DATE OF FILING: 19.7.2012.
DATE OF DISPOSAL: 17.3.2016.
Miss S.L.Pattnaik, President:
Brief fact of the complainant’s case is that he is the registered owner of the vehicle Indica V2 DLX vide Registration No.OR-7-N-0899 being financed by Sriram Transport Finance Company ltd. The vehicle was insured with the O.P. namely New India Assurance Company Limited under the commercial vehicle package vide policy No. 55060131100100002854 valid for the period from 14.1.2011 to 13.1.2012 for an assured sum of Rs.1,40,000/- on deposit of due premium. While the policy was in force, the vehicle met with an accident on 6.5.2011 at Musajhara under Chandiposh Police Station, Sundergarh district and suffered extensive damage. The case was registered at Chandiposh Police Station bearing case No. 165 dated 8.5.2011. Since the insurance of the vehicle was in force during the material period , the complainant intimated the O.P.No.1 on 9.5.2011 about the accident and in response the O.P.No.1 deputed their surveyor for assessment who assess the loss to the tune of Rs.1,40,000/- but the vehicle was repaired by the complainant by spending an amount of Rs.1,44,821/- and also submitted the bills and vouchers and the claim amount to the O.P.No.1 but the O.P.No.1 repudiated the claim on 20.3.12 on the plea that the vehicle was not having with effective fitness certificate at the material time of accident. It is stated by the complainant that since the repudiation of the claim under the policy is illegal, unjustified and arbitrarily and the O.P.No.1 without following the rules and regulation and surveyor report repudiated the claim is contrary to the provision of law which amounts to gross deficiency in service on the part of the O.P.No.1 and filed the present case with the prayer for the following reliefs.
(i) To direct the O.P.No.1 to settle O.D. claimed to pay sum of Rs.1,44,821/-towards repair cost of the vehicle.
(ii) To direct the O.P. to pay Rs.10,000/- for damages and mental agony.
(iii) Any other reliefs as deemed fit.
In support of his case the complainant has filed the following documents to prove his case.
(A) Xerox copy of R.C.Book vide Registration No. OR-07-N- 0899. .
(B) Xerox copy of policy No. 55060131100100002854.
© Xerox copy of F.I.R/Station Diary entry on dt. 8.5.2911.
(D) Xerox copy of Damage claim Survey report.
(E) Letter of the Insurance Company dated 7.5.2011 containing 2 sheets.
(F) Xerox copy of O.P. made by complainant dt.15.2.2012.
3. Upon notice being served O.P.No.1 appeared on 9.10.12 and filed his written version on dt. 22.7.2013. The O.P.No.2 having remained absent has been declared set exparte on 21.12.2015.
4. The O.P.No.1 submitted his written version on 22.7.2013 denying the allegation of the complaint petition while they have admitted accident of the vehicle and deputed their surveyor namely Er. S.B.Choudhury who assessed the loss to the tune of Rs.31,880/- in his survey report dated 7.5.2013 on the ground that the complainant has violated the terms and conditions of the insurance policy as at material time of accident. The vehicle had no fitness certificate which is clear violations of the Motor Vehicle Act. The O.P. has also submitted that the case is bad for non joinder of proper party he is not entitled to get any relief. The O.P. has also submitted that as there is no deficiency in service on the parts of the O.P. the case is liable to be dismissed in the ends of justice.
5. To prove his case the O.P. No.1 has submitted the following documents alongwith citation of Hon’ble National Commission which is attached in the case record.
(A) The Xerox copy of repudiation letter dated 9.2.2012.
(B)The Xerox attested copy of survey report.
6. Heard the parties and after perusing the pleadings and documents submitted by both parties to prove their respective claims denial plea the following issues are framed for proper adjudication of the case.
(I) whether the case is maintainable?
(II) Whether the complainant is eligible to get his claim amount of Rs.1,44,821/- or the assessment of Rs.31,880/- made by the surveyor in respect of the damaged vehicle is final?
( III ) Whether the repudiation on the part of the complainant has raised by the O.P. Company is tenable OR What relief/reliefs the complainant is entitled to ?
7. ISSUE NO. (I) whether the case is maintainable?
It is an admitted fact that the complainant had insured his vehicle with the O.P. It is also admitted fact that had the policy is covered the period of liability from 14.1.2011 to 13.1.2012. There is also no dispute regarding the premium. Since the complainant paid the premium before the O.P. and obtained a valid insurance policy. So he is a consumer under section 2(i)(d) of the Consumer Protection Act, 1986. The accident took place on 6.5.2011 as because there is a valid insurance coverage to the vehicle and out of the accident the vehicle sustained damaged. The complainant claimed of damage has to be made by the O.P. So the complaint petition is Primafacie and it is maintainable under the Consumer Protection Act.
