Background of Complainant’s case, in short, is that he took an insurance policy bearing no. 150300/31/10/6100000647 for the period from 10-06-2010 to 09-06-2011 in respect of his Tata Sumo Victa vehicle bearing no. WB-30C/8103. The said vehicle met an accident on 11-01-2011 resulting in serious damage to the vehicle in question. Accordingly, on 13-01-2011, the complainant lodged his claim with the OP insurance in respect of the damage caused to the vehicle in question and on 01-02-2011 requested the OP insurer to depute their surveyor to conduct inspection of the damaged car. On his prayer the OP insurer appointed Mr. S.N.Ghorai to cause investigation into the matter and the said surveyor, after thorough investigation, assessed the loss at Rs. 69,000/- to which the complainant given his nod on 28-02-2011. However, the OP insurer vide their letter dt. 21-02-2011 illegally repudiated the claim of the complainant. Hence the case.
In support of his contention, the complainant filed photocopies of FIR, his correspondences with the OPs, Driving license of the driver, Tax Token, Policy Certificate, GD copy, Estimate as well as Cash Memo of B.S. Motors, Tax Invoice of Daga Auto Distributors, Bills of Mahalaxmi Motor Parts, Motor claim form, Acceptance Note dt. 28-02-2011 PM Report, etc.
The OPs, upon receipt of notice entered appearance and contested the case by filing written version as well as WNA. They also took a positive part in the entire proceeding. By their written version the OPs vehemently denied any negligence or deficiency on their part as attributed by the complainant in his petition. The OPs justified their action with the contention that since the driver of the vehicle was drunk at the material point of time as it is evident from the PM report and in view of the fact that the deceased driver was not a paid driver, they rightly repudiated the claim of the complainant. Accordingly, they prayed for summary dismissal of the case against them.
The OPs submitted photocopies of Surveyor report, copies of letters they received from the complainant, Acceptance Note dt. 28-02-2011, Motor Claim Form submitted by the complainant, driving license of the driver, tax token of the vehicle in question, FIR, PM Report etc. to buttress their action.
Points for consideration
- Whether there is any deficiency in service on the part of the OPs behind repudiation of the complainant’s claim?
- If so, to what relief the complainant is entitled to?
Decisions with reasons
We have heard the learned counsels for the parties and have also perused the materials on record being submitted by the parties.
Admittedly, the complainant is a bona fide policy holder under the OPs and the insurance policy in question was in force during the material point of time when the accident took place. It is also not in dispute that the surveyor assessed the damage caused to the vehicle and the value assessed by him and the same was accepted by the complainant.
Now let us see whether the OPs were justified in repudiating the claim of the complainant.
One of the reasons cited behind repudiation of the claim by the OPs is that the driver of the vehicle was driving the vehicle in question in an intoxicated state. In terms of sec. 185 of the Motor Vehicles Act, 1988 if the consumption level of alcohol of driver exceeds 30 mg per 100 ml. of blood, it is considered punishable under the Act. It is a fact that the PM Report speaks of presence of alcoholic smell in the stomach of the deceased driver. However, it is totally silent about the level of alcohol consumption by the driver of the vehicle in question. Thus, there is no way to find out whether it was beyond the permissible level or not. Further, the OPs have also not brought on record any cogent document to suggest that the driver of the vehicle in question consumed alcohol beyond the permissible level. In our considered view, mere presence of alcoholic smell cannot be a valid ground to repudiate a claim unless it is reasonably proved that the driver was driving the vehicle in an intoxicated state beyond the permissible level.
Another defense put forth by the OPs behind their action is that the driver of the vehicle in question was not a paid driver. However, on going through the photocopy of driving license of the deceased driver it appears that he was authorized to drive Light Motor Vehicle and the said license was valid at the material point of accident. Therefore, we do not see any rationale behind repudiation of complainant’s claim on this ground.
It appears from the record that the OPs repudiated the claim of the complainant before the Surveyor Mr. S.N.Ghorai submitted his final report. It clearly goes to show that the OPs acted in a pre-determined manner without waiting for the final report of the surveyor appointed by themselves. Keeping in mind the fact that the surveyor report is a significant document which cannot be set aside in a casual manner, we find no reason behind non-acceptance of the report of the surveyor by the OPs. Admittedly, the complainant acceded to the extent of loss assessed by the surveyor Mr. S.N.Ghorai to the tune of Rs. 69,000/- after deduction of salvages and policy excess.
In the light of foregoing discussion we have no qualm to hold that the OPs acted quite irrationally to repudiate the claim of the complainant and therefore taking into consideration the totally of the facts and circumstances of the instant case we think, it would be just and proper to direct the OPs to pay Rs. 69,000/- to the complainant as assessed by the 1st surveyor against the damage caused to the vehicle in question together with compensation Rs. 7,000/- as also litigation cost Rs. 3,000/-.
These two points thus disposed of in favour of the complainant.
Hence, it is
O R D E R E D
that the instant CC case no. 10/2011 be and the same is allowed on contest against the OPs. The OPs are directed to pay Rs. 69,000/- towards damage caused to the insured vehicle along with compensation Rs. 7,000/- and also litigation cost Rs. 3,000/- to the complainant within 45 days from the date of communication of this order i. d. the complainant is at liberty to execute the order in accordance with law in which case the OPs shall be liable to pay interest @ 8% p.a. over the total awarded amount from the date of this order till compliance of this order in toto.
S.S. Ali A.K. Bhattacharyya
Member President.
