By : SMT. BANDANA ROY, PRESIDENT
The case of the complainant in short is that he purchased a vehicle for his livelihood from the OP no.2 and it was registered with the RTA Tamluk on 24.02.16 . The value of the said vehicle was Rs. 7,83,685/-.The complainant took insurance policy against the said vehicle being policy No. 3001/113052733/00/000 for the period from 03.02.16 to Midnight of 02.02.17. Unfortunately said vehicle fall in an accident on 30.05.16 at 5.30 AM on NH 4 at Birshivpur under Uluberia PS in the District of Howrah and it was fully damaged and some persons died and some injured in that accident. Over the incident Uluberia PS case No. 341/2016 dated 30.05.16 was started U/Sec. 279/304A/427 IPC and the driver of the vehicle Swapan Kumar Maity also died in that accident. The matter of accident was informed to the OP in due time. The OP No. 2 Star India Agencies Pvt Ltd gave an estimate of Rs. 8,87,606/- for repair of the said vehicle. The complainant claimed the said amount of Rs. 8,87,606/- from the insurer of the vehicle, but the OP No.1 the insurer of the vehicle repudiated the claim by sending a letter dated 02/12/2016. The complainant contends that the repudiation is a totally unfair business on the part of the OP no.1.
Hence, the complainant has filed this complaint petition against the OPs praying for the reliefs as per complaint petition.
The OP no.1 has filed written version in the case and has contested the same. They denied all the material allegations of the complaint petition and countered that the present complaint is not maintainable in its present form and prayer. It is the specific case of this OP that after getting the information of the accident, OP investigated into the matter and found that the vehicle was carrying more than registered seating capacity and on that ground the claim of the complainant was repudiated. This matter was intimated to the complainant by letter dated 02.12.16. The OP contended that the claimant violated the terms and conditions of the insurance policy and so, his claim in this Forum deserves dismissal.
OP No.2 Star India Agencies Pvt. Ltd appeared in the case but did not file any written version.
On the basis of the above pleadings of the parties, the issues require discussion is whether the case is maintainable and whether the claimant is entitled to get the reliefs as prayed in the complaint petition.
Decision with Reasons.
For the sake of convenience of discussion both the issues aretaken up together.
We have perused the affidavits and documents filed both the parties. Admittedly the complainant is the registered owner of the vehicle in question and he purchased the vehicle for his livelihood which is not also denied by the OP no.1 in their written version. The complainant filed Xerox copy of the insurance policy which was entered into between the complainant and the OP no.1.
We have perused the policy and it is mentioned therein that policy was issued on February, 15th 2016 and RTO location hypothecated to West Bengal – Tamluk Mahindra and Mahindra Finance Pvt. Ltd. the complainant also filed copy of the FIR from which details of the accident is revealed. The complainant also filed copy of repair estimate of Star India Agencies pvt. Ltd wherein we find the repair estimate which is not denied that complainant claimed the insurance coverage money from the OP no.1. The complainant also filed copy of letter being reference No. 69187 dated 02.12.16 which shows that on behalf of the OP no.1 the complainant has been intimated about repudiation of his claim because at the time of the loss the complainant’s vehicle was carrying passengers more than seating capacity in the vehicle which is violation of the terms and conditions of the policy of insurance.
We have perused the written version of the OP no.1 .
The ld advocate for the complainant referred a decision reported in 2013 (3) CPR 478 (SC) wherein it has been held that merely because driver did not get endorsement in the Driving License to Mahindra Maxi Cab, which is a LMV , it can not be said that the insurer is not liable to pay compensation because the driver was holding a license to drive commercial vehicle.
The ld advocate for the complainant referred another decision reported in 2009 (3) CPR 306 (NC) wherein it has been held that whether the driver possesses a driving license or not is immaterial when the accident took place due to no fault on his part. The complainant or the OP could not show what the reason of the accident was. The driver is reportedly dead. So, it can not be established that the accident in question took place on account of fault of the driver.
The ld advocate for the complainant referred another decision reported in 2014 (2) CPR 203 (NC) wherein it has been held that compensation of total loss can be allowed only when damage is beyond repair.
The complainant could not prove that the damage of the vehicle is beyond repair.
The position can be summed up thus - insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is any violation of any policy conditions.
In this case it appears that the insured proved that vehicle met an accident and it cannot be said that driver was liable for the said accident. It could not established by the OP with cogent evidence that the vehicle was carrying persons more than capacity.
Under the above circumstances we are of the view that the complainant is entitled to get the value of the insurance but there is no necessity to impost compensation on the OP as it is not established that the OPs harassed the complainant.
The complainant is also entitled to get litigation cost of Rs. 5000/- in this regard. Thus the complaint case succeds.
Hence, it is
ORDERED
That the CC No. 23 of 2017 be and the same is allowed on contest against the OP No 1 and ex parte against the OP no.2.
Both the OPs are directed to pay Rs. 7,44,501/- to the complainant within one month from the date of this order f ailing which interest @ 9% will be payable to the complainant on the aforesaid amount till full recovery.
OPs are also directed to pay litigation cost of Rs. 5000/- to the complainant within one month from the date of this order failing which they shall be liable to pay Rs. 100/- per day as punitive charge, which will be payable to the Consumer Welfare Fund.
Let copy of this judgment be supplied to all the parties free of cost.
