West Bengal

Bankura

CC/64/2015

Chandan Kr. Das - Complainant(s)

Versus

The Bajaj Allianz General Insurance Company Ltd. - Opp.Party(s)

Self

09 Jan 2023

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION BANKURA

Consumer  Complaint  No. 64/2015

Date of Filing : 20.05.2015

Before:

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                           Ld. Member. 

3. Siddhartha Sankar Bhui             Ld. Member.

For the Complainant: Ld. Advocate Ananda Mohan Mandal 

For the O.P.  Ld Advocate Chandi Charan Adhvurya 

Complainant

Sri Chandan Kumar Das, Vill-Keshiakole, Bankura

Opposite Party 

The Bajaj Allianz General Insurance Co. Ltd., Mani Square, 164/1 Manictala Main Road, Kolkata-700 054

 

FINAL ORDER / JUDGEMENT

Order No.44,

Dt.09-01 -2023

Both parties filed Hazira  through Advocate.

The case is fixed for argument.

Heard arguments from both sides at length.

The Commission proceeds to dispose of the case as hereunder:-

The complainant’s case is that he purchased one Car No. being WB/ 68Q/6400 with Engine No.   and Chasis No.  on 19-09-2014 at Rs.3,28,189/- insured with the O.P./Insurance Company being Policy No.OG-15-2420-1801-00000562 valid from 19-09-2014 to 18-09-2015. But the said car met with an accident on 15-01-2015 at about 6.30 a.m. at Village-Madhuban under Hura P.S. of District-Purulia causing the vehicle highly damaged while the complainant and his driver Sri Buddhadeb Das sustained minor injuries. The accident was reported by lodging a written complaint to the O.C., Hura P.S. which was registered as Hura P.S. M.A. Case No.01 of 2015, dated: 15-01-2015. Apart from intimating the fact of accident to the agent of the O.P. it was also intimated to the Insurer/O.P. in writing on 20-01-2015 by preferring claim No. being OC-15-2401-1801-00016219 as per coverage of the above referred Policy in respect of the said vehicle. Accordingly the O.P.

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appointed his Surveyor who investigated the vehicle and the spot of the accident in presence of the driver on dated:11-02-2015. After receipt of the Survey report the O.P. sent a letter dated: 23-02-2015 to the complainant regarding admissibility of the claim and in reply thereto the complainant sent a letter to the O.P. dated:23-02-2015 for proper verification of the accident. In the mean time the complainant got an approximate estimated cost for repair of the damaged car through Rudra Show Room authority at Asansol to the tune of Rs. 2,55,520.08.

Finding no disposal of the claim petition the complainant has approached this Commission for recovery of the said amount of Rs.2,55,520/- together with compensation of Rs.1,00,000/-

The O.P./Insurance Company contested the case by filing a written version denying all the allegations made in the complaint contending inter alia that the complainant is not entitled to get the relief as prayed for mainly for belated information of  accident to the O.P. and the negligence of the driver to drive the car in the foggy weather.

In support of the claim the complainant has produced a series of documents. Ld. Advocate for the O.P. Insurance Company apart from submitting written argument has also produced relevant documents in support of the defence case.

The Commission has gone through all the materials on record and considered the submission and contention on both sides.

It reveals from the facts of the case and the documents produced from both sides that the accident took place on 15-01-2015 at about 6.30 a.m. within Hura P.S. of District Purulia on the way to Ajodhya Hill while travelling by the complainant and his family members and the car was being driven in foggy weather dashing against tree on the road side whereby the car was damaged. Though the F.I.R. was lodged on the same day i.e. on 15-01-2015 but the intimation was given to the O.P. after five days on 20-01-2015. Such belated intimation to the Insurer is not fatal to get the Insurance claim as the F.I.R. has been lodged immediately after the accident without any delay. Survey was conducted on 22-01-2015 by Debashis Gupta, Insurance Investigator into the accident who submitted report on 26-01-2015 confirming the effect of the accident and fracture injury in the

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left fibula sustained by Smt. Anjali Das, wife of the complainant who was also a companion in the ill-fated car. Gravity and extent of injury of Mrs. Das is sufficient enough to justify the impact and extent of damage of the car in the accident. However an opinion was given by the said Investigator that the Insurer could have avoided driving in such a foggy weather to save the injured vehicle and occupant. Further report was submitted on 20-03-2015 by the said Investigator which is not relevant in this case.

No estimate of loss and damage of the ill-fated car is forthcoming from the above named Surveyor’s report and no explanation has been given by the Surveyor for furnishing the same. The concerned Surveyor had the scope and the opportunity to assess the extent of damage of the car but he failed to do for the reason best known to him. In absence of the Surveyor’s report on the point of damage of the car the Commission has to rely on the estimate given by the Rudra Automobiles Pvt. Ltd. which is on record amounting to Rs.2,55,520.08.

Ld. Advocate appearing for the O.P. heavily argued on the point of negligence on the part of the complainant for driving the car in such a bad weather full of fog which is the cause of the accident for which the O.P. Insurance Company cannot be held liable. There is no denying that the car was being driven in foggy weather and the accident took place as the car went out of control due to such foggy weather. There is however no allegation of careless and negligent driving of the car but the contributory factor for the cause of the accident is the presence of foggy weather which is nothing but a natural phenomenon in the environment at the relevant time and place. Driving in such weather cannot be termed as a negligent act but it is an act of adventurism and compulsion of circumstances but still the accident could have been averted in such inclement weather and lack of taking precautionary measure in such circumstances is a contributory act of negligence and as such the complainant should get the compensation commensurately.

 

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In view of the findings made above and considering the entire facts and circumstances of the case the Commission thinks it just and proper to pass an order of compensation in favour of the complainant for the accidental damage of the Insured car. The case therefore succeeds in part.

Hence it is ordered……..

That the case is allowed in part on contest against the O.P.

The O.P. is directed to pay to the complainant Rs.1,50,000/- as compensation for the damaged car within one month from this date failing which the complainant may recover the same in due process of law.

Both parties be supplied copy of the order free of cost.

 

                        __________________                            ________________                          _______________

                    HON’BLE   PRESIDENT                     HON’BLE    MEMBER               HON’BLE    MEMBER