Ld Advocates for the complainant and OP are present. Judgement is ready and pronounced in open Commission in 8 pages and 4 separate sheet of papers.
BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case are that the Complainant is a law abiding citizen of India and the Nominee in respect of the Bundled (Comprehensive) Insurance Policy No. P0019400019/4113/100810 valid from 10.01.2019 to 09.01.2020 (T.P. up to 09.01.2024) in respect of the new vehicle being Registration No. WB-30AC-4699 (Motor Cycle) having Engine no. 893862735 & Chassis no. MD2JPJYEXJC286066 in the name Debasis Manna, since deceased, the son of the Complainant and so is a Consumer of the Opp. Party by virtue of the above stated Insurance Certificate as purchased. Debasis Manna, since deceased purchased the Insurance Bundled / Package Policy for value as issued by the O.P. on 10.01.2019 being the Policy No. P0019400019/ 4113/100810 with IDV (Insured’s declared value of Rs. 2,32,131.00 of the vehicle and the Opp. Party-Insurance Co. also received Rs. 100/- towards compulsory PA Owner-Driver towards personal accident coverage and Rs. 750/- towards PA Owner-Driver for Rs. 15,00,000/- and the Complainant is the nominee of the Insured son Debasis Manna who died in a Motor Vehicular Accident on 27.11.2019. The O.P. never supplied their terms and conditions of insurance Policy along with the Certificate of Insurance cum Schedule as they stated and referred. On 27.11.2019 while the son Debasis Manna along with his friend Imran Rahman were returning from Deulti by the said Motor Cycle WB-30AC-4699 through NH6 from Deulti side to Kolaghat side along the left side of the road and when they were about to reach Kolaghat on the Bridge then suddenly one Maruti Van bearing Regn. No. WB-30P-0247 which was also coming in the same direction recklessly and in a negligent manner and the driver of the said Maruti Van bearing Regn. No. WB-30P-0247 lost his control and dashed the Motor Cycle of the Complainant's son with great force and they fell down on the Bridge over NH6 and were seriously injured and while they were taken to the District Hospital at Tamluk, the Doctor of the said Hospital declared both of them as brought dead and post mortem was held there. A Police Case was started vide Kolaghat P.S. Case No. 485/19 dt. 29.11.19 U/s. 279/427/ 304A of the I.P.C.Owing to the impact of the said accident the insured vehicle was totally got damaged being not worthy of repairing the same i.e there is the total loss in respect of the vehicle / Motor Cycle, the IDV of which is Rs. 2,32,131.00. Theclaim was lodged for the accidental death as well as for the loss / damages of the Motor Cycle before the O.P. vide their Claim No. C1204113108606 under the above stated Policy. One letter dt. 30.09.2620 was sent in the name of the deceased Debasis Manna by the Opp. Party in respect of the claim stated above wherein they have referred Clause 2(C) of Policy as ‘Any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of Intoxicating liquor or drugs’ and repudiated the claim on the stated flimsy, illegal ground which they cannot. Such repudiation is totally baseless, without any bonafide cause and illegal. The Claimant - Complainant being the nominee of his deceased son Debasis Manna is legally entitled to get and receive the assured Personal Accidental claim of Rs. 15,00,000.00 and the total loss claim of the insured vehicle amounting to Rs. 2,32,131.00 along with others as per schedule below. The Complainant submits that such denial is beyond the all the norms of trade practice, imaginary and far from the truth and made by practicing unfairness only to deprive the Complainant from his lawful claim. Owing to such denial and unfairness on the part of the O.P, the Complainant is suffering from several financial losses and mental agony. Untimely tragic accidental death of his earning dependable son caused irreparable loss to the family.The claim of compensation and/or redressal of grievances of the complainant are within the jurisdictional limit of this Ld. Commission. The complaint related to the deficiency of service as well as unfair trade practices of the Opp. Party in not making any payment towards PA Claim and the total loss of the Motor Cycle and/or not making payment of the legitimate insurance claim of the Complainant covered by the Policy of Insurance issued by the O. P. The activities and attitude of the Opp. Parties are very much illegal and malafide for the reason that by virtue of selling such Package Insurance Policy the Insurer is under the legal obligation to indemnify the Insured in all eventualities. The Opp. Party is solely liable for the loss and injuries;the Complainant is suffering on each and every day due to their denial attitude towards complainant. The cause of action of this case originally arisen on 10.01.2019, the date of issuance of the Insurance Policy and thereafter on 30.09.2020, the date of issuance of the repudiation / disclaim letter by the O.P. as received subsequently and thereafter day to day within the jurisdiction of this Commission.Save and except this Complaint case the Complainant has not preferred any other proceeding in anywhere in respect of the same matter or cause of action. In the above facts and circumstances of the case the complainant prays for the following reliefs; Direction upon the Opp. Party for making the PA (Personal Accidental) Claim to the named nominee, the Complainant amounting to Rs. 15,00,000.00, direction upon the Opp. Party for making the IDV (Insured’s declared value) i.e. the total loss claim of the insured Motor Cycle under the Policy of Insurance issued by the O.P. amounting to Rs. 2,32,131.00,damages for harassment, mental pain and agony assessed at Rs. 50,000.00, Costs of the present proceeding and any other relief(s) as the complainant is entitled to in the facts and circumstances of this case.
