West Bengal

Paschim Midnapore

CC/105/2014

Atabul Jamadar. - Complainant(s)

Versus

I.C.I.C.I. Lombard General Insurance Co. Ltd. - Opp.Party(s)

31 Mar 2016

ORDER

                                                              DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President,

and 

Kapot Chattopadhyay, Member.

   

Complaint Case No.105/2014

                                                       

                                             Atabul Jamadar………………………….………Complainant.

Versus

 

1)Branch Manager, I.C.I.C.I. Lombard General Insurance Co. Ltd.,

2)The Authorized Officer, TATA Motors  Finance Co. Ltd.    

                                                                                                ……………………..Opp. Parties

              For the Complainant: Mr.  Tapas Palmal, Advocate.

              For the O.P.               : Mr. Pinaki Sengupta, Advocate.

 

Decided on: -31/03/2016

                                

ORDER

                          Bibekananda Pramanik, President – Facts of the case, in a  nutshell, is that the complainant is the owner of Truck bearing no.WB-33B/9818 and he purchased the said truck by taking financial loan from opposite party no.2-Tata Motors Finance Co. Ltd. under a loan agreement.  The complainant insured his said truck with the opposite party no.1- I.C.I.C.I. Lombard General Insurance Co. Ltd. and opposite party no.1 assessed the value of the vehicle at Rs.11,87,500/- after receiving a total premium of Rs.34,902/- for all coverage.  The said policy was valid from 23/08/2013 to 22/08/2014 and the policy was issued from Kharagpur Branch Office of opposite party no.1.  On 09/02/2014, the said truck of the complainant met with a road traffic accident near Barunda Dolpin Hotel on NH-6 under P.S. Bagnan, in the district of Howrah and  Bagnan P.S. started a criminal case vide Bagnan P.S. Case No.84/2014 dated 09/02/2014 against the driver of the offending vehicle.  After the accident,  the complainant informed the matter personally in

Contd…………………..P/2

 

 

 

( 2 )

the office of opposite party no.1 and opposite party no.1 engaged a spot surveyor and after spot survey, the opposite party no.1 registered Claim No.MOTO3661112 and the complainant deposited all papers as required by the Surveyor.  Bagnan P.S. seized the damaged vehicle and the said truck was also surrendered before the court.  Bagnan P.S. seized all original papers of the vehicle including the D/L of the driver.  After release of the damaged truck, the same was taken to the authorized garage of opposite party no.2 i.e. before Bhandari Automobiles Pvt. Ltd. for repairing and the Automobile Engineer estimated a total repairing cost of Rs.9,34,448/- and after receiving the said estimate,  the complainant deposited the same before the office of the opposite party no.1.  In spite of that, opposite party no.1 did not settle the damage-claim.   The complainant is an unemployed youth and he purchased the said vehicle for his self employment.  After purchasing the truck, the said vehicle within a very few months met with such accident for which the complainant is unable to pay the monthly installments to the opposite party no.2.  After thorough investigation,  opposite party no.1 assessed the damage value by his Surveyor and in spite of submission of report of such assessment by the concerned Surveyor, the opposite party no.1 willfully withheld the damage claim of the complainant which amounts to deficiency in service.  Hence this case, praying for directing the opposite party no.1 to pay Rs.9,34,448/- as damage claim with interest and cost.

                  The opposite party no.1 has contested this case by filling a written statement.  Denying and disputing the case of the complainant, it is the specific case of the opposite party no.1 that after receiving the claim form, the opposite party no.1 appointed a Investigating Agency namely “Pitterjee Risk Involve Solutions Management” to investigate the incident and to submit a report covering point as two persons namely Mahabul Jamadar and Jalal Jamadar were in the vehicle.  Mahabul Jamadar was the brother of the complainant and Jalal Jamadar is the father-in-law of Mahabul Jamadar.  On spot inquiry and from the version of one eye witness of a tea shop owner and local villagers,  it was confirmed that the son-in-law, who is younger in age, was in the driver’s seat  and the aforesaid Mahabul Jamadar was the driving the said vehicle at the relevant time and his dead body was recovered from the seat of driver.  Post mortem report shows that the insured vehicle was stuck to stomach of the driver and the body was removed/pulled out from the driver’s seat by incision of his abdomen due to insertion of steering into his abdomen in the accident.  After the accident, the complainant falsely implanted a person namely Sk Sattar as the driver of the aforesaid vehicle whose age is 76 years  and on query the insured informed that his aforesaid driver jumped out at last moment from the vehicle in running condition without receiving any injury.   Although the

Contd…………………..P/3

 

 

 

 

                                                                ( 3 )

opposite party-Insurance Company sent a letter to the complainant with a request to arrange for meeting the aforesaid person Sk. Sattar, stated to be the driver but the complainant did not arrange for such meeting and he also did not produce any medical documents of Sk. Sattar.  By a letter dated 25/07/2014, the complainant informed the opposite party that his driver did not receive any injury in the said accident.  According to the opposite party, the complainant submitted a vague estimate of Rs.9,34,448/- which is not based on the actual damage.  Surveyor of the complainant assessed the loss at Rs.2,87,263/- which has been shown with break up item wise in the written objection.  Since the complainant implanted Sk. Sattar as driver of the offending vehicle and since he did not make arrangement of meeting with his driver, the opposite party-Insurance Company was not in the position to verify the driver and in absence of such verification they are unable to settle the insurance claim.  It is stated by the opposite party that there is no deficiency in service on their part and the petition of complaint is therefore is liable to be dismissed.

               Opposite party no.2 did not appear to contest this case. 

 

                                             Point for decision

                         Is the complainant entitled to get the reliefs, as sought for ?    

