Orissa

Jajapur

CC/18/2016

Satyawan Prasad Nayak - Complainant(s)

Versus

B.M.New India Assurance Co Ltd. - Opp.Party(s)

04 Apr 2018

ORDER

IN  THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                     

                                             Dated the 4th day of April,2018.

                                                      C.C.Case No.18 of 2016

Satyawan Prasad Nayak    , S/O Late Udhab Prasad Nayak    

At/ P.O. Neulpur , P.S.Dharmasala

Dist.- Jajpur .                                                                            …… ……....Complainant .                                                                                                      

                                                  (Versus)

1.B.M.New India Assurance Co.Ltd, Micro Office ,Nayak Building ,Ground floor, Near RTO

    Office, Chandikhole, Dist.Jajpur .

2. The Senior Divisional  Manager, The New India Assurance Co.Ltd, DO-11,First Floor,  Mahashraman ,   Cantonment Road,P.O.Buxibazar,Cuttack.

 3. Chief Regional Manager,The New India Assurance Co.Ltd, Alok Bharati Tower

      1^st floor, Sahid Nagar, Bhubaneswar , Dist. Khurda .

4.The Chairman ,The New India Assurance Co.Ltd, Registered and head Office ,At.87

   M.G.Road Fort, Mumbai.

                                                                                                                          ……………..Opp.Parties.                                                                                                                                 

For the Complainant:                       Sri A.K.Pani, Advocate .

For the Opp.Parties :                         Sri  A.K.Dash, Advocate.

                                                                                                     Date of order:   04.04.2018.

SHRI   JIBAN BALLAV DAS, PRESIDENT.

The petitioner has filed the present   dispute against the O.Ps alleging deficiency in service as well as unfair trade practice  since the O.ps have repudiated the genuine Insurance claim of the petitioner unilaterally without application of mind as has been stated by the petitioner in the complaint petition .

            The  brief facts of the case is that  in order to maintain his lively hood by means of self employment  the petitioner had purchased a excavator and loader  JCB/JCB 3DX on 29.09.09 from Kobelco and the said vehicle was insured with New India Assurance Co. on 07.02.2014 for a sum of Rs.21,50,000/- under comprehensive policy bearing No.5504043113010000803  which was valid from 07.02.2014 to 06.02.2015. Accordingly the insurer (O.Ps) have issued policy against the vehicle after taking Rs.16035/ as premium and out of the premium Rs.14,271/- relates to own damage claim. The policy which has been issued in favour of the petitioner in respect of the alleged vehicle covers all risk having no exclusion clause and Indian motor vehicle clause which clearly go to established that policy covers all types of risk including own damage claim. During subsistence of the policy the above cited vehicle while working at Birla power plant met with an accident on 03.05.2014 for which the excavator was damaged . Owing to such situation the petitioner not only immediately reported the matter to insurer but also submitted all relevant documents to settle the Insurance claim in favour of the petitioner. After receipt of the information, the insurer deputed the surveyor and loss assessor for conducting the survey who after conducting the survey of the damaged vehicle submitted the report to O.p.no.2 assessing the loss. Thereafter the O.ps vide their letter dt.22.07.2015 asked for clarification stating that why the claim will not be repudiated since as per report of spot surveyor Mr. Manoj Hota under  inclusion   of the policy the petitioner has not taken extra cover for over turning since the cause of accident is over   turning  . In replying to the letter of O.Ps dt.22.07.2015 the petitioner clarified on 17.08.2015 that the alleged  excavator while  was working inside the drain to clean its area for smooth water passage depressed into the mud  and water and the excavator was damaged for which the petitioner has sustained loss amounting to Rs.14,55.937/- as has been intimated by the petitioner to O.Ps as well as has  submitted the bills and vouchers for settlement of Insurance claim . Further the O.Ps vide their letter dt. 28.08.2015 intimated the petitioner that the term and conditions of the policy are available in the webside as well as the agent has explained about the perils covered in the policy and inclusion and exclusion clause under the policy. In reply the petitioner vide his letter dt.28.09.15 intimated the O.ps that neither the agent or officers on duty has explained to the petitioner regarding the term and condition or about the perils or inclusion or exclusion clause of the policy at the time of taking the policy by the petitioner. Since the agent explained that the alleged policy covers all features risk and on the basis of agent explanation the petitioner has signed the claim form which was filled up by the agent. Subsequently the O.Ps  vide his letter dt.29.09.15 has repudiated the insurance claim of the petitioner. Owing to such situation the petitioner has filed the present dispute with the prayer to direct the O.Ps  to settle the Insurance claim of the petitioner amounting to Rs.14,55,937/- with 12% interest  since as per advice of the O.Ps the petitioner has repaired the vehicle spending the above amount.

             After appearance the O.Ps have filed written statement and additional written statement on 06.05.16 and 01.05.17  respectively in support of their defence.

