West Bengal

Bankura

CC/83/2023

Rafikul Khan - Complainant(s)

Versus

The Manager/Authorised Officer(Claim),TATA ATG General Insurance Company Ltd. - Opp.Party(s)

Subrata Kumar Chakraborty

08 Feb 2024

ORDER

   IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA 

  Consumer Complaint No. 83/2023

                                                       Date of Filing:   08/09/2023                                                

Before:                                        

1. Samiran Dutta                            Ld. President.      

2. Siddhartha Sankar Bhui            Ld. Member. 

 

For the Complainant:  Ld. Advocate Subrata Kr. Chakraborty

For the O.P.:  Ld. Advocate Chandi Charan Adhvaryyu

Complainant  

Rafikul Khan@ Rafikul Ali Khan, S/O-Kalo Khan,Balitha,R/O, Vill- Radhamohanpur, Kotulpur,Bankura,W.B.Pin-722141

Opposite Party 

The Manager/Authorised Officer(Claim),TATA ATG General Insurance Company Ltd. Durgapur Branch,1^st Floor,City GYM Building Sahid Khudiram Sarani, City Centre,Durgapur-713216,Paschim Bardhaman                                                                          

 

FINAL ORDER / JUDGEMENT

Order No.07

Dated: 08-02-2024

Both parties file hazira through Advocate.

The case is fixed for argument.

After hearing argument/written argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that he is the Registered  owner of a commercial vehicle Registration No. being WB 870786, financed by HDFC Bank Ltd., duly insured with O.P../Insurance Co., Policy No. being 01625356760000, valid from 29/10/2021 to 28/10/2022 with IDB value Rs.30 Lakh. On 02/06/2022 at about 3 a.m. one truck bearing No. WB 75 / 5181 dashed the vehicle of the Complainant at Panagarh-Moregram Highway near Ghurisha Rice Mill within Ilambazar P.S., Birbhum and as a result of such accident the vehicle of the Complainant caught fire and was totally damaged. The incident was reported to Ilambazar P.S., registered as Ilambazar P.S. Case No.134/22, dt.02/06/2022 u/s 279/427 I.P.C. which ended in Charge Sheet against the accused Driver Jahiruddin Bayen of Complainant’s vehicle and also  to the O.P./Insurance Co. in due time followed by claim application.

Sale proceeds of wreck value of the damaged/burnt vehicle was  credited to the Loan A/c of the Complainant with HDFC Bank. The Complainant further received one mail message  in connection with his claim application sent on behalf of the O.P./Insurance Co. for further settlement of Rs.20,77,500/- but the O.P./Insurance Co.  did not comply with their own settlement of claim  and consequently the complainant has approached this Commission for appropriate relief towards the compensation of the damaged vehicle.

                                                                                                                                                                                          Contd……p/2

Page: 2

O.P./Insurance Co.  contested the case  by filing  a  written version denying the settlement of claim  by payment of Rs.9,21,000/-  to the Loan  A/c of the Complainant  with commitment for full settlement  of the claim  by payment of Rs.20,77,500/-.  Specific defence case is that the forensic Surveyor’s investigation has revealed that one Jakariya Sekh was driving the damaged/burnt vehicle at the time of accident who had no valid Driving  License and one Jahiruddin Bayen has been set  up as Driver of the damaged vehicle by the Complainant in  order to grab the claim amount. Non-possession of valid Driving License being the fundamental breach of the Policy the Complainant is not entitled to get any relief in this case.                                                                                                                                                                                   

-: Decision with reasons: -

Having regard to the facts of the case, submission, contention and documents from both sides the Commission finds that there is no dispute with regard to the factum of the accident and the complete damage of the Complainant’s vehicle. Only dispute between the parties is with regard to the identity of the Driver at the time of accident and the fact of part settlement of the claim by payment of Rs.9,21,000/- to the loan account of the Complainant  with further commitment  for full settlement by payment of Rs.20,77,500/- as canvassed on behalf of the Complainant.

F.I.R . and Charge sheet as referred to above is on record which clearly shows that Jahiruddin Bayen was the accused Driver at the time of accident and the Driving License of the said  Driver was seized by the Police Driving License  No. being WB  4120070311466 issued on 25/09/2007 and valid up to 28/10/2024. But the internal Departmental Surveyor,s Investigation  report  has revealed on the basis of Injury Report the name of Jakariya Sekh as the Driver  of the vehicle  at the time of accident who does not possess any Driving License.

The Commission has no jurisdiction to make out a 3^rd case by rejecting or accepting any of the Police Report or the Surveyor’s Report. It is well settled that Surveyor’s Report is not sacrosanct and not binding upon the Commission but the Police Investigation i.e. Charge Sheet is a statutory report and the Commission has no scope and authority to ignore the same otherwise it may lead to conflict of decision which is not desirable and permissible under the law as provided in Section 100 of Consumer Protection Act, 2019. So the Commission cannot take a different view but to accept Jahiruddin Bayen  as the Driver of the vehicle in question at the time of accident.

Ld. Advocate for the Complainant has referred to the mail message dated: 01/11/2022 received from and on behalf of O.P./Insurance Co. sent to the maid Id of the Complainant where it has been clearly stated that it is a case of constructive total loss where as per the final assessment and Surveyor’s report the aggregate repair cost exceeds the IDB value of Rs.30 Lakh  and in that case the O.P./Insurance Co. may at its own option pay in cash the amount of the loss or damage limiting the liability of the Company as the IDB value of the vehicle less the value of the wreck and it was accordingly computed in the said mail fixing the liability of the O.P./Insurance Co. to Rs.20,77,500/- as follows: -

                                                                                                                                                                                Contd……p/3

Page: 3

IDV of the vehicle:       Rs. 30,00,000-00

Less Policy excess:       Rs.        1,500-00

Less Wreck:                  Rs.    9,21,000-00

Net Liability:                Rs.   20,77,500-00

Ld. Advocate appearing for the O.P./Insurance Co. has however submitted before the Commission that he is not aware of any such mail communication between the parties and as such no reliance can be placed upon it but the Commission in absence of any contrary evidence can safely rely on such mail communication between the parties so as to come to the conclusion that the O.P./Insurance Co.  has on principle  and practice accepted their liability at Rs.20,77,500/- towards the full and final settlement of the claim of the Complainant  treating it  as a case of constructive total loss and the O.P./Insurance Co. cannot now retract  from their own stand and deny the claim of the Complainant on  other grounds.

In this regard the Commission further finds support from the decision of the Apex Court dated: 20/11/2023 in Civil Appeal No.1544/23 (Bajaj Allianz General Insurance Co. Vs. Mukul Agarwal) reported in (2023) INSC 1005 where it has been held that in case of constructive  total loss  the insured is entitled to get IDV minus wreck value  as the compensation for damaged/burnt vehicle. The principle of constructive total loss of vehicle which means that the damage is so extensive that repairing cost would equal or surpass the IDV value is no doubt applicable to the present case.

The procedure and manner of disposal of the damaged vehicle in public auction and the crediting of the sale proceeds thereof to the loan account of the Complainant as contended by the Ld. Advocate cannot be applied to defeat the claim of the Complainant.

The Complainant’s case therefore succeeds.

Hence it is ordered……..

That the case be and the same is allowed on contest but without cost.

O.P./Insurance Co. is directed to pay to the Complainant Rs.20,77,500/- as the compensation for the damaged/burnt vehicle of the Complainant within one month from this date I/D law will take its own course.

Both parties be supplied copy of this Judgement free of cost.

 

____________________                _________________         

HON’BLE   PRESIDENT           HON’BLE MEMBER