DATE OF FILING: 20.10.2011.
DATE OF DISPOSAL: 24.09.2016.
Miss S.l.Pattnaik, President:
The complainant has filed this consumer disputes Under Section 12 of Consumer Protection Act against the Opposite Parties (for short O.Ps) alleging deficiency in insurance service and redressal of his grievance before this Forum.
2. The case of the complainant in brief is that he had insured his tractor bearing registration No. OR-07-V- 3401 and Trolly bearing No. OR-07-V- 3402 with the O.P.No.1 Bajaj Allianz Co. Ltd, on payment of due premium vide policy No. OG- 11 – 2413-1811-00000489 which was valid for the period from 27.9.2010 to 26.9.2011 being financed by O.P.No.2 AXIX Bank ltd. Berhampur for maintenance of his livelihood. While the policy was in force the tractor met with an accident on 28.4.2011 near Dhanabandha Meghajholi as a result the said tractor got suffered extensive damage. Soon after the accident the complainant lodged a written report before the K.Nuagaon Police station on the same day. During course of investigations and after examination of eye witnesses it came to light that the driver Mahendra Patra, S/O Bhuban Patra resident of Taleswar, Ps: Digapahandi who was driving the said tractor and met with an accident. After thorough investigation, the Investing Officer filed the charge sheet against the driver of the offending vehicle under section 279/337 I.P.C. The offending vehicle was validly insured with the O.P.No.1 vide its policy No. OG—11-2413-1811-00000489 valid for the period from 27.9.2010 to 26.9.2011. Since the insurance of the vehicle was in force during the material period, the complainant intimated the fact of accident to the O.P.No.1 regarding the damage of the vehicle. Although the complainant as per the prescribed rules and provisions submitted all the documents to the Office of O.P.No.1 as per their requirement, but the O.P.No.1 repudiated the claim on the ground for non cooperation from the side of the complainant which is against the principle of natural justice. So the entire action of the O.P.No.1 amounts to deficiency in service. Hence alleging deficiency in service on the part of the O.P.No.1 , he filed the present case with a prayer to direct the O.P.No.1 to pay the claim of the amount of Rs.80,000/- (Rupees eighty thousand) only towards damage of the vehicle caused due to accident alongwith cost and other reliefs as deemed fit and proper by this Forum.
In support of his case the complainant has filed the following which are attached in the case record.
(1) Photocopy of Motor vehicle cover note of Bajaj Allianz vide No. MC 1000339360 .
(2) Photocopy of Good carriage permit vide No. C0163652. Photocopy of Good carriage permit No. PB 02284353.
(4)Photocopy of R.C.Book vide No. RA 01425878 of tractor vehicle OR-07-V-3401 and trolly OR- 07-V- 3402.
(5) Photocopy of certificate of fitness vide No. FA 00610215 issued by RTO Ganjam, Chhatrapur.
(6) Photocopy of Driving License of Mahendra Patro, OR-07-20020065879.
(7) Photocopy of repudiation letter of Bajaj Allianz Insurance Company dated 20th June 2011.
(8) Photocopy of F.I.R. and formal F.I.R.
(9) Photocopy of Final form.
(10) Photocopy of property seizure memo.
On notice being served the O.P.No.1 appeared and submitted his written version on dated 20.11.2012 alongwith documents. While admitting the insurance policy and occurrence of accident during the valid period of policy the O.P.No.1 controverted the claim of the complainant on the ground that on the date of accident, the alleged vehicle was driving by B.Udaya Patro son of P.Krishnamma Patro who had no valid driving license which is violation of Motor Vehicle Act as well as the condition of insurance policy and for that the present complaint is not maintainable against the O.P.No.1 . It is also stated that the O.P.No.1has rightly repudiated the claim of the complainant on dated 20.6.2011. It is submitted by the O.P.No.1 that the complainant has also admitted in his complaint petition that he has lodged a written F.I.R. before the K.,Nuagaon Police Station on 29.4.2011 in respect of the accident of the alleged tractor and trolly, which was driving by one B.Udaya Patro son of P.Krishnamma Patro and Police case was registered a case vide P.S. Case No. 57/2011 under Section 279, 337 of I.P.C. When this fact came to the knowledge of the O.D. Department the applicant was immediately asked to produce the driving license of the driver Sri B.Udaya Patro. But the applicant remained silent which itself explanatory that the driver had no license at the time of the alleged accident. The O.P.No.1 further submitted that immediately after the accident surveyor was appointed to assess the loss who assessed the loss of Rs.13,580/- after genuine assessment as per terms of the policy. Hence this O.P.No.1 restricts its liability of the amount assessed by its surveyor. Since the O.P.No.1 had not committed any deficiency of service and has rightly repudiated the claim after application of proper judicial mind, therefore the O.P.No.1 prayed before this Forum for dismissal of complaint case as the repudiation was legitimate.
