Order-20.
Date-03/01/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the Complainant in short is that he was the registered owner of a vehicle No. OR15J 5919. The vehicle was covered under a motor insurance policy issued by the OP being Policy No. 10180031126300003606 for the period 28.12.2012 to 27.12.2013, sum assured Rs.7 lakhs. On 16.05.2013 the vehicle met with a major accident near Fatehpur, Gaya, Bihar and sustained heavy damages. At the time of the accident the vehicle was being driven by Arjun Yadav, since deceased who held a valid driving license, valid upto 10.02.2016. The Complainant immediately on 17.05.2013 informed the OP – Insurance Company regarding the accident which took place on 16.05.2013 and requested for a spot survey at the earliest in respect of the insured vehicle which had met with an accident. The subject vehicle was under police custody and the Complainant also vide letter dated 20.03.2015 informed Claim Hub about it. The Insurance Companyalso duly informed after obtaining release of the vehicle. The release of the vehicle was obtained on or about 19.06.2015 by an order of Judicial Magistrate First Class, Gaya and OP also informed Insurance Company vide letter dated 06.07.2015 and requested for appointment of vehicle surveyor. The Complainant lodged a claim with the Insurance Company vide their claim form dated 26.06.2015. On inspection and assessment, it was found that repair cost would be more or less Rs.19,05,500/- i.e. cost of repair more than the sum insured. In the meantime subject survey was alsoinspected by Mr. K.N.Singh, Surveyor appointed by the Insurance Company. Report duly prepared by Gaya Office was sent Kolkata Office, of the Insurance Company, as wasintimated to the Complainant vide Memo dated 22.07.2015. The Complainant thereafter pursued the matter vide letter dated 28.07.2015, in such communication the Complainant requested the Insurance Company to appoint final Surveyor and settle the claim. The Insurance Company thereafter, informed the claimant that the company finally appointed one Mr. Kaushik Saha as the final Surveyor vide letter dated 10.08.2015. The Complainant thereafter vide letter dated 13.10.2015 requested the Insurance Company to settle the long pending claim, but there was no response from the Insurance Company. The Complainant also caused service of legal notice dated 05,.02.2016 on the OPs. The OP vide its letter dated 12.02.2016 repudiated the claim without any legal base and in capricious manner. Hence this case.
OP Nos. 1 and 3 have contested the case in filing W.V. contending inter alia that in the spot survey report of K.N. Singh, Surveyor, has stated that the subject vehicle became imbalanced to save an animal and collided with road site tree and finally the subject vehicle turned down in a road side pit and as a result the vehicle was severely damaged. It is also stated that after prolonged discussion with the insuredrepresentative it was agreed by the Complainant to accept the loss on net loss basis of Rs.4,40,000/- . It is also stated that as per FIR and other papers the vehicle was being driven by Lalji Yadav, driven at the material time of accident. But as per claim form and the letter submitted by the insured, the driver was Sri Arjun Yadav and this is nothing but misrepresentation of the fact. It is also stated that as per the claim report, Sri Lalji Yadav was under the influence of alcohol. P.M. Report also confirmed the presence of alcohol smell in the stomach and intestine of the driver. These OPs have prayed for dismissal of the case.
Point for Decision
1) Whether OPs have repudiated the claim rightfully?
2) Whether the OPs are deficient in rendering services to the Complainant?
3) Whether the Complainant are entitled to get any relief as prayed for?
Decision with Reasons
We have perused the document on record, i.e. photocopy of Certificate of Registration. photocopy of certificate of insurance, photocopy of driving licence in the name of Arjun Yadav, photocopy of letter dated 17.05.2013 informing the OP Insurance Company about the accident on 16.05.2013, photocopy of letter dated 20.03.2015 for release of the subject vehicle, photocopy of letter dated 6th July,2015 for appointment of surveyor, photocopy of Motor Claim Form, photocopy of Estimate for Repair of Bhandari Automobiles Pvt. Ltd., photocopy of certificate of Survey performed by K.N.Singh dated 23.5.2013, photocopy of final certificate report, photocopy of repudiation letter, photocopy of FIR and other documents on record.
