Ld. Advocate(s)
For Complainant: Suvankar Bhattacharya
For OP/OPs : Joydip Mitra
Date of filing of the case :02.07.2019
Date of Disposal of the case :28.08.2024
Final Order / Judgment dtd.28.08.2024
The pith and substance of the case of the complainant is that the complainant Ratna De , wife of deceased Manoj Kumar Dey was travelling in a vehicle no. WB/06B/9566 with her husband and son Mriganka Dey on 04.01.2017. On that day they were going to Odisha. During travelling on 04.01.2017 the said vehicle met with an accident at about 4:00 hours while the said vehicle was crossing Satsankha Outpost, P.S. Pipli, Odisha over Katakpuri High Road. Due to the said accident the said vehicle was thrown in a roadside ditch and it was badly damaged . The husband of the complainant and her only son Mriganka Dey died due to the said accident. The complainant also sustained grievous injuries. She was medically treated under different doctors and was confined to bed for a long period. There was none to inform the matter on behalf of the complainant to anywhere . The said vehicle was badly damaged and was seized by Pipli police station Satsankha Outpost which was kept in the motor garage of Mr. Manick Biswas of Tollygunge road Kolkata for fifteen months causing its great damage. Presently said car is now kept at Tollygunge P.S Kolkata. The complainant subsequently, submitted a letter to the OP No.1 Bajaj Allianz General Insurance Company Limited, Mani Square , Kolkata, 700 054 failed proper steps. The OP No.1 despite receiving the said letter did not take any steps. The complainant is a helpless lady and is now handicapped due to the said accident. The father of the complainant also sent a letter to the OPs on 10.08.2018. Thereafter, the complainant further sent an advocate letter through Suvankar Bhattacharya advocate on 29.03.2019 but the OPs did not reply to the same. The OPs have acted with gross irregularity and illegality by not paying the repairing cost and as such the OPs are liable for deficiency in service and mental pain and agony of the complainant. The complainant therefore, prayed for an award by directing the OPs to depute a surveyor to ascertain the damage of the said car and to pay the repairing cost of the damaged vehicle or in the alternative to pay Rs.10,00,000/- towards cost of repairing , Rs.1,00,000/- for compensation for deficiency in service and Rs.1,00,000/- towards litigation cost.
The OPs contested the case by filing W/V wherein they denied each and every allegation of the complainant and challenged the case as not maintainable and its is barred by limitation and in its present form and prayer . The positive defence case of the OPs in brief is that the policy no. OG-17-2479-1801-00000085 was issued with specific conditions as per the policy schedule u/s –I of the policy. The said condition discloses that notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require . The complainant has not given any intimation to the OPs till date nor did she lodge any claim to the OPs . The OPs run its business with utmost with good faith and trust and there is no unfair trade practice. Without any claim intimation or any document any claim cannot be processed further. So, the present complaint is not maintainable and liable to be dismissed.
The pleadings of the parties led this Commission to ascertain the following points for proper adjudication of the case.
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The pleadings of the OPs discloses that the complainant had purchased insurance for the said ill-fated motor vehicle bearing no.WB-06B/9566 for the period 20.11.2016 to 19.11.2017 with vehicle IDV Rs.592900/- subject to certain terms and conditions .
Thus the relation between the complainant and the OPs clearly discloses that the complainant is a consumer and the OPs is the service provider of insurance.
The complainant filed the present case in order to obtain the insurance claim . Whether the complainant is entitled to the said relief or not that would be ascertained on the basis of the merit of the case. But the relation between the parties is covered within the C.P Act. Having considered the pleadings of the parties and the materials in the case record the Commission is of the view that the case is not barred under any provisions of law in as much as the complainant reside within the territorial jurisdiction of this Commission and the OP No.2 is also situated within the territorial jurisdiction of this Commission. The amount of relief claimed also falls within the pecuniary jurisdiction of this Commission.
The OPs also challenged the case as barred by limitation .
It is fact that some delay of about one and half month caused about informing the incident.
