JUDGMENT

Shri A.K.Patra,President:

1. This complaint is filed by the complainant named above alleging deficiency in service & unfair trade practice on the part of ops for non release of insurance benefit.
2. The complainant prayed for an order directing the OP  No.1 & 2 to disburse the  cost  of  Rs.14,35,784/- incurred for repairing of the damaged insured vehicle, as  insurance benefit, with  interest @12% from the date of accident i.e 22.06.2018 to till the date of realization, and direct the Ops to pay  jointly and severally a sum of Rs.3,00,000/-  as compensation for mental agony & physical pain with cost of this litigation Rs.50,000/- .
3. The facts of the complaint in brief are  that, the complainant has purchased one AGRO 4000 Self Loading Concrete Mixer (Construction Equipment Vehicle) from Ajax Riori Engineering (I) Pvt.Ltd. Kalahandi to earn his livelihood under hypothecation agreement with Cholamandalam Investment & Finance Company Ltd.  The cost of the vehicle is Rs.37,80,000/-, said vehicle was  insured with  Ops/Iffco Tokio General Insurance Co. Ltd. Bolangir Branch, Odisha vide Comprehensive Insurance Policy No.MO588569 which was  valid  from 11.4.2018  to 10.04.2019. The vehicle got  registered under the RTA, Kalahandi, Odisha vide Registration No. OD 08 H 7923 and the RC ; of the vehicle is valid up to 24.04.2033.
4. That,  during engagement in canal construction work at village Anlaguda the said vehicle toppled into the canal and meets an accident on dt.22.06.2018 resulting complete damage of the vehicle.  The matter of  the accident was registered in Koksara Police Station  vide Koksara P.S. Case No.91/2018, so also it was immediately intimated to  the Opposite Party insurance Company about the accident and damage  of the vehicle and the damaged vehicle  was lifted  with the help of excavator  and shifted to Sambalpur for its repair. For shifting the damaged vehicle the complainant incurred Rs.80,000/-  . On 22.11.2018 the surveyor of the Opposite Party assessed the damage of the vehicle. The complainant has incurred Rs.13,30,000/- for spare parts and service charges for  repair of the damaged vehicle and for other accessories  Rs.25,784/- .
5. That on dt.11.01.2019 the Opp.Party No.1 vide its letter No :-Repudiation/37548786/18-19 repudiated the claim of the complainant on the ground of “limitation of use” that :- “as the vehicle is insured under a miscellaneous and special type of vehicle Class D package policy and the said vehicle was registered  as Non-Transport(Private) but used for hire reward/commercial purpose and in connection with motor trade,  which is not covered under the terms and condition of the policy. Hence, the claim is not admissible within the term and condition of the policy”.  In this regard, the RTA, Kalahandi vide his letter N. 109 dt. 15.01.2019  has intimated the OP No.2 with the provision of the Motor vehicle Rules and requested to settle the claim of the complainant but the insurer /ops have not responded. . It is contended that, the repudiation of insurance claim of the complainant by the Ops is not only arbitrary but also has committed unfair trade practice and the complainant is unscrupulously exploited in respect of availing of vehicle insurance policy. Hence, this complainat.
6. On being notice, the Opposite Party No.1 & 2 appeared through their Learned Counsel Shri D.R.Bohidar and filed their written version denying the petition allegation. It is submitted by the OP No.1 & 2 that the complainant has insured his vehicle under Opposite Party No.1, and the OP No.1 has issued a Commercial Policy vide No.M0588569 covering risk of the vehicle from 11.04.2018 to 10.04.2018 for miscellaneous and special type of vehicle-Class-D. After receipt of the intimation of alleged accident from the complainant, the Opposite Party  appointed one IRDA licensed surveyor Rabi Narayan Tripathy  for investigation and after investigation he submitted his report assessing the loss at  Rs.8,93,669.47/- . It is further submitted that during investigation it came to the notice that vehicle bearing Regd. No.OD 08 H 7923 was registered in RTO Kalahandi as private and was engaged in canal construction work for hire reward and  as per  motor trade  it does not cover under the terms and conditions of the policy for which the complainant  is not entitle to get any compensation from the Ops/Insurer. It is urged that from the above facts and law it is very clear that the Ops/Insurer  has not committed any deficiency in service or unfair trade practice .With this submission the Insurer/Ops claimed  for dismissal of the complaint with cost.
7. The Opp.Party No.3 neither appeared nor filed their written version as such set ex-parte.
