Shri A.K.Patra,President:

1. Peruse the material on record. We have our thoughtful consideration      on the submission of complainant and  learned counsel for the opposite party.
2. Sri Rajesh Kumar Mund, has filed this complaint for an order  directing the  Bajaj Allanz General Insurance Co. Ltd.:-

1. to release insurance benefit of Rs.2,38,574 /- and compensation of Rs.1,00,000/- towards mental agony and physical suffering with interest @of 18 % per annum till its realization to the complainant within a stipulate period of time.
2. for payment of Rs.10,000/-.as cost of this litigation.
3. And  other relief /reliefs the learned Commission deem fit and proper may be granted to Complainant.

3.The fact as stated in the complaint and documents attached with the complaint are as follows:-that the complainant  is the  Owner of Maruti Suzuki Ertiga car bearing registration No.OD08 G8833 and got insured of said vehichle under Bajaj Allanz General Insurance Co. Ltd. bearing Policy No.OG-19-2403-1801-00006360 vaild from 05 Dec 2018 to 04 Dec 2019, paying adequate premium of Rs.20335/- .The insured declare value(IDV of the said vehicle was Rs.788900 /-,said  vehicle met an accident on 06 November 2019 at 6.30 P.M while returning from  Odaba, Ganjam to Bhawanipatana cause loss to the vehicle which  was an act of God and there was no negligence on the part of Driver of the vehicle . It is submitted that on  the way near Degelbuduni chowk of Bissamcuttack P.S suddenly a group of cows came in front of the said car and to save the cow, the driver Debendra Patra(DL No.OD082013006325) turns the car to other side of the road, due to which car got out of balance and jumped down crashing through a guard wall of a bridge .It is further averred that at  the time of accident his  friend Manoj Naik was travelling with his family and fortunately no causalities happened but the vehicle  severely damaged.The matter is reported  before the local police station Bissamcuttack , so also informed the  Maruti Suzuki Customer Service support and as per   their advice he took the damaged  car to Jeypore Maruti Servicing center by toeing service. The complainant  provided them all the documents required for insurance claim procedure upon which the  insurer company (O.P)  deputed his  investigator who came to the complainant  on 22. November 2019 but they neither have gone to the accident spot nor visited the police station for inquiry. They fraudulently prepared a self serving documents themselves without examine the driver Debendra Patra and the travelers Manoj Naik. After a long time the insurance company (OP) sent a letter on  dt.24.12.2019, where they have fraudulently  mentioned that “there were  8(eight) persons travelling at the time of accident, therefore the complainant is  not entitled to get the insurance claim benefits” ,so also the complainant receipt another letter dt.14.03.2020 where the O.P again falsely & fraudulently  taken plea that “there were 9 (nine) persons travelling at the time of accident. The opposite party has time and again tray to avoid its liability taking falsehood and fraudulent tactic for which the complainant is suffering mental agony and financial burden. The complainant further submitted that, at  the material time of accident  there were only  7 (seven) persons including the driver were travelling and the vehicle was never overloaded rather the accident was an act of God. The complainant has never violate any term of the insurance policy rather the insurer (O.P) has deliberately and with and ill intention only to harass the complainant has taken false  plea that the vehicle was carrying Eight passenger and again takes a false plea that the vehicle carrying Nine passenger at the time of accident without proper investigation  which clearly shows the negligence and unfair trade practice of the O.Ps. The complainant requested  the O.P time and again to re- investigate the matter but the O.P has never heard rather neglected to releasing  the insurance benefit to the complainant for which the complainant suffer deficiency of service on the part of O.P .When the damaged vehicle was not repaired   even after three months ,the complainant  contacted the body workshop manager of Jeypore, who told that ,to repair the car it will take around four months of time therefore the complainant contacted  Sky Automobiles Raipur for early repairing of the car and as the manager Sky Automobiles assured  to repair the car within 45 days accordingly ,the complainant  towed the said damaged vehicle again to Raipur Sky Automobiles  from Jaypore and got the car repaired and that,  during those time of Covid-19 Pandemic situation and only ,because of the negligence of OP/ the insurance company  ,the complainant suffered a lot both mental ,physically and financially as well . it is further submitted that the complainant is  a kidney disease patient and it was quite painful for him  to travel the above mentioned place of far  distances so also faced difficulties to run behind the O.P to get his entitle .It is further   contended that , the complainant has spent as fallows to got his damaged vehicle repaired and as such entitle to be indemnified by the O.P.