            In the written statement dt.06.05.16 though the O.Ps have completely denied their liability stating that

The O.Ps have not issued any policy to the petitioner against the alleged excavator.

The O.ps has no knowledge about the accident of the excavator.

The O.Ps  have not received any information from the insured about the loss of the vehicle hence  the question of claim  does not arise.

            On the other hand in the additional written version dt.01.05.17 the O.Ps have taken the stand as follows :.

The petitioner /insured has availed a policy against the alleged vehicle having the insured IDV value of Rs.21,50,000/- which was valid from 07.02.2014 06.02.15 . After getting information from the petitioner regarding the accident on 03.05.2014 at Birla power plant,  the O.Ps deputed Mr.Manoj Hota  who after conducting the inspection on 05.05.2014 submitted the inspection report stating that “while the subject vehicle was in operation for digging the soil suddenly water entered inside the machine to partial submerging of the excavator there. Thereafter the O.Ps deputed another SLA Mr Harvindar pal Singh for final survey who after conducting survey submitted the report stating that while the excavator was working inside the Birla power plant  :” it was over turned and submerged in the water resulting damage of some parts “. After getting the report the O.ps in scrutinizing the claim file observed that the petitioner has not availed added coverage by paying extra premium @ 5% on IDV which is required to be availed by the petitioner since the cause of accident is “ over turning “ in support of the defence the O.Ps have stated that not only the 2^nd surveyor has stated the cause of accident is “ over turning” but also at the time of submission of claim the insured categorically has stated in the claim form in Odia that the vehicle submerged due to over turning .Accordingly the O.Ps vide their letter dt.29.09.15 repudiated the claim of the petitioner for which the dispute is liable to be dismissed having no deficiency in service on the part of the O.Ps.

            After hearing from both the sides we have come across with the record in detail as well as the documents filed from both the sides and we are inclined to observe as follows;

            Admittedly the petitioner/ insured has filed the present dispute against the o>ps/ insurer due to repudiation of the insurance claim which was claimed by the petitioner against the excavator damaged on 03.05.2014 in the Birla power plant while digging the soil . It is also admitted fact that the petitioner has availed a policy bearing No.5504043113010000803  against the alleged excavator which was valid from 07.02.2014 to 06.02./2015 . As such it is not disputed that the accident of the excavator is within the period of subsistence of the above cited policy.

            It is also not disputed that soon after the excavator met with an accident on 03.05.2014 the petitioner lodged his insurance claim and after getting the information the O.Ps/ insurer deputed the SLA Mr.Manoj Hota who after  conducting the survey on 05.05.2014 submitted the report indicating the cause of accident “ submerged in the water while in operation “. Thereafter the insurer/ O.ps deputed SLA Harvinder Pal Singh for further survey who after conducting survey submitted the report to Insurer / O.Ps indicating the cause of accident of the excavator is overturned and submerged in the water” vide clum-14 . Thereafter the O.Ps / insurer vide their letter 22.07.2015 and 11.08.15 asked for a clarification from the petitioner insured that why the claim will not be repudiated since the petitioner has not avail extra cover  as the cause of accident of the excavator is overturning as per claim form and report of the SLA  Mr Manoj Hota. After receipt of the letter dt.11.08.15 , the petitioner / insured vide his letter dt.17.08.15 intimated the O.Ps/ insurer that

1. At the time of insurance of policy the insurer has not supplied the term and conditions of policy .
2. The cause of accident was not due to over turning rather while the excavator was working  inside the drain to clean its area for smooth water passage depressed in the mud and water and submerged up to half of the vehicle in to the mud  and water for which the excavator was damaged. The damaged vehicle has been repaired as per the instruction of the O.Ps / insurer and the  bills of Rs.14,55,937/-  and vouchers of the repaired cost has been submitted to insurer .
3. At the time of submission of proposal form I had told to the agent to fill up the proposal form covering all risk which has been filled up by your agent . As such my claim may be settled at an early date.

After receipt of the letter dt.17.08.15 of the petitioner the insurer again vide their letter dt.28.08.15 intimated  the petitioner /insured stating that the term and condition of the policy is available in the web site and the petitioner could have applied for the hard copy of the  term and  conditions of policy in case it is necessary for the insured . Further at the time of renewal of policy the agent has explained you about the perils covered under the policy and also the exclusions under the policy. In addition  to it at the time of submission of claim form the petitioner /insured himself has mentioned in the claim form that the damage of the alleged excavator  is due to “overturning “.

In reply to the letter dt.28.08.15 though the petitioner intimated to the insurer vide his letter dt.28.09.15 denying all the facts / contention of O.P stating that the claim form has been filled up by the agentbut vide letter dt.29.09.15the O.P / insurer repudiated the claim of the petitioner. Thereafter the petitioner though approached the O.p/ insurer for re-consideration but no result. Accordingly finding no other way the petitioner has filed the present dispute to redress his grievance by this Fora.