                   

 Decision with reasons

       To prove his case, the complainant has examined two witnesses namely one Asit Kumar Pal as PW-1 and one V.K. Kumar as PW-2 and the document, relied upon by the complainant, has been marked as Exhibit-1.  On the other hand, opposite party no.1 examined one Ramakanth Sanghai as OPW-2.  During his evidence few documents were marked X- series for identification. 

       Facts remain undisputed that the Complainant purchased the said truck bearing no.WB-33B 9818 after taking financial loan from opposite party no.2 under a loan agreement and the said truck was duly insured with the opposite party no.1 vide policy no.3003/TN-00139370/00/000 covering the period from 23/08/2013 to 22/08/2014.  It is not denied and disputed that on 09/02/2014, the said truck met with an accident under the jurisdiction of Bagnan P.S and Bagnan P.S. case no. 64/2014 dated 09/02/2014 was started against the driver of the said truck.  It is also not denied and disputed that after the accident, the complainant submitted claim of insurance before the opposite party no.1 with all necessary documents.  Admittedly opposite party no.1 engaged Surveyor for assessing the loss of the damaged vehicle and the said Surveyor assessed the loss at Rs.2,87,263/-. 

Contd…………………..P/4

 

 

 

                                                                 ( 4 )

According to the opposite party, the Investigating Agency so was engaged by them came to know on spot inquiry that one Mahabul Jamadar was driving the vehicle at the relevant time and he died at the spot due to such accident, but the complainant has falsely introduced a person named Sk. Sattar as driver of the vehicle and in spite of request by the opposite party vide their letter, the complainant did not produce the said implanted driver for which they are unable to settle the claim of insurance.  On this score, we find that it is not denied and disputed that a specific police case has been started by Bagnan Police Station against the driver of the vehicle.  So the said case of the opposite party that one Mahabul Jamadar was driving the vehicle and he died at the spot is not believable particularly when there is no cogent evidence that the said Mahabul Jamadar was driving the vehicle and he died at the spot.  So the said objection regarding implanting another person named Sk. Sattar as driver of the vehicle is nothing but hypothecal thinking about the accident.  Therefore, we are of the view that the opposite party-Insurance Company was not justified in withholding settlement of claim on the ground of non-production of alleged implanted driver and therefore they are guilty of causing deficiency in service regarding settlement of claim of insurance.  The complainant is therefore entitled to get an order of payment of insurance benefit under the policy in question. 

      About damage and loss of the vehicle in question, the complainant has produced an estimate (Exhibit-1).  From the said estimate, we find that there is no description regarding the nature of the damage and PW-2 who prepared that estimate (Exhibit-1) in his cross examination has admitted that there is nothing on Exhibit-1 to show as to what kind of damage was caused to that vehicle.  He has further admitted that he is not a loss assessor of the vehicle.  So no reliance can be placed upon that estimate (Exhibit-1).  On the contrary,  we find  that admittedly the opposite party appointed a loss assessor, who assessed the loss at Rs.2,87,263/- and in their written objection,  opposite party has given a detailed report of such assessment and therefore we have no hesitation to accept that assessment of loss, which the complainant is entitled to get with interest.  Since the opposite party-insurance company did not settele the claim of insurance and withheld the same without just cause, so the complainant is also entitled to an award of compensation and litigation cost. Since admittedly the vehicle was purchased after taking financial loan from opposite party no.2 and since it is none but the complainant has admitted that the said loan has not been paid up as yet, so the opposite party no.2, the financer of the vehicle is entitled to the amount of award of insurance-claim for adjustment of the loan amount. 

 As the source of income of the complainant from the damaged truck has ceased from the date of accident i.e. on and from 09/02/2014, so the opposite party no.2-Tata Motors

Contd…………………..P/5

 

 

 

                                                                  ( 5 )

Finance Company Ltd. should not charge penal interest/additional interest or any charge in the nature of penal measure for the period from the date of occurance of accident on 09/02/2014 to the date of crediting the amount of award of Rs.2,87,263/- with interest by the opposite party no.1  in the loan account of the complainant. However, opposite party no.2 shall charge normal interest as usual.  

  In the result, the petition of complaint stands allowed in part.          

                                                  Hence, it is,

                                                     Ordered,

                                                            that the complaint case no.105/2014  is allowed in part on contest  with cost against opposite party no.1 and exparte against  opposite party no.2  without cost. Opposite party no.1-I.C.I.C.I. Lombard General Insurance Co. Ltd. shall remit Rs.2,87,263/- with interest @ 9% p.a. from the date of filing of this complaint till payment to the opposite party no.2-Tata Motors Finance Co.  Ltd. with the instruction to credit the same to the loan account of the complainant in respect of purchasing the vehicle in question within 30 days from the date of this order.

Opposite party no.2 shall recast the loan account of the complainant debiting the amount of penal interest, if any, imposed for the period from the date of accident on 09/02/2014 to the date of receipt of compensation from the opposite party no.1, as directed. The opposite party no.2 shall adjust the amount to be remitted by the opposite party no.1 to recast loan account of the complainant, as directed herein above and arrange to refund the excess amount, if any, after liquidating the loan, and shall send a statement of loan account to the complainant after aforesaid adjustment.

Opposite party no.1 shall also pay a sum of Rs.10,000/- as compensation and a sum of Rs.2,000/- as litigation cost to the complainant within 30 days from the date of  this order.

                                        Let plain copy of this order be given to the parties free of cost.

                 Dictated & Corrected by me

                                Sd/-                                           Sd/-                                         Sd/-

                           President                                    Member                                  President

                                                                                                                          District Forum

                                                                                                                      Paschim Medinipur