Date of filing:-25/07/2016.
Date of Order:-01/12/2017
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT),
B A R G A R H.
Consumer Complaint No. 29 of 2016.
Manish Bondia S/o Gopal Agrawal,aged about 27(twenty seven) years R/o/Vill:-Paikmal, P.o.-Paikmal, Dist-Bargarh, At present:- Saraswati Vihar, Qr. No.B5, Po/Ps/Dist-Bargarh. ..... ..... ..... Complainant.
-: V e r s u s :-
Authorised Officer, Bajaj Allianz General Insurance Company Ltd., Area office at-Sriya Square, Kharabela Nagar, Unit-IV, Bhubaneswar, Dist-Khorda.
Managing Director, Bajaz Allianz General Insurance Co Ltd. G.E.Plaza, Airport Road, Yerewada, Pune-411 006, Maharastra.
Branch Manager, Bajaz Allianz Co. Ltd. At/Po/Dist- Bargarh.
Regional Transport Officer, Bargarh. Po/Ps/Dist-Bargarh.
..... ..... ..... ...... Opposite Parties.
Counsel for the Parties:-
For the Complainant :- Sri R.K.Satpahty, Advocate with others Advocates.
For the Opposite Party No.1(one) :- Sri A.K.Dash, Advocate.
to Opposite Party No.3(three)
For the Opposite Party No.4(four) :- Ex-parte.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.01/12/2017. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief Facts of the Case ;-
The case of the Complainant pertains to the allegation of deficiencies in non rendering service by the Opposite Parties to him, hence he preferred to file the case U/s-12 of the Consumer Protection Act-1986, on the ground as envisaged here under .
The Case of the Complainant is that he being an un-employed graduate, to earn his lively-hood has purchased a Terex TLB.740-Backhoe Loader for an amount of Rs.19,71,428.57/-(Rupees nineteen lakh seventy one thousand four hundred twenty eight and fifty seven paise)only from the show room Shivam Venture Pvt Ltd., Rourkela being financed by Sri Ram Equipment Finance, Bargarh and got it registered vide the Engine No-4H32021220456 and Chessis No-TESC 12AQ06C7407022 in the office of the R.T.A. Bargarh, the Opposite Party No.4(four) and was issued with the Registration Certificate vide Regd No.OD-17-3913, and also applied for route permit for the vehicle to run the same but as per his case the R.T.A. denied him for issuing him with the route permit saying that no such vehicle is given with the same certificate, And by the time of the said vehicle was purchased the same was insured with the New India Assurance Co. but subsequently it was insured with the Opposite Party No.1(one), 2(two) & 3(three), vide Policy No. OG-15-2412-1811-00000299 being persuaded by them from time to time and lastly it was renewed on Dt-01.02.2015 to 31.01.2016, and during the subsistence of the same on Dt.10.10.2015 it got fired due to some un-known reason, while it was engaged in the field work of one Chittaranjan Padhan of Paikmal and in such process of work the said Chittaranjan Padhan got information at about 9.30.p.m,on Dt.10.10.2015 that the said vehicle was burning, so he rushed to the spot and found that it was burning and then immediately reported the matter to the Paikmal Fire Brigade but by the time the Fire Brigade Force reached to the spot it was totally burnt so he informed about the same to the Complainant so on getting information the Complainant rushed to the spot of the accident and found that the vehicle was totally burnt so immediately he informed about the same to the Police and the F.I.R was lodged by the said Chittarajan Padhan and on his information the police registered a case by making a station diary entry in the Paikmal Police Station.
Subsequently thereafter the Complainant reported about the same incident to the Opposite Parties on Dt.11.10.2015 and applied before them which was registered as claim No.OC-16-2403-1811-00000032, claiming compensation of the insured amount against the insurance policy and also has made several correspondence for an earlier disposal of his claim amount, after getting information the Opposite Parties deputed one surveyor and after survey of the same the Opposite Parties informed him on Dt.13.01.2016 to submit other documents along with route permit and as per their direction the Complainant submitted all the required documents except the route permit as it was not supplied with him by the R.T.A. hence again on Dt.27.07.2017 the Opposite Parties sent him a letter repudiating his claim on the same ground stating therein that since the vehicle was not having a route permit, as it was left alone without proper care hence has violated the policy condition.
And thus the Complaint claiming the Rs.19,95,000/-(Rupees nineteen lakh ninety five thousand)only in all including the depreciated amount of the value @ Rs.18,00,000/-(Rupees eighteen lakh)only, for remaining the vehicle burnt vehicle causing loss of his income out of the same @ Rs.20,000/-(Rupees twenty thousand)only per month and Rs.15,000/-(Rupees fifteen thousand)only against litigation expenses. And in support of his such claim the Complainant has relied upon some documents as follows.
R.C .book.
Certificate –policy schedule.
Certificate of fitness.
