Hon’ble Mrs. Rumpa Mandal, Member.
The nutshell of the complaint case is that the Complainant, Smt. Shyamali Barman is a rustic widow and she is living her father-in-law’s house at residing village- Deokhata, Netaji Bazar, Bramhattar Chatra, P.S. Sitai, Sub-Division- Dinhata, Dist- Cooch Behar. The Complainant is a legal heir and legal representative of her deceased husband namely Sujit Barman who was the owner and consumer of vehicle bearing registration No. WB64 W1734, Chassis No.MD2418AY9JRJ08205 and Engine No.DUYPJJ 35532(Motor Cycle) Annexure- A & B is the Aadhar card and Electoral Photo Card in short EPIC. The O.Ps are corporate limited insurance company and license by Insurance Regulatory and Development Authority of India(IRDA) dive Registration No.113 under name and style is Bajaj Allianz General Insurance Company Ltd and have a Branch Office at Cooch Behar district. The claimant husband namely Sujit Barman, S/O- Dinesh Barman was purchased a motor cycle from Bairagi Motors Cycle from Bairagi Motors of Kakina Road, Gosanimari, Dinhata, Dist- Cooch Behr dated 18.07.2019 and the said vehicle was insured from Bajaj Allianz General Insurance Company Ltd for two wheeler package policy vide policy No.OG-19-2414-1802-00003489 for the period from 18.07.2019 to 17.07.2020 and the said insurance policy for owner driver SI Rs.15,00,000/- and his wife viz, Shyamali Barman is the nominee of the insurance policy. Annexure- C,D, E F & G are the copy of challan being No.036, tax invoice dated 18.07.19, Insurance Policy Bearing No.OG-20-2472-1826-00001631. During licence and certificate of Registration was in the name of Sujit Barman. The O.Ps shall give the intimation to the claimant husband that they would be prepared the certificate of Registration and other vehicle documents in the name of owner from the concern RTO Office, Cooch Behar. So, the car was plying on the road as per TC number. On 03.09.19 at about 6 hours the husband of the claimant Sujit Barman met an accident and he dashed road side electricity pillar dangerously. So he sustained severe multiple bleeding injuries and also head injury and thereby he become unconscious. The victim admitted at S.D. Hospital, Sitai, Dist- Cooch Behar. Due to serious condition of the victim referred to MJN Hospital, Cooch Behar on 04.09.19 the victim was admitted at Mission Hospital (P) Ltd., Chakchaka by his family members for his better treatment. Due to detoriate the condition the claimant husband referred to higher centre Siliguri but when they reached at Doctor Chhanges Super Speciality Hospital Pvt Ltd., Matigara, Siliguri after medical examination declared death due to sustained injuries and after that local doctor of Deokhata issued death certificate after medical examination. Annexures- H/1 to H/11 are the copy of Medical treatment papers of Cooch Behar Mission Hospital(P) Ltd., Chakchaka and certificate of death on 28.11.19 vide claim No.49377744 the claimant father in law informed the matter to O.P. No.3 Cooch Behar Branch Insurance Office. The O.P. No.3 registered the said claim bearing claim No.OC-20-2404-1826-000000281. The O.P. No.3 assured to claimant father-in-law as the claim is genuine and at the time of accident the said owner namely Sujit Barman have a valid insurance policy of P.A. cover, so after getting investigation report O.P. No.3 will contact to the victim wife. After passing so many hardels at last the FIR was lodged on 19.12.19. The investigation after received all documents supplied by the claimant, he assured that O.Ps informed the claimant. The O.Ps repudiated the claim informing the Complainant through letter(Annexure-L is the copy of letter). On 05.02.20 the father-in-law of the Complainant vide registered post bearing No.EW888325839IN sent a reply to the O.Ps. On 10.01.20 O.Ps sent a letter that claimant claim is repudiated. Again on 12.03.20 Complainant sent reply vide registered post bearing No.RW950860510IN, but till date the O.Ps do not take any necessary action nor sent any letter for settlement of the claim. Finding no other alternative Complainant files this complaint petition before this Commission, So according to the Complainant the act of the O.Ps are illegal and there is deficiency in service on the part of the O.Ps. The cause of action in the present case arose on 10.01.20 when the Complainant received a letter from the O.Ps and lastly on 12.03.20 when the Complainant sent a letter for reply to the O.P. No.2 of Deputy Manager but till today OP did not settle the claim and is still continuing. The Complainant therefore prayed for P.A. insurance claim amount of Rs.15,00,000/- in favour of the Complainant and to direct the OP to pay a sum of Rs.50,000/- for mental pain and agony and harassment and Rs.50,000/- as cost of litigation.
