Date of filing:- 13/10/2014
Date of Order:- 08/03/2016
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM (COURT)
B A R G A R H.
Consumer Complaint No. 25 of 2014.
Saroj Kumar Debata, aged about 50(fifty) years, son of Mahendra Debata, resident of village/Post. Chichinda, Ps. Sohela, Dist. Bargarh. ..... ..... ..... Complainant.
-V e r s u s -
The Oriental Insurance Company Limited, through its Branch Manager, Bargarh Branch, At:- Canal Avenue, Bargarh, Post/Dist. Bargarh. ..... ...... Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri D. Mishra, Advocate with other Advocates.
For the Opposite Party:- Sri P.K.Mahapatra, Advocate with other Advocates.
-: P R E S E N T :-
Mrs Anjali Behera .... ..... ..... ..... ..... M e m b e r.(w)I/c President.
Sri Pradeep Kumar Dash ..... ..... ..... ..... M e m b e r.
Dt.08/03/2016. -: J U D G E M E N T:-
Presented by Sri Pradeep Kumar Dash, Member.
The Complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act 1986 and the Complaint in brief is here under.
The Complainant is the “insured” where as the Opposite Party i.e. The Oriental Insurance Company Limited, Bargarh is the “insurer” in this case.
The Complaint reveals that, the Complainant being the owner of vehicle bearing No. KA 01 ME 6797, used the same for his self employment and to earn his livelihood. The afore said vehicle met with an accident on Dt.12/12/2012 covered under the policy No. 345601/31/2013/3074 issued by the Opposite Party. The Complainant immediately after the occurrence lodged a claim before the Opposite Party and the loss where of was finally settled and communicated by the Opposite Party to the Complainant on Dt.26/09/2014. The letter Dt.26/09/2014 of the Opposite Party include some documents to be filled up by the Complainant and to submit before the Opposite Party. The Complainant filled up the documents with an endorsement in the discharge voucher that the amount settled by the Opposite Party is accepted subject to reservation of right to claim interest due to delay caused in settlement and in view of the aforesaid endorsement in the discharge voucher the Opposite Party refused to receive the same while submitted before him by the Complainant.
The Complaint further reveals that, the Opposite Party took one year and nine months to settle the claim causing inordinate delay in repairing vehicle and loss of livelihood of the Complainant which amounts to deficiency/negligence in service by the Opposite Party to the Complainant. So also non receipt of discharge voucher and other documents withholding the payment of settled amount by the Opposite Party amounts to unfair trade practice.
The Complainant seeks the redressal of the Forum to direct the Opposite Party to release the settled amount and to compensate the Complainant for an amount of Rs. 5,00,000/-(Rupees five lakh)only besides cost of litigation and interest.
The Complainant in support of his contentions relies upon the Xerox copies of the following documents.
Letter Dt.26/09/2014 issued by the Opposite Party. (1 sheet)
Discharge Voucher. (1 sheet)
Insurance certificate cum Policy schedule along with letter of Complaint Dt.19/12/2012 to the Opposite Party. (10 sheets)
Being noticed the Opposite Party appeared through the Legal Counsel and filed his version denying all the allegations of the Complaint.
The Opposite Party in its version contends that the vehicle of the Complainant is a commercial vehicle meant to gain profit and not for earning livelihood by way of self employment and the services availed by the Opposite Party is for commercial purpose and the Complainant is not a Consumer under the Provision of Sec-2 (d) of CP Act. 1986.
