Order-7.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Case of the complainant, in short, is that he purchased a Mahindra and Mahindra Xylo D2 Car having registration No.WB26S-7982 from Shree Automobiles Pvt. Ltd. of Ved Bhumi, Koyla Vihar, VIP Road, Kolkata – 700 052. At the time of purchasing the car the complainant took a loan of Rs.8,50,000/- from UBI, Birati Branch. Complainant purchased a Pvt. Car-comprehensive General Insurance Policy from Future Generali India Insurance Co. Ltd. vide policy no.2014V2845466FPV for the period 24-01-2014 to 23-01-2015. The complainant states that on 30-03-2014 the complainant along with some of her family friends with a view to proceeding to Darjeeling started journey from Birati when they reached near Bamandanga Nakasi Para, one lorry being No.WB 15A – 4826 dashed with the complainant Xylo Car by driving negligently and in a rash manner. As a result of such rash and negligent driving on the part of the driver of the lorry the complainant and other passengers of the Xylo Car received serious injury. The complainant and the injured person were sent to Bethuadohori BPHC Rural Hospital. Subsequently one of the passengers of the complainant car namely Sumanta Sarkar lodged a complaint before the Nakasi Para Police Station vide Nakasi Para Case No.226 dated 30-03-2014. The police investigated and submitted charge-sheet against the driver of the offending lorry being Registration No.WB15A-4826 u/s.279/338/427/304A of I.P.C. The complainant informed the OP on the next date of the accident over telephone about such accident and claim was also lodged with the OP accordingly being no.CV368711. The investigator who had been deputed by the insurer also reached to the place of the complainant. Complainant was at that relevant time was in bedridden condition and she was not at all position to move. The complainant instructed her family friend Mr. Manoj Chatterjee to fill up the claim form but due to mis-communication between Manoj Chatterjee and the present complainant Mr. Manoj Chatter mistakenly mentioned his name as driver instead of Mr. Vijay Sharma who was the actual driver who drove the victim accidental car. Further case of the complainant, is that, she obtained loan from the Bank for purchase of her Mahindra and Mahindra Xylo Car and she is also in possession of valid insurance policy on the date of the accident. She put her signature on the claim form being extremely traumatized and puzzled without verifying the content of the claim form and it was nothing but a bona fide mistake. It is alleged that the OP deliberately and without cogent reason draged the matter for indefinite period. The complainant also sent a letter to the OP pursuing her claim which was received by the OP on 07-06-2016 but to no good. Hence, this case.
OP has not appeared in this case in spite of service of summons. OP has not contested the case and the case has proceeded ex parte against the OP.
Point for Decision
- Whether the OP is deficient in rendering service to the complainant?
- Whether the complainant is entitled to get the claim as prayed for?
Decision with Reasons
We have perused the documents on record, viz., Xerox copy of motor claim form (vacant, not filled in, Xerox copy of vehicle particulars, Xerox copy of driving license in the name of Vijay Sharma, Xerox copy of I. Card in the name of Vijay Sharma, Xerox copy of Authority letter in the name of Vijay Sharma, Xerox copy of original FIR to O.C. Nakasi Para Police Station, Xerox copy of charge-sheet, Xerox copy of seizure list, Xerox copy of the letter dated 04-06-2016 to the OP by the complainant, Xerox copy of the OP dated 14-12-2015 addressed to the complainant, Xerox copy of the letter of the OP dated 25-11-2014 addressed to the complainant, Xerox copy of the letter of the investigator dated 09-09-2014, Xerox copy of the letter dated 23-07-2014 to the complainant by the OP, Xerox copy of the letter dated 02-05-2014 of the OP addressed to the complainant and other documents on record.
It appears that the complainant availed an insurance policy from the OP vide policy No.2014V2845466 FPV for the period 24-01-2014 to 23-01-2015 in spite of subject vehicle. On 30-03-2014 the subject vehicle became the victime of an accident near Bamandanga Nakasi Para, One lorry being No.WB 15A-4826 dashed the car of the complainant xylo in a rash and negligent manner. It appears that the complainant was boarding in the said car along with some of her family friends. Complainant and some of the boarders of the car were injured. We find tht one Sumanta Sarkar, one of the passengers of the complainant’s car lodged a complaint before Nakasi Para Police Station vide Nakasi Para Police Station Case No.226 dated 30-03-2014. Police of Nakasi Para Police Station started investigation and subsequently the charge-sheet being NO.583 dated 06-08-2015 u/s.279/338/427/304A of IPC was submitted against the driver of the offending lorry having registration No.WB15A-4826. It also appears from the copy of the CS that one Tapan Chatterjee expired in the accident. We also find that the complainant on the next date of the accident informed the OP about such accident and the claim had been lodged by the OP being No.CV 368711. Subsequently, the investigator was deputed by the insurer. The insurer – OP vide letter dated 14-12-2015 repudiated the claim of the complainant and closed the claim as no claim.
