| Final Order / Judgement | Ld Advocate for both sides are present. Judgement is reday and pronounced in open Commission in 7 pages 4 sheet of paper. BY - SRI.SAURAV CHANDRA, MEMBER - Brief facts of the Complainant’s case are that the Opposite Party is an Insurance Company from whom the Complainant purchased a Vehicle Insurance Policy No. 201330140118700073400000 with a Sum Assured of Rs.1,95,000.00 during the period from 13.06.2018 to 12.09.2019 (Midnight) against his Motor Car No.WB-31A0914, Engine No.BBYWJA21292, Chassis No. MD2A95AY6JWA73042.
- The said vehicle of the Complainant made an accident on 27.07.2018 at 6:00 PM and badly damaged on the road of Kachuri to Kesharkunda Bus Stand under Police Station: Contai, Dist. Purba Medinipur against which Case No.253/2018 dated: 01.08.2018 lodge by the Contai Police Station u/s 279, 337, 338, 427 of the Indian Penal Code.
- After accident, the Complainant informed about the said incident to the Op by phone and according to the direction of the Op, the said vehicle was repaired at Hindustan Auto Garage with spending Rs.1,60,500.00 by the Complainant.
- Subsequently on 07.01.2019, the Complainant claimed the said amount but, till date the Op neither reimbursed nor repudiates the claim.
- The cause of action of this case arose on and from 27.07.2018 and 07.01.2019 respectively.
The Complainant, therefore, prays for:- - To pay the Insurance claim of Rs.1,60,500.00 by the Op with Interest @10% p.a. from 07.01.2019 to till realization.
- To pay Compensation of Rs.50,000.00 towards mental agony by the Op.
- To pay a Litigation Cost of Rs.10,000.00 to the Complainant for conducting the case.
- Any other reliefs.
- Notice was duly served upon the Op against which Op has contested the case by filing Written Version against the Complaint.
- While resisting the claim of the Complainant, the Op in its’ Written Version stated inter alia that this complaint is not maintainable in its present form and in law due to barred by limitation and no deficiency in the services by the Op because the Complainant failed to substantiate the claim due to his latches and as for which the Op was unable to process the claim on merit.
- Moreover, the Op categorically denied the following facts i.e. the date of occurrence of accident on 27.07.2018, intimation over phone, repair of vehicle from the Hindustan Auto Garage and the cause of action on 27.07.2018 and 07.01.2019 respectively. Rather it is submitted that the claim of damage to the vehicle was reported before the Op as an accident dated: 24.07.2018 and the claim was reported on 05.09.2018 which is much delayed without any clarification hence, not acceptable as per their Terms & Conditions.
- It is further submitted, at the time of intimating the claim, the name of the Driver during accident was informed as Mr. Chandan Dutta whereas in the self-admitted fact by the Complainant it is mentioned as Mr.Chetan Yadav.
- The Op states, on receipt of the claim they deputed an independent Investigation Agency to verify the genuineness of the accident against which the Investigation Agency submitted a report to the Op concluding that the driver of the vehicle could not be ascertained since the Complainant failed to produce the driver before investigator. The investigator also observed, the insured vehicle was plying beyond the permissible limits as per the Permit issued u/r 125 of the West Bengal Motor Vehicle Rules, 1989 as well as the Terms & Conditions specifically mentioned in the Insurance Policy Clause “Limitation as to Use”.
- As per the Paragraph No.4 and 5 of the Written Notes on Argument submitted, the Op sent a letter to the Complainant with request to produce/submit the estimate but, in-spite of receiving the same the Complainant did not send the claim form and estimate for necessary repairing. After waiting a sufficient period the Complainant did not co-operate hence, the Op compelled to close the file without any repudiation of claim.
- Under the above circumstances, the Op has prayed for dismissal of the present case.
- Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the Complainant entitled to the relief(s) as sought for?
- Decision with reasons
- Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
- We have carefully perused the Affidavit of the Complainant, Written Version, Evidence in Chief on Affidavits, Questionnaire, Reply and Written Notes on Argument along with all other connected papers and documents submitted by both the parties.
- 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 prima facie it was observed in the admission stage, the case is maintainable in its present form and in law.
- In the instance case, the Complainant submitted a list dated: 06.02.2020 containing the copy of Vehicle Insurance Policy, Certificate of Registration, FIR No.253, dated: 01.08.2018, Approval/Estimate from Hindustan Auto Garage dated: 07.01.2019 for Rs.1,60,500.00 and another list dated: 05.09.2023 containing the copy of G.R Case No.919 of 2018 along with Order Sheets and Seizure Lists and Permit issued by Secretary - RTA, Purba Medinipur in respect of particular contract carriage u/r 125 of the West Bengal Motor Vehicles Rules, 1989.
- From the above submitted documents, it is carefully observed from the Conditions No.1 of the Policy as under :- “Notice shall be given in writing to the Company immediately upon the occurrence of the incident or loss or damage and in the event of any claim and thereafter the insured shall all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or other 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 Complainant has failed to produce any such documentary evidences in respect of the Condition No.1 enumerated in the policy as well as the cause of delay in intimating to the authorities and Op. No correspondences for accident intimation and/or insurance reimbursement claim and/or acknowledged documents were produced by the Complainant in respect of his claim before this Commission. Had the Complainant insured intimated the insurer Op in due time, they could have the scope of assess the actual damage through their surveyor. As the vehicle has not been inspected by the insurer, there was no scope to assess the salvage value of the alleged damaged vehicle. The Complainant has not filed any final report of investigation i.e. Charge Sheet for assessing the liability or fault in respect of the vehicles involved in the accident.
- Secondly, it is observed from the FIR, the vehicle was plying on the road of Kachuri to Kesharkunda Bus Stand which is beyond the permissible limits of Kanparihat to South via Pichaboni Ashapurna Devi Station Route as per the road permit issued by the RTA, Purba Medinipur u/r 125 of the West Bengal Motor Vehicle Rules, 1989 as well as the Terms & Conditions specifically mentioned in the Insurance Policy Clause “Limitation as to Use”.
- Thirdly, as alleged by the Op, there is a mismatch in the name of the “Auto Rickshaw Driver.” To be confirmed about his actual name, this Commission has not found any copy of Driving License in the material of record from its end which is a very essential document not only to verify his name but also to confirm its’ validity.
- Under the above facts and circumstances, the Complainant has failed to bring home the Elements of Negligence and Gross Deficiency in Service on the part of the Op.
- Therefore, the Complainant is not at all entitled to any relief. Hence, the claim for paying the Insured amount of Rs.1,60,500.00 to the Complainant by the Op with Interest @10% p.a. w.e.f 07.01.2019 is not tenable at all. Accordingly, no order for Compensation of Rs.50,000.00 towards mental agony and for paying Litigation Cost of Rs.20,000.00 to the Complainant for conducting the case.
- Accordingly, both the points are decided against the Complainant.
- Thus, the complaint case does not succeed.
Hence, it is O R D E R E D That the CC-44 of 2020 be and the same is dismissed on contest. No Order for paying any Insurance Claim with Interest or Compensation or Litigation Costs against the Op. Let a copy of this judgment be provided to the Complainant free of cost. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties. File be consigned to record section along with a copy of this judgment. | |
