Orissa

Kendujhar

54/2013

Madhumita Brahma - Complainant(s)

Versus

1.Regional Claim Manager,Cholamandalam M.S. General Insurance Co.Ltd. - Opp.Party(s)

Sri S. Das & Associates

03 Nov 2015

ORDER

IN THE COURT OF THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO. 54 OF 2013

Madhumita Brahma, aged about 43 years,

Daughter of Subash Ch. Brahma,

Owner of Toyota Innova VX Car

Regd.No. OR-09-P-0007,

Village/Post- Remuli,

P.S-Champua , Dist.-Keonjhar……………………………….Complainant

                        Vrs.

1. Regional claim Manager,

Cholamandalam M.S. General Insurance Co. Ltd.,

46/45, Second Floor, Hotel Basera Building,

Ashok Nagar, Janpath, BBSR.,

Dist.-Khurda-751009

2. The Branch Manager,

Cholamandalam M.S. General Insurance Co. Ltd.,

Barbil Branch, Intermediary Name

IBL-VFD-ORISSA-Barbil Code No.-201043828094,

At/P.O/P.S-Barbil, Dist- Keonjhar-758035   ………………Opp. Parties

 

PRESENT- Sri A.K. Purohit, President

                   Smt. B. Giri, Member (W)

                   Sri S.C. Sahoo, Member (M) (Absent on the date of Pronouncement)

Advocate for the complainant- Sri S. Das & Associates

Date of Hearing - 23.09.2015                                        Date of Order- 03.11.2015          ___________________________________________________________________

Sri A.K. Purohit, President 

1. The case of the complainant is that, she is the owner of a Toyota Innova VX car bearing registration No. OR-09-P-0007. The said car was insured with the O.Ps. on payment of requisites premium vide policy No. 3362/0062038/000/01 which was valid from 21.5.2012 to 20.5.2013 midnight for an insurance value of Rs.912000/-. During the validity of the said policy on dated 1.4.13 at about 12.30.P.M. the vehicle of the complainant met with an accident within the jurisdiction of Panikoili P.S. of Jajpur district. Immediately after the accident the same was informed by Parthasarathi Pahi before the P.S. vide station diary entry No. 11 of 1.4.13 of Panikoili P.S. In the said accident the car of the complainant was badly damaged and hence she lodges a insurance claim before the O.ps. vide claim No. 3362199174 dated 10.4.2013. For settlement of the said claim the O.Ps. have appointed Mr. Biswadeep Singh for assessment of loss and accordingly intimated the complainant. The complainant alleges that instead of settling her claim, to her surprised she was intimated by the O.P.1 that her claim was repudiated on the ground that, she was misrepresented in disclosing the name of the driver who was driving the vehicle on the date of accident in the claim form. The O.Ps. have did not consider the clarification of the complainant and hence the complainant alleges deficiency in service on the part of the O.Ps. and have preferred this case before this Forum.

2.  The O.Ps. have contested the case by filing their written version jointly. According to the O.Ps. on dated 1.4.2013 one Sapan Kumar Brahma intimated them over mobile phone that, the complainant’s vehicle bearing Regd.No. OR-09-P-0007 met with an accident. With this information the O.P. have registered a motor vehicle claim vide claim No. 3362199174 recording the name of the driver as Sapan Kumar Brahma. Maintaining the formalities the complainant has submitted her claim form where in the O.Ps. have found that the name of the driver was Ranjan Kumar Swain. To this the O.Ps have doubted the correctness of facts supplied by the complainant in the claim form and averred that for her wrongful gain the complainant has misrepresented the facts in the claim form and hence claim has not been settled. The O.Ps. have claimed dismissal of the case.

3. Heard both the parties. The learned advocate for the complainant submitted that, the station diary entry of Panikoili P.S. reveals that the name of the driver at the time of accident was Ranjan Kumar Swain and the IIC of the said P.S. has verified the D.L. of the driver and found the same to be correct and hence it cannot be said that the facts submitted by the complainant in the claim form is a misrepresentation of facts. Even if any phone call is received by the O.P. then it is a mere intimation. The learned advocate for the complainant further submitted that, appointing a second surveyor to obtain a report of their choice by the O.P. is not permissible under law and hence non-settlement of claim by the O.P. amounts to deficiency in service. On the other hand the learned advocate for the O.Ps. Submitted that, just after the accident one Sapan Kumar Brahma, the son of the complainant intimated the O.P. that, he was driving the vehicle by the time of accident, but in the claim form a different name of the driver was mentioned. Therefore the complainant has not acted in good faith and has misrepresented the facts. Accordingly the complainant is not entitled to the assured amount and the case is liable to be dismissed.

4.  Perused the material available on record. The admitted facts of the case are that, the complainant’s vehicle Toyota Innova VX car bearing Regd. No. OR-09-P-0007 was insured with the O.P. on payment of premium for a period of 21.5.2012 to 20.5.2013 midnight for an insurance value of Rs.912000/-. It is also an admitted fact that the said vehicle met with an accident on 1.4.2013 during the validity of the insurance policy. With these admitted facts the point for consideration is, whether there is any misrepresentation of facts in disclosing the name of the driver in the claim form submitted by the complainant and there was any appointment of second surveyor in settlement of the claim and the complainant is entitled to the loss assessed by him.