As per order No.09 dated 13.12.21 the case will run ex-parte against O.P. No.1 & 2 only O.P. No.3 contested the case by filing written version therein they denied each and every allegation and averment. The positive defence case in few words is that the OP repudiated the claim vide letter dated 10.01.20. The vehicle was used as commercial purpose, so the case is not maintainable. OP also submitted that the driver of the insured vehicle in question did not possessed any effective driving license at the time of alleged accident, so the OP have got no any liberty in respect of alleged damage of vehicle. There was no deficiency in service so the claim of Complainant is unjust, executive and abnormal and Complainant is not entitled to get the relief. The OP insurance company claimed that the case is liable to be dismissed with cost.
As per Order No.22 dated 07.02.23 the O.P. No.3 files to submit the evidence on chief so the evidence is closed and the case is fixed for argument. The OP could not substantiate the plea taken in the written version through valid and cogent evidence. Since no evidence is adduced during the trial OP did not advance any argument. OP did not cross-examine and interrogate the Complainant or put any interrogatories.
The specific allegation of the Complainant and the respective denial thereof by the OP vis-à-vis this specific defence case of the OP persuaded this Commission to ascertain the following points in dispute.
Points for Determination
- Whether the case is maintainable or no?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the Complainant is entitled to get relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
Although some formal objections were made by the OP in his written version regarding maintainability of this case yet these points are not agitated in course of filing evidence in chief and in course of argument. However, after perusing the pleadings of the parties and the evidence on case record it stands well proved that the Complainant filed this case on the basis of the genuine claim as are evident from the documents filed by the Complainant. The pecuniary limit is also within the jurisdiction of this Commission.
The OP challenged the case, but OP did not prove any document and did not call for any document from Income Tax Department or other authority that the husband of the Complainant used his motorcycle for commercial purpose.
On the contrary, the Complainant pleaded and adduced evidence by affidavit in chief that the Complainant husband used his motorcycle for personal purpose. The OP did not cross examine the Complainant nor did call for any document to show the actual income of the Complainants husband to establish the defence case that the income of the Complainants husband is so high which may be considered as a commercial purpose.
Therefore, from the complaint case it cannot be considered that he runs motorcycle for commercial purpose or that he is not the consumer under the CP Act.
Point No.1 is accordingly decided in favour of the Complainant.
Points No.2, 3 & 4.
Both points are very closely interlinked with each other accordingly, these are taken up together for convenience and brevity of discussion.
Out of different defence points taken by OP the main point is delay in lodging the claim by the Complainant to the OP the claim was repudiated on 10.01.20120.
As regards not filing the document the Complainant categorically stated in evidence that after premature demise of the Complainants husband the father in law of the Complainant informed the matter to the O.P. No.3 i.e. branch Insurance office Bajaj Allianz General Insurance Company Limited along with relevant documents vide claim No. 49377744 on 10.01.20 OP investigation enquired into the total matter and received all original documents from the Complainant but OP did not release the Insurance claim till today.
The OP could not deny the said fact nor did the OP cross examine the Complainant. Therefore, the plea of the Complainant that he submitted all the relevant document for receiving Insurance claim stands well established. The said defence plea does not hold good in as much as the Complainant is a registered owner (Annexure-G).