Ld. Defence Counsel argued that the complainant tried to cover up the cause of action by sending a legal notice which is not acceptable in the eye of law.
It is found from the case record the complainant served a letter to the OPs on 21.03.2017 but the OPs despite receiving the said letter of the complainant did not allow the prayer by payment of the compensation money. So the complainant sent a legal notice on 29.03.2019. The OPs did not repudiated the claim of the complainant after receiving the letter and as such the cause of action was continuing. Accordingly, the letter of the advocate for the complainant is a part of continuing cause of action. So, the cause cannot be held as barred by limitation.
Accordingly point no.1 is answered in affirmative on behalf of the complainant.
Point No.2&3.
Both the points are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion. From the case record it appears that the complainant registered the insurance policy against the ill-fated vehicle bearing no. WB-06B/9566. The complainant in order to substantiate the case proved the following documents in course of trial of the case:-
No.1:- Letter of advocate dated 29.03.2019 to the Manager of OP Insurance Company.
No.2:- Copy of FIR dated 04.01.2017 u/s 279/337/338 of IPC. As per the said FIR one constable Gangadhar Padhi of Satsankha Outpost reported that during patrolling duty along with other staff they found one Innova car bearing no.WB06B/9566 dashed with the wall of Canal Bridge near Satsankha Bazaar and capsized into the Canal and shifted the passengers for medical treatment and shifted the car to Satsankha Outpost campus.
No.3:- It is the Discharge summary of the complainant Ratna De.
No.4:- OPD consultation dated 03.09.2018.
No.5:- Letter sent by Ratna De dated 21.03.2017 to the Manager of OP No.1.
No.6:- Tax Receipt of the vehicle .
No.7:- Insurance policy certificate.
No.8:- Driving licence.
As per the said insurance policy document the policy no. OG-17-2479-1801-00000085 of the disputed vehicle in the name of Manoj Kumar Dey valid for 20.10.2016 to 19.10.2017. As per the said insurance policy certificate the IDV is Rs.592900/-.
The main defence of the OP No.1 is that the complainant failed to inform about the incident immediately after the accident. OP No.2 preferred not to contest the case, as such the case is heard ex-parte against OP No.2, Manager Bajaj Allianz , P.S. Kotwali, Dist. Nadia vide order no.13 dated 17.11.2021.
Ld. Defence Counsel argued that the date of accident is 03.01.2017 and the complainant was discharged from hospital on 08.02.2017 but the letter was posted on 21.03.2017 that is after about one and half month .
Ld. Advocate for the complainant argued that the complainant was admitted to Forties Hospital on 06.01.2017 and was discharged on 08.02.2017. So, the delay has caused since the complainant was seriously injured in the accident and she was treated in the unit of Orthopaedic.
After perusing the said discharge summary it transpires that the complainant sustained fracture on left 1st -3rd ribs. Both column fracture of right pelvis, fracture transverse process L2-L4. Fracture proximal Tibia right, fracture right, fracture fibular head and neck. Bilateral lower lobe consolidation right ˃ left. Thrombus in IVC and left renal vein, right common Iliac and external Iliac vein. Urinary Tract Infection.
After perusing the discharge summary of the medical treatment of the complainant it transpires that the complainant sustained severe injuries with multiple injuries fracture of neck and head. She was medically treated in the hospital and admitted there for more than one month. The husband and son of the complainant died in that accident . There is nothing within the four corners of the case record that the complainant had any fit person to inform about the accident to the OPs , so the delay has caused .
The OPD consultation documents of the complainant discloses that she was further advised for certain test and X-ray . Even she was under treatment in different hospital and her medical treatment has been continuing. She cannot move.
The OPs could not discard the said specific evidence of the complainant. There is no document proved by the OPs to establish that the complainant was fit for informing the incident to the OPs immediately after the accident. Despite several constraints after long treatment she filed letter to the OPs on 21.03.2017. It is fact that the delay has caused but the complainant duly explained the ground for such delay about the intimation to the OPs.
