Sri Shyamal Gupta, Member
Present Appeal is directed against the Order dated 28-06-2016, passed by the Ld. District Forum, Kolkata-II (Central) in CC/388/2015, whereof the complaint case has been allowed.
In a nutshell, case of the Complainant was that its insured vehicle met an accident on 28-04-2014. The accident caused severe damage to the said vehicle for which the Complainant lodged insurance claim with the OP. The said claim being repudiated by the OP, the instant complaint case was filed.
The OP, on the other hand, submitted that owing to drunken driving, the insured vehicle met an accident. The OP further stated that during investigation, the Investigator deputed by it did not find any trace of scratches in the left side of the vehicle in question. Accordingly, the version of the claimant that the accident occurred when another vehicle dashed it from the left side was not at all believable. It denied any deficiency in service on its part.
Decision with reasons
Heard both sides in the matter and gone through the documents on record.
The Appellant justified its decision to repudiate the instant claim firstly on the ground that the driver of the subject vehicle was driving it in an inherited condition. In this regard, it banked upon the statement of the treating doctor of a Government hospital and findings of an Investigator being deputed by it.
I find that, the Ld. District Forum elaborately discussed this aspect before discarding the objection of the Appellant. Indeed, in absence of any tangible proof to show that blood alcohol content (BAC) of the driver exceeded the permissible limit, i.e., 0.03% or 30 mg. per 100 ml. at the material time of accident, the Ld. District Forum committed no legal infirmity by according benefit of doubt in favour of the Respondent in this case.
On the other hand, after going through the copy of Investigator Report dated 21-10-2014, I find that the Investigator candidly admitted that since the accident occurred at early morning the investigator faced difficulties to locate an eyewitness. Although it is stated in the said report that the Investigator managed to get hold of one person, who informed that the insured vehicle was over-speeding and suddenly overturned and hit the road divider and further that no other vehicle was passing through the said thoroughfare at that moment, the proper identity of the informer being not divulged, I am not inclined to attach any importance to such hearsay statement.
The Appellant though furnished photocopies of some photographs of the damaged vehicle, in absence of a single legible copy thereof, the findings of the Investigator that the insured vehicle did not bear any scratch mark in its left side could not be independently verified.
Most significantly, it appears from the Survey Report of another Surveyor, namely, Sri Aloke Kumar Chandra dated 31-07-2014 that he made it clear in uncertain terms that he found involvement of 3rd party in the said accident and that the cause of accident was relevant to the observed damage. It is not clear, on what basis the said report was ignored by the Appellant. It appears that the said Surveyor assessed the loss at Rs. 6,60,870/-. Considering the importance of survey report, I deem it appropriate to hold the Appellant liable to pay this amount.
The Appeal, accordingly, succeeds in part.
Hence,
O R D E R E D
The Appeal stands allowed on contest against the Respondent in part. The impugned order is modified as under:
The Appellant shall pay Rs. 6,60,870/- to the Respondent/Complainant along with simple interest @ 9% p.a. over the aforesaid sum w.e.f. 10-08-2015 till full and final payment is made. Appellant shall further pay the sum of Rs. 25,000/- as litigation cost to the Respondent.
