Today is fixed for delivery of final order (Ex-parte).
The complainant on 22.07.2022 has filed a complaint case U/s 35 of the Consumer Protection Act, 2019.
The complainant’s case, in brief, is that the complainant is a owner of a MAHINDRA & MAHINDRA Pik-up, vide Registration No:-WB59C/8274. The complainant duly insured the vehicle being No:-WB59C/8274 by paying proper insurance premium vide Group Policy No:-201330140421800033300000, to the O.Ps. On 01.04.2022 at about 11:30 p.m the complainant and his helper (Khalasi), namely, Tapan Saha was coming with vehicle No:-WB 59C/8274 from Malda to Gazol then the alleged accident was occurred at Nityanandapur Bypass Petrol Pump under P.S Malda. The complainant also stated that the accident was occurred for rash driving of another vehicle No:-W.B67A/3196 and due to this accident the Khalasi Tapan Saha had died and the complainant received bodily injury. After that the complainant was admitted to Govt. Medical College and thereafter he was admitted to Star Nursing Home at Raiganj.
On 02.04.2022 one complaint was lodged regarding this accident vide Malda P.S Case No:144/2022, registered as GR Case No:-1942/2022 U/s 279, 304A, 427 IPC.
After some time the complainant informed the matter to the O.Ps and supply all the documents and complete the formalities for getting insurance benefit. The complainant visited the local Branch Office of O.Ps but the O.Ps several times gave him false hope that the amount claimed by the complainant will be disbursed shortly. But on 17.05.2022 the O.P/Insurance Company informed the complainant by a letter that the Company is repudiating the Insurance claim of complainant. After receiving the letter the complainant visited the local branch office of O.Ps but he was insulted by filthy language by the O.Ps. Due to the negligent act of the O.P he has suffered loss and injury due to deprivation, harassment, mental agony & loss of professional or business practice, for which he is entitled to get compensation.
The complainant filed this complaint with prayer to pass order of Rs.7,63,668/- as damage claim amount with interest, Rs.80,000/- as compensation for deficiency of service and Rs.8,000/- as litigation cost.
As per report of Postal Track Consignment “item delivery confirmed”, deemed due service but O.P.No-1 did not appear. Accordingly, this case was heard ex-parte against the O.P.No-1. The postal envelope of O.P.No-2 was returned with the remarks of Postal Department “Left-returned to sender”& on the prayer of the complainant O.P.No-2 was expunged.
D e c i s i o n w i t h r e a s o n s
In support of the case the complainant has submitted examination-in-chief supported by an affidavit and filed some xerox copies of documents.
It is not disputed that the complainant is the registered owner of the vehicle bearing No:-WB59C/8274 and the vehicle was duly insured with O.P/ Insurance Company at the time of accident dated 01.04.2022.
It is also not disputed that in alleged accident dated 01.04.2022 Tapan Saha was severely injured and taken to Malda Medical College & Hospital and attending Doctor declared him brought dead.
We have to ascertain who was driving said vehicle bearing No:-WB59C/8274 on the date of accident dated 01.04.2022.
According to complainant/Khokan Sarkar, he was driving said vehicle on 01.04.2022 and Tapan Saha was helper/khalasi of said vehicle.
We have no opportunity to hear Tapan Saha, being dead so we have to take help of documents, which are discussed hereunder:-
One Goutam Saha lodged written complaint/FIR regarding that accident, registered as Malda P.S Case No:-144/2022 dated 02.04.2022 vide GR Case No:-1942/2022 U/s 279, 304 A, 427 of IPC, describing his nephew Tapan Saha as Co-driver of said vehicle and on the date of accident Tapan was khalasi of said vehicle, but who drove said vehicle on 01.04.2022 was not disclosed.
Witnesses, namely, Nitai Ghosh, Buddhadeb Shil & Utpal Mandal stated to the IO that due to accident Bolero vehicle’s Khalasi Tapan Saha received serious bleeding injuries. The name of driver of Bolero vehicle is absent in their statement. Khokan Sarkar/complainant alone stated to the IO that on 01.04.2022 in the night at about 11:30 p.m he and Tapan Saha (Khalasi) were going to Gazol from Malda with Bolero vehicle bearing No:-WB59C/8274 which met with accident as a result he and Tapan Saha were injured and Tapan had died. There exits lack of corroboration, as needed on examination of Goutam Saha (FIR maker) & above mentioned witnesses to prove conclusively that he (Khokan Sarkar ) was driving the Bolero car on 01.04.2022.
The case was ended in charge sheet/final report against accused Jahangir Sekh @ Tinku, driver of offending truck bearing No:-WB67A/3196. Have a look at charge sheet/final report No:418/22 dated 18/07/2022 U/s 279, 338, 304, 427 IPC. Col No:-17/Contd….(Separate Sheet) runs as:-
that at about 23:30 hrs while the complainant’s nephew, namely, Tapan Saha was going towards Gazol side by driving one Bolero vehicle bearing No:WB59C/8274, on the way at Nitanandapur bypass near petrol pump under Malda P.S suddenly brake the said truck in front of said Bolero car with rush and negligent manner, as a result met an accident with the both vehicle, resulting Tapan Saha (driver of Bolero car) received serious bleeding injuries and the Bolero car has been damaged, immediately brought him to MMC & Hospital by the help of local people where the attending Doctor declared that he died. On 30.05.2022 Bed Head Ticket of injured Khokan Sarkar was collected from MMC & Hospital and also collected his injury report from Star Nursing Home, Raiganj.
Admittedly, the Insurance Company repudiated the claim of the complainant by letter dated 17th May, 2022 after consulting the available records (Police report) as well as investigation report wherefrom it revealed that at the time of accident complainant’s helper Tapan Saha was driving the insured vehicle, having no valid driving license, which attracts General Exception Clause 3 (b) & Condition 8 of the Insurance Policy.
Under the above we find no deficiency of service on the part of Insurance Company, and the Insurance Company shall not be liable to make any payment under the insurance policy in respect of any expenses whatsoever incurred as repair charges of the damaged insured vehicle, as done by the complainant at his own choice, consequently the complainant is not entitled to get relief as prayed for.
Hence, it is
O r d e r e d
that the C.C-54/2022 be and the same is dismissed against the O.P without any cost.
Let a copy of this order be given to the complainant free of cost.
