Order-14.
Date-18/08/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that complainant is the owner of vehicle bearing Commercial Registration No.WB 07 J 1838 (Tata Indica EVS LS) and the said car was brought by the complainant on loan amounting to Rs.4,33,000/- from ICICI Bank Ltd. in the month of September, 2015. OP is a General Insurance Company and insured the said vehicle of the complainant and the period of policy was from 10.00 hours of 15-09-2016 to midnight of 14-09-2016. The vehicle of the complainant on 13-01-2016 met with a severe accident and was damaged beyond repair and at the relevant time of accident, the driver of said vehicle namely Raja Singh who was driving the car having Commercial Driving License No.WB 0120130982647. After the accident the car met with severe damage and was seized by the police and the same was taken to Phoolbagan P.S. and Phoolbagan P.S. registered a Specific Case being Phoolbagan P.S. Case No.16 of 2016 dated 14-01-2016 u/s. 279, 427 of I.P.C. and kept the same vehicle in severe damaged condition at Phoolbagan P.S. compound. The complainant took return of the said vehicle subsequently as per order of the Ld. ACJM, Sealdah. But vehicle at the time of accident was insured under Magma HDI General Insurance Company vide Policy No.P0016400023/4103/100300. The complainant, thereafter, registered insurance claim over telephone on the insurance helpline number and received claim No.vide C/16/400002/4103/2/05084801 and was assured by the OP to settle the claim within a short time. The complainant, thereafter, went to Tata Service Centre of KB Motors Ltd. for the insurance claim process and survey. After inspection the Tata Workshop said that the vehicle was beyond repair due to severe damage and the complainant claimed for total loss of the vehicle as per the policy. The case of the complainant is that the insurance declared value of the car was for Rs.4,31,127/- by Magma HDI General Insurance Company Ltd. itself and the OP declared the said car as total loss;. Thereafter, in the first week of February, 2016 the survey of the vehicle was appointed by the Motor OD claims, Assistant Manager, Arindam Chakraborty of Magma HDI General Insurance Company Ltd. emotionally the investigation of the accident was completed by Mr. Prasanta Ghosh on 17-02-2016 and all relevant documents of the car and driver, police and court were submitted to the OP. The investigator assured the complainant that the claim would be settled within 15 days but there was no response from the OP. On 08-03-2016 the complainant received a call from Arindam Chakraborty of the OP stating that the claim will be rewarded within the said week. But, thereafter, there was no response from the OP. The complainant was waiting for months but received no reply. The complainant in the month of August, 2016 received a letter from the OP that the claim of the complainant has been rejected by them as the driver Raja Singh’s license was invalid at the time of the accident. He also stated that OP verified from the RTO that the license of the said driver was invalid. The complainant became astonished and could understand that the OP has taken such plea to avoid the claim. The complainant has alleged deficiency of service against the OP. It is stated that the said car of the complainant was the only source of livelihood of the complainant and the OP intentionally repudiated the claim on false ground. It is stated that the activities of the OP amounts to deficiency in service. The complainant has prayed for payment of the value of the car as total loss along with other reliefs in terms of prayer of the petition of complaint.
OP has contested the case in filing written version contending, inter alia, that the case is not maintainable in its present form and prayer. It is stated that as per the registration certificate the insured vehicle is a public career. The vehicle was financed by ICICI Bank Ltd. and the complainant did not make the financier of the vehicle as the party to the instant case and the case, as such, suffers from non-joinder of necessary party. On receipt of claim intimation the OP provided the claim number to the insured and conducted investigation through a professional investigator, Mr. Prasanta Ghosh. It is alleged that at material point of time the driver was drove, the vehicle without having any authorization on driving license to drive such class of vehicle. The driver did not possess CAB license or he did not hold a batch number issued by the Licensing Authority. The OP repudiated the claim of the insurance on 20-07-2016. It is stated that there is no deficiency in service on the part of the OP. It is stated that liability of the insurance company is always subject to due fulfillment of the policy. This OP has also denied all the allegations in the petition of complaint. This OP has prayed for rejection of complaint.
