Brief facts of the instant case are that the complainant took an insurance policy in respect of her vehicle being no. 311900/31/2011/444 and the same was valid for the period from 24-05-2010 to 23-05-2011. It is stated by the complainant that the said car met an accident 06-03-2011 while crossing an unmanned railway crossing causing grave damage to the vehicle and accordingly, she lodged a claim with the OP insurance company toward repairing charge of the damaged car. However, since the OP insurer refused to settle her claim, the complainant finding no other alternative, filed the instant case.
In support of her case, the complainant filed photocopies of Insurance policy, Blue book of the car, correspondences with the OP insurer, bills, letter of OP dtd. 18-03-2011, 15-03-2012, Acceptance Note prepared by the surveyor etc.
On the other hand, the OP strongly denied any lapses on their part with the contention that their action was in conformity with the terms and conditions of the insurance policy and therefore, they cannot be held liable for the repudiation of Complainant’s claim and prayed for summary dismissal of the instant case against them.
In their defense, the OPs submitted the Motor Claim Form, Private Car Package Policy, photograph of the unmanned railway level crossing along with photocopies of some correspondences exchanged between the complainant and the OPs.
Points for determination
- Whether there was any error/deficiency in service on the part of the OPs behind repudiation of the complainant’s claim?
- Whether the complainant is entitled to get any relief as sought for?
Decisions with reasons
Point nos. 1 & 2:
Both the points are taken up jointly for the convenience of discussion.
Admittedly the complainant is a bona fide policy holder under the OPs and there is no dispute as regards happening of the accident and resultant damage to the insured car while the policy in question was in vogue. Therefore, the moot point is whether the repudiation of complainant’s claim was in conformity with the policy condition and other prevailing acts of the law of the land.
On going through the OP’s letter dt. 15-03-2012 it appears that in uncertain terms they clarified the reason behind repudiation of complainant’s claim. Vide their said letter the OP no. 1 drew the attention of the complainant to clause no. 04 of the Private Car Package Policy which reads as follows:
“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition………”
Thereafter, they cited Clause 131 of the M.V.Act, 1988 to justify their action. The said clause is appended below.
“131. Duty of the driver to take certain precautions at unguarded railway level crossings. - Every driver of a motor vehicle at the approach of any unguarded railway level crossing shall cause the vehicle to stop and the driver of the vehicle shall cause the conductor or cleaner or attendant or any other person in the vehicle to walk up to the level crossing and ensure that no train or trolley is approaching from either side and then pilot the motor vehicle across such level crossing, and where no conductor or cleaner or attendant or any other person is available in the vehicle, the driver of the vehicle shall get down from the vehicle himself to ensure that no train or trolley is approaching from either side before the railway track is crossed.’
On a true construction of the M.V. Act 1988, it appears that the whole purport of clause 131 of the Act was envisaged at ensuring public safety as also the safety of vehicle. However, on touring through the materials on record we have not come across any convincing proof to show that the driver of complainant’s vehicle took due precautions before crossing the level crossing as was required of him, which in other words points out clear breach of statutory duty as envisaged under the M. V. Act and also the violation of the terms and conditions of the policy in question. Thus, we do not find any infirmity in the action of OPs behind repudiation of the complainant’s claim.
Accordingly, in our considered view, the complainant is not entitled to get any benefit as sought for.
These points are disposed of accordingly.
Hence, it is
O R D E R E D
that the CC case no. 11/2012 be and the same is dismissed on contest against the OPs. Considering the facts and circumstances of the case we make no order as to cost.
Dictated and corrected
by me
President
S.S. Ali A.K. Bhattacharyya
Member President