It appears that vehicle No. OR 15 J 5919, was covered by a valid Motor Insurance Policy being Policy No. 10180031126300003606 duly issued by the OP on the date of accident. The said vehicle, during the subsistence of insurance policy, met with major accident on 16.05.2013 near Fathepur, Gaya, Bihar and suffered severe damages. The matter was duly reported in the office of the OP on 17.5.2013. It also appears that spot survey was conducted at the instance of the OP by a licensed Surveyor, Mr. K.N Singh, who duly submitted a Survey Report dated 23.05.2013. The Complainant insured vide letter dated 26.06.2013, submitted Motor Claim Form and all necessary documents regarding the insured vehicle claim of sum of Rs.19,05,500/-. It is argued from the side of the OP that the Complainant submitted a claim form on 26.06.2015 after a lapse of 02 years for appointment of final surveyor, whereas as per the policy condition information about accident along with other formalities to be provided to the Company immediately on completion of the spot survey.
We find that the subject vehicle was seized by the Gaya Police and it was released op 19.06.2015 as per order of the Juducial Magistrate First Class, Gaya. Moreover, the Complainant informed the Insurance Company immediately on 17.05.2013 regarding accident which took place on 16.05.2013. We also find that the Complainant informed that the subject vehicle was under Police custody vide letter dated 20.03.2015 and after release of the vehicle the Complainant submitted the Claim Form before the OP. We think that it is continuing cause of action and Complainant had reasonable ground for the delay in submitting the Claim Form with the OPs. We find that the Complainant persuaded the matter vide letters dated 18-07.2015, 13.10.2015 and by legal notice dated 05.02.2016. It appears that the Insurance Company alleged that Arbind Jadav was not the driver of the vehicle at the time of the accident and one Lalji Yadav drove the vehicle at the material time and Lalji Yadav was under influence of liquor. We find from the copy of the PM Report that both Lalji Yadav and Arjun Yadav were killed in the accident. It cannot be said that on the date of accident the vehicle was being driven by Lalji Yadav and not by Arjun Yadav. Be that as it may, the quantum of alcohol has not also be determined by any separate test and the quantum of alcohol presence in the stomach of the deceased has not also been mentioned by the PM Doctor. Be that as it may, we find that the OP has filed a final Survey Report assessing loss on net loss basis of Rs.4,40,000/-.We also find that the Complainant is agreeable to receive the claim on ‘net loss’ basis of Rs.4,40,000/- as full and final settlement (Letter darted 30.11.2015 of the Complainant referred to).
The mere alleged smell of alcohol as notedin the PM Report allegedly to be of Lalji Yadav, the driver, does not go to establish in any manner whatsoever that the alcohol level in blood was enough to influence the driving skill of a driver.
We find that the Insurance Company had discussed a settlement with the insured at Rs.4,40,000/- on ‘net loss’ basis. Thus, it is established that the liability under then Insurance Policy is admitted. The Insurance Company is estopped from taking any contradictory stand at this belated stage. We also find that the vehicle was driven by paid driver, Arjun Yadav who was holding a authorized driving license and such license had been duly attached by the Police in their final report. The name of such driver appears in exhibit X-1and also in exhibit X-2. The veracity of the accident is not at all in dispute. Insurance Company also had full knowledge that the vehicle was in Police custody after the accident as usual. We think that there is no fundamental breach by the insured in the mater so as to prejudice his insurance claim in any manner whatsoever.
We think that the Complainant is entitled to get Rs.4,40,000/- on ‘net loss’ basis.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OP with a cost of Rs.10,000/-.
OPs are jointly and severely directed to pay an amount of Rs.4,40,000/- to the Complainant on ‘net loss’ basis, within one month from the date of this order. In default, complainant will be at liberty to put the order into execution and in that event OPs shall be liable to pay a penal damage of Rs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree
