PA claim of Owner-Driver to the Insurance Company.  The PA claim of Owner-Driver was not admitted by the answering O.P Insurance Co. for not meeting up the requirements as laid down in Section-3 of the Policy No. 82712751.  Section-3 of the Policy No. 82712751 deals with Personal Accident Cover for Owner-Driver.  Section-3 clearly states that: “Subject otherwise to the terms and exceptions conditions limitations of this policy, the Company undertakes to pay

                                                                                                                                      

compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or travelling in the insured vehicle as a co-driver, caused by violent accidental external and visible means’’.

It is the further case of the O.P that they have intimated about non admissibility to the claim to the complainant by sending letter 02.03.2015 through register post.

So there is no deficiency in service on the part of the O.P liable to the any cost.

Point for determination.

1. Whether the complainant is a consumer under Sec. 2(1) (d) (ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.Ps?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Sahanaj Lila has examined herself as P.W.1 and some documents have been submitted by her.

O.P.W. 1 Biswajit Roy Chowdhury is the legal executive of the O.P Insurance Company.

OP Insurance Company has filed some documents.

Both the P.W.1 and O.P.W. 1 were cross examined by their OP.

Argument of the Ld. Advocate/Agent of the both parties has been heard.

Point No.1:- Evidently the husband of the complainant had purchased an Insurance Policy being No. 82712751 for his vehicle.

So, the complainant is consumer u/s 2(1)(d)(ii) of C.P. Act.

Point No.2:-  Part cause action of this case has been arisen within jurisdiction of this Forum.

The total valuation of the case is Rs. 1,10,000/- + interest which is far less than maximum limit of this Forum.

So, this forum has territorial and pecuniary jurisdiction try this case.

            Pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.  So, this Forum has territorial and pecuniary jurisdiction.

Point No. 3 and 4:- Both points are taken up for discussion as they are related to each other. 

The complainant in her complaint and evidence stated that her husband Kazi Firaj Ahamed  purchased an Insurance Policy being No. 82712751 for the vehicle being Engine No. JC8E1146882, Chassis No. ME4JC583LC8147599 and the said policy was covered PA (Personal Accident) claim of owner driver sum assured Rs. 1,00,000/-.

We find that he from the Registration Certificate, Tax token and copy of D/L that deceased Kazi Firaj Ahamed was owner of the vehicle in question and he had valid D/L at the relevant line.  

In her evidence the complainant further stated that that the insured vehicle being No. WB-54L-953 met with an accident on 24/12/2013 and the owner cum driver i.e. the Insured sustained injury when he was driving the vehicle and there after he was taken to Rampurhat SD Hospital, Rampurhat, Birbhum wherein he died on 25/12/2013.  The complainant being wife of the insured and being the beneficiary of the insured she gave the death intimation of the insured and then submitted claim form along with all the relevant documents for settlement of personal account insurance claim of the complainant.  But the O.P No. 1 did not consider the

 

                                                                                                                                             

claim of the complainant and they repudiated the insurance personal accident claim of the insured through their letter dated 02/03/2015 illegally and arbitrarily.  The O.P No. 1 repudiated the claim of the complainant to deprive her from her legitimate claim.

From copy of formal FIR, FIR and charge sheet we find that on 24.12. 2013 insured vehicle being No. WB-54L-953 met an accident and Owner-cum-Driver of the same Kazi Firaj Ahamed sustained injury due to said accident.  He was brought to Rampurhat SD Hospital.  But he succumbed to injury there on 25.12.2013. 

Copy of the repudiation letter dt.02.03.2015 shows that the claim of the complainant was repudiated on the ground that the claim was not admissible as per terms of condition of policy.

We further find that section-3 of the policy regarding personal accident cover for owner driver runs thus: “Subject otherwise to the terms and exceptions conditions limitations of this policy, the Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or travelling in the insured vehicle as a co-driver, caused by violent accidental external and visible means’’.

During the hearing of argument Ld. Advocate/Agent of the OP submitted that as per FIR at the time of accident the deceased Kazi Firoj Ahamed was standing beside his Motorcycle on the left side of a road when the Backhoe Loader dashed him causing grievous injury.    

So accident of the insured did not cover policy condition and liable to be repudiated.

Through FIR was written in Hindi let us consider the same.  In Hindi it was written that mera bhai POUCHHKAR Motorcycle bain road pa khara keya our dono bhai Motorcycle se utar gaie.  Mere Bhai Kaji Foroj Ahamed motorcycle ke pas handle paker kar khara tha. 

We further find that as per FIR at that time offending vehicle dashed him and he sustained grievous injury.

So, it is clear that at the time of accident decease was standing on the side of the road by Cath holding handdle of Motorcycle and it is not expected that at the time of he was making gossip with someone on the busy road by Cath holding handdle of Motorcycle and it may be that he was about to mounting into motorcycle.

We find that it comes out from cross-examination of the complainant Sahenaj Lila that at that time her husband was not driving his Motorcycle but he was about to start the same.

Considering over all matter into consideration and materials on record we are constrained to hold that at the relevant time the driver of the vehicle/Insured was in direct connection with vehicle in question and accident was happened during use of the vehicle when he was standing on the road by catch holding handle of the Motorcycle.

So, it is clear that OP/Ins. Co. repudiated the death claim of insured illegally which amounts to deficiency in service and illegal trade practice and OP/Ins. Co. is liable to pay Rs.1,00,000/- as death claim benefit with  interest to the complainant.

Thus both the points are decided in favour of the complainant.

Proper fees have been paid.

Hence,

O R D E R E D

         that C.F case No. 11/2016 be and the same is allowed on contest against OP Br. Manager, IFFCO Toki Gen Ins. Co. Ltd., with cost Rs. 2, 000/-.

 

                                                                                                                                         

The OP is directed to pay Rs.1,00,000/- as death claim benefit with 6% interest per annum from the dt.25.12.2013 till realization to the complainant.

All such payment should be made by the O.P to the complainant within one month from the date of this order failing which the complainant shall be at liberty to execute the order as per law and proceeding.    

Copy of this order be supplied to the parties each free of cost.