Date of filing:06.12.2018 Date of disposal:27.04.2018
Complainant: Tabrej Khan @ Md. Tabrej Khan, S/o.Jamal Khan, resident of Fushbangla,
Bhaga, P.S.-Jorapukur, Dist.-Dhanbad, having temporary residence at H/o.
Rentu Sk. Mehendi bagan, P.O., P.S. & Dist.-Burdwan.
-VERSUS-
Opposite Party: 1. The Manager, AVP Claims Operations, SBI General Insurance Company, 4th
floor, B-Block, Apeejay House, 15, Park Street, Kolkata-16.
2. The General Manager, Customer Relationship-CLAIMS, SBI General
Insurance Co. Ltd., 101, 201, 301, Nataraj, Junction of Western Express
Highways & Andheri Kurla Road, Andheri East, Mumbai-400 069.
3. The Manager, SBI General Insurance Co. Ltd., Maple Plaza, 5th floor, Opp.
Road No.2, Ashok Nagar, Ranchi.
4. The Manager, Gupta Highway Services (Authorized servicing centre of Tata
Motors), Putki, Dhanbad, Jharkhand.
Present: Hon’ble President: Smt.Jayanti Maitra(Ray).
Hon’ble Member : Dr. Tapan Kr. Tripathy.
Appeared for the Complainant: Ld. Advocate, Suman Bez
Appeared for the Opposite Party No.1 to 3: Ld. Advocate, Shymal Kurmar Ganguli.
Appeared for the Opposite Party No.4 : Ld. Advocate, Tapan Kumar Jash.
JUDGEMENT
This is a case U/s. 12 of the C.P. Act for an award directing the O.Ps. to pay Rs.8,85,316/- towards repairing cost of the vehicle, to pay Rs.1,00,000/- as compensation for mental pain, agony and harassment and to pay Rs.10,000/- as litigation cost to the complainant.
The complainants’ case in short is that O.P. No.1 & 3 is General Insurance Company, who sell its policy having its Head Office being the O.P. No.2 and also having its divisional office of O.P. No.1 and branch of O.P. No.3.
The complainant purchased a vehicle from his friend Rajib Bose to earn money for maintaining his livelihood along with his family members, which is mentioned in the Schedule-A, from his friend by availing loan and subsequently all relevant documents like National Permit, Govt. Authorization Certificate, Certificate of Registration, Tax Token, Fitness Certificate etc. in respect of A-Schedule vehicle were transferred in the name of the complainant. As A-Schedule vehicle was already insured under the policy of the O.P. by previous owner namely Rajib Bose, therefore, the complainant get insured his A-Schedule vehicle under the policy which has been mentioned in the Schedule-B.
It is further mentioned that Schedule-A vehicle is a light weight goods carrying vehicle and for plying the same on road the complainant engaged one driver namely Md. Kurban and one Khalashi namely Amir Khan and by way of self employment the complainant basically earn his bread and butter for his family. On a course of work/plying the A-Schedule vehicle met with an accident at Burdwan near Sachimata Cold Storage on 09.12.2014. As a consequence the schedule mentioned vehicle severely damaged and driver and khalashi of the vehicle were vividly injured. After shifting them to the Burdwan Medical College when said Amir Khan was declared to be dead. A FIR was lodged before the Burdwan Police Station which was registered as Burdwan P.S. Case No.1345/2014. The police seized the A-Schedule vehicle on damaged condition and after obtaining Court’s order the same was released and sent to O.P. No.4 for repairing. Thereafter the complainant lodged his claim before the O.P. No.3 against the said insurance policy which has been numbered 151362. But the O.ps. repudiated his claim by sending a letter dated 17.4.2015 on the ground stating that the during the time of accident A-Schedule vehicle was driven by the Khalashi (deceased Amir Khan) or that wrong information was given to the police or that deceased Amir Khan did not have any driving license at the material point time of accident. Therefore, the O.Ps. repudiated the claim of the complainant.
