SRI A.K.BHATTACHARYYA
Case of the complainant, in brief, is that she took an insurance policy from OP, Royal Sundaram Alliance Insurance Co. Ltd. in respect of her vehicle no. WB-32D-3016 being policy no. MOP1704731 and the same was valid from 01-02-2013 to 30-01-2014 (midnight). The said vehicle met an accident on 28-09-2013 near Srikrishnapur Petrol pump under P.S. Chandipur and the said police station initiated a case being no. 176/13 dt. 02/10/2013. The complainant apprised the OP insurer about happening of said accident over phone and received Claim no. MP00890777. Mr. Debajit Chakraborty, investigator/surveyor of OP insurer made due enquiry and received connecting papers related to the vehicle in question. The said surveyor/investigator directed the complainant to send the damaged vehicle to OP no. 3 and obtain an estimate from them. Accordingly, complainant obtained an estimate from OP no. 3 for a sum of Rs. 2,06,700.25 on 21/10/2013. It is stated by the complainant that the OP insurer refused to entertain his claim alleging breach of contract on account of putting the vehicle on hire which is totally false. OP insurer informed on 07/01/2014 that they would not settle his claim, hence the instant case.
In support of his case, complainant submitted photocopies of FIR, policy insurance being issued by the OP, repudiation letter of OP dt. 07-01-2014 estimate issued by OP no. 3, Registration Certificate of the vehicle, letter dt. 11-02-2014 being issued by Op no. 3 etc.
On notice, OP nos. 1&2 appeared and contested the case by filing WV, WNA jointly whereby they denied all the material allegation of the complainant. It is stated inter alia by the OP insurer that the vehicle in question was used for commercial purpose (for transporting passengers on contract basis) on the date of accident. It is alleged by the OP insurer that complainant was acting as a field operator and was using the vehicle for transporting passengers i.e. on contract carriage for earning profit and therefore, the complaint is not maintainable since the complainant does not come within the purview of the definition of -Consumer- as defined under section 2(1)(d). It is further stated that complainant made a claim stating that on 28-09-2013 her son was driving the vehicle with some other passengers when a vehicle coming from opposite direction hit the vehicle in question head on resulting which, his son sustained injury and the vehicle in question also got damaged and the independent surveyor appointed by them to investigate the matter also reported that he came to know from the injured persons of said accident that the insured used to ply his vehicle under hire and on 28-09-2013, one Mr. Tapan Kumar Kuili hired the vehicle for visiting doctor-s chamber at Tamluk and they made a payment of Rs. 1,200.00 to the driver (insured-s son). It is also stated by the Op insurer that usage of the vehicle for hire and reward purpose is a gross violation of policy terms and is a breach of contract as under the clause of -Limitation as to use- and therefore, complainant is not entitled to any insurance benefit.
In support of their contention, OP insurer submitted photocopies of their -Car shield Private Car Package Policy-, Motor Insurance Claim form being submitted by the complainant, Surveyor Report dt. 20/12/2013, medical papers related to treatment of Mrs. Aloka Kuili and Mr. Tapan Kr. Kuili and Krishnendu Kuili, Statements submitted by Aloka Kuili, Tapan Kr. Kuili & Nagendra Nath Kuili, Madhabi Dolai, GD copy dt. 02/10/2013, FRT copy dt. 02-10-2013, Survey Report and repudiation letter dt. 07/01/2014.
None of the parties adduced any oral evidence.
Points for consideration
- Whether there is any deficiency in service on the part of OPs over repudiation of complainant-s claim?
- Whether the complainant is entitled to any relief?
Decisions with reasons
Point nos. 1&2-
Both the above 2 points are taken up collectively for the sake of brevity of discussion.
We have heard the ld. advocates for both the parties at considerable length and gone through the record including the pleadings, W/N/Arguments and documents on record.
