SHRI A.P.MUND, PRESIDENT: - Complainant Suresh Kishan has filed this case against the O.Ps alleging deficiency in service. Brief fact of the case is that the complainant in order to earn his livelihood for self-employment purchased one Tata Tripper taking a loan from Tata Motor Finance Ltd.(O.P.No.3). The cost of the vehicle was Rs.21,53,438/- and it was purchased on dt.30.8.2010 from Gajaraj Authmobiles Ltd., the authorized dealer of Tata Motors. It was registered vide Regd.No.OR-15-P-9364. The vehicle was insured with the Oriental Insurance Company Ltd.(O.P.Nos.1 & 2) vide Policy No.345600/31/2011/4559 and valid for the period from dt.30.8.2010 to dt.29.8.2011. The I.D.value was Rs.20,48,766/-. This covered the entire vehicle. Complainant had paid insurance premium of Rs.47,637/- to the O.P.Insurance Company.
2. Within the validity period of the insurance policy the insured vehicle met with an accident on dt.15.10.2010 near Pandloi Bridge under Rengali policed station in the district of Sambalpur. In this accident the front portion of the vehicle was completely damaged and the occupant of the vehicle was injured. The local police was duly informed. The O.P.No.1, Insurance Company was informed.
3. On receipt of the information, O.P.No.1 deputed one spot surveyor for assessment of the loss and on advice of the O.P.No.1 the vehicle was taken to Gajaraj Automobiles for its repair on final assessment. The vehicle was repaired in the said workshop which gave an estimate of Rs.12,96,806/-. The surveyor of O.P.No.1 made detailed assessment of the loss sustained by the petitioner on dt.28.10.2010 and dt.24.11.2011 estimating the loss sustained by the petitioner to the tune of Rs.8,62,500/-.
4. On dt.23.1.2012 the O.P.No.1 issued a letter to the petitioner repudiating the claim on the ground that there was no valid route permit on the date of the alleged loss. According to the petitioner, the action of the O.P. Insurance Company is arbitrary and the repudiation is not valid on any ground. It is opposed to the very terms and conditions of the policy of insurance. The route permit also did not contribute to the accident. The petitioner claimed that the vehicle was in a fit condition to be driven and the driver was holding a valid driving license.
5. The complainant further states that the breach of the policy condition must be a fundamental breach in as much as the breach either should contribute to the accident or is instrumental to the accident. The valid route permit is not a fundamental breach to authorize the repudiation by the Insurance Company. The complainant has a schedule in the petition, wherein the total claim for repair etc. has been pegged at Rs.13,66,806/-.
6. Complainant has filed Xerox copies of documents as per list of documents annexed with the complaint petition as follows:
(1) Motor Insurance certificate of Tata tripper bearing Regd.No.OR-15-9364 vide Policy No.345600/31/2011/4559 (2) Estimate/ Proforma Invoice given by Gajaraj Automobiles Pvt.Ltd.(3) Summary assessment/Estimate loss given by Er.S.K.Panda, Principal Surveyor Devadutta Engineer & Associates (4) Letter given to Suresh Kishan by Sr. Divisional Manager, The Oriental Insurance Co.Ltd.(5) Premium paid for insurance for amount of Rs.47,637/- (6) Information letter given to the Oriental Insurance Company by Suresh Kishan dt.15.10.2010 (7) Original R.C.Book & Smart Card of the vehicle bearing Regd.No.OR-15-P-9364.
Complainant has also cited and filed copies of two decisions in order to support his case as under-
- 2012(3) CPR-169 ( Himachal Pradesh State Commission
(National Insurance Co.Ltd. through its Div.Manager Vrs. S.Krishan Chand & Another)
- (2010) 4 Supreme Court Cases-536
(Amalendu Sahoo Vrs. Oriental Insurance Company Limited)
7. O.P.No.3 appeared through their advocate and filed written version in which it has been averred that the complainant took the loan but did not pay the installments regularly for which there was an arbitration dispute and accordingly, O.P.No.3 appointed one Learned Arbitrator, who passed award on dt.19th June, 2012 in favour of the O.P. and directed the complainant to pay Rs.21,79,681.8 along with future interest 18% interest. According to the O.P.No.3 as the arbitrator has already passed an order, this Forum has no jurisdiction to entertain and try this case and prayed that the case against this O.P. be dismissed. O.P.No.1 has filed annexures-A and B which are Xerox copies of the order passed by the Arbitrator and financial details of the loan respectively.
8. O.P.Nos.1 & 2, the Insurance Company appeared through their advocate and filed their written version. The Insurance Company admit the alleged insurance, I.D. value of the insured vehicle and the date of accident. These O.Ps averred that the police released the vehicle on dt.16.10.2010 for repair and the complainant without intimating the Insurance Company took the damaged vehicle from the spot for repair to Gajaraj Automobiles Limited. They were informed by the complainant on dt.27.10.2010 with a motor claim form of the alleged accident, which was filed after a gap of 12 days from the date of accident.
9. On receipt of this form, the Insurance Company deputed a surveyor on dt.28.10.2010, who confirmed that the vehicle was damaged and again on dt.24.2.2011 the surveyor submitted his report. As per the surveyor the complainant agreed and on that basis the surveyor assessed the loss on cash loss basis also. The complainant vide his letter dt.24.2.2011 addressed to the O.P.No.1 agreed to settle the claim without repairing the vehicle as on cash loss basis. On cash loss basis the amount was assessed by the surveyor to be Rs.4,31,176/-.
10. According to the Insurance Company, every insurance policy is issued with the provisions of M.V.Act. In this case, it was ascertained that the insured vehicle was having no valid route permit on the date of loss, hence there was breach of policy conditions by the insured. As such there was violation of the terms and conditions of the policy as the insured vehicle was playing without any valid route permit. According to the Insurance Company, on this ground the repudiation of the claim is valid and according to law.