a. Rs.10,000/- towards tow the vehicle from Bissamcuttack to Jeypore.

b. Rs.19,000/- towards tow the vehicle from Jeypore to Raipur.

c. Rs.1,91,274/- towards the reparing cost of vehicle.

d. Rs.17,100/-, towards Tyre replace as the vehicle has been dumped for e. four months all the tyre were damaged.

f. Rs.1,200/-, towards Wheel alignment and balancing.

 i.e  total cost of Rs.2,38,574 /-, spent towards repair of the vehicle. and that, in spite of submission all required documents and co-operation extended from the complainant, the Insurance company (OP) neglected to settle the claims  for which the    owner /Complainant sustained huge loss .The Opposite party is not rendering proper service to the bonafied customer/consumer  and this  undoubtedly speaks of their negligence  and deficiency in service.  Their attitude  shows the  impression that the  customers are  at their mercy and they should run from pillar to post according to their whims and pleasure. and due to such  deficiency in service of the O.P the complainant being a consumer is subject to mental agony and financial loss.  That due to delay till today   at  the hands of the insurance company (O.P) the complainant unnecessarily put to undue harassment, mental agony, heavy loss for which the insurance company(O.P) is liable to pay compensation and the complainant seeks compensation towards financial loss  of  Rs.238574 /- and towards mental agony Rs.1,00,000/- along  with interest @18% form the date of .loss till its realization which is just and proper .To substantiate the stand , the complainant is relaying with the following  documents and reserve his right to files any other documents as and when    required.

1. Registration certificate of the Vehicle vide Regd. No.OD08 G  8833 (Annexure -1)
2. Certificate cum policy schedule of the vehicle vide Policy No.OG-19-2403-1801-00006360.(Annexure-2)
3. Station diray extract of Bissamcuttack Police Station ,Dist-Raygada Dt.07.11.2019.(Annexure-3)
4. Job Card Retail//Tax invoice dt.29.02.2020 issued by Sky Automobiles Raipur for an amount of Rs.1,91,274/- (Annexure-4)
5. Money receipt  No.4118 dt.29.02.2020 for an amount of Rs.1,41,274/- (Annexure-5)
6. Money receipt No.2910 dt.20.01.2020 for an amount of  Rs.50,000/- as advance pay to the Sky Automobiles. (Annexure-6)
7. Tax invoice towards payment of Rs.17,100/- dt.29.02.2020 for replacing of Tyres. (Annexure-7)
8. Tax invoice towards for an amount of Rs.1200/- dt.29.02.2020 towards Alignment and other expenses. (Annexure-8)
9. Money receipt /Bill for payments of Rs.10,000/- to Bajrangi Breakdown dt.13.02.2020 for transport of the vehicle from Bissamcuttack to Jeypore. (Annexure-9)
10. Money receipt /Bill for payments of Rs.19,000/- to Bajrangi Breakdown dt.13.Feb.2020 for transport of the vehicle from Jeypore to Raipur . (Annexure-10)
11. Letter dt.18.Feb.2019 issued to the complainant from insurer Bajaj Allinz. (Annexure-11)
12. Letter dt.24 Dec 2019  issued to the complainant from insurer Bajaj Allinz. (Annexure-12)
13. Letter dt.10Jan 2020 issued to the complainant from insurer Bajaj Allinz. (Annexure-13)
14. Letter dt.14.March 2020  issued to the complainant from insurer Bajaj Allinz. (Annexure-14)
15. Letter dt.19.March.2020 issued to the complainant from insurer Bajaj Allinz. (Annexure-15)
16. Aadhar Card of the complainant. (Annexure-16)
17. Representation made to the Consumer Councelling Center,Kalahandi premises of DCDRC on dt.15.02.2022 (Annexure-17)
18. Any other documents at the time of hearing.

