Date of Filing : 27/08/2015

Order No.  20  dt.  08/03/2018

          The case of the complainants in brief is that the complainants are the legal heirs of Late Indrajit Sudar and during his lifetime he took out motor package policy in respect of goods carrying vehicle bearing no.WB-11C/2510 from o.p. no.1 covering inter alia of the risk own damage claim, personal accident cover and 3^rd party risk cover by paying a total premium of Rs.36,402/- and accordingly the policy was issued by o.p. no.1 and the policy was valid from 2.8.13 to 1.8.14. It is stated that said Indrajit Sudar, since deceased, used to drive the vehicle for commercial purpose in order to earn his livelihood. During the subsistence of the said policy the vehicle met with an accident and fell down on road side, as a result, Indrajit Sudar succumbed to his injuries. On the basis of the said fact a case was started at Nayabazar P.S. West Sikkim being P.S. Case No.09/2014 u/s 279, 338, 304A of IPC. The said fact of accident was informed to insurance company and prayed for appointment of surveyor, subsequently the claim was made on the basis of the estimate of repair of the vehicle issued from Tapas Body Garage at Bagnan Library More, Howrah. The said garage gave estimation for repair of the said vehicle to the tune of Rs.7 lakhs. The complainants thereafter informed the investigator about the said estimate and claimed the damage of the vehicle of Rs.12,50,809/- and the personal accident cover of the insured to the extent of Rs.2 lakhs, but neither of the claim has been settled for which the complainants filed this case praying for direction upon the o.ps. for allowing the prayer of the complainants for repair of the vehicle of Rs.7 lakhs and also for the insured sum of Rs.2 lakhs and damage, etc.

                The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. In their w/v o.p. nos.1 and 2 stated that the complainants have clubbed two separate cause of action being the own damage claim of the vehicle and personal on account of death of deceased in a single complaint case though two claims are arising out of separate terms and conditions of the policy, therefore on this ground the case is liable to be dismissed. The o.p. nos.1 and 2 stated that the vehicle in question was insured with insurance company at the relevant point of time. The said policy subject to certain terms and conditions as incorporated in the policy of insurance itself. It was stated that after the alleged incident the said vehicle was taken to one unauthorized garage and they too issued one so called issue of repairing only. In order to get the claim of the damage the complainants first needs to submit the proof of incurring of expenses for repairing of the said vehicle after the alleged incident. In this case failure of his part to do so has debarred him from being entitled to any claim from o.ps. The alleged incident claimed to have occurred on 24.6.14, but the intimation was given to o.p. nos.1 and 2 on 9.7.14, so there has been a huge delay of 15 days in giving intimation to o.p. nos.1 and 2. Because of giving the information on committing delay the claim of the complainants cannot be entertained. The o.p. nos.1 and 2 stated that the complainants have prayed for Rs.2 lakhs on account of personal accident claim and actual owner of the vehicle at the time of alleged accident. But it was ascertained from the complainants’ document that deceased was not driver of the said vehicle at the time of alleged accident which means he was not the owner cum driver at the time of alleged accident and accordingly o.p. nos.1 and 2 are not liable to pay any P.A. claim to the complainants. In order to ascertain the P.A. claim the complainants should prove that the owner of the said vehicle was possessing any valid and effective driving license issued by the competent authority. The o.ps. further stated that in case this Forum finds that o.p. nos.1 and 2 are liable to any claim to the complainants in respect of alleged accidental damage to the said vehicle in that case their liability cannot be more than the net liability as assessed by the licensed surveyor provided the complainants is able to submit the proof of incurring all expenses as claimed by him for repairing of the said vehicle. On the basis of the said fact o.p. nos.1 and 2 stated that there was no deficiency in service on their part and as such, the case is to be dismissed.

                In their w/v o.p. nos.3 and 4 stated that the father of the complainant no.1 viz. Indrajit Sudar took loan from o.p. no.3 and the insurance was issued by o.p. no.1 by paying total premium of Rs.36,402/- for the period from 2.8.13 to 1.8.14. Said Indrajit Sudar approached the bank for financial assistance of Rs.11,70,000/- and obtained the financial assistance from the bank and executed a loan agreement between the said borrower and o.p. nos.3 and 4. The said vehicle as hypothecated in favour of the complainant. In terms of the said agreement the complainants were required to pay the principal sum of Rs.11,70,000/- along with interest per annum in 54 EMIs. The complainants / borrowers failed and neglected to repay the loan amount and as per the agreement an arbitration clause was incorporated in the said agreement and as per the said agreement the vehicle has already been taken possession by the bank. On the basis of the said fact o.p. nos.3 and 4 prayed for dismissal of the case.       

