DATE OF DISPOSAL: 30.09.2024
PER: SRI SATISH KUMAR PANIGRAHI
The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties (in short the O.Ps) and for redressal of his grievance before this Commission.
2. The complainant is the registered owner of the tractor bearing Regd. Nol. OD-07V-5014. The O.Ps have insured said tractor of the complainant. The insurance policy of said tractor was issued by the O.P.No.1 in the name of complainant who is the registered owner of the tractor. Total sum insured at Rs.6,40,000/- under the administrative control and management of O.P.No.2 and 3 respectively vide insurance policy No. OG-18-2413-1811-00000295 for the period of insurance from 26.12.2017 to 25.12.2018 covering risks of damages and loss during use of said tractor for private purposes and deposited liability premium value sum of Rs.7,938/-. On dated 23.09.2018 when the said tractor No.OD-07V-5014 was parked on the left side of N.H. 16 infront of Kasi Biswanath Temple (Near village Konishi) unfortunately a truck which could not be detected hit the tractor and run away. In the said accident Bonnet, Radiator which fan, steering Box, Gear stop, steering wheel, Diesel tank with its accessories, front wheel Axel and battery of the said insured tractor completely damaged and the complainant sustained loss and damages to a tune of Rs. 53,300/-. The complainant intimated the incident in Golanthara Police Station but the police refused to make station diary entry of said fact. The Sai Ram Tractor Garage, Konishi Ganjam prepared the proper estimation of loss of tractor. Soon after said accident and losses caused to the said tractor of complainant lodged claim before all the O.Ps demanding loss and damage to the insured tractor to a sum of Rs.53,300/- which are under coverage of risk of the said insurance policy. The O.Ps have registered the claim of loss of the complainant in the matter of damage and loss of tractor of the complainant in claim No. OC-19-2403-1811-00000053 and in office letter of the O.Ps which was received him on 13.10.2018 requiring him to supply a copy of Route Permit of his said damaged tractor which is not required. The said tractor of complainant sustained above narrated damages and loss during his private use in cultivation of his lands. The said tractor was not used or utilize for commercial purpose at any time and said tractor of the complainant was not a commercial vehicle. Hence route permit is not essential for settling the claim of damage and loss caused to the said tractor of complainant during its private use. Moreover, the damage and loss which caused to the said tractor was not while in use, but when it was parked on the roadside for shifting it to its garage. For the purpose of settlement claim of loss and damages caused to the said tractor and payment claim of the complainant route permit is not at all necessary. The claim of loss and damage lodged by the complainant is legal, genuine and the complainant is having the relevant documents in support of settling the claim of the said complainant by the O.Ps. Therefore, the complainant is entitled to get the loss and damage of his damaged tractor in the accident from its insurer the O.Ps. On dated 17.10.2018 the complainant had issued legal claim notices to the O.Ps through his advocate by Regd. Post with A.D. The O.Ps have received the same claim notice with proper acknowledgement and maintained silence. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay Rs.53,300/- towards loss and damage of tractor and compensation of Rs.45,000/- in the best interest of justice.
3. The Commission admitted the case and issued notice to the Opposite Parties.
4. The O.Ps filed written version through his advocate. It is stated that there is no cause of action against the O.Ps to file the present complaint, hence the present complaint is liable to be dismissed. The claim is not at all maintainable either in the eye of law or on the materials available on record. This O.P. has no direct knowledge about that the vehicle bearing regd. No. OD-07-V-5014. This O.P. had issued the policy No. OG-18-2413-1811-00000295 valid from 26.12.2017 to 25.12.2018 against tractor bearing regd. No. OD-070V-5014 wherein Mr. Lokanath Dalei is the insured and IDV amount is Rs.6,40,000/-. The policy is issued along with the terms, conditions and exceptions of the said policy. The present complainant has violated the statutory requirements as per the terms and conditions agreed upon by both parties enshrined in the agreement. The alleged insured vehicle was removed from the spot of alleged accident without the knowledge and consent of the insurer with an oblique motive to suppress the facts. The insurer was sufficiently prevented from ascertaining the cause and quantum of loss. The insured had intentionally removed the vehicle from the spot and thereby breached the insurance terms. As per the registration certificate issued by Ganjam RTO in favour of the vehicle bearing regd. No. OD-07-V-5014 the said vehicle has been registered under commercial vehicle and also this O.P. has issued one commercial vehicle insurance policy to the said vehicle. Such class of vehicle musts have route permit to be plied on the public road and to settle the commercial vehicle claims route permit is required as per requirement of Section 66 of Motor vehicle Act. But in the instant consumer complaint this O.P. requested the complainant to provide the route permit copy vide letters dated 5th October 2018 and 30th October 2018. But even after the said letters the complainant could not provide the required permit documents. So it is clear that the insured allowed the tractor to ply on the public road even after knowing the fact that it was not having any permit which is gross violation of the norms of the motor vehicle act and also the terms and conditions of the insurance policy. Hence the claim application of the complainant is liable to be dismissed against this O.Ps. This O.P. issued letters vide dated 5th October 2018, 30th October 2018 and final letter of repudiation was issued on 18th December 2018. Accordingly this O.P. has repudiated the claim of the complainant, as such there is no fault on the part of this O.P. and hence the case is liable to be dismissed with cost. Without prejudice to the above submission, it is submitted that complainant has not filed any documents to prove factum of incident as well as damages, complainant neither filed any police documents nor original repair bills hence complainant has not filed any original documents to support his claim and hence said complaint of the complainant is not maintainable and entitled to be dismissed. Without prejudice to the above defense, the O.P. has appointed a surveyor who visited the spot of accident and has made as assessment of loss to the tune of Rs.33,568/- subject to terms and conditions of the policy. Under no circumstances the liability of the O.P. shall exceed the assessment done by the surveyor. All the averments made therein in the complaint are baseless, wrong and is emphatically denied. The complainant is not entitled to any relief whatsoever and is not entitled to claim and recover anything from the answering O.P. in the light of what stated above. The complaint is not maintainable and flagrant abuse of the process of law and is beyond the jurisdiction of this Hon’ble court and is liable to be dismissed summarily with exemplary cost.
5. On the date of hearing, the Ld. Counsels for both the parties were present and submitted their argument. The Commission heard at length on the point of issues from the parties and minutely verified the complaint, written versions, evidence on affidavits, written arguments and documents available in the case record.
This Commission by relying upon a citation passed by National Commission, New Delhi in H.C. Sazena versus New India Assurance co. through its Manager & Anr. 2012 (1) CPR 31 such as: - “Report of surveyor is an important document and cannot be brushed aside without any compelling evidence to the contrary” and the ratio of law in Civil Appeal No1299./2019 - SLP(C)No.27695/2018 Sumit Kumar Saha vs. Reliance General Insurance Co. Ltd. can be equated with the case.
In the above room, the Commission allowed the complaint against the opposite parties taken into consideration of report submitted by the surveyor admitted the cause of loss and liabilities. The opposite parties are directed to pay the loss amount of Rs.33,568/- together with interest at the rate of 6% per annum to the complainant from the date of order along with litigation cost of Rs.5,000/- within 45 days from the date of receipt of the Order in default whereof interest @9% per annum shall be payable till full realization from the O.Ps in accordance to the Consumer Protection Act, 2019.
In view of the judgment, all the pending interim petitions and orders, if any, are disposed of accordingly henceforth.
The case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 30.09.2024.