The complainant also made an appeal to the OPs for deputing a surveyor /assessor for assessing the value of the damaged car with a prayer to make an arrangement for payment of the compensation money . the complainant also sent the necessary documents to the OPs along with the said letter.
The complainant duly proved the RTO report. As per the said RTO report dated 09.08.2023 the items are completely or partially damaged due to the incident. Huge amount of money will be involved for making road worthiness of the vehicle and it will be uneconomic. The vehicle may be undergone for scrap .
Thus is after perusing the MVI report it is crystal clear that the disputed vehicle has been fully damaged. It has turned scrap.
Ld. Defence Counsel drew attention of this Commission regarding the letter submitted by the complainant serial no.5. As per the said letter the complainant requested to the OPs to return the damaged car from the P.S compound and keep it in their safe custody and possession.
Ld. Defence Counsel argued that the vehicle is seized by police, a third party cannot apply for its return . Only the registered owner can apply to the police for its return.
After perusing the said letter of the complainant dated 21.03.2017 it transpires that the complainant in the said letter also prayed for deputing surveyor /assessor to assess the value of the damaged car and make payment of compensation.
So, application for returning the damage car from the P.S compound and keeping it in the custody of OPs has nothing illegality nor does it make the other prayer invalid.
Ld. Defence Counsel relied on one guideline of IRDA dated 14.07.2015 wherein it was directed inter-alia that “ no claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding an amount specified in the regulation by the authority shall be admitted for payment or settled by the insurer unless a report has been obtained from a person who holds a licence to act as a Surveyor or loss assessor”.
The said document has been duly refuted by the Ld. Advocate for the complainant wherein the latest order of IRDA dated 01.11.2019 has been referred . As per the latest order of IRDA dated 01.11.2019 “This order will supersede all other orders issued earlier in this regard”. As per the said IRDA rule there are certain exemption in regard to the assessment of loss by a surveyor . And there are certain claims which has been exempted from the schedule of operation of the said section. As per the clause 16, claims the amount which has been adjudicated upon or decreed by court is exempted.
Therefore the Commission find that the claim which would be assessed by this Commission is exempted from the category of claim which is not assessed by surveyor .
Having assessed the entire oral and documentary evidence of the complainant it is further found that the OPs could not discard the evidence of the complainant by cross-examining the complainant. The entire evidence of the complainant clearly establish that the ill-fated vehicle of the complainant was damaged due to the accident on 04.01.2017. The insurance of the said vehicle was valid for the period 20.11.2016 to 19.11.2017. The accident occurred within the validity of the insurance policy. The complainant duly informed about the accident to the OPs . Although some delay has caused but the said delay was beyond the control of the complainant due to her unfitness and long term medical treatment.
Thus in the backdrop of the aforesaid assessment of evidence vis-a-vis the observation made hereinabove on the basis of the pleadings and evidence of the respective parties based on the documents filed by both the parties, the Commission comes to the finding that the complainant duly proved the case against the OPs upto the hilt.
Accordingly, point no.2&3 are answered in affirmative and decided in favour of the complainant.
Consequently, the complaint case succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/210/2019 be and the same is allowed on contest against OP No.1 and ex-parte against OP No.2 with cost of Rs.10,000/- (Rupees ten thousand). The complainant do get an award for a sum of Rs.8,00,000/- (Rupees eight lakh) for the cost of repairing , Rs.1,00,000/- (Rupees one lakh) towards compensation for deficiency in service, harassment and mental pain and agony and Rs.10,000/- (Rupees ten thousand) towards litigation cost. The OP No.1&2 are jointly and severally liable to pay the said compensation to the complainant. Both the OP No.1&2 are jointly and severally directed to pay Rs.10,00,000/- (Rupees ten lakh) to the complainant within 30 days from the date of final award failing which the entire award money shall carry an interest @10% p.a from the date of passing the final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(SHRI NIROD BARAN ROY CHOWDHURY)