4.Those the  cause of action for this complaint arose  on the date 19.03.2020 when the  O.P /Insurer repudiate the claim of complainant and all other subsequent date till release of the insurance benefit  to the complainant. The complainant is suffering Kidney patient and during the pandemic Covid-19 situation the complainant could not able to approach to this Hon’ble commission however presented the matter before the  Consumer Counseling Center, Bhawanipatna ,Kalahandi functioning in the premises and  under the supervision  of DCDRC,Kalahandi on dt.15.02.2022 with a hope for an amicable settlement of the claim but no avail as such compel  to present this complaint today .The complaint is in time and well within the jurisdiction of this Hon’ble Commission .

5.This complaint is admitted vide order dt. 07.05.2022 considering the Pandemic Covid-19 situation and in view of order dt. 10.01.2022 passed by the Hon”ble Supreme Court of India in M.A No. 21/2022 in SMW ( C)  IN RE Cognizance for extension of limitation .

6.On being noticed , the Ops /Insurer appeared through their learned advocate Mr. D.R .Bahidar  filed their  written version admitting the facts that , this O.P had issued private car package policy no OG-19-2403-1801-00006360 having  validity form 05 Dec 2018 to04 Dec 2019 in favour or RajeshKumar Mund ageist vehicle bearing regd. No. OD08 G 8833 subject to the term and conditions and exclusion there in the  said policy .It is further submitted that, during the course of investigation the driver Debendra Kumar Patra and Manoj Kumar Naik(who was travelling in the vehicle on date of loss admitted in their statement that on the date of loss total 9 persons were traveling in the insured vehicle As per the registration certificate of the vehicle bearing regd. No OD08G8833 the authorized seating capacity is 7 . So it is clear that the complainant violated the terms and conditions of the insurance policy and norms of the motor vehicle act by allowing more passenger to travel in the vehicle than its authorized seating capacity .On 14.03.2020 this insurance company issued letter to the complainant seeking clarification regarding the number of passengers in the insured vehicle but complainant did not give any clarification and hence this opp .insurance company has  repudiated the said claim vide repudiation letter dated 19.03.2020.It is further submitted that, date of alleged loss is 06.11.2019 but the same has been intimated to this answering insurance company only on 27.11.2019. Hence the same is in violation of condition 1 of the policy terms and conditions. The wordings of the said condition is mentioned as below for ready reference “1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental  loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall requires. Every letter claim writ summons and /or proceed or copy thereof shall forwarded to the Company immediately on receipt by insured for that,  in the present complaint, there is no spell of deficiency in service or unfair trade practice by this O.P. Hence , this O.P party does not have any liability and the present case is liable to be dismissed with cost as there is no deficiency in service or unfair trade practice on the part of this OP. Without prejudice to the above defense, the opposite party has appointed an IRDA licensed surveyor promptly upon receipt of the claim initiation and the surveyor has made as assessment of loss to the tuner or Rs.1,65,588/- subject to terms and conditions of the policy . Under no circumstances the liability of the O.P shall exceed the assessment done by the surveyor. The opposite party further  submits that no document have been produce by the applicant proving his entitlement to sue the Op  before the Hon’ble District Forum. This complaint is liable to be dismissed with cost on this ground alone at the outset for want of locus standi.

7.During course of hearing, the  complainant  filed evidence on affidavit in support of his claim which corroborated  with the averment of the complaint petition . However, nothing rebutted by the O.P .  

8.Here, we may observe that accident and insurance of the alleged vehicle was in force is not disputed . Liability to indemnify the loss to the insured complainant is also not disputed. The plea taken by the insurer vide letter dt.19 March 2020  is that, the complainant has not cooperate to settled the dispute but we have not found any offer advanced by the Ops for settlement of the claim of the complainant during the proceeding of this complain the claim could have settled by collecting required documents available in the record ,further the complaint has stated in his evidence that necessary documents for settlement of the claim has already been submitted to the insurer is not rebutted as such contention of O.P that , non-cooperation and none submission of the documents is not acceptable  .

