Hon’ble Mr. Subhas Ch. Guin, Member.
The sum and substance of the complaint petition is that the Complainant Mr. Nur Islam purchased a “Tata Nexeon XZ+” vehicle worth Rs.1,0,35000/- from the authorised dealer at Cooch Behar named Saha Auto Pvt. Limited(Saha Auto in short) by taking loan from Tata Finance, Cooch Behar in the month of March, 2019. The said vehicle was insured by Magma HDI General Insurance Company, 4th Floor, Park Centre Building, 24 Park Street, Kolkata-16(O.P. No.2) as per vehicle norms with its another Office at City Plaza Building, Sevoke Road, Siliguri which is headed by a Manager (O.P. No.1).
The particular of the vehicle with insurance details are as follows:-
- Registration No:- WB 64 U 5014.
- Date of Registration:- 22.04.2019.
- Engine No:- REVTRNo3JRYK 86707.
- Chassis No:- MAT 627262JLJ 39852.
- Policy No:- P0019000100/4111/806702.
- Date of issue:-19.03.2019.
- Period of Insurance:-19.03.19 to 18.03.19(Mid night).
- Amount of Premium:- Rs.26,806/- per year.
- Insured Declared value:- Rs.8,91,199/-.
On 26.03.19 at about 7.30 P.M. the said vehicle met with an accident while moving towards shooting camp from Patlakhawa in which the vehicle dashed with a tree to save a street dog and the front of portion of the vehicle got damaged tremendously due to the collision. Thereafter the police from the Pundibari Police Station came in the spot hearing the incident and took the vehicle in their custody. The Complainant informed the matter to the insurance Company (O.P. No.2) and brought the damage vehicle to Saha Auto for repair from the Pundibari Police Station. On 04.11.19 the Saha Auto gave an estimation of Rs.6,60,165/- for repair after through check up of the vehicle which later came down to the tune of Rs.4,59,362/- for replacement of child parts which was final estimated bill for repair of the said vehicle. Later the Complainant and the Saha Auto Pvt. Limited jointly intimated the O.P. No.1 and 2 in respect of the said damaged vehicle through e-mail on 28.11.19 and the Complainant also submitted a prayer to the O.Ps for insurance claim alongwith relevant documents. Thereafter the Saha Auto Pvt. Limited received a message from O.P. No.2 through e-mail on 04.12.19 which read as “ as discussed with you repair the vehicle with replacement of child parts as mention in your estimate”. But O.Ps did not disburse the insurance claim in favour of the Complainant despite repeated request and the damaged vehicle is lying with the Saha Auto. So the Complainant was facing irreparable loss due to insurance claim not being disbursed by the O.Ps which caused the vehicle to remain static in the workshop of Saha Auto. These activities and silence of the O.Ps caused the Complainant to suffer from mental pain and agony and at the same time financial loss due to non plying of the vehicle. Thereafter the Complainant served a legal notice to the O.Ps through his Advocate on 18.07.20 which they received on 30.07.20 and 04.08.20 but O.P.s did not respond to those notices. The O.Ps kept silent about the said claim without any ground. Finding no other way out, the Complainant filed this case before the Commission for redressal of his grievances. He prayed for a direction to the O.Ps to disburse the insurance claim amount of Rs.4.59,362/- in favour of the Complainant and to pay a sum of Rs. 1 Lakh for deficiency in service, Rs. 1 Lakh for mental pain, agony and harassment and Rs.15,000/- for cost of litigation and any other relief which may deem fit by the Commission.
The O.Ps contested the case by filing written version, evidence on affidavit and written argument. The O.Ps admitted that they issued a private car insurance policy from its Kolkata Office bearing No.P0019000100/4111/806702 for the period 19.03.19 to 18.03.20 for the vehicle having registration No. WB- 64 U 5014 in the name of the Complainant Mr. Nur Islam, S/O Alauddin Miya but the complaint regarding estimate of repair and claim of insurance were denied by the O.Ps that the available records and conduct of the Complainant in the matter clearly showed that the Complainant had implanted the driver’s name in the record, who was Mr. Sanjoy Talukdar. But at the time of accident the person having no driving license was driving the vehicle as no driver’s name was mentioned in the FIR. On the other hand, neither the driver nor any of the rider of the vehicle was injured during accident through the vehicle was dashed with a tree and got damaged tremendously. Therefore it was argued by the Ld. Lawyer of the O.Ps that the vehicle was being driven by the person having no valid and effective driving license at the time of accident. Any person including the insured driving a vehicle holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such license. Provided also that the person holding an effective learners license may also drive the vehicle and that such a person satisfies the requirements of Rule-3 of the Central Motor Vehicle Rules, 1989. So the claim of the Complainant was repudiated in driver’s clause which is legal and valid as per rules of the insurance policy and at the same time there is no deficiency in service nor unfair trade practice on their part claimed by the O.Ps.
