Ld Advocates for the parties are present. Judgement is ready and pronounced in open Commission in 5 pages and 3 separate sheet of papers.
BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case are that the Complainant is a permanent resident of above noted address a poor and simple benefited consumer of service under the O.P. The O.P.is insurance Company namely Bajaj Allianz Gen ins Co. Ltd.The Complainant vehicle No. WB29A/7930 (Bolero) has been Insured at BAJAJ ALLIANZ GEN INS COL. LTD vide Policy No. OG-17-2422-1803-00000629 validity period from 10.02.2017 to 09.02.2018.On 05.04.2017 the vehicle No. WB29A/7930 met with an accident on N.H-28 under P.S.-Dalsinghsarai Dist.- Samastipur. A case has been started vide case No.-88/17 dated 05.04.2017 under P.S.-Dalsinghsarai. The cause of action arose on 05.04.2017.At the time of accident the driver of the vehicle No. WB29A/7930 was Arun Samanta S/O Matilai Samanta, Naranda, Panskura, Purba Medinipur. On the said accident the vehicle No. WB29A/7930 damaged badly. A OD claim has been lodged by the Complainant on 11.05.2017 vide claim No. OC-18-2401-1803-00000468.All the documents regarding the claim which has been asked by the Ins. Company has been deposited with the claim application. The insurance Company taking a false statements from Jhuma Shukla, owner of the vehicle No. WB29A/7930 and driver of that vehicle Arun Samanta that at the time of accident Kamal Krishna Das was driving the vehicle at the time of said accident. The owner and driver is illiterate person. Taking the opportunity of ignorance the Ins company took false statements. For that reason the Ins Company denied to give OD claim of the said vehicle No. WB29A/7930. The expense of the repair of the vehicle NO.- WB29A/7930 was Rs. 6,27,000.00 which was given by A.K. Motor Garage, Panskura, Purba Medinipur on 14.05.2017. The total sum insured Rs. 3.66.948.00. In the above circumstances, it is humbly prayed their Ld. Commission may graciously be pleased to pass an order directing O.P. No.2. to pay Rs. 3.66.948.00, and to pay Rs. 40.000.00 litigation cost, total Rs. 40.6948.00 (Four lacks six thousand nine hundred forty eight only).
The ops have contested the case by filing written version stating inter alia that all the statements as made in para 1,2,3,4 & 5 of the claim application are not admitted by the O.P. The facts remain that, on 5.04.2017, the vehicle bearing No. WB29A/7930 met with an accident on NH-28 under P.S.- Dalshing Saroi, Dist.- Samastipur or a case has been registered ‘vide case No.- 88/17 dated 05.04.2017 under P.S.- Dalshing Saroiare subject to strict documentary proof only. It is pertinent to notehere, that as claimed by the insured in her statement, on the way back from Muzaffarpur to Panskura, the vehicle met with an accident when it collided with another tractor on 05.04.2017 at 2 am in the morning at Kazipur on NH28 road. As per the Fardbyandt. 05.04.2017 it is evident that the driver of the vehicle in question had died. According to all police record, one Mr. Kamal Krishna Das had died in the said RTA. It was also stated by the Purported driver Mr. ArunSantra, that the actual driver at the relevant point of time in the alleged accident was Mr. Kamal Krishna Das who died on spot as a result of the accident and another person, who was travelling in the vehicle also sustained injuries. In the statement of Mr. Arun Santra, it is clear that since Mr. Kamal Krishna Das did not have a driving license, Mr. Arun Santra’s driving license was used to release the vehicle and claim for the damages. From the aforementioned statement it is clear that the intention of the owner of the vehicle was to suppress material facts and the fact that driver’s clause as mentioned in the terms and conditions of the insurance policy has been violated. The aforementioned fact thatMr. Kamal Krishna Das, the actual driver of the vehicle at the relevant point of time of the accident, did not have a driving license is also re-iterated by the statements as put forward by the owner of the vehicle to this O.P. Insurance Company. It is clear that the driving license of Mr. Arun Snatra was used by the owner to release the vehicle and to claim for damages to the vehicle. From the said communication, it is evident that the intention of the owner of the vehicle was to suppress material facts and the fact the driver’s clause as mentioned in the terms and conditions of the insurance policy has been violated. The owner of the vehicle has also violated the condition No.1 of the terms and conditions of the insurance policy. Moreover,that delay has caused the violation of condition No. 1 of the Policy which states “notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim write summons and/or process or copy thereof shall forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the Police and co-operate with the company in securing the conviction of the offender. “The alleged accident occurred on 05.04.2017, whereas the same was reported to this O.P. Insurance Company on 11.05.2017, which is a huge and inordinate delay on part of the owner in intimation of the said alleged accident. This inordinate and unreasoned delay has robbed this O.P. Insurance Company’s chances of doing a spot survey and local enquiries which are process needed to be followed in cases concerning damage to vehicles. There has been a violation of the Section 134(c) of the Motor Vehicles Act, wherein, it is the duty of the driver or anyone in charge of the vehicle to provide written details to the Insurer about the death or injuries if any arising out of the use of motor vehicles. In this instant matter the same has been suppressed willfully by the owner of the vehicle for claiming wrongfully. The said complaint is baseless, false, misconceived, harassing, devoid of merit not maintainable and liable to be dismissed with exemplary costs.