The op has contested the case by filing written version stating inter alia that the complaint filed by the Complainant is not maintainable in law and in the present form and prayer. It is not admitted that on 27.11.2019 while the son Debasis Manna alongwith his friend Imran Rahaman were returning from Deuli by the said Motor Cycle WB-30AC-4699 through NH.-6 from Deuli side to Kolaghat side along the left side of the road and when they were about to reach Kolaghat on the Bridge then suddenly one Maruti Van bearing Regn. No.- WB-30P/0247 which was also coming in the same direction recklessly and in a negligent manner, or that the driver for the said Maruti Van bearing Regn. WB-30P-0247 lost his control and dashed the Motor cycle of the Complainant’s son with great force and they fell down on the bridge over NH.-6 and when they were taken tothe District Hospital at Tamluk the Doctor of the said Hospital declared both of them as brought dead and post mortem was held here , or that police started vide Kolaghat P.S. case No.485/19 dt. 29.11.2019 u/s 279/427/304A I.P.C. The op has denied that the insured vehicle was totally damaged being not worthy of reappearing the same i,e there is the total loss in respect of the vehicle /Motor Cycle the IDV of which is Rs.2,32,131/-, or that the claim was lodged for the accidental death as well as for the loss / damages of the Motor Cycle before the O.P. vide their claim No.C1204113108606,or that the company rejected the claim in flimsy ground, or that the repudiation is total baseless without any bonafide cause and illegal the claimant Complainant being the nominee of his deceased son Debasis Manna, or that he is entitled to and received the assured Personal Accidental Claim of Rs.15,00000/-, or that loss claim of insured vehicle amounting to Rs.2,32,131/-.The prayer of the complainant is improper, illegal and unjust. On intimation of accidental damage of the vehicle bearing No.WB38D-5845 by the complainant there was spot survey by the surveyor from the side of this opposite party and thereafter final survey was doneby Pradeep Yadav surveyor and loss assessor being deputed by the O.P. Insurance Co Ltd who in order to survey and assess the loss visited in the workshop of the repairer and contacted the complainant and noted the damages and took necessary photographs.Through the final survey Pradeep Yadav submitted his final independent survey report assessing the loss to the tune of Rs.76,334/-(Rupees seventy six thousand three hundred thirty four ) only on repair basis including total depreciated parts cost inclusive of taxes and other levis of Rs.76,334/- (Rupees seventy six thousand three hundred thirty four) only. According to policy terms and condition the complainants entitled to get the claim of Rs.76,334/- (Rupees seventy six thousand three hundred thirty four ) only and as per policy condition as well as following instruction of India motor tariff that although the assessment was totally stand of Rs.76,334/- (Rupees seventy six thousand three hundred thirty four) only as per cost of damage parts including taxes and other levis and according policy terms and condition and according to calculation of survey report the complainant net claim is stands of as towing charges in total of Rs.76,334/- (Rupees seventy six thousand three hundred thirty four) only as damage claim of damaged vehicle bearing No. WB-30AC-4699 (Bajaj KTM).According to survey report of independent surveyor Pradeep Yadav approved the amount of Rs.-51,226/- (Fifty one thousand two hundred twenty six ) only which is assessed by the surveyor against the estimated claim amount of Rs.-76,334/-(Rupees seventy six thousand three hundred thirty four ) only.It is the case of the op that the alleged damaged vehicle bearing No.-WB-30AC/4699 was being driven by the insured in rash and negligent driving under the influence of liquor Copy of annexure PM. is annexed herewith as a annexure No.-B.The insured was under the influence of liquor and driving the said insured vehicle in drinking condition and violated the clause of insurance policy mentioned in IMT. 18 provided always that in 2. “'No compensation shall be payable in respect of death or injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self-injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence or intoxicating liquor or drugs.” Copy of insurance policy terms and condition is annexed herewith as annexure No.-C .From the investigation report insured vehicle’s driver cum insured was driving under influence of liquor at the relevant time of the accident for which the complainant is not entitled to get any claim from the O.P. Magma HDI General Insurance Co Ltd and the complainant has misrepresented the material facts of the actual incident. As there is no deficiency of service form the side of the O.P. Magma HDI General Insurance Co Ltd. Asthe complainant suppressed the material facts the complainant’s prayer is not at all tenable and the same is liable to be dismissed with cost.