Further the Opposite Party in its version contends that soon after getting information about the accident the Opposite Party had taken all possible steps to investigate the claim and carried out all required procedures for settlement of claim. More over in order to settle an insurance claim the Opposite party has to follow certain procedures like verification of genuineness of claim and ascertainment of actual loss suffered by the insured in the accident. In the process the Opposite Party requires the services of different personnel i.e. Surveyors, Investigators etc. who have special knowledge in this field. After receiving claim and relevant documents there to from the Complainant, the Opposite Party after verification sent them to Surveyors, Investigators for their investigation reports and after receiving reports from the Surveyors and Investigators the Opposite Party proceeds with settlement work. If the financial claim exceeds limit of branch office, the entire claim file has to be sent to the Superior Offices situated in different places and it require some time for transit and return. In the process the settlement of insurance claim consumes a considerable time. In the instant case claim form was submitted by the Complainant on Dt.12/12/2012 and 19/12/2012. The Complainant vide letter No. 11/09/2013 again submitted 51(Fifty one) numbers of bills of different place which were verified by the Opposite Party through different Investigators. The fire brigade report was also verified through Investigator. The final survey report and final query report was received by the Opposite Party respectively on Dt.12/09/2013 and 16/06/2014. The settled claim amount as exceeds the financial limit of the branch, after approval from the head office the Complainant was informed vide letter Dt.26/09/2014 about the settlement of claim with all the formalities and precautions the Opposite Party has settled the claim within normal possible time which can not be said to be arbitrary or intentional so as to attract the clause “deficiency in service”.
The Opposite Party in its version further contends that every insurance policy much less the policy issued in respect of the vehicle of the Complainant is subject to stipulated terms and conditions agreed to by the insured at the time of making the contract as such the rights of the insured and liability of insurer i.e. Insurance company is governed by such terms and conditions of policy of insurance.
The version of the Opposite Party further reveals that the Complainant instead of submitting required documents mentioned in the letter Dt.26/09/2014 of the Opposite Party remained silent for a considerable period and informed the Opposite Party vide his letter Dt.22/10/2014 about the initiation of complaint proceeding with a copy of interim order of the Hon'ble Forum directing the Opposite Party to release the settled amount within seven days and accordingly the Opposite Party complianced the order of the Hon'ble Forum.
Further the Opposite Party in its version contends that as the claim of the Complainant was in active consideration of the Opposite Party and pending settlement filing the Complaint was premature having no cause of action liable to be dismissed. So also since the adjudication of the Complainants claim requires in depth scrutiny , discussion, interpretation, application of terms and conditions which can only be decided in a civil court, hence the case is not maintainable in a court of summary jurisdiction and liable to be dismissed.
The Opposite Party in its prayer before the forum prays for dismissal of the Complaint and order to pay the cost to the Opposite Party by the Complainant u/s 26 of the Consumer Protection Act 1986 alleging the nature of the Complainant to be vexatious and frivolous.
The Opposite Party in support of his contentions in version relies upon the xerox copies of the following documents.
Copy of insurance policy No.345601/31 /2013/3074(Six sheets) Dt. 21/11/2012.
Copy of claim intimation submitted by Complainant (One sheets) Dt. 12/12/2012.
Copy of letter of O.P. to Complainant to submit documents (One sheets) Dt.13/12/2012.
Copy of letter of Complainant to O.P. Submitting claim form and documents (Three sheets)Dt. 19/12/2012.
Copy of letter of Complainant to O.P. Submitting estimates of repairing(Seven sheets) Dt.19/12/2012.
Copy of spot survey Report of Er. S.M. Mohapatra (Three sheets) Dt. 21/12/2012.
Copy of letter of O.P. to Complainant to submit documents not complied for (One sheet) Dt. 08/03/2013.
Copy of letter of O.P. to Adv. J.P. Pandia for verification of R.C. (One sheet) Dt.12/03/2013.
Copy of affidavit submitted by Complainant to O.P. (Two sheets) Dt.14/03/2013.
Copy of letter of Adv. J.P. Pandia Submitting R.C.Verification report (Two sheets) Dt.18/03/2013.
Copy of letter of Complainant to O.P. to allow plying of vehicle (One sheet)Dt. 08/07/2013.
Copy of letter of O.P. To Adv. S.K.Panda to collect C.C. Of G.R.(One sheet) Dt.22/07/2013.
Copy of Motor Final Survey Report of Er. Ranjit Ku. Singh(Nine sheets) Dt.30/07/2013.
Copy of letter of Adv. S.K. Panda to O.P. Submitting verification of fire report. (Three sheet) Dt.03/08/2013.
Copy of report of Adv. S.K. Panda to OP submitting verification report of GR (Twenty two sheets)Dt. 05/08/2013.
Copy of letter of Complainant to OP submitting 51 numbers of bills with copies of Bills (Eighty eight sheets) Dt.11/09/2013.