Although after getting the said repudiation letter the complainant requested to O.P. No.2 & 3 to review about the claim vide his letter dated 02.12.2015 but no reply has yet been received from their end. Moreover, through some telephonic conversation he requested to the O.ps. but all went in vain. The O.P. No.4 in connivance with the O.P. No.1-3 sent letter to the complainant stating that A-Schedule has been lying in unrepaired condition since 22.12.2014 and claimed bill of Rs.8,85,316/- as estimated repairing cost of the said vehicle. Lastly on 15.9.2016 the O.P. No.1 conveyed the complainant over telephone about the finality of their decision of repudiation about said claim and since then the complainant is moving like a shuttle in the office of the O.ps. Finding no other alternatives the complainant filed this case before this forum for relief as prayed for.
The O.P. No.1, 2 & 3 jointly contested this case by filing written version denying all the material allegation as alleged by the complainant. These O.Ps. submit that the vehicle (white colour truck TATA-1109) bearing Registration No.JH-10AC/1051, Chassis No.MAT457403B7G31268, Engine No.497TC92GYY838934, Make/Model M/s. Tata Motors Ltd/2011, Type of Body-LP1109/42, Class of vehicle-HGV, Fitness Certificate No.38, Valid upto 28.11.2015, Permit No.19734/12, valid upto 12/4/2017, Type of permit-National Permit, Route/Area of operation-All Over India, Tax paid upto 3.2.2015 vide T.T. No.D1411031310 and the vehicle purchased from one of his fried namely Rajib Bose by availing loan and subsequently the said vehicle was transferred in the name of complainant. The complainant got insured his vehicle under comprehensive/package policy bearing No.1418550 by transfer of ownership from Rajib Bose and subsequently Insurance Company SBI General Insurance vide its letter dated 24.12.2013 agreed that as from 24.12.2013 the interest in this policy is transferred to and vested in Md. Tabrez Khan, the complainant who shall be deemed to be the insured and whose proposal and declaration dated 24.12.2013 shall be deemed to be incorporated and on the basis of this contract an amount of Rs.2,905/- is hereby recovered from the new insured. The policy period commencing from 24.12.2013 (03:30 pm) to 10.12.2014 (midnight) having some assured IDV Rs.9,00,000/-.
The complainant engaged one driver namely Md. Kurban and one khalashi namely Amir Khan. On 9.12.2014 the said vehicle met with an accident near Burdwan at Sachimata Cold Storage at about 2.45 A.M. when the vehicle was going towards Kolkata. Khalashi (Amir Khan) was declared to be death by the Burdwan Medical College and Hospital and driver of the said vehicle was seriously injured.
On 14.01.2015 the complainant lodged complaint before the O.P. No.3 against the Insurance Policy. After receiving the claim form the O.ps. recruited surveyor/investigator for surveyed/ the damaged vehicle. Preliminary Motor Survey Report conducted by Sunil Kumar Singh, Investigation Report conducted by D.Nandi of ISANDA, Kolkata, Medico Legal Opinion conducted by Dr.C.H. Asrani, DNB, MBBS, DAC, Mumbai and Preliminary Survey Report conducted by Debashis Sarkar.
The O.P. No.2 along with O.P. Nos. 1 & 3 submitted the report of Motor Survey conducted by Sunit Kurmar Singh from which it is revealed that driver Md. Kurban and his Driving License is mismatch as per call centre intimation and spot report and other various observation along with detailed photographs of said damaged vehicle including preliminary assessed amount for the said vehicle of Rs.7,00,000/-.
