BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 8^th May 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDERS IN

C.C.No.102/2014

(Admitted on 20.3.2014)

Mohammed Sameer,

S/o UmmerKasim,

Aged 40 years,

16.4.296,2Gulshan Apartments,

Kalpana Road, Attavar, Mangalore 575001.

                                                                          ….. COMPLAINANT

(Advocate for the Complainant: Sri. ANN)

VERSUS

1. Shriram General Insurance Co.Ltd,

E-8, EPIP, RIICO Industrial Area, Sitapur,

Jaipur, Rajasthan 302022

Rep: by its Authorised Signatory.

2. The Branch Manager,

Slhriram General Insurance Co.Ltd,

Nanthoor Mangalore 575002

Represented by its Authorised Signatory.

                                                                           …...........OPPOSITE PARTIES

(Advocate for the Opposite Party No 1 and2: Sri. AKK)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

I. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to Pay Rs.5,86,260/ towards the cost of spare parts and repair charges, to pay the interest thereon from the date of 28.7.2013 till deposit, to pay Rs.10,000/ towards cost of this proceeding, to pay compensation of Rs.1,00,000/ towards mental agony caused to the complainant.

2.   In support of the above complaint the complainant Mr. Mohammed Sameer, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C9 as detailed in the annexure here below. Ruben Ravi Prasad, (CW2) Vehicles Repairs and Service, filed affidavit evidence and answered the interrogatories served on him.  On behalf of the opposite parties Mr.Abhinandan A.P, (RW1) Officer Legal, also filed affidavit evidence answered the interrogatories served on him and produced documents got marked at Ex.R1 to R4 as detailed in the annexure here below.  Mr.Chittaranajn. S, (RW2) General Insurance Surveyor and Loss Assessor, also filed affidavit evidence and answered the interrogatories served on him.

The brief facts of the case are as under:

We have perused the complaint and the version of the parties. The dispute is with regard to insurance claim on the vehicle stolen and recovered with parts missing. The complainant alleges that his 10 wheeler TATA Tipper Lorry (herein after called the vehicle) was missing on intervening night on 28/29.07.2013, and later with police help the vehicle was traced but some parts of the vehicle are missing. On claiming insurance under his insurance policy for the missing parts the opposite party in spite of furnishing required documents neither settled nor repudiated the claim but unnecessarily delaying in payment. The opposite party contested that the claim of the complainant is under process of verification of the documents, the claim is under investigation and survey by a competent surveyor and the settlement of the claim is subject to the final assessment of competent surveyor. The opposite party also contended that the claim is double the value of IDV of the insured vehicle, the complainant is raising hypothetical grounds and after thoughts instead of giving consent for constructive total loss and himself causing delay in completion of final survey.  These are being the facts of dispute we are of the view to decide the following

POINTS FOR ADJUDICATION.

We have thoughtfully considered the evidence of the parties and the documents considered in context of dispute. The admitted facts are, the theft of the vehicle, the subsistence of the insurance policy at the time of theft, and recovery of the vehicle with some missing parts. There is no dispute with regard to submission of claim and the documents to be furnished with the claim form. The opposite party appointed the surveyor and the surveyor submitted the report too. The opposite party admitted that if at all a claim of the insured is there to be allowed, it is to the extent of the survey report assessed amount only. It is admitted fact that the opposite party not repudiated the claim and it is still under process. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.

1. Whether the complainant is the consumer under the consumer protection Act 1986?
2. Whether there is any deficiency in service on the part of the opposite parties?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

We have meticulously studied the documents produced and the evidence lead by the parties. Considered the arguments advanced by the rival parties and heard the party counsels’ submissions and answered as follows.

1. In the affirmative.
2. In the affirmative.
3. In the affirmative in part.
4. As per delivered order.

REASON

POINT NO.1: The complainant produced the insurance policy copy wherein it is established the complainant had purchased the policy and the fact is not being disputed by the opposite parties. Hence we answered the point no 1 in the affirmative.

