Dt. 13.03.2015

JAGANNATH BAG, MEMBER

          The present appeal is directed against the Order , dated 05.08.13, in complaint case No. 49 of 2012 passed by the Ld. District Consumer Disputes Redressal Forum,  Purba  Medinipur , by which the complaint was allowed exparte against the OP.

          The complaint case , in brief , was as follows:

          The Complainant  took an insurance package policy in respect of his vehicle No. WB-31/4442 . The policy was valid from 01.12.2011 to 30.11.2012. On 12.06.2012  the vehicle met with an accident near Ramnagar,  Purba Medinipur and the vehicle was damaged. The Complainant gave intimation to OP No.1 through OP No.2 . The local Ramnagar Police Station started a police case being No. 132/12 dated 18.06.2012 and seized the damaged vehicle. The Complainant got the vehicle released by order of the Ld. Court of  ACJM , Contai, dated 25.06.2012  and the vehicle was sent for repairing to the garage of Majed Ali Khan. On being informed, OP No.1 appointed a Surveyor who assessed the loss at Rs. 1,76,821/- , though the Complainant spent a sum of Rs. 2,44,791/- for repairing of the vehicle. The claim was repudiated by the insurance company on the alleged ground of violation of the policy condition that the vehicle, at the time of accident, was carrying 4 persons though the seating capacity as noted in  Registration Certificate of the vehicle was 3 only. 

          Ld. Advocate of OP No.1 appeared before the Ld. Forum below, but subsequently  stayed away from the proceeding.  As a result , the case was heard ex parte.

          Ld. Forum below observed that the repudiation of the claim of the Complainant  was linked  to the breach of condition of the policy that the vehicle was carrying 4 passengers beyond the recorded seating capacity  of  3,  though there was no sufficient proof to show that the vehicle was carrying 4 passengers at the time of accident. It was also observed that the Surveyor assessed the loss without properly examining the papers / bills etc furnished by the Complainant in support of total expenditure incurred in connection with the repairing  of the vehicle. Accordingly, OP was directed to pay Rs. 2,44,791/- towards settlement of the insurance claim along with compensation of Rs. 12,000/- and litigation cost of Rs. 2,000/-.

           Being  aggrieved  by and dissatisfied with the order of the Ld. Forum below, the Appellant/ Insurance Company has come up before this Commission with a prayer for direction to set aside the impugned order.

          Ld. Advocate appearing for the Appellant submitted that the insured vehicle met with an accident , the Complainant informed the Insurance Company about the accident  and a Surveyor was engaged who assessed the loss at Rs. 1,76,821/- . There was a breach of condition of the insurance policy which showed that the vehicle was carrying 4 passengers in place of the approved seating capacity of 3 . Ld. Forum below failed to appreciate such breach of condition and allowed the estimated repairing costs of Rs. 2,44,791/- without proper reasons. In support of his argument Ld. Advocate cited  the  decision of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No. 2032 of 2012 holding that the terms of a contract of insurance have to be strictly  construed and no exception can be made on the ground of equity. Ld. Advocate prayed for order setting aside the impugned order .

          The Respondent, having been found to remain absent on most of the dates fixed  throughout the proceedings of the appeal after filing vakalatnama by his Advocate , the matter was heard ex parte and we proceed to decide on the basis  of the  memorandum of appeal and other documents and also upon consideration of  the submission made by Ld. Advocate of the Appellant.

                                           Decision with Reasons 

          It is an admitted fact that the Complainant being the owner of vehicle No. WB 31/4442  took an insurance policy for his vehicle  from the Insurance Company and the policy was valid from 01.12.2011 to 30.11.2012 . The vehicle met with an accident which was duly intimated to the OP Insurance Company. The Surveyor is said to have assessed the loss at Rs. 1,76,821/- after deducting salvage value. In spite of assessment of such an amount towards repairing of the vehicle , the Insurance Company did not settle the claim and, instead, sent a letter of repudiation showing the ground that the vehicle was carrying 4 passengers against approved seating capacity of 3 at the material time of accident. Ld. Forum below observed that no copy of the Survey report was produced before them and as such there was no scope for them to evaluate the correctness / acceptability of the said Survey Report.

          It has been submitted by the Appellant in their appeal that Mr. A. Chakrobarty who was engaged for contesting the complaint before the Ld. Forum below , appeared  before the Ld. Forum and filed vakalatnama and took steps up to 28.03.2013. On 01.04.2013 Ld. Lower Forum fixed the case for ex parte proceeding . Thereafter, on several dates , viz, 19.04.2013 , 26.04.2013 , 08.05.2013, 13.05.2013  , 21.05.2013 , 03.06.2013 , 24.06.2013  and 27.06.2013 there was no quorum  in the Forum and for such reasons hearing was not held.  After the ex parte hearing held on12.07.2013 an order was passed on 05.08.2013.

          It appears that the Ld. Forum had no scope to go through the report of the Surveyor. Accordingly, they relied on the statement of cost of repairing of the vehicle as mentioned in the petition of complaint and ‘some photocopies of some bills and money receipts’  and allowed the entire amount of Rs. 2,44,791/- as claimed towards settlement of the  insurance policy. A sum of Rs. 12,000/- was also allowed as compensation and Rs. 2,000/- as litigation costs.

          It is important to note that the Survey Report, not being placed by the OP Insurance Company/ the Appellant herein, could not be perused, though such Survey Report is a  very vital  document towards settlement of insurance claim. The order passed by the Ld. Forum below does not have any reflection as to whether the photocopies of  bills or money receipts  tallied with the statement about expenditures/ expenses as recorded on Page -4 of the petition of complaint . No annexure  in that regard  appears to have been filed along with the complaint petition on affidavit  in support of actual expenses  incurred showing repairing  and other charges. That being the position, mere statement of expenditure purported to have been borne by the Complainant can not be taken for granted towards settlement of the insurance claim, particularly there being a Surveyor’s Report.

          Going by the above discussion we are of the considered view that the matter should be adjudicated afresh with the submission of written version of the OP Insurance Company and such other evidence as may be produced by both parties.

Hence,

                                                 Ordered

 That the appeal be and the same is allowed . The impugned order is set aside. The matter be sent back on remand to the Ld. Forum below for fresh adjudication and order after giving opportunity of hearing to both parties who may adduce such evidence as would be proper on their part . The matter may be disposed of by the Ld. Forum below as expeditiously as possible in the interest of justice. There shall be no order as to costs.