Orissa

Kendujhar

CC/26/2017

Mr. Nilachal Mahakud - Complainant(s)

Versus

Branch head, Magama Fincorp Ltd. - Opp.Party(s)

S.S Panda

03 Jan 2018

ORDER

    IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

KEONJHAR

                                                        CONSUMER COMPLAINT CASE NO. 26 OF 2017

Mr. Nilachal Mahakud, aged about 23 years,

S/O- Krupasindhu Mahakud,

At-Belkundi, Po-Nalda

P.S-Barbil, Dist-Keonjhar……………………………………………………………………………………………Complainant

Vrs

1. Branch Head, Magma Fincorp Ltd

At-Singh Market Complex, College Square

1^st floor, Po-KendujharGarh , P.S-Town, Dist-Keonjhar

2. Authorized person/concerned Authority

Magma HDI GIC Ltd,Plot No-229/5332,

Goutam Nagar,BBSR Pin code-751014

3. Authorized Person/concerned Authority,

Magma HDI General Insurance Co.Ltd

24, Park street.Kolkata, 7000167………………………..………….……………………………………………..Opp.Parties

  Present:

   Shri Purusottam Samantara,President.

   Smt. B.Giri Member(W)

   Sri Bharat Bhusan Das (M)

    Advocate for complainant-      Sudhansu Sekhar Panda.

    Advocate for O.P-1-                   A.K Pattnaik & associate.

    Advocate  for O.P-2 & O.P-3 -  A.K Pattnaik & associate.

  Date of filing  - 20.06.2017                                                                             Date of Order- 03.01.2018

1.     Sri  Purusottam  Samantara - In adumbrate, the complainant owned a vehicle bearing                        Regd No-OD-09C-5227 by Magma Fincorp Limited and obtained a comprehensive policy from Magma HDI General Insurance Co Ltd, against a paid consideration of Rs 48202/-.the Insurance Policy            No-P0017400002/4101/102523,the validity period being 22.06.2016 to 21.06.2017.

2. The complainant also averred on dt 05.08.2016 at about 1.42P.M the vehicle met accident while returning from Badbil as a result sustained serious injury and shifted to Cuttack for treatment.

3. It is also stated under police instruction the vehicle was shifted and thereby moved to Utkal Automobiles, Badbil for repair with toll free intimation to the insurer & lodged the claim.

4. The complainant further stated that all requisite documents submitted before the Insurer except the FIR as he is admitted at hospital, Cuttack.

5. It is also averred, the Insurer sent a letter of closing of the claim on dt 09.01.2017 citing non-co-operation at Insured’s end. Being aggrieved institute the case in raising deficiency of service and unfair trade practice committed by the Insurer and praying to pass order with direction to pay the claim amount along with other relief as deemed fit. Relied  on Insurance certificate, RC book, D/L Copy, Claim copy and letters in photocopies and affidavit.

6. In pursuant to the notice O.P-1 appeared & contended the complaint is totally frivolous, not a consumer and not maintainable also in admission that this answering O.P is the financer and lended money to purchase the vehicle.

7. The O.P-1 also submitted, the matter be referred to arbitration in view of arbitration clause in the contract. The complainant is not entitled to any relief rather liable to be dismissed on merit with exemplary cost. Prayed to dismiss the case on the above mentioned facts and circumstance as pleaded.

8. On the other hand, the O.P-2 and 3 filed the version in admission that Magma HDI GIC Ltd is the Insurer of the vehicle bearing Regd No-OD-09C-5337,and in averment that the insurer deputed ER.S.K Mohapatra surveyor instantly so the case no way turn out to be a case of deficiency.

9. The O.P -2 & 3 contended the case has no cause of action, barred by law of limitation and is bad for mis-joinder and non-joinder of parties, so not maintainable.

10. Further submitted, the intentional delay in submitting required documents and non-submission of F.I.R, Seizure list, release order and ID proof of insured before the Insurer, laid the process                  un -settled till the date.

11. Further also submitted, the Insured has not given any opportunity for spot survey to access the exact loss even after expiry of 72 days from the date of accident as evident from the letter                dt 17.09.16 & 20.10.2016.As the repair work could not started and the Insurer cannot keep open the claim for an indefinite period, hence closed with intimation.

12. Also added as no FIR or station Dairy entry is lodged so the truthfulness of the alleged occurrence is doubtful. In the above made circumstance, the present case is liable to be dismissed with exemplary cost in dragging the Insurer to the court of law. Relied on survey report,  letters of various dates in communication and information by Barbil Police.