POINT NO.2: The crux of the dispute lies in the opposite party neither repudiated the claim nor settled the claim. The opposite party contends that they have not repudiated the claim and says it is still under process. The opposite parties case is not that, the complainant not produced the required documents for processing of the claim but it is the claim is under the process. In another breath the opposite parties contended that the complainant is raising hypothetical grounds and after thoughts instead of giving consent for constructive total loss and himself causing delay in completion of final survey.  In our opinion it is clear from the opposite party attitude that the opposite party is intended to settle the claim by pulling the complainant into its terms of total loss.  The reason given by the opposite party for not processing the claim is unacceptable. How long a consumer has to wait for getting settlement? From the record it was revealed that the claim was submitted as per complaint in the month of Aug 2013 for the accident occurred on 28/29.07.2013, the opposite party had asked for some other documents on 09.01.2014(EX C 7) and the same has been provided also as per letter dated 28.01.2014 (EX C 8) which is not disputed by the opposite parties.  In the first instance the opposite party have taken almost four months to ask for the documents and even after providing it the opposite party not settled the claim on whimsical grounds. Still the opposite parties have not processed the claim. There is an inference as claim accepted if the repudiation is not made within statutory limit of 6 months. As per IRDA Regulation 9 sub regulation 2 the insurance company shall settle or repudiate the claim within 30 days and in special cases within 6 months. So what happens if the insurance company don not settle or repudiate the claim within stipulated period? The law presumes the claim accepted and the insurance company have no option but to pay. The Honourable State commission Maharastra in M/S.JyotiImpexvs New India Assurance Co.Ltd. on 29 April, 2013 dealt in detail about the inference to be drawn. It is stated in Para 13 of the judgement that If we look to these regulations (referring to regulations 8 and 9), it becomes abundantly clear that a specific time has been provided for surveyor and the Insurance Company to settle the claim. It is important to be noted that the life insurance claim has to be settled within a period of 30 days and, in any case, within a period of six months as ruler time limit and so far as general insurance claims are concerned, after receipt of the survey report or an additional survey report within 30 days. There is an obligation on Insurance Company to settle the claim either way i.e. to accept the liability and make payment and/or deny the claim with reasons. Same is a case in respect of life insurance claim. Therefore, the insurance claim has to be decided as per regulation no.8 or regulation no.9 within the stipulated periods….

2.    On the contrary, when there is a duty to speak, namely, either to accept and/or denial, Insurance Company has to perform the said duty and especially when the person is called upon to deny the things and he is not denying it, it is well settled principle of law that such person accepts it. Silence in the adverse circumstances is an acceptance of the fact which is adverse to the party. Law requires that if there is anything adverse to a party, the party must open a mouth and shout as against that. Failure on the part of the party to do that results into an acceptance of the allegations and/or facts which are adverse to the party. In the present matter if the Insurance Company fails to deny the claim within a period of 30 days as required under the above referred two regulations, it will have to be inferred that the Insurance Company has accepted the claim. Because even though it was open for them to deny it, they have omitted and/or failed to deny it for the reasons best known to them and have submitted themselves to the adverse position of law. We have analysed this for this purpose that no doubt cause of action commences on the date of incidence which entitles the claimants to claim an insurance claim i.e. cause of action for filing the complaint but if we find that after the arisen of cause of action and on immediate information and receipt of the report, the Insurance Company has failed to deny the claim, we have to infer that the Insurance Company has accepted the claim and if within stipulated period there is no denial, statutory inference follows that there is acceptance of the claim then question arises why such a consumer shall approach the Consumer Fora for getting a claim. On the contrary, because of the statutory provisions and, more specifically, regulations referred to above, the claims stands accepted and satisfied and the claimant/consumer is entitled to claim interest over the said amount as provided in the regulations and, therefore, cause of action stands satisfied if within the stipulated period the Insurance Company fails to deny the claim.

3.     In our view in the instanant case there was duty to speak either honour or repudiate the claim but the opposite party has not responded either way the claim of the complainant is inferred as accepted.  Also as per IRDA regulation 9 and sub regulation 2 the insured is duty bound to settle the claim or reject within 30 days of survey report. Opposite parties failed in following regulation. Hence there is deficiency in service on the part of the opposite party in not paying the claim of the complainant.       

