Consumer Complaint No. 264 of 2014
Date of filing: 22.12.2014 Date of disposal: 28.6.2017
Complainant: Chaudhuri Abdur Rahim, S/o. Late Chaudhuri Abdul Abdul Ohab, residing at Chotonilpur, Paschim Para, PO: Sripally, PS. & District- Burdwan, PIN – 713 103.
-V E R S U S-
Opposite Party: 1. Branch Manager of Bajaj Allianz General Insurance Co. Ltd., Parbirhata, PO: Sripally, PS. & District: Burdwan, PIN – 713 103.
2. Zonal Manager of Bajaj Allianz General Insurance Co. Ltd., Kolkatta, 6th Floor, Moni Square, 134 Maniktala Main Road, Premises No. 41, Cannel Circle Road, Kolkatta – 54.
3. Chairman of Bajaj Allianz General Insurance Co. Ltd., G.E. Plaza, 1st Floor, Airport Road, Yerawada, Pune, PIN – 411 006.
Present: Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Shanti Ranjan Hazra.
Appeared for the Opposite Party (s): Ld. Advocate, Sourav Kumar Mitra.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs did not settle his legitimate insurance claim till filing of this complaint.
The brief fact of the case of the Complainant is that being the father of his deceased son this complaint is initiated by him. On 28.12.2013 his son namely Late Chowdhury Nazes Akram, since deceased, met with a terrible accident and he was immediately taken to the nearest hospital, but declared dead. The vehicle on which he was riding was severely damaged. An UD case started, post mortem done by the appropriate authority and the dead body was buried at Burdwan. His son, since deceased, was the registered owner of a two-wheeler vehicle, namely, Bajaj Pulser. At the time of road accident the vehicle was under the coverage of first party insurance with the OPs. The policy was valid for the period from 14.05.2013 to 13.05.2014. The Complainant with other family members became perplexed due to sudden death of Nazes Akram and for this reason intimation was given to the Insurance Company about the death of the insured and damage of the insured vehicle after quite a considerable period i.e. 18.01.2014. Due to damage the Complainant repaired the said vehicle from an authorized service centre of Bajaj, namely, Saluja and he paid Rs. 34,466=00 towards the repairing cost including the cost of required spare parts etc. The complainant had produced the death certificate, post mortem report, police final report, bills/tax invoice for repairing the expenses of the damaged vehicle before the Investigator during his investigation. On 09.07.2014 the Complainant lodged insurance claim, claiming reimbursement of entire repairing cost of the damaged vehicle and he had submitted all the relevant documents relating to accidental death of his son along with the necessary papers and documents related with the vehicle including the driving license of his deceased son. The OPs did not pay any amount to the Complainant; rather they withheld the claim of the Complainant without assigning any reason. The Complainant had to run from pillar to post in order to get the legitimate claim from the OPs, but the OPs did not make any response to the request of the Complainant. Subsequently the Complainant sent a legal notice to the OP-1 through his ld. Advocate requesting to pay the legitimate claim, but though the said notice was duly received by the OP-2, the OPs did not bother to response the legal notice. According to the Complainant such inaction of the OPs is deficient as the OPs have deprived him from getting his legitimate insurance claim, hence finding no other alternative this complaint is initiated by him praying for direction upon the OPs to pay a sum of Rs. 34,466=00 along with interest @ 12% p.a. thereon towards the repairing cost of the insured vehicle from the date of submission of the claim till payment of the actual amount, to pay compensation to the tune of Rs. 20,000=00 due deficiency in service, mental agony, pain and harassment and litigation cost of Rs. 10,000=00 to him.
