Final Order/Judgment
Debasis Bhattacharya:- PRESIDING MEMBER
The instant case filed under section ‘12 of the Consumer Protection Act 1986’ (as mentioned in the complaint petition itself) arises out of the grievances of the complainant with regard to repudiation of claim against a vehicle insurance policy maintained with the opposite parties.
As the petition was filed on 19.01.2021, the petition should have been filed under section 35 of the 2019 Act. However, in the interest of the basic spirit of the Act, the incorrect mentioning of the section of the appropriate Act is treated to be an inadvertent one and hence excused and ignored.
It will be worth mentioning that vehicle insurance is an agreement between a car owner and the car insurance provider that offers protection for four wheelers in the case of financial losses due to unforeseen events like accidents and natural calamities. The policy financially protects the vehicle in case of damage or loss through an accident.
The brief facts of the case is that the complainant being the owner of the vehicle No.WB-25K/2274 (Bolero Pick-up Van) got the said vehicle insured by the OP under the policy No.3003/192312651/00/000 with the validity period 28.01.2020 to 27.01.2021
The complainant claims to have paid Rs.23,487/- against the said policy to the OP.
However, during the continuance of the policy, the said vehicle met an accident on 02.09.2020 on Durgapur expressway under P.S Dadpur, Dist. Hooghly causing extensive damage to itself.
Consequent upon that, an FIR was lodged with the respective Police Station on the same day and the entire developments were communicated to the insurance Company reportedly ‘within time’.
The complainant further states that the cause of action arose when the vehicle met the accident on 02.09.2020 at a place under Dadpur P.S. and on 01.11.2020 when the claim was repudiated by the OP insurance Company.
Allegedly, repeated persuasion for settlement of the claim, even by personally approaching to the concerned officer of the OP was exercise in futility. Thus it appeared to the complainant that the OP insurance Company had a mala fide intention to avoid the settlement of the claim. The vehicle reportedly is lying in a show room for repairing and estimated expenditure for the repair as given by the show room is to the extent of Rs.6,42,544.00
Considering such repudiation of the claim as deficiency in service the complainant filed the complaint petition seeking direction upon the opposite parties to pay a sum of Rs.6,42,544/- towards repair of the damaged vehicle,to compensate the loss of incomeof the complainant by paying Rs.20,000/- per month on average basis, for the period from lodging of the claim till date, Rs.50,000/- as compensation for mental pain, agony and harassment and to pay Rs.50,000/- towards cost of litigation.
The complainant along with his petition has submitted copies of the relevant documents related to the vehicle, the incident and the insurance policy viz. First Information Report lodged with the concerned police station, communications between the OP insurance Company and the Complainant himself, tax receipt issued by the concerned RTO, registration details of the vehicle, fitness certificate issued by the concerned RTO, pollution under control certificate, policy advice and an unsigned service quotation for required repair work issued by the concerned show room
Evidence on affidavit filed by the complainant is almost a replica of the complainant petition.
The opposite parties 1 and 2, belonging to the same organization contested the case by filing elaborate rebuttals in their written version and brief notes of argument denying therein most of the allegations leveled against them. Written version filed by the OP insurance Company is treated as evidence on affidavit on prayer.
In view of the above discussion and on examination of available records, it transpires that the complainant is a consumer as far as the provisions laid down under Section 2(7)(ii) of the Consumer Protection Act 2019 are concerned.
The cause of action at least in part arises at a place which is within the local jurisdiction of this District Commission. The claim preferred by the complainant does not exceed the limit of Rs.1,00,00,000/-.
Thus this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.
OP insurance Company does not raise any question regarding the ownership of the vehicle and the insurance policy thereof.
OP insurance company also admits that the vehicle met an accident on the fateful day. But it is simultaneously pointed out that the complainant deliberately suppressed the fact in the complaint petition that the vehicle was financed by ICICI Bank and thus the vehicle was hypothecated to the said bank.