9.In the instance case the incident of accident dt. 06.11.2019 was reported immediately on the next date i.e 07.11.2019 before the I.IC .Bisamcuttack ,Dist- Rayagada ,extract of which is available in the record .As the incident was already informed to the law enforcement authority ,it cannot amount to delay of intimation or any breach of duty to cooperation of the insured/complainant .Per contra, the surveyor of the insurance company ,at the instance, could ascertain the factum of travelling of more person than the capacity of the vehicle at the time of the accident but the surveyor report dt. 28.11.2019 relied by the insurer available in the record has not suggested any such violation of condition on the part of the complainant. As such the contention of the OP/insurer that:-  at  the date of loss total  9 person wear travelling in the insured vehicle not acceptable ,rather the insurer /op has issued letter to the complainant /insured dt. 24.12.2019 mentioning there in that “there were 8(eight) person travelling at the time of accident, therefore the complainant is not entitled to get the insurance claim benefit “  so also in an another letter dt. 14.03.2020  the insurer/op mentioned that –“there were 9(nine) persons travelling at the time of accident “ without any supportive evidence contradict to each other is  found to be falsehood made by the insurer only to avoid its liability is unfair & condemnable .Repudiation of insurance claim on that sole ground is not justified .We  found  nothing non-cooperation on the part of complainant/insured to settled the claim rather the insurer even after obtaining the surveyor report dt.28.Nov .2019, where loss is assessed at Rs.1,65,588/- not settled the claim of the complainant as on date is  nothing but deficient service of the insurer which no doubt cause financial loss and mental agony to the complainant need to be adequately compensate by the insurer O.P

10.The complainant has claimed that he has spent Rs.2,38,574/-for repairing of the accident vehicle on the other hand the surveyor who is an independent person has assess the loss at Rs.1,65,588/-  cause to the complainant in the said accident is not challenged .

11.Law is well settled that the surveyor is an expert and its report stand on the footing of expert evidence. Relyingon the judgment of the Hon’ble Supreme Court passed in Sri Vankatesware Syndicate Vrs. Oriental Insurance Company Ltd.(2009)8 SCC 507 and Khatema Fibres Ltd. Vrs. New India Insurance Company Ltd.(2021) SCC818 ,we are of the opinion that, the assessment report of loss submitted by the surveyor dt.28. Nov 2019 is to be given due importance.

12.Loss caused to the complainant due to accident of his insured vehicle but insurance benefit is not yet released by the Ops even after submission ofsurveyor reportdt.28. Nov 2019where the loss assessedat Rs.1,65,588/-against the claim of Rs.2,38,574/-as such there is sufficient cause of action continuing to bring this complaint and complaint is maintainable under Consumer Protection Act 2019 .

13.Hence, in the light of above said discussion and settled principle of law we are of the considered viewthat the complainant is entitled for insurance benefit and the Opposite Parties have neglected for settlement of claim as such we are of the opinion that , the Ops are deficient in service. Thecomplainant in this caseis entitle for the loss as assessed by the surveyor i.e. Rs.1,65,588/-only and further he is entitle for the interest @ 9% per annum over the said amount since i.e 28 Nov.2019 i.e the date of assessment of loss 18.09.2015 along with litigation expenses of Rs.10,000/-. Accordingly ,the Ops are directed to pay the said amount to the complainant within four weeks from the date of received of this order failing which the Ops are liable to pay 18% interest over the awarded amount till its realization.

14. This consumer Complain is partly allowed in above terms.

15.The pending application if any is also stands disposed off.

Pronounced in open Commission today on this   20th   Aug 2022 under the seal and signature of this Commission.

Copy of this judgment be provided to the parties free of cost .The judgment be uploaded forth with on the website of the Commission for the perusal of the parties.

  Ordered  accordingly.

Dictated and corrected by me.

President

I   agree.

Member                                                      President