DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

     SOUTH 24 – PARGANAS,

    AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144

              C.C. CASE NO. 11 OF 2019

DATE OF FILING: 21.01.2019                 DATE OF PASSING JUDGEMENT: 20.08.2019   

Present                      :   President       :   Ananta Kumar Kapri

                                        Member         :   Jhunu Prasad

COMPLAINANT              :  Umma Salma Bibi, W/O – Anowar Hossain Laskar, Village – Suryapur, P.O. – Suryapur Hat, P.S. – Baruipur, Dist. - South 24 Parganas. 

• VERSUS   -

O.P/O.Ps                         :  1. Reliance General Insurance Co. Ltd., Himalaya House, 8^th Floor, 38 B, J.L. Nehru Road, Kolkata – 700 071.

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JUDGMENT

Sri Ananta Kumar Kapri, President

            The epitome of the facts leading to the filing of the instant case runs as follows.

            One Md. Anowar Hossain Laskar was the husband of the present complainant. He purchased a truck bearing no. WB-57C-7092 in his own name. The said husband of the complainant died on 17.06.2018. The truck also met with an accident on 11.07.2018 and got badly damaged. The complainant submitted a claim to the tune of Rs. 3,18,000/- on 12.07.2018 before the O.P. insurance company. The insurance company appointed an investigator who conducted investigation and submitted his report. Thereafter the claim of the complainant was repudiated by the O.P. insurance company on the ground that the policy condition no. 1 was violated, as the vehicle was over seated at the time of accident and as there has been no information given to the insurance company by the complainant about the death of the insured i.e. her husband. So, the complainant has filed the instant case praying for damage etc alleging deficiency in service on the part of the O.P. insurance company.

            O.P. insurance company has been contesting the case by filing written version wherein it is averred by the company that there was no insurable interest existing between the complainant and the O.P. with respect to the damaged vehicle. According to the company, one Md. Anowar Hossain Laskar purchased insurance coverage for his vehicle bearing no. WB-57C-7092 (TATA-1109) on 01.05.2018 and this was valid till 30.04.2019. One Md. Ali Molla is stated to have been the driver of the subject vehicle at the time of accident but, it is reveled during investigation that one Mr. Sujauddin Sekh was driving the vehicle at the relevant time of accident. He had no valid driving license to drive medium goods vehicle i.e. the subject vehicle and thus policy condition was violated. That apart, the name of driver has also been misrepresented and such misrepresentation by the complainant also amounts to violation of policy. The claim was therefore rightly repudiated by the insurance company. HHHhnnmm

            Upon the averments of the parties, the following points are formulated for consideration.

                                                   POINT FOR CONSIDERATION

1. Is there any deficiency in service on the part of the O.P. insurance company in repudiating the claim of the complainant?
2. Is the complainant entitled to get relief or reliefs as prayed for?

     EVIDENCE OF THE PARTIES    

Both the parties have led their evidence on affidavit and these are kept in record. BNA is filed by O.P. insurance company and the same is also kept in record after consideration.

      DECISION WITH REASONS

Point no. 1 and 2 :

            The admitted possession of the case is that the vehicle was insured with the O.P. insurance company and the insurance was also valid on the date of accident i.e. 11.07.2018. The grounds on which the claim of the complainant is rejected by the O.P. insurance company are – 1) That vehicle was over-seated at the time of accident, 2) No intimation about date of the insured was given to the insurance company by the complainant, and 3) The vehicle was run by person who did not have proper driving license at the time of the accident.

            It is to be seen now how far the above grounds are sustainable in law for discarding the claim of the complainant. It is contended on behalf of the O.P. insurance company that there were 4 persons sitting in the vehicle including the driver at the time of the accident of the vehicle, whereas the seating capacity of the vehicle is only 3. So, according to the submission made on behalf of the insurance company, the vehicle was run in violation of the insurance condition and for that matter, the complainant is not entitled to reimbursement of her claim as prayed for. A copy of registration certificate in Form – 23 is placed on record by the complainant and it shows that the seating capacity of the vehicle is 3 in all. It is not mentioned there whether the driver himself is included within that seating capacity or not. In our view, the seating capacity as mentioned above does not include the driver and such seating capacity implies the number of person excluding the driver and regard being had to the seating capacity of the vehicle as pointed out above, we feel no manner of hesitation to say that this seating capacity of the vehicle was not violated at the time of the accident of the vehicle and this being so there was no violation of policy condition in this regard.

            It has been contended on behalf of the insurance company that the intimation of the death of the insured was not given to the insurance company by the complainant and therefore the complainant has no locus standi to get reimbursement of insurance money if any. It is admitted fact that the husband of the complainant, viz., Md. Anowar Hossein Laskar who was the insured died on 17.06.2018. The insurance company does not dispute the fact of death of the insured. It is not only disputed by the insurance company that the complainant is the wife of the deceased insured. In the circumstances, it is to be seen whether the cause of action which arose on the happening of the accident of the vehicle belonging to the deceased husband of the complainant survived to the benefit of the complainant. We know very well that inheritance can never be kept in abeyance. As soon as a person dies, the property left by the deceased person devolves upon his legal representative in accordance with the law applicable to the deceased person. Section 306 of Indian Succession Act also lays down that a cause of action survives to the benefit of the legal representative of the deceased person. In view of the position of law pointed out above, we do say that the complainant being the wife of the deceased insured has inherited all the properties of the deceased along with other legal heirs including the right of the deceased to claim reimbursement from the insurance company on the happening of any accident of his vehicle. The said right to cause of action of the deceased has devolved upon the complainant to her benefit and the complainant has full locus standi to bring the instant case and to claim reimbursement against the insurance company. It is Immaterial whether she informed the insurance company of the death of her husband; the inheritance opened its flood gat in favour of the complainant as soon as her husband died, no matter whether she gave any information of such death to the insurance company or not. In this context we do find that there is no merit at all in the argument advanced on behalf of the O.P. insurance company.