Copy of F.I.R, station Diary Entry.
Fire Accident Certificate.
Copy of complaint before the O.P.
Letter Dt-19.09.15 Dt.07.12.15 Dt.26.11.15 Dt.13.01.16.
Compliance Dt.08.01.16.
A/C statement.
Purchase receipt.
Having being admitted, the Opposite Parties were noticed and on being noticed the Opposite Party No.1(one), 2(two) & 3(three) appeared and filed their version and later on the Opposite Party No.4(four) was added as an Opposite Party with the permission of the Forum and was noticed to appear but the same Opposite Party No.4(four) did not appear till Dt.15.03.2017 resulting to which he was set Ex-parte.
The written version of the Opposite Party No.1(one), 2(two) & 3(three) are filed jointly and are all an evasive one and in their version it has categorically contended that the Complainant has violated the policy condition of the Opposite Parties Insurance company by not furnishing the road permit as per the provision of the Motor Vehicle Act, secondly it was left being un-cared for in a lonely place and in furtherance to their cause of repudiation is that the vehicle since being used for commercial purpose is not coming under the purview of Consumer Protection Act-1986 and has intimated it’s repudiation through a letter Dt.27.07.2016. and denied to have their liability in compensating the loss sustained by the Complainant and in support of their case the Opposite Parties have filed several documents as follows:-
True copy of insurance policy in respect of vehicle bearing No.OD-17-3913 (Nine sheets).
Information given by R.T.O., Bargarh to Dr. Satish under R.T.I. Act(1 sheet) on Dt17.06.2016.
Photocopy of repudiation letter on Dt.27.07.2016(1Sheet).
Photocopy of ICS Assurance Services Pvt Ltd. on Dt.18.01.2016(22 Sheet).
Statement of Manish Bondia to Bajaj Allianz GIC Ltd (1 Sheet).
Having gone through the Complaint, the version and the documents and their respective written notes of arguments filed by the counsel of the parties and on hearing their counsel the points for proper adjudication of the case cropped up before us as follows:-
Whether the case is maintainable in the present form before the Forum in view of the alleged violation of policy condition by the Opposite Parties ?
Whether the Opposite Parties are deficient in rendering service to the Complainant ?
Whether the Complainant is entitled for the compensation as sought for by him ?
While Considering the 1st point with regard to the maintainability of the case in it’s present form.
Perused the Complaint, Version the documents filed by both the Parties and on hearing the counsels of the respective parties, as it reveals therein that the Opposite Parties has admitted the part of his insuring the vehicle in question by receiving the required amount of premium for the same which is still in subsistence at the time of the incident also it has been admitted in their version that earlier it was insured by the new India Assurance Co Ltd and also it has admitted the said vehicle to have been registered by the Regional Transport Authority vide the aforesaid registration number, but the only point of repudiation of the claim of the Complainant is that the same was not endorsed by the R.T.A. with the road permit as per the provision of the M.V. Act, in this regard the Advocate for the Complainant vehemently argued before the Forum contending that it was the duty of the Opposite Parties to ascertain about the same at the time of the acceptance of the policy which they have not done so which stopped them from raising the same at such a belated stage.
Furthermore the contention of the Advocate for the Complainant with regard to the same road permit he has applied before the R.T.A at the time of registration of the vehicle but though the same was registered but no certificate of road permit was issued with him, furthermore to ensure about the same he has sought for the opinion of the R.T.A. through R.T.I. application in reply to which the Authority has communicated him that no such certificate against any such vehicle to any body was being issued from the year 2012 to 2016, although to it’s counter the same authority has again opined with the Opposite Parties query that it is required as per the provision of the said Act, but it is seen from the materials available in the record that the Complainant has taken his best effort to prove his case by adding the R.T.A. as an Opposite Party in this case but he did not appear before the Forum even being served with notice along with the copy of the Complainant, from which it can be safely inferred that the Complainant is not at fault.
Furthermore with regard to the vehicle being left uncared for in a lonely field, it reveals from the record that the same vehicle was engaged in a cultivable land of a third person namely Chittaranjan Padhan of Paikmal but due to the sudden illness of the operator of the same he has left it in the said field of the person with whom the same was entrusted and also the vehicle in question, is such a vehicle which is not practically possible to keep in any garage or under any covered area which is supposed to be known to the Opposite Parties at the time of accepting the proposal of insurance, as such a plea of the Opposite Parties is not tenable and in furtherance to our observation the vehicle is usually required for the purpose of cultivation or in excavating the earth in the field not on the road, and moreover there is no specification of such vehicle in the M.V. Act-1988 excepting about the Light Motor Vehicle for different use. Moreover the Complainant has filed his complaint supported with an Affidavit but the Opposite Parties has not taken any step to examine the Complainant nor has filed their version along with an Affidavit to encounter the Complaint, so merely by filing an evasive statement in their version is not sufficient to destabilize the contentions of the complaint, so in our considerate view the case is maintainable in it’s present form, hence answered in favor of the Complainant.