11. It is further stated by the Insurance Company that the complainant was requested to furnish the R.C.Book, Driving license, Permit of the vehicle etc., which were not received from the complainant for which the O.P.No.1 finally repudiated the claim vide their letter dated.1.3.2012 on the ground that the vehicle had no valid route permit on the date of accident. On the above basis, the O.P.Nos.1 & 2 Insurance Company claim that the complainant is not entitled to any claim amount from the Insurance Company and hence the complaint petition deserves to be dismissed.
O.P.Nos.1 & 2 Insurance Company filed list of documents and Xerox copies of following documents in order to support their case
(A) Policy No.345600/31/2011/4559 issued by O.P.No.1 in respect of vehicle No.OR-15-P-9364 (B) Police paper reflecting release of vehicle issued by S.O., Rengali police station dt.16.10.2010 (C) Motor Claims Form submitted by complainant to O.P.No.1 on dt.27.10.2010 (D) Letter dt.24.2.2011 written by complainant to O.P.No.1(E) Letter dt.15.3.2011 issued by O.P.No.1 to complainant (F) Letter dt.23.01.2012 issued by O.P.No.1 to complainant (G) Letter dt.01.3.2012 issued by O.P.No.1 to complainant (H) Motor Survey Report (Final) dt.01.3.2011 of the surveyor. The detailed surveyor report has been filed by the O.P. Insurance Company and they have also filed their written argument.
12. Complainant has filed one witness affidavit of himself on dt.5.8.2015. He was cross examined by the Insurance Company on dt.7.9.2015. In this examination, the petitioner has given his version that in the letter dt.24.2.2011 he had agreed to settle the claim on cash loss basis. The surveyor assessed the amount to be Rs.4.31,176/- on dt.01.3.2011 on cash loss basis which the complainant agreed. He had not submitted the route permit of the vehicle and for non-submission of the documents, O.P.No.1 repudiated the claim, but did not agree that the O.P.Nos.1 & 2 are not liable for the claim made by him in this Forum.
13. Heard the arguments advanced by the learned counsels for both the parties and also gone through the documents and citations filed by them and placed on record. The letter dt.24.2.2011, wherein the complainant was agreed to settle the claim on cash loss basis has been written by some other person and signed by the present petitioner.
14. The learned advocated for the O.P.Nos.1 & 2,. Insurance Company argued that as the claimant himself agreed to settle the claim on cash loss basis, this Forum should pass order accordingly.
15. According to us, the O.P.No.1 repudiated the claim hence, they cannot depend on the letter dt.24.2.2011 written by the complainant. The repudiation may be on a different aspect, as the claimant did not submit the required documents, still as there was repudiation, they cannot bank on this letter and claim that they are only liable for the amount on cash loss basis. The surveyor has assessed the loss on repair basis at Rs.8,62,500/- and the complainant has not supplied any piece of evidence to contradict this assessment. They have already filed a Proforma Invoice of Gajaraj Automobiles and no piece of evidence to contradict the surveyors estimate. Hence, the surveyors assessment is taken to be final.
16. Another argument of the Advocate for the Insurance Company is that there was no valid permit hence the repudiation by the Insurance Company is valid. The complainant has filed a decision of the Honble Himachal Pradesh State Commission reported in 2012(3) CPR-169 referred to above, where in the Honble State Commission has placed reliance on the judgement of the Honble National Commission given in the case of G.Kothainchiar v. United India Insurance Company Ltd(supra) wherein it was held that the breach with respect to plying of the vehicle without permit is only a breach with respect to the provisions of Motor Vehicle Act and it is not a breach of the terms and conditions of the policy and as such opposite party No.1 cannot legally repudiate the claim on this ground. This decision of the Honble National Commission had been discussed in detail with relevant extract in para-6 of the impugned order by the Forum below. As such repudiation of the claim by the opposite party No.1 on the aforesaid ground amounts to deficiency of service and the complaint was rightly partly allowed.
17. We respectfully agree with the above decision of the Honble National Commission and also hold that the validity of the route permit is not the fundamental breach of policy condition.
18. We are also guided by the order passed by the Honble Supreme Court reported in 2010(4) SCC-536 , wherein the Honble Court in para14, serial no.3 has held that Any other breach of warranty/condition of policy including limitation as to use the percentage of settlement To pay up to 75% of admissible claim.
19. We respectfully agree with the decision and hold that 75% of the admissible claim i.e. surveyor’s assessment is to be paid by the O.P. Insurance company to the complainant. In the above circumstances, and applying the principles enunciated by the Honble Courts referred to and discussed above, we hold that the repudiation of the claim of the complainant made by the O.P. Insurance Company is not valid and turned it down and O.P./Insurance Company is liable to pay to the complainant 75% of the Surveyors assessment value of Rs.8,62,500/-, which comes to Rs6,46,875/-.
20. We accept the submission made on behalf of O.P.No.3 and find no fault with this O.P. in this case, and it has no liability. As such O.P.No.3 is exempted from this proceeding.
21. In view of the facts and circumstances discussed above, we allow the case of the complainant against the O.P.Nos.1 & 2, the Insurance Company on contest and direct the Insurance Company to pay the complainant Rs.6,46,875/-(Rupees Six Lakhs Forty-six thousand eight hundred seventy-five) as 75% of the assessed value as stated above along with Rs.5,000/- (Rupees Five thousand) towards cost of the proceeding within a period of 30 days from the date or order, failing which the awarded amount will carry interest at the rate of 9% (Nine percent) per annum from the date of order till the date of payment.