8. Heard .Perused the material available on record. We have our thoughtful consideration to the respective contention and submission advanced by the learn counsel of the parties .
9. Section 38(6) of C.P.Act,2019 casts an obligation on the District Commission to decide a complaint on the basis of the evidence brought to its notice by the complainant and the service provider, irrespective of whether the service provider adduced evidence or not the decision of the District Commission has to be based on evidence relied upon by the complainant. Thus, onus through is on the complainant making allegation.
10. Here, the complainant has proved his contention by adducing  his evidence on affidavit as prescribed under C.P.Act,2019,contents of which are corroborated with the averment of complaint petition remain un- rebutted. No evidence on affidavit it is filed by the Ops to substantiate their respective claim in this case though sufficient opportunity has been availed
11. The fact that, the vehicle is a construction equipment, insured under the OP 1 & 2  vide Commercial Insurance Policy No.MO588569 covering risk of the vehicle from 11.4.18 to 10.4.2019 and that, the vehicle met with an accident on dt. 22.06.2018 causing damage to the vehicle itself and that, on being intimated the insurer has deputed IRDA Licensed Surveyor who has estimated the loss at Rs.8,93,669/- against the claimed  amount of  Rs.14,35,784/- is not disputed.  The Surveyor report dt.11.01.2019 placed on the record is not disputed by either of the party. The opinion of the RTO vide letter No.109 dt.15.01.2019 placed on the record  where it is opined that, the alleged vehicle is a “construction equipment vehicle” ;comes under the definition of Sec.2 sub-sec(ca) of M.V.Act where the  rule is silent on use of construction equipment solely for private purpose or hire /reward purpose is not disputed by either party.
12. Controversy lies in a narrow compass . Only one pointraised by  the  insurer is that claim is rightly repudiated as the vehicle was used for hire/reward purpose comes under the exclusion clauses of the insurance policy, whereas, it is submitted by the complainant that the vehicle was not used for  hire /reward purpose when it met the accident  .
13.  Learned counsel for the complainant submitted that, the investigator/surveyor has not found any proof that the alleged vehicle was being used any commercial purpose or for  hire /reward purpose when it met the accident,on the other hand the learned counsel for the Ops /insurance company submitted that, the insurance claim is not payable on two count ,first is that, the vehicle was being used for commercial purpose and therefore ,the insured /complainant is not a consumer within the ambit of Consumer Protection Act 2019 and secondly ,the case of the complainant is covered under the exception given in the policy with respect to “limitation as to use”
14. We have carefully considered the arguments advanced by the learned counsel for the both the parties and have examined the record .The admitted facts are that, the alleged vehicle of the complainant was insured with the Ops 1&2  and the vehicle met with an accident during the currency of the policy. As all kinds of insurance covers are being treated as service covered under Consumer Protection Act in the light of decision of the Hon;ble National Commission in Harsolia Motors Vrs. National Insurance Company Ltd. CTJ 141(CP) (NCDRC) ,the policy holder is definitely a consumer within the ambit of Consumer Protection Act .
15. The Insurer OP 1 & 2 can certainly take the defense that there is violation of term of the insurance taking plea that the insured vehicle was using for the hire/reward purpose. However, the onus of proving that there was willful breach of condition of insurance policy or the contract of insurance lies under insurer.
16. Breach of condition under sec 149 (2) (a) of the M.V Act 1988 ablsoves the insurer of its liblity to the insured . Sec 149(2) (a)(i) (a) deals with the condition regarding use of  vehichle for hire or reward, when the vehicle is on the date of contract of insurance a vehicle not cover by a permit to play for hire or reward. In this regard the RTO Kaalahandi ,vide its Letter No. 109 dt.19.01.2019 answering the question of insurer clarified that the alleged vehicle is of construction equipment vehicle comes under sec 2(ca) of MV Act the rule is silent on use of construction equipment solely or private purpose of hire reward purpose. Once such defense is taken, the onus is on the insurer.
17. But here in this case the insured has not adduced any evidence on affidavit as prescribed under C.P.Act,2019 to prove their contention rather the complainant has proved his case by filing his evidence on affidavit as prescribed under C.P.Act contents of which are corroborated with the averment of the complaint petition remain un rebutted.

