The case of the complainant is that the complainant is a registered owner of the Vehicle No. WB 62-F/1574 and he insured the vehicle with OP No. 1 and purchased a private car package policy No.51230131150100008101 on 30.3.2016 and same was valid for the date 29.3.2017.
That as per said policy complainant’s vehicle damages risk has been covered by own damage coverage of that package insurance policy for sum assured Rs.9,62,526/- as it is insured declare value.
That the vehicle was badly damaged in a road accident under Balurghat PS and Balurghat PS started a BLGT PS Case No.311/2016, dt. 31.5.2016 and spot survey done by the OP and then complainant sent the vehicle to Khokan Motors Works Pvt. Ltd. at Siliguri for its repairing and after repairing the garage Khokan Motors submitted a bill of Rs. 6,50,328/- dt. 17.3.2017.
That the complainant applied before the OP for getting the repairing cost of Rs. 6,50,328/- and requested the OP to make arrangement for payment of repairing cost, but no suitable attempt was made on behalf of the New India Assurance Co. Ltd. but on 29.6.2017 the OP informed the complainant through a letter in which the OP stated that at the time of accident the driver consumed alcohol and as per MV Act, no-one can drive the vehicle on drunken condition and therefore he has no liability and so far it is repudiated and treated the claim as “No Claim”.
That the OP willfully repudiate the bonafide claim of the complainant only to harass her and violated the terms & conditions of the said insurance policy and deficiency in service made by the OP.
That at the time of accident driver had valid and effective licence and there is nothing to establish by the OP that he consumed alcohol or the said accident took place due to consuming the alcohol. That it is specifically mentioned here that there is no violation of insurance policy condition, so far the OP can repudiate the bonafide claim of the insured.
That the owner maintained the correspondence with the OP No. through his letters and also appealing before the OP insurance company time to time after the said accident and submitted all documents of the vehicle and also the FIR, Final Report, PM Report of involved driver to the company.
That the OP insurance company sent his surveyor and the complainant sent him all necessary documents / papers which the surveyor wished to get from the insured / complainant and he also surveyed the vehicle on the spot and also on the repaired garage and since then the vehicle lying there and owner waited for the survey report of the vehicle but neither the surveyor nor the OP insurance company had sent the final survey report to the owner of the vehicle, on the contrary, the OP No. 1 sent a letter of repudiation. Hence, the complainant took shelter before this Forum for getting proper redress.
The complainant in his complaint petition has prayed for getting the repairing cost of Rs.6,50,328/- in terms of the policy along with interest and garage cost and any conveyance of daily work.
The complainant has filed some relevant documents in support of his claim which are as follows :-
(1) FIR (photocopy), (2) Insurance Policy (photocopy), (3) P.M. Report (photocopy), (4) A repairing bill (photocopy 4 pages), (5) Letter of repudiation (photocopy).
On the other hand, the OP No. 1 (The New India Assurance Co. Ltd.) has filed a written version in which it is stated that the complainant has no cause of action against this OP insurance company and as such the petition is liable to be rejected.
The petition is not maintainable according to law. Though, it is true that the complainant Smt. Chhanda Chatterjee was a policyholder of Siliguri Br. and same was valid at the time of occurrence. That it is also true that her vehicle met a road accident and the OP surveyed the accidental vehicle through their surveyor and the surveyor assessed the damage of the vehicle as a Rs.4,94,393/- for final settlement. That as per statement made in the proposal form of the complainant that the driver Subhojit @ Krishna Sarkar met road accident. That during in course of all formalities in respect of the complainant’s damaged vehicle, this OP collected the PM report and it reveals that at the time of accident driver Subhojit @ Krishna Sarkar was in a drunken condition and it reveals from the first information report that the accident occurred due to his negligence. That in course of procedure for settling the own damage claim in favour of the insured, the OP asked the insured to produce the PM report of the driver, who met the accident and as the insured / complainant produced the PM report, which speaks itself that alleged driver was in under influence of liquor.
There is no willfully negligence on the part of the OP NIA Co. Ltd. So, this OP repudiated the claim of the complainant for violation the terms and conditions of the insurance policy. Hence, the complaint petition is liable to be dismissed.
The complainant has filed an examination-in-chief in this case. The versions in the complaint petition and the version in the examination-in-chief are same.
Points for determination :-
- Whether the complainant is a consumer?
- Whether the complainant is entitled to get reliefs as prayed for?
DECISION WITH REASONS
Point No.1:
On this point there is no dispute between the parties, so this point is decided in favour of the complainant.
Point No.2:
In this case the complainant has cited a judgement reported in 2017 ACJ Page No. 114 (Kerala High Court) Oriented Insurance Company Ltd. vs Vineeta Nair & Ors., which is very much applicable in this case to decide this case. In this judgement it is clearly stated that “no;moreover mere consumption of alcohol is not a defence available to insurance company u/s 149 (2) of the Motor Vehicle Act, 1988”. Moreover, the documentary evidence of the PM report reveals that smell of alcohol was found in the body of the deceased. Mere smell cannot prove that the driver was drunk as it may be the effect of fermentation of food due to indigestion.
On hearing the argument of both the parties / sides, on perusal of the documents filed by the parties and in view of the aforesaid judgment , we are of the opinion that the complainant is entitled to get relief as prayed for.
Hence,
O R D E R E D
That the instant C.C. case be and the same is allowed on contest against the OP No. 1 New India Assurance Co. Ltd. The complainant is entitled to get principal amount of Rs.6,50,328/- of the policy from the OP No. 1 insurance company. The complainant is also entitled to get compensation of Rs.10,000/- and also litigation cost Rs.5,000/- from the OP No. 1.
The OP No. 1 is directed to pay amount of Rs.6,50,328/- to the complainant for the policy as well as compensation amount of Rs.10,000/- for the mental pain and agony and also Rs.5,000/- as litigation cost to the complainant within 30 days from the date of this order, failing which the complainant is at liberty to execute the execution application as per CP Act, 1986, and the complainant is also entitled to get interest of 10% p.a. until the full realization of the said amount except the litigation cost.
Let a plain copy of this order be furnished to the parties forthwith free of cost.