The admitted facts of the case are that the complainant took an insurance policy mentioned in her complaint from the OP in respect of her vehicle in question for the period from 01-02-2013 to 30-01-2014; that the said vehicle met an accident on 28/09/2013 near Srikrishnapur Petrol Pump under P. Station Chandipur in the District of Purba Medinipur for which a case being no. 176/13 dt. 02/10/2013 was started under police station Chandipur; that the OP appointed surveyor (namely Mr. Debajit Chakraborty) for investigation of the matter in question after receipt of claim intimation from the complainant; that after receipt of investigation report on 30/12/2013 from the said surveyor, the OP, by its letter dt. 07/01/2014 refused to entertain the complainant-s claim over the policy in question on the allegation of breach of contract for plying the vehicle in question on hire.
The main grievance of the OP is that the complainant used the vehicle in question for hire on 28/09/2013 at the relevant time of accident by carrying some passengers by violating the terms and condition of the provision of limitation as to use of the vehicle in question, mentioned in the policy for which the OP could not entertain the claim of the complainant.
In order to support their aforesaid grievance, the OP produced some photocopies of statement of some passengers (Mrs. Aloka Kuili and Mr. Tapan Kr. Kuili etc.) who availed of the vehicle in question on hire at the time of accident while returning from doctor-s chamber with others on 28-09-2013 as alleged by the OP and other documents.
There is no dispute that Sanjoy Dolui, son of the complainant drove the vehicle in question at the time of accident on 28/09/2013.
The photocopy of statement dt. 26/11/2013 of the complainant made before the Claim Manager of the OP (produced by the OP along with the W/V dt. 15/05/2014 indicates that there were 4 passengers in the said vehicle on the relevant time of accident besides her son as driver.
Though the ld. Advocate, appearing on behalf of the complainant in course of his argument, had opposed on 06-06-2014 the averments of the OP as mentioned in their W/V regarding allegation of use of the vehicle for hire by the complainant on the date of accident, when the OP had already filed their W/V on 15/05/2014, but the complainant, by filing her W/N/Argument on 26/05/2014 has not denied therein as to the alleged statements of the said passengers as also her statement made before the insurer as mentioned above regarding using of the said vehicle on hire at the relevant date/time of accident.
Undisputedly, there were some passengers inside the said vehicle being driven by the son of the complainant at the relevant time of accident as the complainant made statements in her FIR on 02/10/2013 by admitting the same. Now the question arises who were the said passengers which is to be confirmed by the complainant that they were not hired passengers.
In the claim form submitted by the complainant before the OP, she stated that those passengers were her relatives as it appears from documents filed by the OP on record through no document is forthcoming on the part of the complainant to prove the same.
Rather by filing the affidavit of one Krishnendu Kuili, who is admittedly one of the said passengers in the vehicle in question at the material time of accident, specifically stated in his affidavit dt. 06/06/2014 as deponent that the complainant is his neighbour.
There is no whisper in the said affidavit of Krishnendu Kuili that the complainant is his relative. It is important to note that this affidavit was filed on record on behalf of the complainant to support her case.
So, it is found that the said deponent (Krishnendu Kuili) filed the affidavit dt. 06/06/2014 on behalf of the complainant does not support the complainant as to her statement made before the OP in her claim form that the said passengers including the aforesaid Krishnendu Kuili availed of the vehicle in question at the material time of accident; were her/complainant-s relatives. It appears further that the complainant did not mention in her petition of complainant who were said passengers in her vehicle in question at the material time of accident and it is apparent that this is suppression of material fact on the part of the complainant. As such, the complainant has failed to prove about the status of those passengers who availed of the said vehicle, at the material time of accident.
In view of the above discussions as well as materials on record, we have no hesitation to accept the objection raised on behalf of the OP that the complainant used her vehicle in question on 28-09-2013 for hired purpose resulting violation of limitation of use of the vehicle in question in relation to the case policy.
Therefore, we do not find any deficiency in service on the part of the OP for not entertaining the claim of the complainant.
That being the position, the complainant is not entitled to any relief as sought for.
The above two points are, thus, decided against the complainant.
In the result, the instant case is liable to be dismissed.
Hence, it is
ORDERED
That the instant case be and the same is dismissed without any cost.