Upon reading the pleadings of both parties following points for determination are framed.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the Complainant entitled to get the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion forthe sake of brevity and convenience.
We have carefully perused and assessed the complaint supported by affidavit of the complainant, written version filed by op, evidence of both parties and other documents. We have anxiously considered the arguments advanced by the Ld.Counsel of rival parties.
The documents viz Annexure 2 to 5 cumulatively show that the Complainant is the registered owner of the vehicle in question. Annexrue- 6 is the valid insurance Policy Certificate in the name of insured Complainant. The complainant is a consumer’ she has alleged Deficiency of Service against the op Insurance Company. As such in the facts and circumstances of the case, it is maintainable in its present form and in law.
Now, on careful analysis of the evidence on record it appears that the op has repudiated the claim of the complainant mainly on two fold grounds;- firstly on the ground that from all police record it is evident that one Mr. Kamal Krishna Das had died in the said RTA. It was also stated by the Purported driver Mr. ArunSantra, that the actual driver at the relevant point of time in the alleged accident was Mr. Kamal Krishna Das who died on spot as a result of the accident. Mr. Kamal Krishna Das, since deceased did not have a driving license. The owner of the vehicle has also violated the condition No.1 of the terms and conditions of the insurance policy .Secondly, delay has been caused by violation of condition No. 1 of the Policy which states “notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim write summons and/or process or copy thereof shall forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy. The alleged accident occurred on 05.04.2017, whereas the same was reported to this O.P. Insurance Company on 11.05.2017, which is a huge and inordinate delay on part of the owner in intimation of the said alleged accident. This inordinate and unreasoned delay has robbed this O.P. Insurance Company’s chances of doing a spot survey and local enquiries which are process needed to be followed in cases concerning damage to vehicles.
Now, in reply to the aforesaid contentions of theop , the complainant has not been able to furnish any reliable evidence or any valid explanation to discharge its onus of proof. The Complainant has not filed all the documents as per requirement ( Annexure-8) by the ops nor it has filed the same in this Commission. She has not filed any copy of the final report of the police case No.-88/17 dated 05.04.2017 under P.S.- Dalsinghsarai to establish that Arun Santra was driving the vehicle at the time of accident. She did not lodge any complaint before the police to establish her case that op recorded the statements of the complainant and of Arun Samanta fraudulently. She has not given any explanation as to why she made inordinate delay in lodging the claim before the op, depriving it from causing proper inquiry; in the facts and circumstances of the case it a lapse on the part of the complainant. The contentions of the opsrevolve around proving the fundamental breachon the part of the insured concerning the policy conditions regarding the driver’s valid license and its direct contributionto the accident. This becomes crucial in determining the admissibility of the insurance claim. It is not a third party claim under dispute and the claim in question is that of owner/insured himself who allowed the vehicle to be driven by a person who had no valid license to drive the said vehicle which met with the accident. This is in breach of M.V. Act as well as terms of the insurance contract in question. [Rel on; the ratio of the Judgement of the Hon’ble NCDRC, New Delhi, passed in the case of ORIENTAL INSURANCE COMPANY LTD & 3 ORS vs MD. ISRAIL.II(2024 ) CPJ 187 ( NC) ].
The complainant has also not filed any document to show that she has got repair works of the vehicle as per estimate. It is crystal clear that the complainant has failed to bring home the elements of Deficiency of Service against the ops at all. Rather, we find that there is substance in the contentions of the ops it had valid ground for repudiation of the claim of the ops.. Thus, the complainant is not entitled to get any relief in this case.
Accordingly, the pointsfor determination are disposed of.
The case does not succeed.
Hence, it is
O R D E R E D
That CC/243 of 2018 be and the same is dismissed on contest against the ops.
No order as to costs is passed.
Let a copy of the judgment be supplied to the complainant and the op free of cost.