Copies of letters of Bargarh Branch of O.P. to D.O. Rourkela, Bhubaneswar, Calcutta, Raipur for verification of bills (Five sheets) Dt.12/09/2013.
Copy of letter of Bhubaneswar office of OP to Bargarh branch forwarding bills verification report of Adv. S.P. Nanda ( Eleven sheets) Dt.03/10/2013.
Copy of letter of Rourkela office of OP to Bargarh branch forwarding bills verification report of Adv. Dhirendra Pr. Dash (Six sheets) Dt.04/10/2013.
Copy of letter of Kolkata office of OP to Bargarh branch forwarding bills verification report by Investigator Bapi Ghosh (Nine sheets) Dt.18/11/2013.
Copy of letter of Bargarh branch office of OP to Division office, Sambalpur sending claim entire claim file with note sheet and assessment sheet for approval (Ten sheet) Dt.28/11/2013.
Copy of query report submitted by Er. Ranjit Ku. Ratha (Seven sheets) Dt.30/05/2014.
Copy of letter of Head office of OP to RO Bhubaneswar approving the loss (One sheet) Dt.24/09/2014.
Copy of letter of OP to Complainant about settlement of claim and to submit document for payment (One sheet) Dt.26/09/2014.
Copy of letter of Complainant to OP intimating about the present case and interim order and submission of documents (Seven sheet) Dt.22/10/2014
Copy of letter of OP to Complainant giving information about payment amount through ECS (Two sheets) Dt.27/10/2014.
Having gone through the case record, pleadings of parties, documents annexed to the case record, heard argument of both the parties, found there is no dispute as to Insurance policy and settled amount. The Insurance policy bearing No.345601/31/2013/3074 for the vehicle No. KA-01ME-6797 is admitted by the Opposite Party, so also the settled amount of Rs. 15,73,000/-(Rupees fifteen lakh seventy three thousand) only by the Opposite Party for the loss due to accident is also not disputed and accepted by the Complainant. The only dispute is that the Complainant claims interest for the delayed payment of settled amount.
In the aforesaid complaint for its just and proper adjudication the issues likely to be decides as follows:-
Whether the Complainant is a consumer of the Opposite Party under the provision of Section 2(1)(d) of the Consumer Protection Act-1986 ?
Whether the subject matter of the case can only be decided in a regular Civil Court and whether the Forums constituted under the provision of Consumer Protection Act-1986 have no jurisdiction to entertain and decide the complaint ?
Whether only delay in settlement of the claim of the Complainant is caused by the Opposite Party and whether is liable for deficiency in service under the provision of Consumer Protection Act-1986 ?
What relief the Complainant is entitled for ?
The Complainant is the owner of the vehicle bearing No. KA-01-ME-6797 and the Complainant vide receipt Dt.21/11/2012 has paid the insurance amount and obtained an insurance Policy bearing No. 345601/31/2013/3074 from the Opposite Party and as per his contention in the complaint used the vehicle for his self employment and to earn his livelihood. In contrary the Opposite Party despite alleging the Complainant for using the vehicle for commercial purpose has not been able to prove the allegation by any cogent evidence. The insurance policy also does not reflect that the vehicle was insured as commercial vehicle. The exclusion clauses of Amendment Act of 1993 in Sec. 2(1)(d) of Consumer Protection Act-1986 explains the term “Commercial Purpose” abundantly clear that the intention of purchaser of goods or hirer of service to earn his livelihood is important not the goods purchased or service availed. The very limitation flowing out of these expression in amendment clauses of 1993 in Consumer Protection Act-1986 do not oust the Complainant to become a consumer of Opposite Party. Here in this case and circumstance the Complainant has paid the consideration money in shape of insurance amount to hire the services of the Opposite Party and as per the provision of law contained in Sec 2(1)(d)(ii) of Consumer Protection Act-1986 he is a consumer under the Opposite Party. The issue No.1(one) is answered as above.