The petition of complaint have been contested by the OP-1,2&3 by filing conjoint written version stating that an insurance policy was issued by these OPs by covering the risk of Chowdhury Nazes Akarm in respect of the vehicle no- WB-42-V/3690 subject to some terms, conditions and stipulations thereof. The OPs have contended that intimation for damage of the said vehicle was lodged by the brother of the insured, since deceased at the call centre of these OPs on 18.01.2014. The elder brother told these OPs that the alleged accident took place at Burdwan on 17.01.2014. The OPs issued claim form and appointed an Investigator for investigation on several aspects of the alleged accident. From the investigation report and the intimation letter given by the Complainant dated 09.07.2014 it is appeared that the alleged accident took place on 28.12.103 in Kolkata. The Investigator during his investigation asked the Complainant for written statement regarding the accident but the elder brother of the deceased insured refused to give any written statement, only oral statement was given. Moreover, when the towing bill for the damaged vehicle was asked for, then it was intimated that the vehicle was brought by the elder brother of the deceased by riding himself. The Complainant has also failed to produce the death certificate of the insured issued by the hospital authority before the Investigator. No information had been given by the Complainant regarding the person who was the pillion rider or the victim van with which dash occurred. The investigator for the purpose for getting some information wrote a letter to the Bidhannagar Police Commissionerate under RTI Act. In reply to the same the said authority has produced certain queries which are relevant for the proper investigation by these OPs. Most astonishingly in the GDE there is no number of the Vehicle involved in the accident. The OPs have mentioned in their written version that the Complainant did not intimate correct date and time regarding the alleged accident, on the contrary the statement received by the Investigator from the Complainant’s side there are some discrepancies regarding the statements about the accident/ damage etc. For this reason the OPs by issuing letter dated 25.09.2014 sought for some replies in respect of queries but neither the Complainant nor the legal heirs of the deceased provided the same to these OPs. For this reason the OPs were constrained to repudiate the claim of the Complainant by issuing letter dated 25.11.2014. The OPs have further submitted that the contract of insurance is based on utmost good faith and trust. The insured is bound to disclose the entire true and actual state of affairs without any delay before these OPs. In one hand intimation of alleged accident was given by stating a wrong date and place of the accident and on the other hand the information intimated on 18.01.2014 whereas the accident originally took place on 28.12.2013. The OPs on good faith appointed an Investigator and Surveyor, namely, Asoke Kumar Khanuja, who after survey has submitted his report on 10.06.2014 assessing the loss of the claim to the tune of Rs. 18,493.95/- subject to terms and conditions of the policy. After submission of the investigation report the Complainant filed a letter before the OPs after six months. As the Complainant has taken shelter under false and untrue evidence, hence according to the OPs the Complainant is not entitled to get any amount from the Insurance Company and as there is no deficiency in service as well as unfair trade practice on behalf of the OPs in repudiating the claim of the Complainant, he is also not entitled to get any amount towards compensation. According to the OPs being a vexatious complaint, the complaint is liable to be dismissed with exemplary cost.
The Complainant had adduced evidence on affidavit along with several papers and documents with the copy to the other side. The OPs have also adduced evidence on affidavit along with several papers and documents in support of their case with a copy to the other side. Though the Complainant has challenged the evidence of OPs by way of questionnaire, but the OPs inspite of getting chance did not file any questionnaire within the due period as provided by this ld. Forum. The OPs have filed replies to the questionnaire of the Complainant on affidavit. It is evident from the record that after rejection of the prayer of the OPs for filing questionnaire on 18.05.2017, the OPs have filed questionnaire challenging the evidence of the Complainant on 21.06.2017 with a copy to the other side. But as the ld. Forum is not empowered to review/recall its own order, a specific order has been passed on 21.06.2017 in the order No-44 rejecting the payer for filing questionnaire by the OPs. Though the questionnaire of the OPs has been kept in the record, we did not take any cognizance of the same at the time of passing of the judgment.
Be it mentioned that after conclusion of the argument by the both parties, the OPs have filed the report of the Investigator/Surveyor, which is not supported by affidavit. Hence, in our view the same does not bear any evidentiary value. Moreover, as the Complainant did not get any chance to go through the same and challenge the same by filing questionnaire; hence we are not in a position to accept the said report and to take any cognizance in the judgment.
We have carefully perused the record; several documents and papers submitted by the Ld. Counsel for the contesting parties and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that there are some admitted facts in the case in hand i.e. the motor cycle of the son of the Complainant, since deceased was under the coverage of an insurance policy obtained from the OPs, during validity of the said policy an accident took place, due to such accident the son of the Complainant being the owner of the said vehicle died, the insured vehicle got severe damage, the registration number of the damaged vehicle is WB 42V-3690, the insurance policy and the driving license of the owner were valid, intimation was given to the Insurance Company, claim form issued in favour of the complainant, the Complainant being the father of his deceased son repaired the vehicle from the authorized service center of Bajaj, for which he had to pay a sum of Rs.34,446/- to the said service centre towards repairing charges including cost of the required spare parts, insurance claim was lodged with the Insurance Company along with the claim form and other related documents, Investigator was appointed by the Company for investigation and assessing the loss, the Complainant provided documents to the Investigator as per his requirement, several attempts were made by the Complainant with the OPs for settlement of his claim, the OPs did not bother to settle the same, legal notice was served to the OPs, but to no effect, being aggrieved with such inaction of the OPs this complaint is filed praying for certain reliefs along with the repairing cost of the damaged insured vehicle. The allegation of the Complainant is that the OPs have miserably failed to decide/settle the claim of him till filing of this complaint.
