JUDGEMENT
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the Op as the Op did not pay her legitimate insurance claim.
The brief fact of the case of the complainant is that her husband, since deceased, being a businessman purchased one Tata Sumo which was insured with OP. The policy was valid for the period from 23.7.2009 to 22.7.2010. On 04.8.2009 while her husband was going to Kolkata with the insured vehicle for his business purpose on the way at Gopalnagar, Sonapara, 5km north on the way within the PS. of Singur on Durgapur Expressway unfortunately one truck dashed the Tata Sumo from behind and as a result the husband of the complainant sustained fatal injury as he was driving the vehicle and at that point of time he was alone in the said vehicle. Firstly he was brought to the Singur Health Centre by the local inhabitants and later he was shifted at
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Apollo Gleneagles Hospital, Kolkata where he expired on 13.8.2009 living behind the complainant as his only legal heir and successor to inherit his entire movable and immovable properties. On 15.8.2009 the dead body of the deceased was examined through Post Mortem at NRS Medical College & Hospital, Kolkata and accordingly the complainant obtained death certificate from Kolkata Municipal Authority on 26.10.2009. After the aforesaid accident the police have started one case u/S. 279/304A, IPC bearing Singur Police Case no. 107/2009 against the truck driver Rabinder Prasad, which is still pending before the court of ld. ACJM at Chandannagar. Due to such accident the insured vehicle badly got damage which requires repairing. Since 25.01.2010 the damaged vehicle is lying at Tata Motors, an authorized service centre, Asansol. Tata Motors issued one estimate for repairing the damaged vehicle to the tune of Rs. 1, 35,150/- to the complainant’s brother who brought the vehicle there. The complainant has duly informed the Insurance Company about the accident and lodged a claim for the said estimated amount to repair the damaged insured vehicle but till date the Insurance Company neither appointed any Surveyor or Investigator to assess the loss and damage of the vehicle nor paid any repairing charge as claimed by the complainant and moreover the same was covered with the insurance policy. After lodgment of the insurance claim on several occasions the complainant visited the branch office of the OP at Asansol for realization of her claim, but in vain. Surprisingly on 17.4.2010 the OP falsely sent a letter to the complainant stating that the claim is not admissible within the terms and the conditions because the said victim and insured vehicle was used to hire purpose whereas the vehicle was insured under private car package policy. According to the complainant such statement made by the OP is completely baseless, speculative and malafide. It is stated by the complainant that during accident none was in the vehicle and the owner being the husband of this complainant was driving the vehicle. As there was no fault for such accident on behalf of the owner, then there is any valid rhyme and reason for such refusal by the OP. Upon receipt of the repudiation letter from the OP the complainant met the insurance company on several occasions but the Op did not entertain her. On the other hand, since 25.01.2010 the complainant is paying rent of Rs. 200/- per month to the Tata Motors as per parking charge as the damaged vehicle is lying there. Due to such action
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of the Ops the complainant is suffering from financial loss, mental agony and lastly on 21.8.2010 she sent legal notice to the Insurance Company claiming the repairing charge, but to no effect. Having no other alternative the complainant has field this complaint before this Ld. Forum praying for direction upon the OP to pay a sum of Rs. 1, 35,150/- towards the repairing charge of the damaged vehicle, to pay Rs. 200/- per month towards paying charge from 25.01.2010 till entire payment of the realization and compensation to the tune of Rs. 75,000=00 towards mental agony, pain and harassment.