It is axiomatic that under the Act a person who hires any services for a consideration which has been paid or promised or partly paid or partly promised is a consumer as defined. However the Act has in terms expressly provided for the adjudication of such claims by the consumer seeking recovery of compensation for any loss caused on account of deficiency in service by conferring on the Redressal Forums constituted under the statute, the jurisdiction to adjudicate upon such disputes. Pointed reference here in called to Sec-3 of the Consumer Protection Act-1986 declaring that the provisions thereof shall be in addition to and not in derogation of any other law for the time being in force. Therefore the Act provides an additional remedy to person coming within the ambit of consumers. The remedies under the ordinary Civil law and under the Act may to some extent over lap, but no way exclusionary to each other. Therefore in the light of the letter and spirit of the Act which expressly provides for adjudication of such dispute by the forums constituted under it and owing to the subject matter of the case and the discussion made above in the light of Sec-3 of the Consumer Protection Act-1986, Civil Court is not the only Forum where the dispute can be adjudicated. In other words the forum constituted under the Consumer Protection Act-1986 have ample jurisdiction to entertain and adjudicate the Complaint. The issue No.2 (two) is answered as above.
In the instant case claim intimation and estimate of repair with Completed claim form was finally submitted by the Complainant on Dt.19/12/2012. The final survey report Dt.30/07/2013 was received by the Opposite Party on Dt.12/09/2013. In between 19/12/2012 and 12/09/2013, the Opposite Party has taken all the steps by sending letters to different authorities and agencies to verify and to send R.C. verification report, to collect C.C. of G.R., to submit verification of fire report and to receive those documents from different authorities and agencies took time since 05/08/2013. The Complainant in response to the letter Dt.08/03/2013 of the Opposite Party, submitted 51(fifty one) numbers of bills with copies of bills on Dt.11/09/2013. Those bills of repairing which are submitted by the Complainant are of different dates and different shops of Raipur, Pune, Raourkela, Bhubaneswar, Kolkata and Bargarh. The Opposite Party without waisting time sent letters to D.O. Rourkela, Bhubaneswar, Kolkata, Raipur, Pune for verification of all those bills on Dt.12/09/2013 and in the process, the Opposite Party received verification reports of different D.O's of different branch of India which took more than two months time. Without waisting time the Opposite Party sent the entire claim file with note sheet and assessment sheet to the Division Office, Sambalpur on Dt.28/11/2013 for approval as the assessed amount exceeded the financial authority of the Opposite Party. The quarry report submitted by the Surveyor Ranjit Kumar Ratha is received by the Opposite Party on Dt.16/06/2014. As the settled amount of the claim exceeds the financial limits of the branch the Opposite Party required approval of the Head Office and finally the Head Office of the Opposite Party, approved the claim vide its letters Dt.24/09/2014 to R.O. Bhubaneswar. The Opposite Party then vide its letter Dt.26/09/2014 intimated the Complainant of the settlement of claim and was instructed to submit required documents for release of payment.
More particularly, for the settlement of an insurance claim, the Opposite Party has to follows so many procedures enumerated under the provision of Insurance Act 1938 and in the process it requires considerable time to follow all the paraphernalia and in the instant case the Opposite Party reasonably has not waisted any time intentionally from his side in performing his part of obligation and duties. Hence the Forum found, there is no inordinate delay caused by the Opposite Party in settlement of claim of the Complainant and Opposite Party is not liable for any deficiency in service to the Complainant in any manner provided under the provision of Consumer Protection Act-1986. This issue is decided as above.
While obtaining an insurance policy the insured is making a contract with the insurer. Both the insured and insurer are bound by the terms and conditions of insurance contract. Both the discharge voucher and acknowledgment receipt contain the declaration that once the settled claim amount is accepted by the insured to the offer made by insurer, the contract is finally concluded and deemed that the insured has accepted the offer in full and final satisfaction and can't claim further relief on the subject. In the circumstance the Complaint deserves no merit and the Complainant is not entitle for further relief. Delving deep into the nucleus of the matter, facts and circumstance of the Complaint and discussion made above in the decided issues, Complaint dismissed being devoid of any merit.
Complaint disposed of accordingly.
Typed to my dictation
and corrected by me.
I agree, (Sri Pradeep Kumar Dash)
M e m b e r.
( Smt. Anjali Behera)
M e m b e r. I/c President