18. The Insurer have not placed any documents what so ever that to establish that the term and condition of the policy is provided to the insured/complainant either at the time of execution of the policy or any time subsequently. Law is well settled that Insurance Company cannot escape under the umbrella of so called terms and condition to thwart legitimate & justified claim of insured if the said term and condition were not supplied to the insured. In the present case there is no iota of evidence as regard to supply of term and condition of the policy is placed on record for settlement of the insurance claim of the complainant.
19. Learned Counsel for the Ops /Insurer placed the certified copy of order dt.3.09.2022 passed by this Commission in C.C. No.46 of 2021 along with the complaint petition of the consumer complaint where it is found that, this present complainant was the complainant prayed for an order directing the Opp.Party to repay the unreleased hire amount of the vehicle from the Ops. The learned counsel for the insurer placed reliance on the said order and vehemently argued that, the complainant had let the alleged vehicle on hire to others and this fact already been hold by this Commission basing on which this Commission has pleased to reject the said complaint as not maintainable under the C. P. Act vide its order dt.3.9.2022.
20. Perused the aforesaid order dt.3.9.22 and the averment of the complaint petition and it is found that this Commission has never hold its opinion that, the alleged vehicle was plying/using for hire purpose at the time of accident .

21.  Law is well settled that placing documents in the case record or mark of the documents as exhibits are mere reference and conveyance of the commission and it has nothing to do with its evidentiary value. Even just because a document is marked without objection will not dispense with the proved of the said documents in accordance with law. It is also well settled that unless and until there is a judicial determination of a fact, it cannot be said that it has been admitted as evidence. Pleading in a case does not construe evidence. It has to be proved as prescribed to be accepted as evidence. Pleading does not mean evidence as such those documents filed by the insurer may not be accepted as evidence against complainant
22. No cogent evidence is adduced by the insurer /OP 1 & 2 to prove that the insured vehicle was used for hire reward/Commercial usage at the time of accident. As such repudiation of insurance claim on the ground that it was used for hire reward and in connection with motor trade, which is not covered under the terms and conditions of the policy, is not acceptable.
23. Even the investigator/Surveyor has not whisper any word in his report dt.11.01.2019 placed in the record that, the vehicle was used on hire or reward thus, without any prove, it is cannot be accepted that the vehicle was involve in any hire or reward at the time of accident. Without any prove repudiation of insurance claim cannot be acceptable. Reliance placed on the judgment passed by the Hon,ble National Commission in Shiv Nath & Ans Vrs. United India Insurance Co.Ltd &Anr, reported in 2020NCJ 813 (NC) .
24. Based on above discussion, the claim of insurance benefit as repudiated is found to be arbitrary and illegal certainly caused financial hardship and mental agony to the insured/complainant as such there is sufficient cause of action against the Ops to present this complaint. This complaint is presented on 14.02.2020 just after receiving of repudiation letter dt.11.01.2019 i.e. within a stipulated period as prescribed under C.P. Act before this Commission where the complainant is residing as such this complaint is found to be in time and well within the jurisdiction of this Commission maintainable under the C.P.Act,2019. In absence any cogent evidence the preliminary objection raised by the Ops that the complaint is barred by limitation, principal of estoppels, waiver, acquiescence, non joinder and mis-joinder of necessary party is hereby rejected.
25. Law is well settled that the surveyor is an expert and its report stand on the footing of expert evidence. Relying  on 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) SCC  818 ,we are of the opinion that, the assessment report of loss submitted by the surveyor dt.11.01.2019 is to be given due importance. 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 of surveyor report  11.01.2019  where the loss assessed  at Rs.8,93,669.47/-  against the claim of Rs.14,35,784/-as such there is sufficient cause of action continuing to bring this complaint and complaint is maintainable under Consumer Protection Act 2019 .
26. In view of the discussion stated above and settled principle of law we are of the opinion that repudiation of insurance claim of the complainant under insurance policy vide No. MO 588569 by the Ops 1 & 2 is un- warranted and unjustified. We are of the opinion that the complainant is entitle to get insurance benefit under the aforesaid insurance policy and the Ops are deficient in providing insurance service to the complainant.
27. .Hence, in the light of above said discussion and settled principle of law we are of the considered view  that the complainant is entitled for insurance benefit and that repudiation of insurance claim of the complainant under insurance policy vide No. MO 588569 by the Ops 1 & 2 is un- warranted and unjustified. The Opposite Parties have neglected for settlement of claim as such we are of the opinion that , the Ops are deficient in service. The  complainant in this case  is entitle for the loss as assessed by the surveyor i.e. Rs.8,93,669.47/-  only and further he is entitle for the interest @ 9% per annum over the said amount since  11.01.2019 i.e the date of assessment of loss along with litigation expenses of Rs.10,000/.Hence, it is ordered.

ORDER

This complaint is allowed in part against the Op 1 & 2 on contest and dismissed against the Op 3. The Insurer Op 1 & 2 are directed to release the insurance benefit of Rs.8,93,669/- i.e. the loss assessed by the Surveyor with interest @ 9% per annum from the date of assessment i.e. 11.01.2019 till its realization and further directed to pay Rs.10,000/- as litigation cost within four weeks of receiving of this order failing which interest @18% per annum shall be attracted on the aforesaid awarded amount till its realization.

This consumer complaint is partly allowed in above terms. Any application if any stand disposed of accordingly.

 Dictated and corrected by me.

     Sd/-               

 President

I agree               

                          Sd/-             

                       Member

       Pronounced in open forum today on this 23rd  March 2023 under the seal and       signature of this Commission .

            Copy of this order be supplied to the parties free of cost for their perusal and compliance. Further this order be uploaded in the website of this Commission and Confonet. Parties may download the same from the website for their reference be treated as copy served to the parties.

The complaint could not be decided within the statutory period of time due to Covid -19 situation &   in want of quorum in the Commission.

                          Sd/-                                                                    Sd/-

Member.                                                         President