Hon’ble Mr. Haradhan Mukhopadhyay, President.
The grievance of the Complainant as reflected in the complaint of the case is reduced to the effect that the Complainant Asish Baul is an assistance teacher of Tufanganj NNM High School. He purchased a new TATA Tiago XT vehicle on 24.06.17 from the O.P. No.1, Saha Auto Pvt. Ltd., Cooch Behar for his personal use at a price of Rs.4,74,385/- only. Temporary Registration number of the vehicle is WB-64-TC-451. The said vehicle was insured with the O.P. No.2, the Branch Manager, National Insurance Company Ltd., vide insurance policy No. 5527003117616160053633 valid from 20.06.17 to 19.06.18 at an insurance charge of Rs.13,159/- through O.P. No.1. On 06.08.17 The Complainant met with an accident in the said car near Maruganj, P.S. Tufanganj, Cooch Behar for which he sustained severe head injury and the vehicle was damaged extensively. The local people shifted him to Cooch Behar Mission Hospital at Chakchaka. He was medically treated and discharged on 08.08.17. The Complainant thereafter informed the O.P. No.1 about the details of the accident on 10.08.17 and requested the O.P. No.1 to get insurance claim quickly. Meanwhile a criminal case was registered on 22.08.17 on the basis of an FIR lodged by one Anjali Das and the Complainant was arrested and remand in custody from 30.08.17 to 24.10.17 and was released on bail. Subsequently, the vehicle was released on 09.10.18 by the Court. Thereafter, the vehicle was released from Tufanganj P.S. on 03.11.18. The mechanical test of the vehicle was done by MVI, Cooch Behar on 16.11.17. On 03.11.18 after receiving the vehicle for the P.S. the Complainant took away the same to the workshop of O.P. No.1 for repairing and O.P. No.1 prepared estimate for repairing jobs of the said vehicle. Secondly, the O.P. No.2 repudiated the claim of the said vehicle on 10.12.18 on the ground of delayed information. In response to the said letter of the repudiation of claim by the OP insurance company the Complainant sent a letter through his Advocate on 29.12.18. The Complainant explained the reasons for delay to O.P. No.2 but the O.P. No.2 again repudiated the claim by a letter dated 09.07.19. The information of accident was given and claim was lodged on 10.07.17 through O.P. No.1 who is the registered broker of TATA Motors insurance appointed by National Insurance Company. So, the delay was inevitable. If there was any delay i.e. not wilful or negligent. The Complainant was sufficiently prevented from lodging the complaint due to his detention in custody. The vehicle of the Complainant is now lying in the workshop of the O.P. No.1 in open sky. The O.P. No.1 informed the Complainant in the 1st week of July to visit from showroom. Accordingly, the Complainant went on 09.07.20 and the O.P. No.1 claimed Rs.50,000/- from him as rent for his accidental vehicle. The O.P. No.1 also demanded rent for booking vehicle in the garage but the Complainant was unable to pay any rent. Finally, after several request the O.P. No.1 agreed to receive Rs.2000/- from the Complainant as damage estimate charge and accordingly the Complainant took back the said vehicle from the workshop of O.P. No.1. Then the Complainant handed over the vehicle to Autopark, Naxalbari, Darjeeling for its repairing works. Ultimately, the Complainant paid Rs.3 Lakhs in total for repairing the damage vehicle to the said Autopark garage on 21.10.20 and took the said vehicle in roadworthy condition and also got Registration number being WB-70H/6883. The OP has caused deficiency in service and unfair trade practice by repudiating the claim on flimsy ground. The Complainant therefore claimed an award for Rs.4,30,000/- as per the schedule of the amended copy of the complaint. Both the O.Ps jointly and severally are liable to pay the said compensation. The cause of action arose on 06.08.17 and on subsequent dates which is still continuing.
The O.P. No.1 finally appeared but subsequently preferred not to contest the case. Accordingly, the case was decided to be heard ex-parte against O.P. No.1 vide order No.21 dated 17.12.21.