            Last of all, comes the question whether the vehicle was driven at the time of accident by a person who did not have valid driving license. According to the version of the complainant, the vehicle was run by one Md. Ali Molla at the time of accident and the said person had valid driving license. On the other hand, it is submitted on behalf of the insurance company that the vehicle was not run by Md. Ali Molla at the relevant time of accident and he has been projected as being a person driving the vehicle at the relevant time only to recover the claim from the insurance company. It is however submitted on behalf of the insurance company that the vehicle was run by one Mr. Sujauddin Sekh who had no authorization letter nor valid driving license to run the subject vehicle at the relevant time of the accident. So, the complainant is not entitled to any kind of reimbursement for the accident suffered by the vehicle, as the policy condition stands violated.

            Let us now see who was the actual person driving at the relevant time, whether Mr. Sujauddin Sekh or Md. Ali Molla. No driving license of Mr. Sujauddin Sekh has been produced on record by the insurance company. We do not know wherefrom the particulars of driving license of him was collected by the insurance company. On the other hand, a copy of driving license of Md. Ali Molla has been produced on record by the complainant. Not only this, she has also produced a copy of “Authority Letter” dated 04.06.2018 on record, whereby the deceased i.e. Md. Anowar Hossain Laskar authorized Md. Ali Molla to run the vehicle. The statement of Md. Ali Molla is also recorded by the investigator appointed by O.P. insurance company and the said statement of Md. Ali Molla is also noted by the investigator in his report filed before the forum. Md. Ali Molla has stated therein that it was he who used to look after the subject vehicle after death of his son in whose name lay the vehicle and that he drove the vehicle on the date of accident. Taking into consideration the driving license of Md. Ali Molla, his authority letter dated 04.06.2018 and his statement as recorded by the investigator of the O.P., we do say that there is nothing to disbelieve the version of the complainant that the subject vehicle was driven by Md. Ali Molla at the relevant time of accident. Md. Ali Molla has driving license to run a light motor vehicle (LMV). A heavy goods vehicle is a goods carriage the total laden weight of which exceeds 12000 kg, vide section 2 (16), MV Act. The total laden weight / gross vehicle weight of the subject vehicle is 11,990 kg; therefore, it appears that the subject vehicle falls in the category of light MV / transport vehicle. Md. Ali Molla was authorized to drive vehicle in the category of LMV / transport vehicle and it is so gathered from the driving license of him. On the other hand, the O.P. insurance company has not been able to produce any documents to prove that Mr. Sujauddin Sekh drove the vehicle at the time of accident. Regard being had to all these, we do say that the O.P. insurance company has failed to discharge its burden to prove that the vehicle was driven by one Mr. Sujauddin Sekh who was not authorized to drive the subject vehicle. The contention of the insurance company that the subject vehicle was driven by a person who did not have proper driving license seems to be replete with inanity.

            Now about the deficiency in service on the part of the O.P. insurance company. Regulation 9 (1) IRDA notification dated 16.10.2002 gives out that a surveyor has to be appointed by the insurance company for assessing loss / claim within 72 hours of intimation of the insured. In the circumstances, intimation of the accident reached the O.P. insurance company on 12.07.2018 when the complainant submitted her claim petition. That the complainant submitted her claim on 12.07.2018 is revealed from O.P.’s letter dated 01.09.2018. So, the insurance company is bound to appoint surveyor for assessing loss or damage caused to the subject vehicle within 72 hours of the receipt of intimation of the accident from the complainant. The investigator has been appointed by the O.P. insurance company; but, the said investigator has not assessed the loss or damage caused to the subject vehicle. Taking this fact into consideration, we do say that the O.P. insurance company has not acted in compliance with regulation 9 (1) of IRDA notification dated 16.10.2002. Utter disregard of the said notification on the part of the O.P. insurance company is nothing but a glaring instance of deficiency in service on its part and this being so, the rejection of the claim of the complainant appears to be arbitrary and illegal. The complainant is entitled to reimbursement from the insurance company owing to the accident suffered by the vehicle.

            In Sk. Monsoor Ali vs Oriental Insurance company Ltd., reported in (i) 2018 CPJ 374 (NC), the insurance company was directed to directly take up the repair work of the damaged vehicle and to handover the vehicle after repair to the complainant in its pre-accident condition. In the facts and circumstances of the instant case, the ratio of the aforesaid ruling of the Apex Consumer Commission seems to be appropriately applicable and we are inclined to pass an order in similar manner in favour of the complainant.

            In the result, the case succeeds.

            Hence,

 ORDERED

            That the complaint case be and the same is decreed on contest against the O.P. insurance company with a cost of Rs. 10,000/-.

            The O.P. insurance company is directed to get the subject vehicle repaired by their authorized repairer on payment of requisite cost by them, so that the vehicle becomes roadworthy and then to handover the vehicle to the complainant within a month of this order failing which the O.P. is directed to pay Rs. 4,82,000/-(sans the litigation cost of Rs 10,000/-)  to the complainant as demanded by her within a period of one month thereafter and if this amount is not paid to the complainant within the period of one month, the said mount i.e. Rs. 4,82,000/- will bear interest at the rate of 10% p.a. till full realization thereof.

Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.

I/We agree                           Member                        Member                            President

                        Directed and corrected by me

                                                               President