Orissa

Kendujhar

CC/73/2022

Aswin kumar Pothal - Complainant(s)

Versus

Branch Manager - Opp.Party(s)

20 Apr 2024

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
KENDUJHAR, ODISHA
 
Complaint Case No. CC/73/2022
( Date of Filing : 12 Dec 2022 )
 
1. Aswin kumar Pothal
vill-Laxminarayanpur sahi, P.O-Keonjhar Bazar(Old Town).P.S-Town, Dist-Keonjhar
...........Complainant(s)
Versus
1. Branch Manager
At/Po-Madhapur,P.S-Town.Dist-Keonjhar-758001
2. Branch Manager. Chola M/S Gen Ins Co Ltd.
Plot No A/167 Saheed Nagar, Near Sparsh Hospital,Bhubaneswar,Dist-Khurda,Odisha-751007
3. Cholamandalam M/S Gen Ins Co.Ltd.
Plot No 887/2692,1st Floor,RA-TAUNA-35, RA Bisra Road Tahasil Rourkela, Panposh Road,Rourkela, Dist-Sundergarh,
............Opp.Party(s)
 
BEFORE: 
  Biranchi Narayan Patra PRESIDENT
  Jiban krushna Behera MEMBER
 
PRESENT:
 
Dated : 20 Apr 2024
Final Order / Judgement

Brief fact of this case is that, the complainant is the owner of a Truck bearing Regd.No. OD-09-T-9304 which was purchased by taking Finance from Cholamandalam  FinanceCo.Ltd,Keonjhar Branch (OP-4)and insured the vehicle with Op.1,2,3 on payment of Rs.74,718.00 valid with effect from 07.01.2021 to 06.01.2022 against the total IDV value of Rs.39,42,500.00 and obtained valid insurance certificate. The said Truck met with an accident near TinkaGhatti on dt. 21.10.2021 while transporting Iron Ores from ESSEL Mines, Koida to Shyam Metallic,Jharsuguda . FIR was lodged before IIC,Lahunipada PS,Rourkela and spot enquiry and verification of DL was made by the Police vide G.D.No.19 and 22 dt.13.11.2021. The complainant has also intimated the Insurance Company just after accident who sent surveyor to the spot and for assessment.The loss

assessor took photographs and advised to shift the vehicle to garage for repair.The complainant shifted the vehicle by means of Towing to Triveni Auto Tech.Pvt.Ltd.at Jharbelda, Keonjhar the Authorized Main dealer of Ashok Leyland for necessary repair.The Authorized dealer assessed the damaged with an estimate of Rs.19,15,413.00 excluding Towing charges of Rs.30,000.00. Thereafter the complainant submitted the claim form with all required documents before the Insurance Company for settlement of claim amount. The Insurance Company sent a letter on 09.02.2022 and asked for a clarification as to why claim should not be repudiated as the vehicle having no valid route permit. The complainant has intimated the OP-Insurance company by writing several times stating that as the vehicle was having valid insurance such claim may be allowed against the Claim No.3379349324. Due to non-payment of Claim by the Insurance company the complainant could not repair his vehicle and the Garage owner demanded the stock-yard charges and the Financer also pressed hard for payment of EMI. Having no alternative the complainant surrendered the damaged vehicle to the Financer on 27.07.2022 and obtained receipt with a term and condition empowering the Financer to sell the vehicle and adjust the proceeds against the dues and any short-fall will be borne by the complainant. Despite Advocate notice on dt.17.10.2022 the OP-Finance company did not come forward to supply the copy of Agreement and payment particulars to the Complainant and kept in dark. It is a case of deficiency of service as well as unfair trade practice by Ops, the complainant put to mental agony, financial loss and faced harassment. Under these facts and circumstances, the petitioner prayed that, the complaint petition be admitted and issue notice to Op.parties-Insurance company to pay the total loss of the vehicle, the IDV value of Rs.39,42,500 with bank interest from the date of claim. The Op-Finance Company may also be directed to issue NOC against the loan account. The complainant also filed a petition to delete Op-4 from the case as all the outstanding dues has been cleared and NOC is issued to complainant. So Op-4 was deleted. No other parties will be prejudiced.

To prove this case the complainant relied on the following documents.

  1. Photocopy of R.C.Book..2sheets.
  2. Copy of Insurance Policy-3sheets.
  3. Copy of FIR..1sheet.
  4. Police enquiry paper on the FIR-  1sheet.
  5. Copy of estimate duly prepared by Authorized Dealer of Ashok Leyland..3sheets.
  6. Surrender vehicle before Financer on 27.07.20222sheets.
  7. Repudiation letter Dt.09.02.20221sheet
  8. Correspondence to OP-Insurance company on dt.20.05.2022, 01.06,2022, 05.07.2022 with postal receipts.
  9. Copy of Advocate Notice to OP.on dt.17.10.2022.
  10. Copy of Claim application4 sheets.
  11. Body building bill.
  12. Letter addressed to Ops. through RP with AD on dt.03.09.2022 regarding issue of A/C statement  and Insurance paper...2 sheets.
  13. Tax invoice.
  14. Copy of settlement letter Dt.Jan.08.2024.                                                        