Point for Decision
- Whether OP is deficient in rendering service to the complainant?\
- Whether the repudiation is bad in law?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We take all the issues together for discussion for the sake of convenience of discussion.
Let us take a glance towards the documents on record i.e. Xerox copy of insurance policy, Xerox copy of road tax, Xerox copy of permit, Xerox copy of statement of accounts, Xerox copy of extract of driving license by Licensing Authority, Xerox copy of vehicle particulars of registering authority PVD, Salt Lake, Xerox copy of registration, Xerox copy of repudiation letter dated 12-08-2016, Xerox copy of letter dated 07-12-2016 addressed to OP by the complainant, Xerox copy of emails on different dates and other documents on record as filed from the side of the complainant.
We have also perused the Xerox copy of motor insurance claim form duly filled in, Xerox copy of investigation report, Xerox copy of letter dated 16-02-2016 addressed to OP and other documents as filed from the side of the OP.
It appears that OP issued an insurance policy bearing No.P0016400023/4103/100300 in favour of the complainant in respect of the vehicle No.WB – 07/J 1838 (Tata Indica Luxury Taxi) valid from 15-09-2015 to 14-09-2016 and IDV of the said vehicle car was Rs.4,31,127/-. It also appears that as per the registration certificate of Insured vehicle is on public carrier. We also find that the complainant obtained permit from State Transport Authority, West Bengal and the permit is valid up to 09-02-2021. So, it also appears that the complainant had valid permit to use the same for commercial purpose. It has been stated from the side of the complainant that the complainant is an unemployed youth and the said car is the only source of livelihood of the complainant.
It has been alleged by the OP that the driver was not possessing the valid driving license to drive such class of vehicle but from the documents on record as well as the extract of the driving license issued by the registering authority PVD, Salt Lake, it appears that the license of the driver was very much valid and the same was verified from the RTO. So, we think that the driver was very much authorized to drive the vehicle in question. The driver as we find authorized to drive LMV known transport w.e.f. 17-05-2013 and LMV (Commercial) w.e.f. 05-01-2016 i.e. 8 days earlier from the date of accident. Moreover, from the report of investigator it also appears that the DL of the driver is genuine. So, we think that the plea of the OP that the driver had no valid license has no leg to stand. Moreover, there is nothing in the terms and conditions of the subject policy that the driver must have CAB license or he must hold a batch number issued by the licensing authority. We think that OP repudiated the claim of the insured without any valid or acceptable ground. Moreover, we find that the complainant claimed for the total loss of the said vehicle as per the policy of insurance. It is stated that TATA workshop declared the said vehicle beyond repair condition due to severe damage. There is no contrary evidence or fact coming from the side of the OP or from the report of investigator.
Admittedly, the vehicle was financed by the ICICI Bank Ltd. but the complainant did not make the financier of the vehicle as party to the instant case. As the vehicle in question is hypothecated to ICICI Bank Ltd., ICICI Bank is virtually the owner of the car till the loan is liquidated. So, we think that it would be fit and proper to release the claim of the complainant regarding IDB of Rs.4,31,127/- in favour of ICICI Bank Ltd. Consequently, the case merits success.
Hence,
Ordered
The instant case be and the same is allowed on contest against the OP.
OP is directed to release the IDB of the vehicle of Rs.4,31,127/- vide cheque in the name of ICICI Bank Ltd., within one month from the date of this order apart from litigation cost of Rs.10,000/- in favour of the complainant. Cheque may, however, be handed over to the complainant for depositing before the said Bank as Bank is not made a party.
OP, however, reserves the right to take the corpses of damaged car. Complainant is directed to hand over the corpses and/or parts of damaged car to the OP within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision in C.P. Act.