In support of his case the O.P.No.1 filed the following documents which are attached in the case record along with the written argument and a citations of Hon’ble supreme court reported in 2013 (3)TAC 29 (S,C),2007(3) T.A.C.11(S.C.)
(1) Photocopy of letter of O.P. dated 20.6.2011.
(2)Photocopy of letter of O.P. dated 31.5.2011.
(3)Photocopy of claim form .
(4)Photocopy of FIR and formal FIR
(5) Photocopy of two numbers citation.
On notice being served the O.P.No.2 appeared and filed his version on dated 2.5.2012 stating that the above complaint is regarding the settlement of the claim between the complainant and the O.P.No.1 i.e the Branch Manager Bajaj Allianz Co. Ltd. and O.P.No.2 is no way connected with the said settlement of claim. Therefore prayed to dismiss the complaint against the O.P.No.2 i.e. Branch Manager, AXIX Bank Ltd in the interest of natural justice.
5.We perused the complaint petition, written version, written argument and documents submitted by both the parties regarding claims and denial plea as per annexure list of documents.
The following issues are for proper adjudication of the case.
Issue No.1. Whether the case is maintainable?
It is the admitted fact that the complainant is the registered owner of the tractor and he had insured the same with the O.P. Besides as per the Motor Vehicle Act, any vehicle plying on the public place must have a valid and effective insurance policy. The complainant paid the premium before the Bajaj Allianz General Insurance Co. ltd. and obtained a valid insurance policy which covers the period of liability from 27.9.2010 to 26.9.2011. The accident took place on 28.4.2011. As because there is a valid insurance policy with the tractor and out of the accident, the tractor sustained a heavy damage, the complainant’s claim of damages has to make good by the O.P. so the complain petition is maintainable under the Consumer Protection Act, as the complainant is a consumer under the O.Ps.
Issue No.2. Whether repudiation of the claim of the complainant by the O.P.No.1 was arbitrary, whimsically are opposed to fair trade practice constituted deficiency in service?
The facts pertaining to insurance of the tractor and its accident are not in dispute. We note that the O.P.No. 1 Insurance Company has repudiated the claim on the ground that on the date and time of accident, B.Udaya Patra was plying the above alleged tractor and trolly without driving license which is a clear violation of the terms and condition of the insurance policy.
To this complainant submitted that at the time of accident, one Mahendra Patra was driving the vehicle. On the request of the driver, who was feeling uneasy one B.Udaya Patra drove the vehicle as per the FIR. After thorough investigation, Investigating Officer filed the charge sheet against the driver Mahendra Patra, U/S 279/337 of the I.P.C.
The complainant filed written argument in para 5 while lodging the F.I.R. before the Police Station the complainant thought that his original driver namely B.Udaya Patra, might have driven the vehicle in as usual routine manner when the accident took place and the complainant mentioned his name but the complainant did not know regarding health condition of his original driver namely B.Udaya Patra and on request of his regular driver one Mahendra Patra, S/O Bhuban Patra resident of Taleswar, P.S: Digapahandi drove the vehicle when the accident took place. After the accident when the original driver B.Udaya Patra intimated about the accident to the house of the complainant to pass on the massage regarding changing of the driver but due to over sight the family member could not properly intimated the same to the complainant prior to lodging of the F.I.R., hence no fault lies with the complainant rather the complainant with utmost sincerity and on good faith come forward with clean hand and disclose the fact before the I.O. who after investigation has filed the charge sheet against the accused driver Mahendra Patra,S/O Bhubana Patra resident of Taleswar, P.S: Digapahandi, who now facing the trial which is pending before the Hon’ble J.M.F.C. Digapahandi.