The O.P. No.2, National Insurance Company Limited contested the case by filing written version wherein they denied most of the allegations. The positive defence case of the O.P. No.2 in brief is that the Complainant is not a consumer under the C.P. Act. The further case of the O.P. No.2 is that the Complainant Asish Baul purchased a private car package policy certificate cum insurance policy bearing No. 5527003117616160053633 for the vehicle WB-64-TC-451 in the name of Complainant Anjali Das from the Divisional Office O.P. No.2 at Telangana. It is an online computer policy and the premium was collected by O.P. No.1 and deposited online. Saha Auto Pvt. Limited was authorised to collect premium. There is concealment of fact. There was no part of the O.P. No.2 regarding negotiation between the Complainant and O.P. No.1. The O.P. No.1 is not the claim settlement authority. It is wrong that the Complainant had no knowledge about the insurance policy. If he came to know the particulars of insurance after the accident, then he could have intimated the claim to his insurer O.P. No.2 instead of the O.P. No.1. It is a lapse on the part of the Complainant. No copy of FIR, arrest memo and seizure list is filed by the Complainant in the Commission. There was no authorised/ paid driver of the said vehicle. No paid driver of the vehicle was arrested but the Complainant himself was arrested and was in custody from 30.08.17 to 24.10.17. There is no explanation as to why he was arrested. The police started a case under section 417/376(2)(n)/279/338/307/506 of IPC no documents of the vehicle was kept inside the vehicle which is mandatory to ply a vehicle on road. Repudiation of the claim of the Complainant is legal and valid. There is no sufficient ground for the delay in intimation about the accident. The accident took place on 06.08.18 but the intimation was given on 06.12.18 i.e. after about one year four months of the accident. Due to abnormal delay for submission of claim preliminary survey could not be effected and as such the claim was treated as no claim. So there is no deficiency in service. The Op therefore claimed that the case is liable to be dismissed with cost.
The conflicting pleadings of the parties persuaded this Commission to set forth the following points for determination for the purpose of proper adjudication of this case.
Points for Determination
- Whether the present case is maintainable in its present form and prayer?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with Reasons
Point No.1.
The OP challenged the case as not maintainable on the ground that it suffers from lack of necessary documents and there is no cause of action.
The O.P. No.2 seems to have admitted in Para-7 of the complaint about the said insurance policy bearing No. 5527003117616160053633. He further admitted that it is an computer generated policy and premium was collected by O.P. No.1, Saha Auto Private Ltd and deposited online. It is also the defence case that Saha Auto Private Ltd O.P. No.1 is authorised to collect the premium and issue online insurance policy to its customer.
Thus as per the averment of O.P. No.2 in their written version the insurance policy of the Complainant is genuine and the O.P. No.2 collected the premium through its authorised agent.
The O.P. No.1 could not make out any defence case against the Complainant since the case is heard ex-parte against O.P. No.1.
Thus having perused the pleadings of the parties and the evidence in the case record the Commission is of the firm opinion that the present case is maintainable in its present form and prayer subject to ascertainment of other points No.2,3 & 4.
Points No.2, 3 & 4.
All the points are very closely interlinked with one and other and as such these are taken up together for brevity and convenience of discussion.
The Complainant in order to substantiate the claim proved different documents in evidence.
Annexure-1 is the tax invoice in the name of the Complainant for the victim vehicle TATA Tiago XT for Rs.4,74,835/-.
Annexure-2 is the form of trade certificate for the temporary number of the vehicle WB-64-TC-451 dated 11.03.16.
Annexure-3 is the best document being insurance policy for the vehicle being insurance No. 5527003117616160053633 valid from 20.06.17 to 19.06.18.
Through Annexure-4 the Complainant proved his discharge from hospital on 08.08.17.
Annexure-5 is the intimation of claim given by the Complainant Asish Baul to the O.P. No.1, Saha Auto Pvt. Ltd on 10.08.17.
So Annexure-4 & 5 clearly establish the plea that just after being discharged from the hospital the Complainant intimated to the O.P. No.1 for his insurance claim.
Annexure-6 is the lengthy order dated 06.10.18 of criminal case No. GR 462 by 17 of different dates passed by CJM, Cooch Behar for release of the disputed vehicle.
Annexure-7 is also the part of Annexure-6 being letter of IO for mechanical test and report of disputed vehicle. Annexure-7 is also the MVI report dated 17.11.17.
Annexure-8 is an important document being estimate sheet of repair cost of the vehicle for Rs.8,32,062/- given by O.P. No.1.
Annexure-9 is the repudiation letter dated 10.12.18 issued by the O.P. No.2 insurance company.
