DISTRICT CONSUMER DISPUTES REDRESSAL FORUM. BOLANGIR.
…………………
Presents:-
1.Sri P.Samantara, President.
2.Sri G.K.Rath, Member.
3.Smt.S.Rath, Member.
Dated, Bolangir the 30th day of November 2016.
C.C.No. 02 of 2015.
Prakash Kumar Kanhar Son of Narayan Kanhar, substituted by;
1.Narayan Kanhar, age-62 years son of
2.Laxmi Kanhar, age-55 years wife of Narayan Kanhar
Resident of village/P.O-Ghantapada, P.S.Kantamal,Dist- Boudh.
.. .. Complainant.
-Versus-
1.Magma HDI General Co.Ltd. At-Plot No.229/5332.
Goutam Nagar,Bhubaneswar-751014. Dist-Khurda.
2.Magma Fin crop Ltd. NICS Building,1st Floor, Ghafoor Colony,
Udit Nagar, Rourkela-769012,Dist-Sundargar.
3.Magma HDI General Insurance Company Ltd.
Magma House,24 Park Street, Kolkota-700016.
4.MagmaFincorp Limited, Bolangir Branch,
At-Khadalpada, Bolangir town, P.O/P.S/Dist-Bolangir.
,. .. Opp.Parties.
Adv.for the complainant- Sri B.C.Pradhan & Associates.
Adv.for the O.Ps - Sri A.K.Tripathy.
Date of filing of the case-01.01.2015
Date of order - 30.11.2016
JUDGMENT.
Sri P.Samantara, President.
1. Succinctly put, complainant owned BOL XL 2WD against registered No.OD-03A-6643, Maxi CAB and holding a comprehensive package policy No.-P0014400002/4103/261432 being covered from dt.08.11.2013 to 07.11.2014.
2. The complainant averred, the vehicle met an accident on dt.17.01.2014, Requisite FIR has been lodged, P.S. case No.3/2014.So also OD claim No.C/14/400007/4103/
02/05016901/1 from Magma-HDI General Insurance Co. Ltd.
3. Further submitted against OD claim survey ensured by the Insurer and documents as required has been submitted .It is also stated at the material time of accident, the vehicle was plied by the driver named Mr.Sudham Pandey and the driver holds a transport endorsed license bearing No. OR-2720120004105, Licensing authority, Boudh.
4. Further stated the surveyor as to the intimation assessed the loss to the tune of Rs 2,19,026/- and the cost incurred was Rs 3,89,706/- exclusive of towing.
5. Whereas MAGMA HDI General Insurance Co. Ltd repudiated the claim on the ground that it is observed the driver Sudam Pandey was not authorized to drive a PCV (Passenger Carrying Vehicle) at the material time of accident. Thus not payable .On such contention made the case, praying for relief’s as deemed fit. Reliance made documents Photo copies and affidavit.
6. In pursuant to notice, Magma HDI General Co. Ltd, Chain –( herein after known), as O.P.1 & 4 contested the case. Filed the version admitting issuance of policy allegation of loss and subsequent lodge of claim and survey loss assessment the claim.
7. The Insurer contended, past intimation of loss to this O.P has taken all the requisite steps in settlement of the claim, where as the complainant in spite of repeated intimation delayed in furnishing document and lastly on observation, the driving license of the driver Sudham Pandey found not effective on the date of accident. So due to defective driving license the O.P is not liable to pay any amount as same is a case of violation of terms and conditions of the policy. Thus the claim of the petitioner is not maintainable and liable to be rejected with exemplary cost.
8. Consequent to notice, Magma Fincorp limited hereinafter known as O.P 2 & 4 neither appear nor made out any version in admission or rebuttal.
9. Complaint has been contested by the O.P i.e Insurer Magma HDI General Insurance Co.Ltd.
10. We have heard arguments advanced at bar and have perused the record.
11. The counsel of the complainant made submission, the complainant is issued with comprehensive policy and the permit, Registration Certificate, Certificate of fitness, above all the license of the driver was in proper status as per the law. The O.P rejected the claim on technical status against the stipulated non standard norms and repudiating in toto is deficiency of service and liabilities.
