Ld. Advocates are present. Judgement is ready and pronounced in open Commission in 5 pages 3 sheet of papers.
By – Smt. Kabita Acharjee (Goswami), Member
The complainant Sri Swapan Kumar Jana S/o Late Haripada Jana has permanent residence of Vill. Keoranala, P.O. & P.S. Contai, Dist. Purba Medinipur, Pin 721401.
The fact of the case to put in a nutshell as below :
The complainant is registered owner of vehicle being No. WB-31/8317 having its Chassis No.MAT454101G8B05810, Engine No. 497TC96BTY808373.
The complainant took an insurance policy from the opposite party for the said vehicle being policy No. 0317012P103240928 for the period from 01.07.2020, to mid night of 30.06.2021. The IDV was Rs. 8,00,000/-.
The said vehicle on 21.09.2020 about 3.50/4.30 A.M. met with an accident near Santragachhi Bridge, Howrah while the same was coming towards Digha from Kolkata for which the said vehicle was damaged fully and badly and at that time driver was Sri Chandan Chanda, s/o Susanta Chanda of Vill. Nunia, PO. Dhadgaon, P.S. Contai, Dist. Purba Medinipur having D.L. No.WB 3120120850575. At that time, the vehicle was loaded with empty 100 pieces of Crate and empty 22 boxes having weight of 570 Kg. and the weight of said vehicle was more or less 4000 Kg. Which is within the limit of LMV type of goods carrying vehicle not exceeding 7500 kgs. which is within valid licence of said driver.
The complainant was informed about the said incident by said driver over phone . The complainant lodged an information to the O/C, Jagachha Police Station, Howrah on the same day i.e. 21.09.2020 for which the O/C made a G.D. being Jagacha Police Station GDE No. 1157 dt.. 21.09.2020.
The said incident was also informed to the opposite party by the complainant on the same day and on the same day the complainant lodged a Motor accident claim to the opposite party against said insurance policy for the said vehicle.
On the same day i.e. on 21.09.2020 the opposite party appointed their surveyor and Mr.Ananda Basu (Surveyor) came to the spot. On the same day he surveyed the said accident vehicle and according to opposite party the complainant took the said damaged vehicle at Contai repairing garage for repair. Another surveyor Mr.Alok Kr. Chandra has also surveyed and assessed the loss.
As the said vehicle was damaged badly as such its chassis and many vital parts of the said vehicle were fully damaged and new engine and new chassis had to fix with the said vehicle along with new others accessories for which total cost of repair is Rs. 5,69,158/-.
The Complainant demanded the said repairing cost of the said accidental vehicle from the opposite party against the said insurance policy by filing all necessary documents, but the opposite party did not pay the same to the complainant for which the complainant has to face great financial crisis.
The opposite party lastly by a letter dated 26.02.2021 has repudiated the said insurance claim for which the complainant made a prayer to the customer grievance cell of the opposite party on 10.03.2021 for consideration, but the said grievance cell did not consider the same.
Hence complainant has initiated this complaint case praying for reliefs demanding the said repairing cost of the said accidental vehicle from the opposite party against the said insurance policy, compensation and litigation costs.
Notice has been duly served upon the op. The op has contested the case by filing written version against the complaint.
The sum and substance of the written version of the op arethat the op has denied the allegations made in the complaint save and except which are specifically admitted. The statements to the effect that vehicle was damaged badly or the chassis or many vital parts of the stated vehicle were fully damaged or new engine or new chassis have to fix with the stated vehicle along with new other accessories or total cost of repair is Rs. 5,69,158/- are very much false, baseless, purposive, frivolous and illegal. The complainant can not get any benefit for his own wilful latches and negligence by allowing an unauthorized person to drive the HGV where by violated the specific & prime condition of the Policy of Insurance. The GVW of the Insured vehicle WB-31/8317(Truck) is GVW 9050 Kg. which is within the very knowledge of the Insured-Complainant but the vehicle was driving by the person who only possessed a LMV license which did not authorise to drive such insured Heavy Goods Vehicle and caused the stated accident as there was clear violation of the terms and conditions of the Insurance Policy this O.P. very rightly repudiated the claim of the Insured-Complainant. The instant Consumer case is liable to be dismissed with exemplary costs to this Opp. Party.
POINTS FOR DETERMINATION
- Is the case maintainable in its present form and law ?
- Is the complainant entitle to the relief (s) as sought for?
Decision with reasons
Both the points No. 1 and 2 are taken up together for the sake of convenience of discussion as they are related to each other.
- We have carefully perused the complaint copy of the complainant along with all papers and documents.
- Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that complainant is a consumer having grievances against the OP, as such the case is maintainable in its present form and law.
iii) It is evident from the evidence of the complainant and the materials on record that the complainant had prayed for Rs. 5,69,158/- . It is admitted fact that the said vehicle on 21.09.2020 met an accident near Santraghachi Bridge. While the same was coming towards Digha from Kolkata. The said vehicle was damaged fully and badly.
