This case has arisen out of application U/s 35 of the Consumer Protection Act, 2019.
The case of the complainant is that he is owner of Mahindra & Mahindra Ltd make KUV-100 vehicle vide regd No:WB60 Q 8614, Engine No:NAHZL68538, Chassis No:MA1VB2NACH6K90337, duly insured with O.P/Insurance Company Vide Policy No:3362/01969483/000/00. On 28.08.2021 in night at about 12.30 when his vehicle was returning from Gulabbag (Purnia) to Raiganj, dropped to his relative Mr. Adhip Kumar Roy, suddenly one unknown truck dashed to the complainant’s vehicle which hit with the road side tree and fell down outside on the pakka road at Belgachi under P.S-Dagrua and driver Gobinda Dey vide DLNo:WB60/12610, valid up to 119/09/2021 received injury on his head, tried to lodge an FIR at Dagrua PS but said PS does not register a case as unknown truck dashed his vehicle, so complainant registered a complaint before the O.P/Insurance Company informing partial damage of the vehicle through telephone on 29.08.2021 and O.P sent a surveyor to investigate who investigated and assessed the loss and instructed the complainant to produce all bills and papers and when he met with O.P.s they replied that they could not process the claim due to non commercial registration of the vehicle and accordingly repudiated the claim on 06.12.2021 on the ground “limitations as to use i.e used as to commercial purpose”. Complainant prays for Rs.2,34,163/- as cost of damage, Rs.2,00,000/- as compensation and Rs.10,000/- as litigation cost.
O.Ps contested the case by filing written version stating that the complainant’s vehicle has been insured with O.P/Insurance Company, subject to terms, conditions, exclusion and limitation mentioned in the Insurance policy. O.Ps deputed a Surveyor who went to the place of occurrence and came to know from the owner and driver of the complainant’s vehicle that said vehicle was used for as commercial purpose at the time of alleged incident and complainant stated that his said vehicle was used in hire purpose to Purnia, Bihar and the passenger paid Rs.1,400/- to insured’s driver as a rentfare on 28.08.2021 and the driver stated that he was returning back towards Raiganj to Purnia after dropping the passenger at Purnia and met with accident with a lorry at near Purnia More under Dagrua PS at about 11:30 am on 28.08.2021, so the Surveyor assessed the cost of damage Rs.1,37,894.91/-. It is mandatory to lodge FIR/written complaint in the nearest Police Station where the alleged incident was occurred in regard to any road traffic accident. The complainant’s vehicle has not been damaged due to road traffic accident and documents required for getting claim were not provided to the O.Ps so the claim of the complainant was repudiated for using the vehicle “for commercial purpose” by letter dated 16.09.2021 and the O.Ps are not liable to pay compensation as prayed for. They pray for dismissal of the case.
Points for Consideration
- Whether there was deficiency of service on the part of the O.Ps, which gives rise cause of action to file the complaint and/ or the petitioner is entitled to get relief (s) as prayed for?
D e c i s i o n W i t h R e a s o n s
It is not disputed the complainant is owner of Mahindra & Mahindra Ltd make KUV-100 vehicle vide regd No:WB60 Q 8614, Engine No:NAHZL68538, Chassis No:MA1VB2NACH6K90337, duly insured with O.P/Insurance Company Vide Policy No:3362/01969483/000/00.
The case and evidence of the complainant is that on 28.08.2021 in night at about 12.30 when his vehicle was returning from Gulabbag (Purnia) to Raiganj, dropping his relative Mr. Adhip Kumar Roy, suddenly one unknown truck dashed to the complainant’s vehicle which hit with the road side tree and the driver fell down outside on the pakka road at Belgachi under P.S-Dagrua and driver Gobinda Dey vide DLNo:WB60/12610, valid up to 19/09/2021 received injury on his head.