The POC has been contested by the OP by filing written version wherein it is stated that the vehicle of the complainant was under the coverage of the insurance policy and the same was private care package policy. The said policy was issued in respect of the vehicle subject to some terms, conditions and limitation thereof. On 01.10.2009 the intimation of accident of the vehicle was received by the Op and claim form was issued. After submission of the claim form Investigator was appointed, who not only investigated but also took photographs of the said vehicle. After considering all aspects by the Investigator assessed the quantum of loss and submitted his report from where it will be apparent that the vehicle was used for hire purpose and for this reason the Ops has repudiated the claim based on that ground. The information of repudiation was duly intimated to the complainant by issuing letter dated 17.4.2010. The Ops has further stated this case is not maintainable due to defect of parties as in the claim application the complainant has submitted that she is only the legal heir of the alleged victim but during investigation a Xerox copy on affidavit has been produced before the Investigator from where it is revealed that the mother of the alleged victim is alive. Moreover the vehicle was hypothecated to the Bank of India. Therefore as per the terms and conditions of the hypothecation policy it was the duty of the complainant for making Bank a necessary party in this proceeding. As if any amount is awarded by this ld. Forum the same should go in favour of the financier. The OP has submitted that the contract of insurance is a contact of good faith and trust. In the claim application the complainant did not provide proper and true information about the facts of the accident. After lapse of more than two months intimation was given by
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the complainant to the Op. But according to the insurance policy the intimation should have been given within 30 days from the date of occurrence. For this reason the Op has correctly and properly repudiated the claim of the complainant. Moreover as there was breach of trust/contract on behalf of the insured hence, the complainant is not entitled to get any relief or claim from the OP. As the repudiation letter was duly received by the complainant, there was no deficiency in service as well as unfair trade practice on behalf of the Insurance Company/Op and the repudiation cannot be termed as deficiency in service. According to the OP the complaint is liable to be dismissed with exemplary cost.
The complainant has filed evidence on affidavit with a copy to the other side. Both parties have filed several documents in respect of their contentions. There are some admitted facts in the case in hand, i.e. the husband of the complainant, since deceased, purchased one Tata Sumo, insured with OP, the insurance policy was valid for the period from 23.7.2009 to 22.7.2010, within the validity period an accident occurred on 04.8.2009 on Durgapur Expressway within the PS Singur, one truck dashed the said vehicle from behind, due to said accident the husband of the complainant got severe injuries which were fatal, primarily though he was treated at Singur Health Centre but later he was brought to Apollo Gleneagles, Kolkata where he expired on 13.8.2009, the couple has no issues, the complainant is only the legal heir of the deceased, but the Op has stated that during the relevant period the mother of the deceased was alive, Post Mortem was done on 15.8.2009, on 26.10.2009 the complainant got the death certificate from Kolkata Municipal Corporation, FIR lodged, police case started, which is pending, due to accident the alleged vehicle got severe damage, for its necessary repairing it was brought to the authorized service centre of Tata Motors, Asansol who gave one estimate to the tune of Rs. 1,35,150/- for repairing of the damaged vehicle, the information of the accident was duly informed by the complainant to the Op, claim form issued, claim lodged, the claim was repudiated on 17.4.2010 by the OP. The allegation of the complainant is that the action of the Insurance Company suffers from deficiency in service as well as unfair trade practice as the ops did not pay her legitimate insurance claim as prayed for. On the contrary the
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defense case of the OP is that the information of the alleged accident was given by the complainant much later from the date of accident, though the policy was taken under the nomenclature of private car policy but the same was used for hire purpose. According to the Op as the complainant has breached the terms and the conditions of the policy and used the vehicle insured for hire purpose, hence the claim was rightly and properly repudiated by it and as the same was intimated to the complainant there is no deficiency in service and unfair trade practice on its part and hence the complaint shall fail.
