Ld. Advocate(s)
For Complainant: Safikul Alam
For OP/OPs : Raj Kumar Mondal
Date of filing of the case :04.07.2022
Date of Disposal of the case :30.07.2024
Final Order / Judgment dtd.30.07.2024
The basic fact of the case is that the complainant Sumon Mondal is owner of the Omni Bus bearing registration no. WB 52 -P 8657. The said car met with an accident on 07.03.2017 near Udaypur Itvata (Brick Kiln) P.S Santipur Nadia N.H 34, with a lorry bearing no. WB 76 A/ 1730 which dashed with the Omni Van. The vehicle of the complainant
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was fully damaged in that accident. The said vehicle was insured with the OP United India Insurance Company Berhampore Branch District Murshidabad being policy no. 0314053116 P 109278932 from 15.10.2016 to 14.10.2017, sum assured Rs. 3,00,000/-. After the said accident Santipur P.S case no. 134/2017 dtd. 18.03.2017 u/s 279/338/304 (A) /427 IPC was started. Complainant informed the said accident to the OP on 10.03.2017 and sent all the documents to the OP with a claim but OP denied the said claim without any investigation. The OP received the letter of the said claim on 30.06.2017 with an explanation to the delay. The complainant sent the estimate details along with all documents to the OP on 30.06.2017. The said vehicle was returning for the purpose of earning the livelihood of the complainant by means self employment. The complainant also sent the quotation to the OP with an actual loss which the OP received. The complainant went to the office of the OP on 16.01.2019 to realise the claim but the OP did not allow the claim. The complainant has not violated any condition of the policy. Due to rejection of the claim of the complainant the present case is filed. The cause of action for the present case arose on 16.01.2019 and thereafter each day till filing of this case. the complainant paid for an award for a sum of Rs. 5,00,417/- as per policy with interest, Rs. 30,000/- towards compensation for mental pain and agony and litigation cost.
OP no. 1 did not contest the case so it is heard ex-parte against OP no. 1.
OP no. 2 contested the case by filing W/V. The OP no. 2 challenged the case as not maintainable on the ground that the case is barred by law of limitation and not maintainable and bad for defect of parties. The positive defence case of the OP no. 2 is that the vehicle no. WB 52 P 8657 was insured with the OP no. 2 as a private car for the period 15.10.2016 to 14.10.2017. The complainant intimated to the OP on 10.07.2017 about the said accident and submitted incomplete claim intimation letter together with estimate of repairing dated 30.06.2017 after 114 days from the accident which is inordinate delay. The OP no. 2 requested the complainant on 25.07.2017 to explain the delay along with documents but the complainant did not reply. OP no. 1 wrote a letter to the complainant on 07.02.2018 with some quarries and information relating to the accident like
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number of persons died in the accident and injured along with their address, relation with the owner, name of the driver, details of the travel and passenger and other information as per letter dtd. 07.02.2018. But the Complainant did not reply to the said letter. The complainant did not supply the said documents. However the OP no. 1 deputed one loss assessor / surveyor namely Bhaskar to investigate. He submitted the report that another vehicle was involved in the accident bearing no. WB 76 A 1732. At the time of accident the disputed vehicle was hired by them who are travelling in the said vehicle which is against the condition of the policy. The diseased were not the relatives/ friends of the owner of the vehicle at the time of the alleged accident. The insured vehicle was over loaded and more than coverage of insurance. It is also revealed from the investigating report that Amjad Sekh of Murutia and Rajjack Ali, Ekram Sk, Sahajad Sk, Ekdam Mondal were outsider. There was no latches or deficiency in service by the OP. The OP no. 2 claimed that the case is liable to dismissed with cost.
On the basis of the pleading of the parties the commission considers that the following points are required to be ascertained for proper adjudication of the case.
Points for Determination
Point No.1.
Whether the present case is maintainable or not.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
Although OP challenged the case as not maintainable on the ground that it is bad for defect of parties and barred by limitation yet in course of argument Ld. defence Counsel for the OP no. 2 did not argue on that point.
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However after perusing the pleading of the parties and the evidence on the case record, the commission is of the view that the case is legally maintainable and not barred by any provision of law.
Accordingly point no. 1 is answered in affirmative and decided in favour of the complainant.
Point No.2 and 3
Both the points no. 2 and 3 have close nexus with each other and accordingly these are taken up together for brevity and convenience of discussion.