8. ISSUE NO. (II) Whether the complainant is eligible to get his claim amount of Rs.1,44,821/- or the assessment of Rs.31,880/- made by the surveyor in respect of the damaged vehicle is final?
On this point we have gone through the decision of Hon’ble National Commission reported in 2004(9)CLD 884 NCDRC dt.24.3.2004 National Insurance Company ltd. Versus Sardar Gurmit Singh. It reveals from the placitum which reads as follows-: Reports of surveyor appointed under Insurance Act, which to be given due importance and one should have sufficient ground not to disagree with assessment made by them”. Another decision M/s Narayani Cold storage and Allied Industries ltd. Versus Oriental Insurance Company limited reported in 2003 CPR 114 )NC) where Hon’ble National Commission held that “surveyor report is an important documents which can not be brushed aside easily”. In the instant case although the complainant has claimed Rs.1,44,821/- towards repairing the damage vehicle but has not sustained claimed by adducing any documentary evidence. So in absence of any bills and vouchers the complainant claimed of Rs.1,44,821/- can not be believable in toto. Further the complainant submitted in the complaint petition that the surveyor of the Company assessed the loss to the tune of Rs.1,44,821/- but contrary to that the O.P.No.1 produced the relevant documents i.e. surveyor report which disposes that the surveyor assessed the loss to the tune of Rs.31,880/-. Since the complainant has not filed any documentary evidence to assess his loss, but on contrary he produced the surveyor report, so we accept surveyor report filed by the O.P.No.1. While allowing insurance claim in the matter of payment of amount by way of indemnification for damage of the vehicle which met with an accident the report of the surveyor assessed the damaged in terms of money, should be given due importance that should be paid to the complainant .
9. ISSUE NO.(III) &(IV) Whether the repudiation on the part of the complainant has raised by the O.P. Company is tenable OR What relief/reliefs the complainant is entitled to ?
The O.P.No.1 repudiated of the complainant on the ground that the vehicle had no effective fitness certificate. So the complainant not only violates the terms and conditions of the insurance policy but also he has breached the provisions of the Motor Vehicle Act. Perused the Xerox copy of Registration Certificate of Pradipta Mishra wherein we found that fitness is valid up to 12.10.2010. On perusal of the letter marked as annexure six addressed to O.P.No.1. The complainant has written that he had submitted the contract carriage permit vide its No. CC/PP/07/528/09200 issued by Secretary, Regional Transport Authority valid for the period from 24.7.2009 to 23.7.2014 but there is no document regarding in this regard. The Forum in the above circumstances views that although the accident was taken place in the fitness certificate was not valid but there is nothing in the record to suggest plying of the vehicle without fitness certificate had contributed to the accident and it had not been established by O.P. that fitness of the vehicle had any nexus with the cause of the accident. On this point we rely on the decision of Hon’ble National Commission reported in 2008 Consumer Protection Cases, 1986 G.Kothain Chair versus United India Insurance Company Limited wherein it has been held that breach with respect to plying of the vehicle without permit/fitness is only the breach with respect to the provisions of Motor Vehicle Act and it is not a breach of the terms and conditions of policy. So the O.P.No.1 can not legally repudiate the claim on this ground. As such repudiation of the claim by O.P.No.1 on the aforesaid ground amounts to deficiency in service and also liable for compensation for mental agony and litigation cost.
On perusal of the complaint petition we found that the complainant made party to the Branch Manager, Sriram Transport Finance Company ltd., Ichhapur district srikakulam of Andhrapradesh as O.P.No.2, but in the prayer portion he has not demanded any claim/relief from the O.P.No.2. Therefore O.P.No.2 being the financer is exonerated from any charges and allegation if any. Hence order.
In the result the complaint is allowed against O.P.No.1. The O.P.No.1 is hereby directed to pay a sum of Rs.31,880/- (Rupees Thirty one thousand eight hundred eighty) only as assessed by the surveyor towards repair of the vehicle with 6% per annum from the date of repudiation i.e. 20.3.2012 to the complainant till its actual payment. The O.P.No.1 is also directed to pay a sum of R.2000/- (Rupees two thousand) only towards costs of litigation to the complainant. The above amount has to be paid by the O.P.No.1 within 30 days from the date of receipt of this order failing which the entire amount shall carry interest at the rate of 9% (nine percent) per annum thereafter.
The O.P.No.2 is hereby discharged from all the charges and liabilities in the instant case. .
Order is pronounced in the open Forum today on 17th March 2016.
Copies of the order be supplied to the parties free of cost.