Further complainant submitted that no doubt the complainant has lodged the F.I.R. but the concerned I.O. of the case during course of the investigation and basing on the 161 statement of the witness including statement of the complainant found sufficient evidence against the driver of the vehicle Mahendra Patra, S/O Bhubana Patra who caused the accident and made him as accused and filed the charge sheet against him. It is worthwhile to mention that FIR is a process of the law for investigation. When the police found evidence during investigation against Mahendra Patra, he was charge sheeted and once police filed the charge sheet against concerned person and unless it challenged in court of law, the charge sheet accused will face the trial. Hence we feel that in this case Mahendra Patra, S/O Bhuban Patra was the driver who drove the vehicle and met with an accident.
Further the complainant submitted that in charge sheet from the statement of witness discloses the fact and name of the accused which has not been challenged by any person including the driver Mahendra Patra, S/O Bhuban Patra rather after the charge sheet the said Mahendra Patra appeared before the court of law and gone on bail, hence charge sheet is the vital paper to prove the case, but knowingly O.P.No.1 did not file the charge sheet and 161 statement of the witness in this case and suppressed the same the reasons best know to him.
Furthermore complainant submitted that survey report that the survey report which has been filed by the O.P.No.1 is not an evidence it purely private report and prepared at the instance of the O.P.No.1 to support their contention hence the said survey report should be discard and is not tenable in the eye of law as well as on facts evidence. The O.P.N o.1 being the insurer of the vehicle and liable to pay the damages of the vehicle caused in the accident to the complainant.
On perusal of the final form we found that Investigating Officer after thorough investigation filed charge sheet against M. Patra U/S 279/337 I.P.C. and Mahendra Patra appeared before the court and facing the trial. In view of the said documentary evidence, the Forum views the complainant has been able to substantiate his claim that the tractor was driven by Mahendra Patra at the time of accident. On perusal of the driving license of Mahendra Patra, we found that the driving license is valid up to 12.7.2012 (transport) and 6.5.2026 (non-transport).
We are of the view that the alleged tractor was driven by the driver having valid driving license. So, the repudiation of the O.P. is arbitrary, whimsically or opposed to fair trade practice constituted deficiency in service.
Issue No.3: Whether the complainant is eligible to get his claim amount of Rs.80,000/-?
At para 2 of the written version, the O.P.No.1 submitted that this O.P. restricts its liability up to the amount assist by surveyor, who was appointed immediately after the accident. The amount assessed by the surveyor is Rs.13,500/- only, which has been arrived after genuineness assessment and as per terms of the policy, hence restricting the liability of this O.P. But on perusal of the whole record we found that there is no surveyor report filed in this case. So depute of surveyor to assess the loss by O.P.No.1 can not be believable in toto. The complainant however not produced any bills and vouchers showing the cost of the repairing of the vehicle. The complainant claimed the amount of Rs.80,000/- towards damage of the vehicle caused due to the accident. We accept this amount as claim amount of the complainant. However, the amount of Rs.80,000/- as claimed by the complainant towards repairing charges of the vehicle is subject to production of genuine bills and vouchers to be produced by the complainant before the O.P.No.1 while claiming the amount for insurance settlement. Since, in this case, in the F.I.R. of accident it was wrongly or rightly mentioned about the name of another driver but the fact is not proved on record. So, in the present fact and circumstance of the case, we allow the claim of the complainant on non-standard basis. Our finding also supported by the decision of Hon’ble National Commission, New Delhi in the case of Kesarben versus M/S United India Insurance Co. Ltd. vide Revision petition No. 1383 of 1996 where the Hon’ble Court hold that even if there is a breach in the policy condition, insurer has to pay 75% of the claim amount as non standard basis and the Forum agrees with this point.
Issue No.4: Whether any other relief the complainant is entitled to?
Under the above facts and circumstances we have observed that there is delay in settlement of the claim of complaint, so the complainant is entitled to get compensation. We, therefore, decided to award compensation towards delay and deficiency in service which will meet the ends of justice. However, the O.P.No.2 is discharged from all his liability as there is no relief claimed against the O.P.No.2 by the complainant in his prayer. Accordingly O.P.No.2 is exempted from all liability.
In the light of above discussion and decision of law, we direct the Opposite Party No.1 to pay 75% of Rs.80,000/- i.e. amounting to Rs.60,000/- (Rupees sixty thousand) only alongwith compensation of Rs.2000/- towards delay and deficiency in service to the complainant within 45 days from the date of receipt of this order failing which the complainant may recover the amount U/S 27 or 25 of the Consumer Protection Act, 1986. The consumer dispute is disposed of accordingly.
The order is pronounced on this day of 24th September 2016 under the signature and seal of this Forum. Copy of the order be supplied to the parties free of cost.