Under the above complain the case was admitted and notice issued to Ops. All Ops appeared and filed their written version in detail. OP Insurance Company states that the case against the opposite party is not maintainable in the eye of law and on the facts available on record. The present case is not a consumer dispute as per provision of C.P.Act. There was also never any deficiency in rendering service by the Ops. The contents of para 4 are admitted and para 5 are partly admitted regarding the amount of estimate and towing charges prepared for the claim are not within the knowledge of Ops. The amount of estimate is an expectation of expenditure. It is the fact that the Op-Insurance Company had intimated the petitioner regarding pending of claim for want of route permit and clarification was sought for from the petitioner for valid route permit for plying on the accident location. But petitioner has never gone through the body of the Policy certificate whereon it is specifically mentioned in the “limitation as to use” that valid permit is required to ply on the public road without which it is gross violation of terms and condition of policy. After getting the claim intimation the Ops had appointed surveyor and loss assessor and he had submitted his report specifically with net liability and loss of Rs.8,00,000.00. The content of para 12 is denied. The repudiation of claim is basing on the gross violation of terms and condition which is not a vague ground. The petitioner should have to know that plying of vehicle on the public road is also violation of statutory law of MV Act. The estimate is always an imaginary expenditure but not an exact amount of assessment. However, the claim of the petitioner is baseless without any legal basis which deserves to be dismissed with cost of litigation and Op.No.3 is not liable for any part of compensation.

The Ops relied on the following documents:-

  1. True copy of policy No.3379/02854578/000/00..1sheet.
  2. True copy of Claim form..2 sheets.
  3. True copy of claim intimation..1 sheet.
  4. True copy of Surveyor’s report..7 sheets.
  5. True copy of Repudiation letter on dt.09.02.2022..1 sheet.

On the other hand Op-4, the Finance Company appeared but no W/V filed as Op-4 is a formal party.

On the above pleadings the following issues are framed to decide the case.

  1. Whether the complainant is a Consumer or not?
  2. Whether the Ops-Insurance Company has made any deficiency of service?
  3. Whether the case is maintainable?
  4. Whether the complainant is entitled to get reliefs sought for?

FINDINGS

Issue 1-The complainant is the owner of a vehicle bearing Regd.No.OD-09-T9304 being financed by Op-4 and insured by Op. Insurance CompanyCholamandalam M/s GIC Ltd. The complainant took the vehicle to earn his livelihood. The Op parties rendered their service to complainant. So definitely the complainant is a consumer as per Sec 2 (d) C.P Act-2019.

Issue 2,3,4 -  It is admitted fact that the alleged vehicle bearing Regd. No. OD09T9304 met with an accident at Tinkaghati on 21.10.2021 under Lahunipada Police station. FIR was lodged and intimation was given to Op insurance company. One surveyor and loss assessor was appointed to assess the damage. He assessed the damage of Rs.8,00,000/-. The complainant as per the instruction of company shifted the alleged vehicle to authorized dealer of Ashok Leyland atJharbelda. The authorized dealer prepared the estimate of repair to the extent of Rs.19,15,413/-. The Op insurance company without settling the claim No.337934324 sit silent and at last repudiate the claim on the ground that the complainant was not having valid route permit to ply the vehicle U/s 66 MV Act. which is a gross violation of Insurance Rules as per IRDA guidelines. On perusal of cover note it appears that condition of obtaining permit is mentioned under “limitation as to use”. Hence, as per Guidelines the claim was to be settled on on-standard basis and by not doing so the insurer has committed deficiency in service.

The OP insurance company only admitted that the loss assessor assessed the damage to the tune of Rs.8,00,000/- .Complainant relied upon the decision passed by the learned Court that, The New India Insurance co.Ltd. Vr.Prandhar Agarwal on 30.10.2008 of Chhatisgarh State Consumer Dispute redressal Commission,Pandari,Raipur passed an Appeal No.214/07 & other decision of the National Commission referred in this decision here it is held that & taken view in case  breach of policy condition as to limitation of use of vehicle the insured is entitled for settlement of claim on non-standard basis.

Despite violation of Policy condition the claim has to be settled on non-standard basis of 75% on estimate of authorized dealer of Rs.19,15,413-00 which is a genuine ground of the complainantfor ends of justice.

So, the present case is maintainable and the complainant is entitled to get the reliefs sought for.                                                                     

ORDER

OP Insurance company is directed to pay the complainant 75% of Rs.19,15,413/-(repairing estimate) on non-standard basis. It is further directed that, if Ops Insurance Company failed to comply this order within 45 days from the date of this order,the total amount shall carry 9% penal interest per annum from the date of application till realization.

 
 
[ Biranchi Narayan Patra]
PRESIDENT
 
 
[ Jiban krushna Behera]
MEMBER
 

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