2nd while examining the points of consideration with regard to the question as to whether the Opposite Parties are deficient in rendering service to the Complainant, after vividly going through the materials available in the record it came to our observation that the Complainant has duly insured the vehicle with the Opposite Parties Insurance Company by paying the due amount of premium with all necessary documents that has been asked for at the time of the same was taken up by the Opposite Parties and was regularly renewing the same time to time, and soon after getting information of the fire incident with the same has informed to the Police and to the Opposite Parties too and also furnished all the documents which were asked for by them and in response to his claim the authorized surveyor has also surveyed the spot and the details of the incident but the Opposite Parties has kept it’s decision to convey to the Complainant for more than seven months and ultimately on technical ground repudiated the same which itself amounts to deficiencies of service.
In furtherance to our observation the Opposite Parties have a point of objection to the claim of the Complainant on the ground that the vehicle was being used for commercial purpose, in this regard we have found from the complaint that the same was used for commercial purpose but to earn his livelihood and in such circumstances it is clearly enunciated in the Act U/s 2(d)(i)(ii) explanation that commercial purpose does not include use by a person of goods bought and used by him for the purpose of earning his livelihood by means of self-employment, in addition to the facts as mentioned the very purpose of the insurance of anything by paying the required amount of premium against the same with a reasonable guiding policy condition is to indemnify the loss to that thing if sustained by the insured to which of our such view has been fortified by the Honorable Apex Court of the country reported in C.P.R.2005 Volume one (paras 21 to 24), wherein his Lordship has expressed their view in a clear dictum that U/s 2(1)(d) and 2(1)(o) 'Consumer’ and service- whether Insurance Policy taken by Commercial units could be said to be hiring of service for commercial purpose and thereby excluded from purview of Consumer Protection Act-1986. No taking the meaning of words “for any commercial purpose’’ would mean that goods purchased or services hired should be used in any activity directly intended to generate profits-person who takes insurance policy to cover risk does not take policy for commercial purpose as policy is only for indemnification of actual loss and is not intended to generate profit. As such in our considerate view the Opposite Parties have committed deficiencies in rendering service to the Complainant by repudiating his claim as such it is answered accordingly in favor of the Complainant.
Thirdly while considering the points as to whether the Complainant is entitled to the claim as has sought for, in this regard, as we have already expressed our views after discussing in details affirmatively in favor of the Complainant now obviously it make the Complainant entitle to the compensation as sought for by him in the following manner.
Although the Complainant has contended in his petition the value of the Vehicle is Rs.20,00,000/-(Rupees twenty lakh)only but it reveals from the materials available in the record, it is Rs.19,71,428/-(Rupees nineteen lakh seventh one thousand four hundred twenty eight)only on the date of purchase and accordingly it has already run for more than two years till the date of the fire incident hence after deducting the depreciation cost as per the agreed policy condition of the Complainant, the cost of the same comes around Rs.13,80,000/-(Rupees thirteen lakh eighty thousand )only and so far the claim of the Complainant with regard to the loss sustained due to the fire of the vehicle and non-rendering service in due time by the Opposite Parties Rs.20,000/-(Rupees twenty thousand)only per month but we have unanimously considered to be Rs.50,000/-(Rupees fifty thousand)only against his monetary loss, mental agony and physical harassment caused to him by the deficient action of the Opposite Parties, considering the facts and circumstances of the case and accordingly all the Opposite Parties from 1(one) to 3(three) are jointly and severally liable, and since the Opposite Parties No.4(four) is a proforma Opposite Party and also no claim has been made against him hence is exonerated from any liabilities so far monetary claim is concerned, but here we would like to give an observation since it is his duty to go with the law provided to him as guidance while discharging his official duty but has not done so which is clear from his two contrary opinion released from his official sources, is liable for explanation from the proper authorities and the Parties are at liberty to draw the attention of the same before the proper Forum if any of them like so. Hence order follows.
O R D E R
Hence the Opposite Party No.1(one) to 3(three) are jointly and severally directed to pay an amount of Rs.13,80,000/-(Rupees thirteen lakh eighty thousand )only as the sum assured amount against the insurance policy and also directed to pay an amount Rs.50,000/-(Rupees fifty thousand)only against such aforesaid claim and the Opposite Parties are directed to pay the total amount within thirty days from the date of the receipt of the order, in default of which the total amount would carry interest @ 6 % (six percent) per annum till the actual date of realization.
Accordingly the Complaint is allowed against the Opposite Parties and the same is pronounced in the open Forum and is disposed off to-day i.e on Dt.01.12.2017.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree, I agree,
(Sri Pradeep Kumar Dash) ( Ajanta Subhadarsinee)
M e m b e r. M e m b e r (W)