The investigation report submitted by D.Nandi of ISANDA, Kolkata, it was observed that on 9.12.2014 at about 2.30 hrs. the ill fated truck bearing registration No.Jh-10AC/1051 was proceeding through the NH-2 towards Kolkata being loaded with livestock of buffalos, cow and calves and it reached near the Sati Mata Cold Storage when one unknown vehicle proceeding in the same direction just in front of the Jh-10AC/1051 applied breaks and the driver of the insured vehicle could not control the vehicle and hit behind the said vehicle and the vehicle was dragged to a distance. As a result of the accident as per the spot enquiry the driver side of the vehicle was badly damaged and the person driving the vehicle died in this accident. It was also observed that left side of the vehicle did not sustain any severe damage as the insured vehicle is a right hand driver vehicle. So, the driver portion of the vehicle had sustained immense damaged and nothing is intact. Even the driver’s door is not intact and it appears that the driver could not have escaped from the mangled cabin and must have sustained grievous injury. Whereas the khalashi side of the vehicle viz., left side is almost intact. That observing the contents of the Post Mortem Report and the nature of the accident the investigator refers the matter to SBI GICL to seek for Medico Legal Opinion from a Medical Practitioner having of Forensic Medicine and Toxicology. Although the investigator did not collect Inquest Report of the case from the Ld. Court or did not collected the certified copy of the same from Burdwan P.S. Inquest Report No.1566/14 dated 09.12.2014. However, on the basis of the Post Mortem Report of Amir Khan (Khalashi) and under the circumstance the investigator observed that accident as stated in the FIR does not correlate with the findings as per local enquiry and it is also revealed that Amir Khan who as per FIR to be khalashi was driving the vehicle at the time of accident and sustained such injury which has been explained in the Third Party Medico Legal Opinion.
The Medico Legal Opinion conducted by Dr. C.H. Asrani, DNB, MBBS, DAC, Mumbai and explained his report which is enclosed in Annexture-VIIIA.
O.P. No.2 also submitted survey report of Debashis Sarkar, it was observed that as per statement of insured on 9.12.2014 the vehicle was at plying condition and an unknown ongoing front ahead truck suddenly applied brake without any prior signal; as a result the subject vehicle dashed at the rear portion of the that front truck and damaged frontally. It was also observed t hat the subject vehicle when plying and accident occurred almost 13 numbers of buffalo with 2 calves and one cow died on the spot and dumped at perking area apart from the driver who also died. The surveyor also preceded to the survey spot at the police perking Garh More, NH-2, Burdwan for preliminary survey and found the damaged vehicle from different angles to visualize the sustained damages as far as possible. It was further observed that the insured still not provided the driving license of Amir Khan, permit of carrying life stock and police report. So, the surveyor issued a letter on 17.12.2014 requesting to submit those due documents to insurer.
These O.Ps. also submit that complainant had declared one Md.Kurban, S/o. Md. Jabbar as the driver of the ill fated vehicle No.JH-10AC/1051 at the material time of accident but upon above stated deep investigation of the matter, it has been revealed that one Amir Khan who was the khalashi of the said vehicle was driving the said vehicle at the time of accident. It was also revealed when the claim was intimated to the call centre, the driver’s name was given as Amir Khan. The above stated report of spot surveyor has also mentioned that the driver of the vehicle as Amir Khan in his preliminary survey report. The O.P. No.1 vide registered letters dated 14.1.2015 and 10.3.2015 sought the driving license of Amir Khan for verification but the complainant did not produce the same till date. As the O.P. No.1 constrained to decide that the said Amir Khan did not hold any valid driving license. This is violation of the ‘Driver’s Clause’ of the insurance policy as well as the relevant section of the M.V. Act. Therefore, the O.P. No.1 to 3 constrained to decline their liability in the claim. Hence, claim has been repudiated on the same ground.
The O.P. No.4 also contested this case by filing written version stating inter-alia that this O.P. No.4 is a authorized service centre of Tata Motors and running the service centre at Putki, Dhanbad and the complainant placed damaged vehicle No.Jh-10AC/1051 to the service centre of the O.P. No.4 and after external verification this O.P. gave estimate towards the repairing cost of the said damaged vehicle including labour charges reserving supplementary estimate after dismantling the vehicle. The said vehicle lying unrepaired conditions at the said service centre as the complainant did not give any instruction/consent to this O.P. for repair. There after a long gap the complainant came to this O.P. and instructed to repair of the said damaged vehicle accordingly complainant himself after purchasing the materials from the local market supplied those materials to this O.P. for repair of the said vehicle and at the time of repairing of the said vehicle some other parts needed. So, this O.P. provided those parts/materials for repair and repaired the vehicle and gave bill cum tax invoice of Rs.14,818/- to the complainant and the complainant after paying the said bill to this O.P. took delivery of the said vehicle on 8.8.2015. The complainant did not make any claim against this O.P. and as such the present case is liable to be dismissed against this O.P.