12. On the contrary, the O.P counsel contended the forum lack jurisdiction and above all the driving license of the driver named Sudam Pandey has not endorsed sufficiently as to Passenger Carrying Vehicle urgents u/s. 3(1) of the Motor Vehicle Act.
13. In this context Sec.2(35) of the Act defines a public service vehicle as follows:-
“35”-‘Public Service Vehicle’ means any motor vehicle used or adopted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage and stage carriage”.
14. The certificate registration well admits the above explanation and no disputes persists on the nature of the vehicle status and in observation we found the driving license is well valid upto 26.03.2017 in endorsement transport as the smart card and certified copy speaks so.
15. Perusal of repudiation letter dt.28.04.2014 issued by the Insurer content reads:-
“You have submitted the D/L of Mr.Sudam Pandey who was driving the vehicle at the material time of accident but it is observed that he was not authorized for drive a PCV”
16. Further it is perused from the record, the investigator has given a misleading report without exhaustive clarification to which he is deputed and made in collusion with Insurer as the report and smart card of driving license of Sudam Pandey spells, the driver has endorsement and authorization to drive Heavy transport vehicle but not issued with a badge No, for which the validity or endorsement can not said as invalid as per M.V.Act and rules, hence the language made in the letter does not explicitly warrants a repudiation but issued in an ulterior motive which is amounts to gross deficiency made on the part of the Insurer in non settlement of a bonafide and genuine claim.
17. On the above noted explanation does not warrant a rejection of in toto as the authority as entirely and out rightly overlook its own guidelines set out in settling claims on non-standard basis.
18. In this connection we prefer to take reference made in the deision:-
National Insurance Company Limited/Vs/ Nitin Khandelwal- 2008 SC 351 and United India Insurance JCo. Vs Harijinder SinghAulakh-2013- “The appellant Insurance Company is liable to indemnify the owner of the vehicle,when the Insurer has obtained comprehensive policy for the loss caused to the Insured. The respondent submitted that even assuming that there was a breach of condition of the Insurance policy,the appellant Insurance company ought to have settled the claim on non-standard basis”.
19. Further placed reference – New India AssuranceCompany Limited Vs. Narayan Prasad Appaprasad Pathak- 2006 CPJ 144(NC). In the case also the question was raised whether the Insurance Company can repudiate the claims in a case where the vehicle carrying passenger and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out on its judgment the guidelines issued by the Insurance company about settling all such non-standard claims. The said guidelines are set out below:-
Sr.No. Description. Percentage of settlement.
(i) “ “
(ii) “ “
(iii) Any other breach of warranty Pay upto 75% of admissible claims.
/condition of policy including
Limitation as to use.
20. We also observe although dispute persists on the question of Surveyor assessment, but same cannot be set aside as there is no cogent and contrary to more substantive report to counter the same survey report. In our opinion in allowing the assessment as made the Surveyor is rightly justified and as per the rule & guidelines.
21. The petitioner in support of its contention has relied upon the judgment 2010 (1) OLR-431- Smruti Ranjan Parida Vs. Taramani Das, the aforesaid judgment is of no avail to the petitioner which based upon entirely different facts. Hence in the facts and circumstances of the present case being different from the case of cited rulings, no benefit can be derived by the complainant there from.
22. In view of the above made discussion and revelation in the documents placed on record, we are of considered opinion that the Insurance company is liable to pay the petitioner without any demur.
ORDER.
The case is allowed on contest. The O.Ps are hereby directed to pay the petitioner a sum of Rs 2,19,026-25% less (as per non standard) rule i.e Rs 1,64,270/- along with interest @ 10% per annum from the date of repudiation ,within 6 weeks from the date of this order, failing which the entire amount shall carry interest @ 12% P.A. till realization without any demur.
No order as to cost and compensation.
Copy of the order be made available to the parties as per rule.
File be consigned to record room.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 30TH DAY OF NOVEMBER 2016.
(S.Rath) (G.K.Rath) (P.Samantara)
MEMBER. MEMBER. PRESIDENT.