                On the basis of the pleadings of parties the following points are to be decided:

1. Whether the complainants’ predecessor in interest obtained loan from o.p. no.3 for purchasing the vehicle?
2. Whether the vehicle met with an accident?
3. Whether the complainants made the claim from insurance company regarding the damage sustained in respect of the said vehicle?
4. Whether there was any deficiency in service on the part of o.ps.?
5. Whether the complainants will be entitled to get the relief as prayed for?

Decision with reasons:

                All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

                Ld. lawyer for the complainants argued that the complainants are the legal heirs of Late Indrajit Sudar and during his lifetime he took out motor garage policy in respect of goods carrying vehicle bearing no.WB-11C/2510 from o.p. no.1 covering inter alia of the risk own damage claim, personal accident cover and 3^rd party risk cover by paying a total premium of Rs.36,402/- and accordingly the policy was issued by o.p. no.1 and the policy was valid from 2.8.13 to 1.8.14. It was stated that said Indrajit Sudar, since deceased, used to drive the vehicle for commercial purpose in order to earn his livelihood. During the subsistence of the said policy the vehicle met with an accident and fell down on road side, as a result, Indrajit Sudar succumbed to his injuries. On the basis of the said fact a case was started at Nayabazar P.S. West Sikkim being P.S. Case No.09/2014 u/s 279, 338, 304A of IPC. The said fact of accident was informed to insurance company and prayed for appointment of surveyor, subsequently the claim was made on the basis of the estimate of repair of the vehicle issued from Tapas Body Garage at Bagnan Library More, Howrah. The said garage gave estimation for repair of the said vehicle to the tune of Rs.7 lakhs. The complainants thereafter informed the investigator about the said estimate and claimed the damage of the vehicle of Rs.12,50,809/- and the personal accident cover of the insured to the extent of Rs.2 lakhs, but neither of the claim has been settled for which the complainants filed this case praying for direction upon the o.ps. for allowing the prayer of the complainants for repair of the vehicle of Rs.7 lakhs and also for the insured sum of Rs.2 lakhs and damage, etc.

                Ld. lawyer for the o.p. nos.1 and 2 argued that the complainants have clubbed two separate cause of action being the own damage claim of the vehicle and personal on account of death of deceased in a single complaint case though two claims are arising out of separate terms and conditions of the policy, therefore on this ground the case is liable to be dismissed. The o.p. nos.1 and 2 stated that the vehicle in question was insured with insurance company at the relevant point of time. The said policy subject to certain terms and conditions as incorporated in the policy of insurance itself. It was stated that after the alleged incident the said vehicle was taken to one unauthorized garage and they too issued one so called issue of repairing only. In order to get the claim of the damage the complainants first needs to submit the proof of incurring of expenses for repairing of the said vehicle after the alleged incident. In this case failure of his part to do so has debarred him from being entitled to any claim from o.ps. The alleged incident claimed to have occurred on 24.6.14, but the intimation was given to o.p. nos.1 and 2 on 9.7.14, so there has been a huge delay of 15 days in giving intimation to o.p. nos.1 and 2. Because of giving the information on committing delay the claim of the complainants cannot be entertained. The o.p. nos.1 and 2 stated that the complainants have prayed for Rs.2 lakhs on account of personal accident claim and actual owner of the vehicle at the time of alleged accident. But it was ascertained from the complainants’ document that deceased was not driver of the said vehicle at the time of alleged accident which means he was not the owner cum driver at the time of alleged accident and accordingly o.p. nos.1 and 2 are not liable to pay any P.A. claim to the complainants. In order to ascertain the P.A. claim the complainants should prove that the owner of the said vehicle was possessing any valid and effective driving license issued by the competent authority. The o.ps. further stated that in case this Forum finds that o.p. nos.1 and 2 are liable to any claim to the complainants in respect of alleged accidental damage to the said vehicle in that case their liability cannot be more than the net liability as assessed by the licensed surveyor provided the complainants is able to submit the proof of incurring all expenses as claimed by him for repairing of the said vehicle. On the basis of the said fact o.p. nos.1 and 2 stated that there was no deficiency in service on their part and as such, the case is to be dismissed.