The father in law of the diseased Insurance claim visited several time to the OP but OP did not help him nor did supply any documents and after appointing the investigating officer, O.Ps intentionally did not settle the claim. Though the deceased husband of the Complainant had valid driving licence, valid vehicle certificate of registration, valid insurance policy of Bajaj Alliance general insurance company limited and said insurance policies was also covered personal accident amount of Rs. 15 Lakhs and the Complainant is the nominee and only legal heir of the deceased Insurance claim and though OP received the insurance premium but at the time of disbursement of Insurance claim OP whimsically repudiated the claim.
Ld. Advocate for the Complainant vehemently raised objection to that point on the ground of OP repudiated the claim as per surveyor report.
Thus, it stands well proved on the basis of admission of the OP that the ill fated motorcycle met with an accident resulting the driver/ owner of the motorcycle dead. Now the only defence plea to discard the claim of the Complainants shows that Complainant is trying to make unlawful gains from policy of insurance by filing the present case.
So, the Complainant cannot be said to have filed this case for unlawful gains.
Ld. Advocate for the Complainant submitted evidence in chief on behalf of Complainant namely Shyamali Burman as witness No.1 as witness No. 2 namely Dinesh Barman who is the father in law of the Complainant as witness No. 3 namely Majidul Byapari who was standing on the way Netaji Bazar metal road side and at that time he was talking with other local people and he is the eye witness of this case. In his evidence in chief he described how the accident was occurred. Ld. Advocate on behalf of the Complainant also filed evidence in chief as witness Nos. 4 and 5 namely doctor Suryonarayana Naidu (Neurosurgeon) who is attached with the Cooch Behar Mission Hospital Private Limited Chakchaka and also filed the treatment sheet of Complainant deceased husband and he was treated another doctor namely Gaurav Dutta who is attached with Cooch Behar Mission Hospital Private Limited Chakchaka. The deceased Complainant husband had driving licence and valid registration certificate the original copy of insurance policy bearing No.OG-20-2472-1826-00001631 and original death certificate of deceased Sujit Barman.
As medical documents issued by Doctor Suryabarayana Naidu (Neurosurgery consultant Neurosurgeon) speaks for itself that the owner of the deceased died due to RTA. Unfortunately, the OP issued the letter dated 01.01.2019 mentioning that the Complainant husband namely Sujit Barman was alive in our Earth.
From the all concerns, the Complainant in order to establish the case adduced evidence both orally by filing evidence on affidavit and by means of documentary evidence. The deceased insurance policy owner had a valid policy and the said insurance policy was covered personal accident for owner /driver and the said insurance policy have a nominee of his wife Shyamali Barman.
The OP could not prove any documents to establish the defence case that he is not the owner of the Motorcycle and the veracity of the accident. So, the plea of the OP is not established.
Thus having assessed the evidence adduced by the Complainant and in view of the thorough discussion made in the foregoing paragraph this Commission comes to the finding that the Complainant proved the case as per the claim.
In the result the complaint case succeeds.
So, the Points No.2,3 & 4 are answered in affirmative and in favour of the Complainant.
Hence, it is
Ordered
That the complaint case No.CC/5/2021 be and the same is allowed on contest against O.P. No.3 and ex-parte against O.P. No.1 & 2 with cost Rs.10,000/-.
The Complainant do get an award for sum of Rs.15 Lakhs regarding personal accident insurance claim in favour of Complainant. The O.Ps are directed to pay Rs.50,000/- for deficiency in service and is further directed to pay Rs.20,000/- for mental pain, agony and harassment and Rs.10,000/- for cost of litigation.
The O.Ps are jointly and/or severally liable to pay Rs.15,80,000/- (Rupees Fifteen Lakhs Eighty thousand only) to the Complainant within 30 days from the date of passing the Final Order failing which the Complainant shall be entitled to get an interest @6% per annum.
The complaint case is accordingly disposed of with contest against O.P. No.3 and ex-parte against O.P. No.1 & 2.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