O.Ps first objection is that said vehicle was used for commercial purpose at the time of alleged incident and the passenger paid Rs.1,400/- to insurer’s driver as rent fare. The basis of such claim is that, surveyor deputed by them who went to the place of occurrence came to know from the owner and driver of the vehicle. The Surveyor has not been examined, so the veracity of owner’s statement before Surveyor could not be ascertained. In Para-02 of his Brief “remarks of the accident” it is noted that- at around 11:30 AM (28.08.2021 while insured’s driver was returning back towards Raiganj after dropping the passenger, at that time insured’s driver Gobinda Dey was driving the insured vehicle and he was alone on the insured vehicle on the area near Purnea More under Dagrua PS, insured vehicle met with an accident with a lorry and fell down on the road side forest and got hit with a tree. Insured’s driver was little bit injured in this incident and he took medicines from local doctor, there was no hospitalization involved also no third party was injured or dead in this incident. “Insured vehicle was damaged.”
We have to ascertain about that passenger. Mr. Adhip Kumar Roy submits examination-in-chief on affidavit and examined as P.W.2 who stated that he is the brother-in-law of the complainant and he went to Gulabbag (Purnia) on 28.08.2021 for his personal purpose / work with his said relative’s vehicle being No:-WB60Q/8614 and after dropping him the car was returned to Raiganj. Undisputedly when the car was returning to Raiganj near Purnia More under PS Dagrua said accident was happened. The initial burden thus shifted to the O.Ps to prove otherwise i.e use of vehicle for commercial purpose and /or payment of rent fare, which they are unable to do.
The case of the complainant is that he/driver tried to lodge an FIR at Dagrua PS but said PS does not register a case as unknown truck dashed the vehicle, so complainant registered a complaint before the O.P/Insurance Company informing partial damage of the vehicle through telephone on 29.08.2021. P.W.2 in cross-examination stated that the incident was informed to the local Police Station of Bihar verbally. In Motor Insurance Claim Form on the column description of the accident/theft there is no whisper to that effect.
Ld. Advocate for the O.P/Insurance Company argued that there was no FIR after that accident and the FIR with police report are mandatory for getting the claim. We feel that the FIR & Police report may be a basis of claim settlement but it’s not mandatory rather desirable. If it’s mandatory the claimant should be informed at first instance but here O.P/Insurance Company deputed Surveyor to assess the complainant’s claim, which implied that it’s not mandatory.
GST Invoice of Khokon Motors Works Pvt Ltd submitted by the complainant shows the cost of repairing was Rs.2,34,163/-. The complainant claimed that amount, being paid by him. Though the vehicle was repaired by him from the Authorized dealer Mahindra & Mahindra Ltd but he himself did it, before assessment by the Surveyor, so the O.P/Insurance Company is not liable to pay such cost.
Fact remains on receipt of information O.P/Insurance Company deputed a surveyor to investigate who investigated and assessed the loss and instructed the complainant to produce all bills and papers.
Mr. Kaustabh Basu, Surveyor/Loss Assessor submits Motor Final Survey Report-Private dated 26.04.2022, fixing net liability of the insurer Rs.137894.91/-.
Under above facts and discussion we are of the view that the O.P/Insurance Company is liable to pay Rs.137894.91/-. As O.P/Insurance Company promptly replied to complainant’s claim appointing Surveyor, we are of the opinion that there was no deficiency of service on the part of the O.P/Insurance Company & the Company is not liable to pay any amount under the head compensation, whatever kind it might be, and litigation cost, as claimed by the complainant. Consequently the repudiation of complainant’s claim vide letter dated 06.12.2021 held unjustified.
In the result the case succeeds.
Hence, it is
O R D E R E D
that the C.C-01/2022 be and the same is allowed in part on contest against the O.Ps but without cost.
We do direct O.Ps/Insurance Company to pay Rs.137894.91/- to the complainant within one month from the date of order, failing which it shall carry interest @ 6% from the date of order till final realization.
.Let a copy of this order be given to the parties free of cost.