13. Heard the learned counsels and rival contentions & perused the record at hand.

14. Perusal of record speaks no disputes persist on the Insurance from issuance of certificate to coverage of tenure, Policy No, date of accident or intimation of claim. The O.Ps are in admission that the vehicle has been insured from 22/06/16 to 21/06/17 and occurrence of loss happened on             dt 05.08.2016.

15. The core contention persists on the nature of accident and non-report to the police on which the complainant controverted that as the accident is serious and petitioner sustained fatal injury so it became impossible to lodge police complaint, which is not malafide one and veracity can be ascertained through investigation.

16. Observation of material on record speaks the petitioner was primarily admitted at CHC Barbil then referred to S.C.B Medical College & Hospital Cuttack and made submission that the police insisted with ulterior benefit not to take the FIR, Which is unacceptable thus refrained from lodging  in later date. Besides same the petitioner has co-operated the Insurer and submitted, all other documents meticulously and as per the Insurer advise.

17. The petitioner vehemently contend that the letter dated 05/11/16 has been sent on dt 06/12/16 so also the accident occurred on dt 05/08/2016 and the surveyor deputed on 17.10.2016, survey conducted on dt 18/10/16 in complete disregard of IRDA guidelines on claim settlement on vehicle bearing Regd No-ON-09C-5227.

18. Further insisting, non lodging of FIR does not attract repudiation of the entire settlement, such technical procedure can be decided on the basis of surveyor report, which deliberately not considered  and brushed aside being a nature deficiency of service under the provision of the term 2(d) and (o)  of Consumer Protection Act.

19.  We observed the petitioner has submitted all the documents as opted except FIR and it is seen no third party injury has been occurred so also the surveyor on his report in para-10 admitted the accident occurred due to application of sudden brake to save a cow. Hence the occurrence veracity is amply proved no ulterior suppression of fact involves in the alleged accident and nature of loss as intimated by the complainant.  In this context we placed reliance on the decision-     CEO,                  Cholamandalam & Anr  Vs  Mt Abhijit Saini – Held - Provisions of delay in informing insurance company or lodging report with police are of little significance as these are of directory in nature and not of mandatory in nature – 2014 (4)  CPR 178 ( NC).

20. Again, the surveyor and loss assessor submitted the report on dt 03.11.2016 and the Insurer closed the claim on intimation to the insured on dt 09.01.2017 without any substantative basis which is deficient under the contract of insurance and in non settlement of bonafide claim as adjudged, thus the petitioner is entitled to the assessment made by the surveyor as per the report under settled principle. Same is observed in the case Smt Anita Jain Vs the Oriental Insurance Co Ltd that “it is the duty of Insurance Company not to drag on case unnecessarily-2013 (4)  CPR  199  (NC). And also         Non-decision on insurance claim without any acceptable justification amount to deficiency in service so also Non lodging of FIR cannot be sole ground for repudiation of claim - New India Assurance Co Ltd Vs Jatinder Kumar Sharm -2013 (2) CPR 433 NC.

21. In view of the aforesaid discussion, the case is allowed on contest and there is abundant evidence on the occurrence thereby the sustained loss is genuine and the Insurer is as liable to pay as per the loss assessor’s report.

O-R-D-E-R

1. The O.P-2 and O.P-3 is hereby liable to pay the petitioner a sum of Rs 3,09,000/-( three lakh nine thousand only) on the basis of the report along with a sum of Rs 5,000/-(five thousand only) towards compensation, loss, harassment & mental agony sustained and also saddled with Rs 2,000/-(two thousand only) as cost  within 30 days of this order, failing interest@9% per annum will accrue on same from the date of application till complete realization without fail.

2. The above said amount be paid to the financier in proper & suitable intimation.

   Copy of the Order be made available to the parties as per rule.

    File be consigned to record room.

          Pronounced, 3^rd jan 2018

 I agree                                                      I agree

 Sri B. B. Das                                               Smt B.Giri                                         Sri Purusottam Samantara

Member (m)                                              Member (w)                                              President

DCDRF,Keonjhar                                      DCDRF,Keonjhar                                   DCDRF,Konjhar

                                                                Dictated & Corrected by

                                                               (Sri Purushottam Samantara)

                                                                         (President)

                                                                  DCDRF, Keonjhar