Perused the case record and documents filed by the Complainant and the O.Ps. Heard the argument advanced by the both parties at length. The following points are required to be discussed to reach a conclusion about this instant case.
Points for consideration
- Is there any deficiency in service on the part of the O.Ps?
- Is the Complainant entitled to get any relief?
Decision with reasons
Point No.1.
The Complainant purchased the vehicle having model TATA NEXON XZ+ from the authorised dealer Saha Auto (Annexure-A) on 27.02.19 which was insured by the O.P. No.2(Annexure- D and D1) and registered with the registering authority at Cooch Behar(Annexure-B) having registration No. WB 64 U 5014. The aforesaid vehicle met with an accident on 26.10.19 at about 7.30 P.M. in which front portion of the vehicle got damaged tremendously. The Police personnel of Pundibari P.S. arrived at the spot being informed and took the vehicle in their custody. On 31.10.19 the Complainant applied to the Officer-in-charge, Pundibari P.S. for release of the vehicle from their custody(Annexure-C) and brought the vehicle at Saha Auto after release for repair of the same and Saha Auto issued job slip(Annexure-E). Later Saha Auto checked up the vehicle and an estimation was given for repairing amounting to Rs.6,60,165/- by them on 04.11.19 and thereafter they produced another estimated bill amounting to Rs.4,59,362/- for replacement of child parts only which was final estimated bill for the same(Annexures- F, F1 to F3). Thereafter Saha Auto and the Complainant intimated the O.P. No.1 and 2 through e-mail on 28.11.19 in respect of the said damaged vehicle. The Complainant also submitted a prayer to the O.Ps alongwith relevant documents for getting insurance claim. On 04.12.19 the O.P. No.2 sent a massage(Annexure- G) through e-mail to Saha Auto instructing them to repair the said vehicle with replacement of child parts as mentioned in their estimate. Despite all these activities, the O.Ps did not disburse the insurance claim in favour of the Complainant for which repair work of the vehicle was stopped and the vehicle remained static at the workshop of the Saha Auto. Being fed up with the behaviour and silence of the O.Ps, the Complainant served a legal notice through his Ld. Advocate on 18.07.20 and they received the same on 30.07.20 and 04.08.20 (Annexure- H, H1 to H5) but all were in vain. Even no letter of repudiation of claim was sent to the Complainant on behalf of the O.Ps. Consequently, the Complainant filed the case for redressal of his grievances.
The main contention of the case is the repudiation of the insurance claim by the O.Ps. The O.Ps in their defence plea stated that the claim was repudiated on account of driver’s clause. The vehicle was being driven by one who had no effective and valid license at the time of accident. It is evident from the fact that there was no driver’s name in FIR which was later implanted in the records. It is also surprising to note that no one including driver was injured in the accident although the vehicle got damaged severely due to the collision.
The above said narrative made the O.Ps suspicious due to which the claim was repudiated on driver’s clause. The Ld. Lawyer for the Complainant argued that the O.Ps tried to dismiss the case on the maintainability ground of territorial jurisdiction which was rejected by the Commission at the outset. He also stated in his defence plea that on submission of the relevant documents of claim, the O.Ps instructed the Saha Auto to repair the vehicle with replacement of child parts and later on remained silent about the disbursement of claim. The O.Ps could have repudiated the claim of insurance after scrutiny of the documents that were filed for the same. But they did not do so. On the contrary they remained silent without informing the Complainant about the repudiation of the claim.
Thus it is seen that the O.Ps always tried to decline the claim of the Complainant on some pretext or other due to which the vehicle was lying idle in the showroom of Saha Auto for 2 years. Therefore, the Commission is of view that there is deficiency in service on the part of the O.Ps.
Thus, this point No.1 is answered in affirmative and decided in favour of the Complainant.
Point No.2.
From the aforesaid discussion it is evident that there is gross deficiency in service on the part of the O.Ps which caused the Complainant to suffer from financial loss, mental pain, agony and harassment. Therefore the Complainant is entitled to get relief in monetary form.
Thus this point is also answered in affirmative and decided in favour of the Complainant.
Consequently, the case succeeds on contest.
Hence, it is
Ordered
That the instant case No. CC/28/2020 be and the same is allowed on contest with cost.
The O.Ps are directed to pay the insurance claim amounting to Rs.4,59,362/- to the Complainant jointly or severally. The O.Ps are further directed to pay a sum of Rs.25,000/- for deficiency in service, Rs.25,000/- for mental pain, agony and harassment and Rs.10,000/- for litigation cost total Rs.5,19,362/-(Rupees Five Lakhs nineteen thousand three hundred sixty two) only to the Complainant jointly or severally. The total awarded sum is payable within 30 (thirty) days from date of this order failing which the awarded sum shall carry an interest @ 6% per annum till its realisation.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