Annexure-10 is the legal notice dated 29.12.18 given by the Advocate for the Complainant to the O.P. No.2.
Annexure-11 is the reply of the said notice issued by O.P. No.2 dated 09.07.19.
The OP pleaded that there was delay in giving intimation of the said accident. But the intimation of the claim was ultimately accepted. It means that the claim of the Complainant through O.P. No.1 is not defective. Only ground for repudiation of the claim is that there was sufficient delay in intimation. Now let us see whether Complainant informed the O.P. No.1 about the said accident immediately after the said accident.
The OP could not discard that just after the accident the Complainant was injured and medically treated and discharged on 08.08.2017. The Complainant was arrested and was in custody for long time. But the Complainant informed the O.P. No.1 dealer about the accident on 10.08.2017 for the Insurance claim. The O.P. No.1 could not deny it through valid and cogent evidence. So it stands well established that the Complainant duly informed about the said accident as soon as he was fit for giving the intimation.
So it was the bounden duty of the O.P. No.1 to inform the O.P. No.2 Insurance Company, since O.P. No.1 is the authorised agent and dealer of Tata Motors as well as the authorised agent of O.P. No.2 in regard to receiving insurance premium online.
It is categorically stated in the complaint that the O.P. No.1 insurer the said vehicle with the O.P. No.2 vide insurance policy No. 5527003117616160053633 valid from 20.06.2017 to 19.06.2018.
The O.P. No.2 admitted the said fact.
Since the insurance for the vehicle was done through O.P. No.1 so intimation of the accident to O.P. No.1 without inordinate delay should be considered as intimation to the O.P. No.2 for Insurance claim without delay.
Ld. Advocate for the Complainant argued that the estimate given by Saha Auto estimate was quite higher than when the said car was given to Autopark Siliguri, they given estimate less than the estimate of the Saha Auto limited. So, the Complainant reduced the claim and filed an amendment petition regarding total claim which was allowed by this Commission.
The argument is acceptable in as much as from the case record it transpires that the Complainant filed an amended copy of complaint on 06.08.2022 wherein the total claim is reduced to Rs.4,30,000/- instead of the initial claim of Rs.5,54,835/-.
In common parlance when a person is in judicial custody there was no scope for giving any intimation to the insurer. However, the Complainant gave intimation in due time after his release. Thus the O.P. No.2 as a registered insurer of the disputed vehicle of the Complainant cannot deny the claim.
Ld. Advocate for the Complainant referred to one decision reported in Civil Appeal No.15611 of 2017 wherein it was held that if the claim is genuine then delay in intimation or submission of documents is no bar to allow the claim if it is due to unavoidable circumstances. Rejection of the claim on purely technical ground result in loss of confidence of policy holder in the insurance industry.
The case law is applicable in as much as the Complainant was debarred from giving intimation of a genuine ground of his being remained in judicial custody.
Ld. Advocate for the Complainant further referred to another decision reported in 2022 CJ293 Supreme Court in which it was held that Insurance Company could not have repudiated a claim merely on the ground that there was delay in intimating Insurance Company.
The said case law is applicable here.
The O.P. No.2 Company seems to have repudiated the Insurance claim of the Complainant on some technical ground only which is not valid in the eye of law and as per decision of the Hon’ble Apex Court. Such demeanour on the part of the O.Ps tantamounts to deficiency in service and as such the Complainant is entitled to get the relief prayed which shall be borne by the O.P. No.1 & 2 equally.
Points No.2, 3 & 4 are accordingly decided in favour of the Complainant.
Consequently, the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/107/2019 be and the same is allowed on contest with cost Rs.5,000/- against the O.P. No.1 & 2.
The Complainant do get an award for Rs.3 Lakhs towards cost of repairing of the vehicle, Rs.50,000/- towards mental pain and agony and Rs.50,000/- towards incidental cost incurred against O.P. No.1 & 2. Both the O.P. No.1 & 2 are jointly and severally responsible to pay the award money. The O.P. No.1 & 2 are directed to pay the said sum of Rs.4,05,000/- (Rupees Four Lakhs Five thousand only) to the Complainant within 30 days from the date of passing the final order failing which the entire award money shell carry an interest @ 8% per annum from the date of final order till the date of payment for which both the O.P. No.1 & 2 shall be jointly and severely responsible.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