Upon reading the pleadings of both parties following points for determination are framed.
Points for determination are:
- Is the case maintainable in its present form and in law?
2. Is the Complainant entitled to get the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion forthe sake of brevity and convenience.
We have carefully perused and assessed the complaint supported by affidavit of the complainant, written version filed by op, evidence of both parties and other documents. We have anxiously considered the arguments advanced by the Ld.Counsel of rival parties.
Having regards had to the facts and circumstances of the case and evidence on record, it is evident that the complainant is theNominee in respect of the Bundled (Comprehensive) Insurance Policy No. P0019400019/4113/100810 valid from 10.01.2019 to 09.01.2020 (T.P. up to 09.01.2024) in respect of the new vehicle being Registration No. WB-30AC-4699 (Motor Cycle) having Engine no. 893862735 & Chassis no. MD2JPJYEXJC286066 in the name Debasis Manna, since deceased, the son of the Complainant . The Complainant being a nominee of the insured has alleged deficiency in service against the op insurer; the bundle of facts indicate that this case is maintainable in its present form and in law.
On scanning and evaluation of the evidence, it appears that the complainant has alleged on oath Policy for value as issued by the O.P. on 10.01.2019 being the Policy No. P0019400019/ 4113/100810 with IDV (Insured’s declared value of Rs. 2,32,131.00 of the vehicle and the Opp. Party-Insurance Co. also received Rs. 100that Debasis Manna, since deceased purchased the Insurance Bundled / Package /- towards compulsory PA Owner-Driver towards personal accident coverage and Rs. 750/- towards PA Owner-Driver for Rs. 15,00,000/- and the Complainant is the nominee of the Insured son Debasis Manna who died in a Motor Vehicular Accident on 27.11.2019. On 27.11.2019 while the son Debasis Manna along with his friend Imran Rahman were returning from Deulti by the said Motor Cycle WB-30AC-4699 through NH6 from Deulti side to Kolaghat side along the left side of the road and when they were about to reach Kolaghat on the Bridge then suddenly one Maruti Van bearing Regn. No. WB-30P-0247 which was also coming in the same direction recklessly and in a negligent manner and the driver of the said Maruti Van bearing Regn. No. WB-30P-0247 lost his control and dashed the Motor Cycle of the Complainant's son with great force and they fell down on the Bridge over NH6 and were seriously injured and while they were taken to the District Hospital at Tamluk, the Doctor of the said Hospital declared both of them as brought dead and post mortem was held there. A Police Case was started vide Kolaghat P.S. Case No. 485/19 dt. 29.11.19 U/s. 279/427/ 304A of the I.P.C.Owing to the impact of the said accident the insured vehicle was totallygot damaged being not worthy of repairing the same i.e there is the total loss in respect of the vehicle / Motor Cycle, the IDV of which is Rs. 2,32,131.00. Theclaim was lodged for the accidental death as well as for the loss / damages of the Motor Cycle before the O.P. vide their Claim No. C1204113108606 under the above stated Policy. One letter dt. 30.09.2620 was sent in the name of the deceased Debasis Manna by the Opp. Party in respect of the claim stated above wherein they have referred Clause 2(C) of Policy as ‘Any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of Intoxicating liquor or drugs’ and repudiated the claim on the stated flimsy, illegal ground which they cannot. Such repudiation is totally baseless, without any bonafide cause and illegal. The Claimant - Complainant being the nominee of his deceased son Debasis Manna is legally entitled to get and receive the assured Personal Accidental claim of Rs. 15,00,000.00 and the total loss claim of the insured vehicle amounting to Rs. 2,32,131.00 along with others as per schedule below.
On the other hand the op has not denied the facts that Debasis Manna, since deceased purchased the Insurance Bundled / Package /- towards compulsory PA Owner-Driver towards personal accident coverage and Rs. 750/- towards PA Owner-Driver for Rs. 15,00,000/- and the Complainant is the nominee of the Insured son Debasis Manna who died in a Motor Vehicular Accident on 27.11.2019.It also admitted that the complainant submitted insurance claim which has been repudiated by the op.