This O.P. also submits that this O.P. No.4 had no of connection regarding the settlement of claim of the complainant. This O.P. has nothing to do with the non-settlement of the complainants claim by the O.P. No.1 & 3. The O.P. No.1 to 3 being the insurer is/are liable /responsible for the claim of the complainant and this O.P. could not be blamed for the alleged non-settlement of the complainant’s claim and as the disputes regarding the settlement of the claim is in between the complainant and O.P. No.1 to 3 and as such this O.P. has nothing to do in the matter of settlement of claim. This O.P. has no latches, negligence or deficiency in rendering proper service to its customer.
DECISION WITH REASONS
To prove this case the complainant has adduced his evidence on affidavit stating the facts which is stated in his petition of complaint. O.Ps. prayed for treating their written version which is supported by affidavit as their evidence and the prayer is allowed. Thereafter, both parties prayed for submitting their elaborate argument and subsequently they also filed written argument.
Complainant stated in his evidence that O.Ps. repudiated the claim on the ground that the vehicle was driven by one Amir Khan, the Khashi, (who subsequently died in the accident) who has no valid license at the time of accident and thereby violated the ‘driver’s clause’ and also MV Act relevant sections. O.P. also repudiated the claim stating the fact that on spot survey it was detected that driver’s side of the cabin was found smashed in the accident as a result of which said Amir Khan died and O.P. also alleges that the complainant gave wrong information to the police that Md. Kurban, the driver of the vehicle was driving the
car which is not a fact. The letter of repudiation dated 17.4.2015 is also filed.
In reply complainant placed his argument that the surveyor’s report cannot be relied upon on the factual aspect and in connivance with their surveyor by appointing a second surveyor and preparing a false, frivolous and baseless report of illegally repudiated the claim of the complainant. Complainant cited the decision of Hon’ble Apex Court in Laxmi Chand Vs. Reliance General Insurance as reported in 2016(3) SCC 100 that, to avoid liability the O.P. took above plea and repudiated the claim but O.P. never established that breach of policy condition by adducing sufficient convincing evidence. Moreover, the breach is not so fundamental to end the contract or breach of terms of policy. In this regard from the FIR we find that in the FIR No.1345 of Burdwan P.S. dated 14.12.2014 U/s.279/304A/427 IPC it is specifically stated that after investigation the police submitted the charge sheet against the driver accused Md. Kurban alleging rush and negligent driving and the driver could not control the speed of the vehicle, it over turned and collided with a tree, the driver and khalashi both were injured and taken to the hospital and khalashi died. There is no whisper that the vehicle at the time of accident was driven by the khalashi not by the driver, Md. Kurban. There is no other evidence from the side of the O.Ps. regarding this fact. That onus and burden lies upon the Insurance Company. But Insurance Company failed to discharge the burden by not proving the allegation of breach terms and conditions of the policy by sufficient oral or documentary evidence. The Insurance Company is also has to prove first that there was breach of policy condition and finally that the breach is so fundamental contributed to the cause of accident. But there is no evidence from the side of the O.P. in this regard. Moreover, after the accident the damaged vehicle was surveyed by surveyor, Debashis Sarkar and the survey report mentioned that in that accident the vehicle which was carrying livestock buffalo and cow. 13 numbers of buffalo with two claves and one cow died on the spot and driver and khalashi were also seriously injured. The surveyor filed his primary report on 15.12.2014 stating that accident was genuine. Thereafter, Sunil Kurmar Singh surveyed the vehicle after the vehicle get repaired by the complainant. Complainant submitted documents showing that the vehicle was seized by the police and after release of the vehicle he get the same repaired by O.P. No.4. and total amount he expended Rs.8,85,316/-. He filed the documents, the estimate of Gupta Highway Services dated 22.12.2014 giving details of such expenditure for repair of the vehicle. Thereafter the vehicle was surveyed by said surveyor, S.K.Singh, who on the basis of the survey and on the basis of the documents opined that the damages were found and appeared consistent with the cause and nature of accident. The driver lost control over the vehicle and dashed against the rear portion of ongoing vehicle, causing severe multiple damages of the vehicle and injury to the occupants and after assessment surveyor, S.K.Singh assessed net liability of Rs.3,01,000/- after deduction of salvage value.