The ld. Counsel for the OPs has argued that the Complainant intimated the information of the alleged accident to the OPs after lapse of the statutory period as mentioned in the terms and the conditions of the policy. It is stated that initially it was informed by the elder brother of the deceased on 18.01.2014 to the call centre of the OPs that the accident took place on 17.01.2014, but actually the accident took place on 28.12.2013. Therefore there is delay of about 21 days, which is beyond the statutory period of giving intimation as per the policy condition. According to the OPs as the Complainant has violated the terms and the conditions of the policy, the claim of the Complainant cannot stand and this complaint should go on this account. In this respect we are to say that as per the policy condition the insured was under the obligation to give information about the incident immediately after its occurrence, no time limit is mentioned therein. In the instant case admittedly the Complainant intimated the OPs after 21 days from the date of the accident. But the OPs upon receipt of the information issued claim form, appointed Investigator to assess the loss and damage. Such action of the OPs clearly shows that they have accepted such delay and by accepting the same Investigator was appointed, otherwise the OPs were entitled to repudiate the claim of the Complainant at the very outset. Not only that, till filing of the complaint the claim of the Complainant is pending with the OPs and the Ops did not bother either to settle or repudiate the claim. Therefore the plea of delay intimation as raised by the OPs does not stand. The Ld. Counsel for the OPs has further argued that intimation was given to the OPs on behalf of the Complainant that accident took place at Burdwan, but actually the same was occurred in Kolkata under the jurisdiction of Lake Town Police Station. As false information was provided to the OPs, this complaint cannot stand as the insurance policy is based upon the utmost good faith and trust. In this respect we have noticed that the Lake Town Police Station suo motu initiated one GDE, from where it is evident that the accident took place on 28.12.2013 at the place lies under the jurisdiction of Lake Town Police Station. The Ld. Counsel for the OPs has stated that as in the instant complaint several complicated questions are involved and lengthy evidence is necessary to be adduced, hence this Ld. Forum has no jurisdiction and authority to try with this matter and in this connection the OPs have relied on several rulings. In this respect we have noticed that on earlier occasion one Miscellaneous Application being no-92/2016 was filed by the OPs challenging the maintainability of the complaint due to involvement of mixed and complicated question of law and fact for which detailed evidence as well as cross examination is required for proper disposal of this case. But the said application was dismissed placing reliance on the landmark judgments of the Hon’ble Supreme Court i.e. CCI Chambers Co-OP Housing Society Limited vs. Development Credit Bank Limited, Dr. J.J. Merchant & Others (supra), Synco Industries (supra) & Indian Medical Association (supra). Moreover in the said order it was mentioned that ‘when the evidence stage for both parties were available then only the Ld. Forum may form an opinion as to the nature and scope of enquiry i.e. whether the questions arising for decision in the light of the pleadings along with evidence required a detailed and complicated investigation into the facts which is incapable of being undertaken in a summary and speedy manner. Then only the Ld. Forum could have justifiably formed an opinion on the need of driving away the Complainant to the Civil Court.’ But after completion of the evidence stage of the parties we could not find out any reason for coming to the conclusion that it is a case of civil in nature, which cannot be maintainable before this Ld. Forum under the Consumer Protection Act and this is not a case where mixed and complicated questions and facts are involved for which elaborate evidence is necessary. This is case of non-settlement of an insurance claim. Be it mentioned that though it is stated by the OPs that complicated questions are involved in this complaint, but the OPs did not challenge the evidence of the Complainant by filing questionnaire. Therefore the contention of the OPs has no legs to stand upon.
Now we are to adjudicate as to whether the Complainant is entitled to get the repairing cost of the insured vehicle, which got damage due to an accident or not. We have noticed that after damage of the vehicle same was placed for necessary repairing at the authorized service center of Bajaj. From the receipt it is also evident that a sum of Rs.34, 466=00 had to incur by the Complainant towards its necessary repairing and cost of the required spare parts. As the OPs did not challenge the said amount by filing any questionnaire, hence in our opinion the Complainant is entitled to get the said amount towards the repairing cost of the insured vehicle. It is also seen by us that in the questionnaire though specific question was put by the Complainant in question no-31, the OPs have answered as ‘Matter of Record’. The record reveals that a sum of Rs.34, 466=00 was paid by the Complainant to the service center for repairing of the damaged insured vehicle. It is well settled that the Insurance Company as per the IRDA guideline is under the obligation to decide any claim within a stipulated period (either settle or repudiate), but in the instant claim the Insurance Company did not bother to decide the claim of the Complainant and withheld the same for an indefinite period and for which the Complainant was compelled to approach before the Court of Law for redressal of his grievance. Such action of the OPs is clearly proved the deficiency in service on its part. So in our view the Complainant is entitled to get compensation from the OPs and as the Complainant has to incur some expenses for proceedings of this complaint, hence he is also entitled to get litigation cost.
Going by the foregoing discussion, hence it is
O r d e r e d
that the Consumer Complaint being no. 264/2014 is hereby allowed on contest against the OPs with cost. The OPs are directed either severally or jointly to pay a sum of Rs.34, 466=00 to the Complainant towards the repairing cost of the insured vehicle within a period of 45 days from the date of passing of this judgment, in default, the said amount shall carry interest @6% p.a. for the default period. The OPs are further directed to pay either jointly or severally a sum of Rs.2, 000=00 towards compensation due to harassment, mental agony and pain and litigation cost of Rs.1, 000=00 to the Complainant within 45 days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the entire order in execution as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