Upon careful perusal of the record as well as the documents filed by the parties it is seen by us that admittedly the husband of the complainant, since deceased, obtained one Insurance Policy from the OP for his vehicle, namely, Tata Sumo. On 04.8.2009 while the husband of the complainant was going to Kolkata for his business purpose within Singur PS on Durgapur Expressway an accident took place when a truck dashed the insured vehicle from behind. Due to this reason the husband of the complainant being the driver at that point of time got fatal injuries and ultimately he died on 13.8.2009 in Kolkata. Post Mortem was done. Death certificate was issued on 26.10.2009 stating that the husband of the complainant died due to accident. As the vehicle was insured being the nominee, as well as, the legal heir of the deceased, the present complainant intimated the Insurance Company about the accident and the death of the owner of the vehicle being her husband. Claim was lodged by her along with relevant papers and documents but ultimately the claim was repudiated by the Insurance Company stating that the vehicle was used for hire basis during relevant period. According to the Op as the policy was taken for private car package policy and as the same was used for hire purpose the claim cannot be payable. During argument the ld. Counsel for the OP has mentioned that after lapse of more than two months the intimation was given about the said accident, which cannot be entertained as per policy condition because the complainant was under obligation to inform the matter within 30 days to the OP. But the same was not done. In this respect we are to say that it is evident from the record on 15.9.2009 the complainant during initiation has prayed for condonation of delay on the ground that due to sudden and premature death of
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her husband she became perplexed for a quite considerable period and she got the death certificate on only 26.10.2009. As the Insurance Company knowing this ground issued the claim form to the complainant for lodgment of a complaint, hence, now the OP cannot take shelter under the plea that intimation was not given within the due period. It was very much known to the Op that truly the complainant did not intimate the OP within the specified period about the accident but inspite of knowing the same as her intimation has been accepted and claim form issued now the OP is estopped to raise this question at this juncture. Moreover in the repudiation letter there is no whisper that the complainant intimated the OP not within the specified period and on that score her claim has been repudiated. Therefore, delay intimation cannot be a ground for repudiation of a claim and while repudiation has not been made by the OP on that score. During hearing the ld. Counsel for the OP has further stated that the repudiation has been done properly and correctly and for this reason there is no deficiency in service on its part. In this respect we are of the view thought the repudiation has been made on the ground that the vehicle was used for hire purpose at the material point of accident though the policy was taken as private car package policy, but in this context no iota of evidence has been adduced by the OP in support of such repudiation /contention. On the contrary, the documents show that at the material point of time the husband of the complainant was driving the said vehicle being its owner and there was no other person in the said vehicle. If we accept the averment of the Op for the sake of argument then we do not find any document that where the driver got fatal injuries, the insured vehicle got severe damage but no other person got injury or succumb to death. The FIR does not reveal the same. As the burden of proof in this context lies on the shoulder of the OP hence the Op has miserably failed to prove that the husband of the complainant since deceased used the victim vehicle for hire purpose. For this reason the repudiation as made by the Op is not justified and repudiation of a legitimate claim in an arbitrary manner of course proves the deficiency in service of the Insurance Company. The Op has taken one pleas that this complaint suffers from mis-joinder and non-joinder of necessary parties, but in view of Moloy Ganguly’s Case (Supra) no complaint shall be dismissed. Therefore we are unable to dismiss this complaint on that score only. As the complainant without getting her legitimate claim has filed this complaint before the court of law and
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incurred some cost, in our view the complainant is entitled to get some litigation cost from the Op and as the Op has illegally and arbitrarily repudiated the claim and for this reason the complainant is suffering from mental agony, harassment, as well as, financial stringency, in our view the complainant is also entitled to get some amount towards compensation. Not only that due to paucity of fund the damaged vehicle is lying at the service centre for a prolonged period due to such inaction of the OP.
Going by the foregoing discussions, hence, ordered, that the complaint be allowed on contest with cost. The OP is hereby directed for making payment of Rs. 1,35,150=00 as prayed for towards the repairing cost of the damaged vehicle within a period of 45 days from the date of passing of this judgment, in default, the abovementioned amount shall carry interst@8% per annum for the default period. The OP is further directed to make payment a sum of Rs. 3,000=00 towards compensation due to harassment, mental agony and Rs. 1,000=00 as litigation cost to the complainant within a period of 45 days from the date of passing of this judgment, in default, the complainant will be at liberty to approach before the Executing Forum as per provisions of law. With the above-mentioned observation the complaint is thus disposed of accordingly.
(Udayan Mukhopadhyay)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