4.     It is also apt to mention here that opposite party as observed in proceeding Para, expected the insured to dance to their tunes and to consent for constructive total loss as the Para 8^th of version reads the complainant is raising hypothetical grounds and after thoughts instead of giving consent for constructive total loss and himself causing delay in completion of final survey  obviously this amounts to unfair trade practice. We presume the opposite party is using delay tactics to bring the insured to their terms and forcing complainant to agree for constructive total loss. As such we hold the opposite parties for both deficiency in service and the unfair trade practice. Hence we answered the point no 2 in the affirmative.

POINT NO.3: As we seen in forgone Para the opposite party not settled the claim within stipulated time and the reason for responding either way is not explained with cogent reason and the reason stated to be the claim still under process is un acceptable and the reason the complainant not consenting for constructive total loss and himself is delaying for settlement is not tenable as it amounted to unfair trade practice. Hence we hold the opposite parties accountable for deficiency in service as well as unfair trade practice. The complainant prayed the relief of Rs. 5,86,260/ for the amount spent in replacing the stolen parts. We have gone through the EX C 1and EX C 2 where it is found that the IDV of the vehicle insured is  Rs. 7,50,000/ and the model of the vehicle is 2007. EX R 2 is the survey report produced by the opposite party wherein the surveyor stated Rs. 2,02,000/ to be of the insurers liability. Considering the age of the vehicle and the IDV of the vehicle insured for, and also the opposite party has admitted the maximum claim if it all it will be as per survey report in their version in Para 10, we also think fit to allow the claim to the extent of survey report amounting to  Rs.2,02,000/. The complainant has stated that he had borrowed loan and paying the instalment of Rs.29,000/  per month .We consider an interest at the rate of 12% per annum from the date of complaint till the payment. There is negligence in keeping the claim unsettled without any valid reason and an unfair trade practice as observed above, the complainant is entitled to an amount of  Rs.20,000/ as compensation and we also deem fit to award the litigation expenses  Rs. 6,000/ hence we answered the point no 3 as partly affirmative.

POINT NO.4: In the light of the above discussions and the adjudication of above points we deliver the following

ORDER

The complaint is allowed in part. The opposite parties shall pay the complainant an amount of Rs. 2,02,000/ (Rupees Two lakhs two thousand only) with an interest of 12 % per annum from the date of complaint till the date of payment and an amount of Rs.20,000/ (Rupees Twenty thousand only) towards compensation and the litigation expenses of Rs. 6,000/ (Rupees six thousand only) within 30 days from the date of the order copy received.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 10 directly typed by Member, revised and pronounced in the open court on this the 8^th May 2017)

              MEMBER                                              PRESIDENT

    (T.C. RAJASHEKAR)                        (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                 D.K. District Consumer Forum

 Additional Bench, Mangalore.                  Additional Bench, Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 :Mr. Mohammed Sameer

CW2: Ruben Ravi Prasad, Vehicles Repairs and Service

Documents marked on behalf of the Complainant:

Ex.C1: Motor Insurance policy from Opposite Party No.1 to tipper lorry bearing registration No.KA.19.B.8764.

Ex.C2: Copy of R.C. of above vehicle.

Ex.C3: Copy of FIR in Cr. No.123/2013 of Konaje P.S.

Ex.C4: Copy of seizure mahazar drawn by the policy.

Ex.C5: Copy of P.F. submitted to the court by the concerned policy.

Ex.C6: Copy of the estimate issued by Ravi Auto Garrage.

Ex.C7: Letter dated 9.1.2014 issued by the Opposite Party to complainant.

Ex.C8: Office copy of compliance letter dated 28.1.2014 sent to Opposite Parties in reply to above letter, with postal receipt       

          and report as to delivery of the same to Opposite Party.

Ex.C9: Original bills of repair amounting to Rs.5,58,698/(2 in numbers)

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr.Abhinandan A.P, Officer Legal

RW2: Mr.Chittaranajn. S,General Insurance Surveyor and Loss Assessor

Documents marked on behalf of the Opposite Parties:

Ex.R1: Insurance policy.

Ex.R2: Surveyor’s Report.

Ex.R3: Investigation report.

Ex.R4: Claim repudiation letter.

Dated: 8.5.2017                        MEMBER