Owing to the above assertion and counter assertion after   perusal   of the letter dt.22.07.2015 of the Insurer wherein it is stated that Mr.Manoj Hota the SLA has conformed that the cause of accident is “ overturning “ but it is totally false on the ground vide spot survey report dt.09.05.14 the SLA Mr. Manoj Hota  clearly vide colum “6” has stated “ submerged in the water while in operation” on the other hand the alleged vehicle has been damaged due to “ over turning” has been mentioned vide colum-14 of the survey report dt.18.09.14 by  the  2^nd surveyor and Loss Assessor Mr. Harinder pal Singh .The appointment of 2^nd Surveyor was uncalled for and not required nor acceptable .    In view of the observation of Hon’ble Supreme Court ,National Commission reported in

1.2009(4)CLT-420-SC-Venkeswara Syndicate Vrs. Oriental Insurance Co.

2.2010(1)CLT-266-SC-New India Assurance Co.Vrs.Pradeep Kumar

3.2007(2)CLT-368-N.C-National Chlorides Vrs. United India Insurance

4.2016(4)CPR-9-NC- The New India Assurance Co.Ltd Vrs.K.P.Oil Industries .

            Similarly though not only in the complaint petition but also in the letter of the petitioner dt.17.08.15 it is stated by the petitioner that  term and conditions of the policy was not supplied to him( petitioner) but the O.P / insurer has intimated to the petitioner vide letter dt.28.08.15 that the term and condition of the policy is available in the website and  in case the petitioner was in need of  hard copy then it was the duty of the petitioner / insured to apply for the same.

            In our considered view such stand from the side of O.P/ insurer is not sustainable in the eye of law in view of the observation of Hon’ble National Commission reported in 2016(4) CPR-4-N.C  Viapur Industries Ltd Vrs. New India Assurance Co & Others wherein it is held that

            “ Term and condition of Insurance policy must be supplied in writing to insured “

And  2013(1) CPR-326-N.C – H.D.F.C ERGO  General  Insurance Co.Ltd, Vrs. Ms Rachhpal Singh ,

            “ company is duty bound to supply term and condition of policy  to insured “.

3. That it is also not out of place to mention that though the petitioner vide para-b of the complaint petition has stated that at the time of obtaining the policy of the alleged above cited vehicle the O.ps have only supplied the policy  but no other document like term and condtion of policy . As such though there was no scope on the part of the petitioner/ insured to know about the inclusion or exclusion of risk but the O.Ps  vide letter dt. 28.08.2015 has intimated the petitioner / insured that the agent of O.ps had told about the perils covered under the policy and also the exclusion under the policy.

            In such situation we are inclined to held that such stand from the side of O.Ps   is not tenable in the eye of law on the ground it seems the O.Ps  have assessed their own interest though their agent without considering the statement of the petitioner  wanted to repudiate the insurance claim of the petitioner.

            Apart from  letter dt.04.12.15,  though the petitioner had intimated to the grievance  cell of O.Ps that the claim form was not filled up by the petitioner rather the agent had filled up the claim form and in such situation without any cogent evidence how the O.ps came to the conclusion that the claim form has  been filled up by the petitioner. This is nothing but a stand from the side of the O.Ps only  to repudiate the  insurance claim of the petitioner/ insured.

            Owing to the above factual aspect it is cristal clear that there is patient deficiency in service on the part of the O.Ps in repudiating the Insurance claim of the petitioner by appointing the 2^nd SLA Mr. Harvinder pal Singh for which the report of 2^nd SLA is not acceptable in view of the observation of Hon’ble U.P State commission reported in 2000(1) CLT-561-U.P New India Assurance Co.Ltd, Vrs. Smt Prativa Singh . Further  since Consumer Protection Act- is a beneficial legislation and it can not allow  Insurance company to escape liability on technical grounds to deprive the consumer of benefits to which he was entitled  to in view of the observation of Hon’ble odisha State Commission reported in 2009(3) CPR-53-Odisha.LI.C of India and another Vrs. Kailash Chandra Kar

            For the reasons recorded above it is clear that law on the point is conclusively in the complainant / insured’s favour and consequently the dispute must succeed and is hereby allowed.                                           

O R D E R

            The dispute is allowed against the O.ps on contest. The petitioner though is entitled to Insurance claim of Rs.14,55,937/- but out of the above cited amount the insurer is directed to

deduct solvage and depreciation amount out of Rs.14,55,937/- as per law

The rest amount along with interest from the date of repudiation @ 9% per annum shall be paid by the insurer till its realization without applying the extra cover i.e inclusion and exclusion clause and without any deductions in other items .

The order shall be complied within one month from the date of receipt of the order ,failing which the awarded amount will carry 18% interest per annum from the date of repudiation till its realization .

In case of non compliance of the order or any deviation , the petitioner is at liberty to file 2^nd dispute within the period of the limitation as per law if he so likes.

                        This order is pronounced in the open Forum on this the 4th  day of  April,2018. under my hand and seal of the Forum.