It is the case of the op that the alleged damaged vehicle bearing No.-WB-30AC/4699 was being driven by the insured in rash and negligent driving under the influence of liquor Copy of annexure PM. is annexed herewith as a annexure No.-B.The insured was under the influence of liquor and driving the said insured vehicle in drinking condition and violated the clause of insurance policy mentioned in IMT. 18 provided always that in 2. “'No compensation shall be payable in respect of death or injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self-injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence or intoxicating liquor or drugs.” Copy of insurance policy terms and condition is annexed herewith as annexure No.-C .From the investigation report it was disclosed that insured vehicle’s driver cum insured was driving under influence of liquor at the relevant time of the accident for which the complainant is not entitled to get any claim from the O.P. Magma HDI General Insurance Co Ltd.
From the Repudiation letter( Annexure-2),it appears that op repudiated the claim on referring the ground contained in Clause 2(C) of Policy which reads as ‘Any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of Intoxicating liquor or drugs’. The foundation of such repudiation got generated from the Post Mortem Report of the corpse of Insured Debasis Manna (Annexure-5). Annexure -5 was prepared by Dr. Ashok Kumar Paria. The autopsy surgeon observed in column 4 stomach and in contents ‘empty, smell of alcohol found’. Now,the question arises,whether the op can prove its plea that driver Debasis Manna drove the vehicle under the influence of liquor falling in the mischief under Clause 2(C) of Policy which reads as ‘Any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of Intoxicating liquor or drugs’, basing on the said observation only or not. In the opinion of Dr. Ashok Kumar Paria the Death is due to extensive external and internal injury due to R T A leading to hemorrhagic shock. Here, the oprelied upon the note of the surgeon in PM column -4 stomach and in contents ‘empty , smell of alcohol found’. The surgeon has not indicated the consumption percentage of Ethyl alcohol in the blood. The physician statement , losses its significance in absence of affidavit of physician to that effect. There is no viscera Report or F S L Report indicating the consumption of prohibited degree of ethyl alcohol, in the body of the deceased at the time of accident. The mere reliance on the PM report, in the absence of affidavit of doctor, ipso facto,is not sufficient to dispel the proving of its onus. [(Rel.on- the decision of the case reported in 2022(2) CPR 20 ( HP)]. It is the defense of the op that the deceased wasunder the influence of liquor at the time of accident; so the onus totally lies upon it to prove same , it can not ask the complainant to furnish Viscera report or FSL report. Moreover, the Kolaghat PS charge sheet no-134/2020 dated 30.04.2020shows that during investigation it has prima facie been established that due to rash and negligent driving of the driver of the offending Maruti Omni namely Ganesh Maity, the accident took place. So ,prima facie the insured driver Debasis Manna had no fault for the accident. Therefore, the defense plea has got no leg to stand upon. Thus, the op caused Deficiency of Service by not entertaining the genuine claim of the complainant. The repudiation to that effect was not just and proper.
Now, coming to second limb of the claim, we find that the complainant has failed to establish that the insured suffered 100% loss or damage of the vehicle in question; he has failed to submit details about the present position of the vehicle in question. Admittedly, the op appointed surveyor for assessing loss.So, the op would have offered to pay Rs.51,226 as per final assessment of the surveyor instead of repudiation of the claim. This is also an instance of deficiency of service. By the acts and activities of the op complainant nominee , father of the deceased earning son suffered mental pain and agony. The Complainant is entitled to get assured PA value Rs. 15,00,000/- ( Fifteen Lakh only) and value of the damaged vehicle/ motor cycle assessed at Rs. 51,226/-along with simple interest @ 6% per annum from the date of filing of this case till full payment and the cost of litigation of Rs.5000/-from the op.
Resultantly, pointsfor determination are disposed of.
Thus, the case succeeds.
Hence, it is
O R D E R E D
That CC/68 of 2021 be and the same is allowed on contest against the op.
The OP is hereby directed to pay PA value Rs. 15,00,000/- ( Fifteen Lakh only) and value of the damaged vehicle/ motor cycle assessed at Rs. 51,226/- to the complainant.
The OP is further directed to pay simple interest @ 6% per annum over the said total amount of Rs. 15,51,226/-( 15,00,000/- + 51,226/-) from the date of filing of this case till full payment; and to pay Rs.5,000/- as towards the cost of litigation to the complainant.
The OP will comply the above directions within 45 days from the date of this order.
In default, the Complainant would be liberty to put the order into execution under section 71 of the C P Act 2019 or to initiate a proceeding under section 72 of the C P Act 2019.
Let a copy of the judgment be supplied to the complainant and the op free of cost.