5. Coming to the first point, on perusal of the Xerox copy of the S.D. entry of Panikoili P.S. it is seen that, the report was lodge immediately after the accident wherein it has been mentioned that one Ranjan Swain was driving the vehicle by the time of accident. The I.I.C. of the said P.S. has also verified the D.L. of Ranjan Swain and found correct. On perusal of the motor accident claim form it is seen that the name of the driver is Ranjan kumar Swain. Therefore from these evidence available on record it cannot be said that there was any misrepresentation of facts in disclosing the name of the driver. To rebut these evidence nothing is available on record. Intimating about the accident over a phone call cannot be a basis of rejecting a insurance claim. There must be a valid ground for rejection. The D.L. of Ranjan Kumar Swain is not disputed.

6. Now coming to the next point, the letter of the O.P dated 10.4.2013 disclose that, one Mr. Biswadeep Singh was appointed by the O.P. to assess the loss of the complainant’s vehicle in the said accident. But the O.Ps. have not produced the assessment report of Mr. Biswadeep Sing and have produced the survey report of Er. S.K. Mohapatra. No reason has been assigned by the O.P. for not producing the report of Mr. Biswadeep Singh. It is not permissible under law to appoint a second surveyor to obtain a favorable report. Time and again it has been held by the Hon’ble National commission that, appointing a second surveyor without valid reason is bad in law. In this context it is relevant to refer to the decision of the Hon’ble National commission reported in 2006(1) C.P.R. 270(NC) in G. Jayraam Naidu Vrs. United India Insurance Co. Wherein while discussing Sec.64UM the Hon’ble Commission has held in Para 28 & 29 that, “28. Proviso to sub-section (2) contemplates that the insurer has right to pay or settle any claim at amount different from the amount assessed by the approved surveyor or loss assessor. Secondly sub-section (3) provides that the authority is entitled to call for an independent report from any other approved surveyor or loss assessor and on receipt of such survey report issue such directions with regard to settlement of the claim at a figure less than or more than at which it is proposed to settle it and the insurer is bound to comply with such directions. From the aforesaid scheme of section 64UM it appears that the authority can appoint at the most two surveyors. But in any set of circumstances stringent action is provided against the surveyor or loss accessor who is guilty of breach of his duties or willfully making a false statement or has acted in fraudulent manner which may empower the authority to the cancellation of license given to him. Admittedly no such action is taken as required under sub-section-7.

         29. This commission has taken a consistent view that under section 64UM Insurance company cannot go on appointing surveyors one after the other so as to get a tailor made report to the satisfaction of the concerned officers.”

         In the present case there is no material available on record to show that, any action has been taken against the first surveyor Mr. Biswadeep Singh for breach of his duties or for any other reason for which a second surveyor is required for assessing the loss.

7. Now it is to be decided on what basis the claim of the complainant has to be settled. In this regard the learned advocate for the O.P. relied on the decision of the Hon’ble national Commission reported in 2015(1) CPR357 (NC), United India Insurance company Vrs. East India produce ltd., 2015(2)CPR459(NC),New India Assurance Co. Vrs. Dev Medical Agency and 2012(1)CPR124(NC)National Insurance Co. Vrs. Sri Chakravathi Enterprises and submitted that the surveyor report is an important document and the same has to be considered while settling the claim. The position of Law as decided by the Hon’ble commission is not disputed. But the facts and circumstances of the present case is different from the facts and circumstances of those decided cases. In the present case suppressing the report of the first surveyor a second surveyor was appointed without any reasons. There is no material available on record to show that the first surveyor is negligent in his duties. Therefore the cited decisions are not applicable in the facts and circumstances of the present case.

8. With these material available on record, it appears that non-settlement of insurance claim of the complainant without any valid reasons amounts to deficiency in service on the part of the O.Ps.

9. It is seen from the estimate submitted by Toyota Field Motor Ltd. that the total cost including labour and parts charges of the accident vehicle is Rs.1277067.44 which is more than the insurance value. This shows that the vehicle was badly damaged. In the absence of any other believable evidence for calculating the actual loss of the vehicle, in my opinion awarding the insurance amount will meet the ends of justice.

HENCE ORDER

The O.Ps. are directed to pay the amount of Rs.9,12000/- to the complainant with an interest at the rate of 8% P.A. from the date of accident i.e. form 1.4.2013 within one month from the date of receipt of this order. The O.Ps. are further directed to pay Rs. 2000/- to the complainant towards cost and compensation within the same period. Failing which the entire amount shall carry an interest at the rate of 10% P.A. till realization.  

 

                                                                  I agree

  (Sri S.C. Sahoo)                                    (Smt. B. Giri)                                (Sri A.K. Purohit)

     Member (M)                                       Member(W)                                       President

DCDRF. Keonjhar                                 DCDRF. Keonjhar                           DCDRF. Keonjhar       

 

                                                                                                Dictated & corrected by me.

                                                                                                            (A.K. Purohit)

                                                                                                President, DCDRF. Keonjhar

 

Order prepared by me is signed to-day i.e.3.11.2015.

Put up before the Sr. member for opinion.

                                                                                                            (A.K. Purohit)

                                                                                                President, DCDRF. Keonjhar