The ground of repudiation, as we find, is that at the time of first claim intimation for claim No.CV368711 on 01-04-2014 Mr. Manoj Mukherjee was mentioned as driver, again during 2nd claim intimation for same incident vide claim no.CV391257 on 09-06-2014 Mr. Vijay Sharma was mentioned as driver. It is also stated that in occupant details mentioned in the claim form, the name of Mr. Subham was intentionally removed to include the name of Mr. Vijay Sharma as a driver which is contradictory with the written statement given at the time of initial investigation by the investigator. From seizure list, we find that the name of Vijay Sharma is appearing as the driver of the victim car being DL No.WB0120110872509 and his license is valid till 19-09-2031. We have also seen the Xerox copy of such driving license on record. So, we find that all the relevant documents show that Mr. Vijay Sharma was the driver of the victim car at the time of accident and he holds valid license. The complainant has stated that as she was injured she instructed her family friend Mr. Manoj Chatterjee to fill up the claim form but due to mis-communication between Mr. Manoj Chatterjee, Mr Chatterjee mistakenly mentioned his name as driver instead of Mr. Vijay Sharma who was the actual driver who drove the victim car on the fateful date. We also find that an authority letter authorizing Vijay Sharma to drive the vehicle of the complainant being no.WB 265 7982, on record.
We find that the complainant has not mentioned anywhere in her petition of complaint that the date of purchase of vehicle for the reason best known to the complainant. However, from the cover note of the policy it appears that the date of purchase appears to be 24-01-2014. It also appears that the complainant purchased the vehicle at a price of Rs.7,57,666/- availing finance from the bank as stated by her in the petition of the complainant. The complainant has claimed an amount of Rs.9,10,000/- as claimed amount against the damaged vehicle. We are not given to understand why the complainant has claimed such a big amount when the price of the vehicle is Rs.7,57,666/-. We also find that the complainant has not filed any estimate of repair from any garage before us. So, it becomes increasingly difficult on our part to ascertain the cost of the repair. The complainant has not filed any estimate of any garage or service centre/automobile shop in this regard. No surveyor has also been appointed from the side of the OP for ascertaining actual cost of the repair. We, however, find a letter on record dated 23-07-2014 addressed to the complainant from the side of the OP. It has been clearly stated in the said letter – “the claims have been lodged before us for compensation of total Rs.3,31,506/-. Such statement of the letter has not been controverted from the side of the complainant in any reply letter. Be that as it may, we can take the figure as bench mark in absence of any other document on record regarding the cost estimation towards repair of the damaged car. It is not also given to understand to us why the complainant failed and neglected to file any estimation of repair. Be that as it may, the fact remains as we find from the documents on record that the subject vehicle met with an accident on 30-03-2014. The complainant also intimated the fact of the accident to the OP and the claim has been lodged by the OP being No.CV368711. Subsequently, the claim was lodged on 01-04-2014. We think that OP has repudiated the claim without proper application of mind and exercised the authority in capricious manner. We think that repudiation should not sustain and OP has been deficient in rendering service to the complainant. OP has not also deployed any surveyor to assess the cost of repair. Complainant has also equally failed to submit any estimate of the cost of repair. But from the letter of the complainant addressed to the OP we find that the complainant lodged claim for compensation of total Rs.3,31,506/-. We have no other option to take it as a bench mark in awarding compensation along with statutory deductions as per the insurance policy.
None came from the side of the OP to contest the case. Evidence of the complainant remains unchallenged and uncontroverted in absence of any contrary and controverting materials on record, we think that complainant has been able to establish her case.
In result, the case succeeds.
Hence,
Ordered
That the instant complaint be and the same is allowed ex parte but on merit with cost of Rs.5,000/- against the OP.
OP is directed to release a claim of Rs.3,31,506/- with deduction on account of depreciation in respect of the age of the vehicle and depreciation of the parts in terms of the subject policy within one month from the date of this order i.d. complainant will be at liberty to put the decree into execution and in that case OP shall be liable to pay penal damage at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