However, O.P. submitted another investigation report investigated by Sanda Investigator, who from available documents and local enquiry investigated the matter and gave his opinion/ observation along with Medico Legal Opinion on 26.3.2015 that the vehicle hit behind another vehicle in highway and the left side of the vehicle did not sustain any severe damage and the vehicle is right hand drive vehicle. The driver portion of the vehicle had sustained immense damage, nothing is intact. That observing the condition of vehicle and following post mortem report of Amir Khan and nature of the accident referred the matter for Medico Legal Opinion from a medical practitioner and opinion of medical practitioner is that the injury sustained by the deceased Amir Khan, the post mortem report is appended, was driving the ill-fated vehicle at the time of accident.
The Insurance Company repudiated the claim on the basis of these report of investigator. Ld. Lawyer for the complainant argues by citing the judgment of Hon’ble Apex Court as reported in 2016 SCC Online SC 839 that the first surveyor Sunil Kumar Singh appointed by Insurance Company have completed their investigation and submitted reports and after assessing net assessed liability of Rs.3,01,000/- and thereafter another investigator, Sanda was appointed without any valid reasons by the Insurance Company. Second surveyor appointed and his appointment is not explained. It is deficiency in service on the part of the O.P. and report of the first surveyor should be upheld who submitted his report on 28.12.2014. More over we have already stated that surveyor’s report cannot be relied upon on the factual aspect to prove that the vehicle was actually driven by the Khalashi not the driver.
The police investigator report is very significant and it carries higher importance than the report prepared by the surveyor. In this aspect the complainant cited another decision of Hon’ble Apex Court as reported in 2013 SCC NCDRC 985. In the police report there is no whisper that the khalashi without having any driving license was driving the vehicle at the time of accident.
It is admitted that the accident of the vehicle was caused on account of rash and negligent driving of the offending vehicle and the report of the surveyor assessed the loss of Rs.3,01,000/-. The complainant incurred expenses for repair of the damage vehicle amounting to Rs.8,85,316/- which he has been able to prove by sufficient documents. He informed the O.P. about the accident and damage caused to the vehicle in time. The O.P. Insurance Company appointed surveyor Debashis Sarkar for preliminary investigation. Thereafter the surveyor S.K. Singh assessed the damage after repair and assessed the same at Rs.3,01,000/-. Complainant preferred a claim of Rs.8,85,316/-. From our above discussion we consider that the claim amount should be settled by the O.P. Insurance Company on non-standard basis upto 75% of the amounts actually spend for effecting repairs of the damaged vehicle and we also take into consideration the claim amount of the complainant. In our considered view justice will be made if O.P. Insurance Company is directed to settle the claim on non-standard basis by paying 75% of the claim amount (Rs.8,85,316/-) for repairs of the damaged vehicle along with interest @ 8% p.a. from the date of filing of this case. Thus the complaint case succeeds in part. Hence, it is
Ordered
that the case be and the same is allowed in part on contest against the O.P. No.1 to 3 with cost and dismissed on contest against the O.P. No.4 without any cost.
The O.P. No.1 to 3 are directed to settle the claim on non-standard basis by paying 75% of the claim amount of Rs.8,85,316/- along with interest @ 8% p.a. from the date of filing of this case. O.P. No.1 to 3 are further directed to pay Rs.3000/- for deficiency in service causing mental pain, agony and harassment and to pay Rs.2000/- towards litigation cost to the complainant within 45 days from this date of order, failing which the complainant may execute this case in accordance with law.
Let the copies of this order be supplied to the parties free of cost.
Jayanti Maitra (Ray)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
Jayanti Maitra (Ray)
President
D.C.D.R.F., Burdwan
(Dr. Tapan Kr. Tripathy)
Member
D.C.D.R.F., Burdwan