                Ld. lawyer for the o.p. nos.3 and 4 argued that the father of the complainant no.1 viz. Indrajit Sudar took loan from o.p. no.3 and the insurance was issued by o.p. no.1 by paying total premium of Rs.36,402/- for the period from 2.8.13 to 1.8.14. Said Indrajit Sudar approached the bank for financial assistance of Rs.11,70,000/- and obtained the financial assistance from the bank and executed a loan agreement between the said borrower and o.p. nos.3 and 4. The said vehicle as hypothecated in favour of the complainant. In terms of the said agreement the complainants were required to pay the principal sum of Rs.11,70,000/- along with interest per annum in 54 EMIs. The complainants / borrowers failed and neglected to repay the loan amount and as per the agreement an arbitration clause was incorporated in the said agreement and as per the said agreement the vehicle has already been taken possession by the bank. On the basis of the said fact o.p. nos.3 and 4 prayed for dismissal of the case.  

                Considering the submissions of the respective parties it is an admitted fact that predecessor in interest of the complainants purchased the vehicle by obtaining loan from o.p. no.3 and during obtaining of the loan the said vehicle was insured with o.p. no.1. It has been alleged that the accident took place during the subsistence of the said policy, as a result of which the original owner of the said vehicle viz. Indrajit Sudar succumbed to his injuries. The said accident was registered under Nayabazar P.S. West Sikkim. After the accident the complainants somehow reached the place of occurrence which took place at Sikkim and located the dead bodies of father and uncle of the complainant no.1 and he brought the dead bodies to their residence for their cremation. Immediately after the accident said fact was informed to insurers and the claim was recorded under claim no.1508688 dt.25.6.14. Thereafter the complainant no.1 requested the o.p. no.2 for processing the claim and he also submitted the final estimate of repair of the vehicle and the estimate of repairing of the said vehicle was given by said garage to the tune of Rs.7 lakhs. The complainant thereafter informed the o.p. no.1 that it was not payable for the complainant no.1 to pay the expenses for the repairing of the said vehicle and requested the o.p. no.1 for reimbursement of the repairing cost, but o.p. no.1 kept mum and no step was taken on their behalf. Subsequently after the lapse of several months the complainants sent a lawyer’s notice demanding the claim, but no action was taken. It is found from the materials on record that during the subsistence of the policy the said vehicle was damaged which has not been denied by insurance company. It is also found from the materials on record that in order to ascertain the damage caused to the said vehicle a surveyor was appointed and he assessed the loss in respect of the said vehicle to the tune of Rs.5,44,685.50 since the vehicle was insured and met with an accident merely because some delay was caused for giving intimation regarding the damage of the vehicle cannot deny the claim of the complainants. In order to ascertain the loss sustained in respect of the vehicle we must rely on the surveyor’s report that assessed the loss in respect of the said vehicle to the tune of Rs.5,44,695.50. Therefore, the insurance company is liable to pay the said amount to o.p. nos.1 and 2. So far as the claim of the bank is concerned that the borrowers have not paid the loan amount and arbitration proceeding was to be started as per the agreement, but no document has been filed by the bank regarding any action was taken by the bank for realization of the said loan amount. In view of the facts and circumstances as stated above, we hold that the complainants will be entitled to get the loss sustained in respect of the damage of vehicle assessed by the surveyor to the tune of Rs.5,44,685.50 and there was deficiency in service on the part of insurance company for not releasing the amount in favour of the complainants in spite of the claim made by the complainants, thereby the complainants will be entitled to get the compensation also. Thus all the points are disposed of accordingly.

                Hence, ordered,

                That the CC No.428/2015 is allowed on contest with cost against the o.p. nos.1 & 2 and dismissed on contest without cost against the o.p. nos.3 & 4. The o.p. nos.1 & 2 are jointly and/or severally directed to pay Rs.5,,44,685/- (Rupees five lakhs forty four thousand six hundred eighty five) only to the complainants along with compensation of Rs.50,000/- (Rupees fifty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.