At that time, the driver was Sri Chandra Kanta being D.L. No. WB-3120120850575 at that time the vehicle was loaded with empty 100 piece of crate and empty 20 boxes having weight of 570 Kg and the weight of the said vehicle is more or less 4000 Kg which is within the limit of L.M.V type of goods carrying vehicle are not existing 7500 Kg which is within valid license of said driver.
Then, the complainant informed the OP by said driver over cell phone and lodged a G.D. being Jagacha P.S. G.D.E. No. 1157 dated 21.09.2020. The same day the complainant lodged a motor accident claim to the O.P. against said Insurance Policy for the said vehicle and same day i.e. 21.09.2020 the OP appointed their surveyors, one surveyor surveyed the said accident, vehicle and according to OP the complainant took the said damaged vehicle at Contai repairing garage for repair. The another surveyor Mr.Alok Kumar Chandra has also surveyed and assessed the loss of Rs. 2,66,266.29/-. The said vehicle was damaged badly, chasis and many vital parts were fully damaged and new engine and new chasis had to fix and new other accessories for which total cost of repair is Rs.5,59,158/- .
It was contended by the Ld. Advocate for the OP that the OP/Insurance Co has legally repudiated the claim of the complainant insured as the driver of concerned vehicle was not authorized to drive the vehicle of this specific class or description required under a valid driving license. Driver was holding a driving license to drive and L.M.V. transport but the vehicle in question was H.M.V. Considering the laden and unladen weight of vehicle but the Ld. Advocate for the OP has failed to justify the above argument by filing any cogent document. On the other hand, the Ld. Advocate for the complainant has refuted the said contention pointing out to the description of driving license and a receipt showing the weight of the crate which is within the limit required for L.M.V. that not existing 7500 Kg. So, we find that the driver had a valid driving license. So, the OP can not repudiate the claim of the complainant on the aforesaid ground.
The surveyor Mr.Alok Kumar Chandra has also serveyed and assessed the loss of Rs. 2,66,266.29/-. From the report of the surveyor it appears that on the conducted inspection of the vehicle in question at Munmun Body Builder and he submitted report on 29.01.2021. In his report, he observed as follows :
- Repairing job including Driver Cabin as recommended was carried out properly and satisfactorily.
- New parts which were recommended for replacement were found replaced.
- Disposal parts which were recommended for replacement were found replaced.
- Salvage parts were produced and found tallied
The surveyor assessed loss at Rs. 2,66,666.29/- . Now from the documents filed by the complainant it appears that he made payment as follows:
Name Bill dated Amount in Rs.
Munmun Body Builders 04.01.2021 Rs. 54,000/-
Khajababa C & H 22.09.2020 Rs. 12,800/-
Service
Suraj Electric 08.12.2020 Rs. 19,050/-
D.A.M. Auto Mobile
08.12.2020 Rs. 40,045/-
-do- 11.12.2020 Rs. 29,460/-
-do- 16.12.2020 Rs 31,010,/
-do- 18.12.2020 Rs. 8,300/-
Sri Ram 30.11.2020 Rs. 60,416/-
Agrahari sells 24.11.2020 Rs. 14,144/-
Variety Diesel 05.12..2020 Rs. 22,007/-
A.S.Auto Mobile 1.12.2020 Rs.1,49,760/-
Vandary Auto Mobile 30.12.2020 RS.1,28,140/-
TOTAL :Rs. 5,69,132/- (as per annexure 2 to 13).
As such, we observed that the Munmun Builders where the surveyor conducted inspection which assessed the damage and estimate of cost of repair to the tune of Rs. 5 lakh whereas the complainant has incurred sum of Rs. Rs. 5,69,132/-. Taking into consideration all the above materials and documents it appears that the assessment made by the surveyor is in the lower side than that of the actual cost incurred the net assessment amount of the surveyor is not justified.
The complainant should get the actual amount which he incurred for the repair of the damaged vehicle. The O.P./Insurance Co would have paid the said amount to the complainant. So, there is deficiency in service on the part of the O.P.
The points for determination are decided accordingly.
Thus , the complaint case succeeds.
Hence, it is
ORDERED
that the C.C. case No. 96/2021 be and the same is allowed on contest against the OP/Insurance Co.
The OP is hereby directed to pay a sum of Rs. 5,69,158/- (Rs. Five lakh Sixty nine thousand and one hundred fifty eight) only alongwith simple interest @ 4% per annum from the date of filing of this case till realization.
In addition to that, the OP is also directed to pay a sum of Rs. 10,000/- as litigation cost. The op will comply the above direction within 45 days from the date of this order, failing which the complainant will be at liberty to put this order in execution as per law.
Let a copy of this judgement be supplied to the complainant and OP free of cost.