Complainant in order to substantiate the case adduced oral and documentary evidence. The complainant Sumon Mondal proved the following documents in course of trial of this case:-
Annexure: 1 is the insurance policy bearing no. 0314053116 P109278932 for vehicle No.WB-52/P/8657 , the period of insurance is 15.10.2016 to 14.10.2017.
Annexure: 2 : FIR.
Annexure: 3 Seizure list of Santipur P.S case no. 134/17 dtd 18.03.2017.
Annexure: 4 Claim form of surveyor filed by the complainant.
Annexure : 5 Estimate of repairing charge for Rs. 5,00,447/-
Annexure: 6 Letter of OP insurance company to the complainant for submission of reasons for delay in submission of estimate.
Annexure :7 Letter dtd. 07.02.2018 issued by OP to the complainant demanding some information.
Annexure :8 Certificate of registration.
Annexure :9 Driving license
The most important document of this case is the insurance certificate. Although it is admitted fact that disputed vehicle had a valid insurance police yet the OP denied the claim on the ground of inordinate delay and other grounds. The said accident appears to have occurred on 07.03.2017 which is within the validity of the insurance policy. As per Annesure: 11
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the driving licence stands in the name of Sujit. There is no denial that the driving license was not valid at the time of the accident. The OP challenge the case on the ground that there was a delay of about 140 days in informing the accident. As per the case record the said accident took place on 07.03.2017 and the date of intimation as per the W/V is 30.06.2017. OP has admitted about the insurance but Ld. defence counsel argued that the complainant was running the vehicle under hiring. The private car should be used as private car for use and separate tax is taken for private use and commercials vehicle separate tax are charged. Ld. Senior defence counsel further argued that the injured and dead persons were resident of outside and as such they were going by hiring the disputed vehicle. Therefore, the complainant violated the terms and condition.
Ld. Adv for the complainant argued that the FIR was lodged by one Sujon Biswas wherein he stated inter alia that the owner of the vehicle who is the elder brother of the complainant was going to Kolkata along with some relatives and friends.
Ld. Adv for the complainant further argued that the OP could not establish that the complainant was hiring the said vehicle.
Argument has reasonable force. After perusing the evidence in the case record it transpires that the OP did not cross examine the complainant or did not file any interrogatory to the complainant. So the defence plea that the vehicle was hired to outsider could not be established.
It is fact that there is a delay regarding the intimation of accident to the OP but Ld. Adv for the complainant argued that OP no. 2 admitted that the complainant intimated to the OP on 10.07.2017 over telephone that the vehicle was met with an accident on 07.03.2017. He further argued that collection of documents takes some time because FIR, PM report and other some documents cannot be collected immediately. So the delay has caused.
The argument has reasonable force.
The only defence of the OP is that they asked the complainant to justify the delay.
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However, the OP appears to have not rejected the claim or repudiated the claim of the complainant. Ld. ADV for the complainant argued that mere delay cannot be a just ground for rejection of the claim. In this regard he also argued that as per investigation report investigator held that the passengers who died or injured were not relatives or friend of the insured but the investigator did not pass any opinion that the claim is liable to be rejected.
On the contrary it is stated that the warrantee attached to the policy were found to have been observed.
Previously it was found that the OP could not establish the defence case through cross examination or any specific evidence that the complainant was letting the said vehicle or given to outsiders by hiring. So the defence plea that it was let out to outsider for hiring is not established. Thus the complainant duly proved that the accident took place during the validity of the insurance and there is nothing to substantiate that the complainant violated the terms and conditions of the insurance policy.
In the back drop of the aforesaid discussion and observation made hereinabove the commission considers that the complaint proved the case against the OP up to the hilt.
In the result Points no. 2 and 3 are answered in affirmative. Consequently complaint case succeeds on contest with cost against the OPs.
Hence,
It is
Ordered
that the complaint case no.CC/47/2019 be and the same is allowed on contest with cost of Rs 2,000/- against OP no. 2 and ex-parte against OP no. 1. The complainant Suman Mondal do get an award against the OPs for a sum of Rs 5,00,417/- against both the parties towards insurance policy money along with interest @ 8 % per annum, Rs. 10,000/- towards compensation for harassment and mental pain and agony and Rs. 2,000/- towards litigation cost. Both the parties are jointly and severally directed to pay Rs. 5,12,417/- to the complainant within the 30 days from the date of passing the final award failing which the entire award money shall carry an interest @ 8% per annum from the date of passing the final award till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