It is further pointed out that the instant case being lodged on total loss basis, the case should be adjudicated in presence of the financier. But the complainant has not incorporated the financier as a party in the case. Reference in this regard has been made to General Regulation (GR) -21 read with Indian Motor Tariff Rules of Tariff Advisory Committee. It is claimed that by virtue of the same the said finance Company has lien over the amount and thus the complaint petition suffers from non-joinder of parties.
The OP Insurance Company further claims that the deployment of the vehicle was not the source of livelihood of the complainant but the vehicle was used for commercial purpose.
However no corroborating documents could be produced by the OP Insurance Company in support of the claim. Similarly the complainant also could not establish conclusively that the deployment of the vehicle was his sole source of livelihood.
The OP Insurance Company in their written version referring to a plethora of judicial pronouncements has tried to establish that an insurance policy is a contract between the parties and both parties are bound by the term of the contract and thus the words in an insurance contract must be given paramount importance and interpreted as expressed without any addition, deletion and substitute.
However it is claimed by the Op Insurance Company that on receipt of the claim intimation, an independent investigator and surveyor was deputed to assess the loss and in course of enquiry it was revealed that at the time of the accident, the vehicle was carrying more than the registered seating capacity violating the terms and conditions of the policy.
Besides, it is also mentioned in the written version that the accident occurred on 02.09.2020 but the claim was lodged with the OP insurance company on 14.09.2020.
The OP insurance Company here draws reference to the terms and conditions of the policy where it is stipulated that ‘Notice shall be given in writing to the Company immediately upon 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’.
The OP Insurance Company categorically asserts that the concerned claim lodged by the complainant has been repudiated by them.
Materials on records are perused. On meticulous scrutiny of the case records it transpires that the accident occurred on 02.09.2020 and the FIR was lodged with the concerned PS on that very day. However the FIR was lodged by one Sri Dipak Dey, a nearby hotel owner.
In the first part of the FIR it is stated that an oil tanker bearing No.WB-19E-9611 with a high speed appeared at the spot and suddenly came to a standstill without giving any signal. Again in the concluding part of the FIR it is assumed by the filer of the FIR that the accident occurred as the tanker was illegally parked.
This second interpretation indicates that the pick-up van while on run just rammed into a stationery oil tanker.
Thus the FIR apparently suffers from lack of transparency, self contradiction and it cannot be ascertained from the complaint and the FIR in West Bengal Form No.27 that how the accident occurred. But the fact which is admitted in the complaint lodged with the PS that at the material point of time there were two persons apart from the driver in the pick-up van. But the registration certificate in no uncertain terms indicates that ‘seating (in all)/standing/sleeping capacity’ of the vehicle in question is 02 (two).
On the other hand the ‘limits of liability’ as stipulated in the policy states
- Policy covers use only under a permit within the meaning of the motor vehicles Act, 1988 or such a carriage falling under sub-section (3) of section 66 of the Motor vehicles Act 1988.
- Use of carrying passengers in the vehicles; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen’s Compensation Act , 1923.
In view of the above it is apparent that the vehicle carried more than the registered seating capacity and thus there was violation of the terms and conditions of the policy.
There was absolutely no delay in filing the FIR even by a person who had no relation with the vehicle but there was substantial delay in sending the primary intimation to the OP insurance Company for reasons best known to the complainant.
It is also not ascertained whether there was any charge-sheet consequent upon the FIR.
Considering the facts and circumstances of the case this District Commission is of the view that there was no deficiency of service on the OP Insurance Company’s part and unfortunately in terms of the stipulated terms and conditions of the policy the complainant cannot be entitled to reimbursement of the cost of repair or any other costs.
Hence, it is
ORDERED
that the complaint case no.15/2021 cannot be allowed and the same stands dismissed on contest with no order as to costs. Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgements/sent by ordinary post for information and necessary action.
