This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for direction upon O.P./ Insurance Company to pay the claim amount of Rs.2,00,000/- and for compensation of Rs.1,00,000/- for unnecessary harassment, mental pain and agony.
The case of the complainant in short is that the husband of the complainant is the owner of vehicle being registered No.WB60H/5074 and insured the vehicle at Rs.5,12,591/- being policy No.313501/31/2014/4926 valid from 25.09.2013 to 24.09.2014. The vehicle met with an accident on 11.02.2014 at Dhumadighi and was fully damaged. The vehicle was coming from Malda side attending a marriage ceremony. Owner was driving the vehicle. On the way at the time of accident a truck coming from Gazole side dashed the said vehicle. Petitioner repaired the vehicle from authorized service centre with a payment of Rs.6,82,030/- .The O.P/Ins. Co also assure and indemnify to pay personal accidental benefit of Rs.2,00,000/- on account of death caused by accident. The complainant filed separate case for the damage of the said car being No.C.C.21/16. The present case is filed for claiming Rs.2,00,000/- as personal accidental benefit on account of death of her husband Mansur Alam caused by the accident. The policy was effective at the time of incident and she is entitled to get the personal accidental benefit. She sent several reminders and legal notice on 26.06.15. But O.P did not make any payment and failed to discharge their legal liability. Therefore, petitioner filed this case against O.P for negligence and deficiency in service with the above mentioned prayer.
O.P. appeared and contested the case by filing written version, where they categorically denied the allegations of the complainant. O.P. made a very elaborate written statement assailing the complaint. O.P admits that husband of the petitioner Mansur Alam was the owner of the said vehicle insured under the policy and that it was private vehicle. It has capacity of carrying 9 persons including driver. O.P also admits that from the F.I.R and the survey report it is a fact that the vehicle met with an accident on 11.02.14 when there was 16 numbers of passengers including the owner/ driver in the said car. In the compact of the accident said owner/driver Mansur Alam along with 13 members of passengers died on the spot, other three died at Malda hospital. O.P. alleges that the vehicle has been used in hired basis at the time of accident though it is a private car and thereby violated the terms and conditions of the policy. O.P repudiated the claim of the petitioner on this ground of violating the policy condition of ‘Limitation as to use’. Therefore, That,O.P has no liability on his part to pay any claim amount in respect of the vehicle. O.P is not otherwise deficient in service. That, Petitioner is not entitled to get any relief from the O.P and O.P prays for dismissal of the complaint alongwith cost.
DECISION WITH REASONS
Petitioner has been examined as P.W.1 and he filed documents, Xerox copies of FIR. Charge sheet, R.C.Book, Ins. Policy, driving license, letter dt. 12.02.14, copy of claim Form and the legal notice. She deposed as per version of the complaint. In cross examination she deposed that her husband used to look after and maintained the vehicle, a private car. That her husband and other occupiers died in that accident. The vehicle was seized by police. That, at the time of accident her husband along with his friend and other went to attend a marriage ceremony. The vehicle is for their personal use and her husband never violated the policy condition in this regard.
One Parimal Ch. Sarker, Officer of O.P/ Ins. Co at Raiganj Branch is examined as O.P.W. 1 on behalf of Ins. Company and documents filed Xerox copies of R.C.Book, policy copy, investigation report of Kumaresh Sarker and copies of letter of intimations and repudiation letter from Br. Manager of O.P ,Raiganj Branch however without any memo No. and date. At the relevant time of accident and the vehicle was carrying 16 passengers and met with the tragic accident at Dhumadighi. That, vehicle being a private car has been used on hire basis on violation of the policy terms and condition of ‘Limitation as to use’. That, the Company rightly repudiated the claim of personal accidental benefit to the complainant for death of her husband Mansur Alam.
Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, argument advanced by the lawyers of both sides, the Ld. Forum has come to the findings as follows: -
Petitioner stated in the complaint petition and also deposed as P.W.-1 that the vehicle met with an accident on 11.02.14. That her husband is the owner/driver of vehicle insured who along with 13 others died in the accident. These are all admitted facts. Petitioner claimed that her husband along with some friends and relatives went to attend marriage ceremony that they all died in the accident. O.P/Ins. Co. alleges that the vehicle was used for hire purpose though it is a private car. O.P is required to prove this fact by citing cogent evidence. The report of Investigator in this regard goes to show that the investigator opined that complainant reported that Kartick Rajbhar, a friend of her husband boarded the car for his son’s marriage and it was not hired by Kartick Rajbhar. The statement of the complainant is also made part of the investigation report. At the same time one letter dt.23.09.14 with L.T.I of one Kartick Rajbhar was available by the Investigator, who stated otherwise. Nobody as Kartick Rajbhar came forward before this Forum. Even, the Investigator opined in his report that he is not sure whether Kartick Rajbhar took the vehicle on hire basis. Therefore, O.P failed to prove by sufficient and cogent ground that the vehicle was used for hire purpose at the time of accident. Moreover, the accident took place due to rash and negligent driving which is clear from the F.I.R and charge sheet. The impact of damage so extensive that those 13 passengers including the driver/husband died on the spot and 3 others in the hospital afterwards. Therefore, the car has been badly damaged. O.P/Ins. Co investigated the matter only on the point of violation of policy condition by using the private car on hire basis and ‘Limitation as to use’. But report of the investigator is not fully supporting the O.P’s case. On the other hand petitioner has been able to prove her case by convincing evidence that at the time of accident her husband along with his friend used the car for the marriage of the son of the friend and never on hire purpose.
It is a fact that the car was badly damaged and the impact was so serious that all the 16 passengers died following the accident. We can refer here the case of Hon’ble National Commission as reported in 2016(1) C.P.R. page 291 United India Ins. Co. Vs. Manjit Kaur wherein Hon’ble National commission held that in such circumstances the Ins. Co. was required to pay IDV of the vehicle of the complainant and also was ordered to pay the personal accidental benefit under the policy. Admittedly the vehicle was badly damaged and the driver and other passengers succumbed to the injuries sustained in the said accident.
Therefore this Forum in our considerate view find that the claim of the petitioner was wrongly repudiated by O.P/Ins. Co. only on that ground of ‘Limitation as to use’. Petitioner has been able to prove her case by sufficient oral and documentary evidence that the vehicle met with an accident on 11.02.14 at Dhumadighi and was seriously damaged. That petitioner made her claim under the Policy before the O.P/Ins. Co. observing all the formalities. But the letter repudiating the claim of the petitioner sent by O.P is unreasonable causing harassment and mental pain to the petitioner who is admittedly wife of the owner of the vehicle. Therefore, petitioner is entitled to get the personal accidental benefit of Rs.2,00,000/- under the policy and the O.P/Ins. Co cannot deny its liability for the accident of the vehicle in question.
We find there is a gross negligence on the part of the O.P/Insurance Company that it wrongly repudiated the claim by intimating the repudiation showing ground of ‘Limitation as to use’ on violation of terms and conditions of the Policy etc. Therefore, the complainant is entitled to get relief from O.P./ Insurance Company in the light of our above discussion.
Fees paid is correct. Hence, it is
ORDERED,
That the consumer complaint being No. CC - 87/2015 be and the same succeeds on contest.
The O.P/Insurance Company is directed to pay the amount Rs.2,00,000/- towards the personal accidental benefit under the Policy of the vehicle No. WB60H/5074. We direct the O.P/Insurance Company to pay the said amount with interest at the rate of 7% from the date of filing of this case i.e. on 22.12.15. Further, we direct the O.P. to pay Rs.2,000/- as compensation for harassment and mental agony. Entire amount be paid within one month from this day, lest interest to be imposed at the rate of 9% per annum till full realization. Let copies of this order be supplied to the parties free of cost.
