Orissa

Cuttak

CC/54/2014

Pradosh Kumar Swain - Complainant(s)

Versus

Branch Manager,Bajaj Allianz General Insurance Company Limited - Opp.Party(s)

R B Das

16 Jan 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.54/2014

     Sri Pradosh Kumar Swain,

     At/PO:Karikol,P.S:Athagarh,

     Dist:Cuttack.                                                                                              … Complainant.

 

                Vrs.

 

1.        Branch Manager,

Bajaj Allianz General Insurance Company Ltd.,

(_Policy servicing office) Bajaj Allianz General

Insurance Co. Ltd.,

AT:Suryavihar,Ground Floor,

Lionk Road,,Near Sramika aBhavan,

PO:Arunodaya Nagar,

                  Cuttack

 

2.        The Motor Claims Manager,

Bajaj Allianz General Insurance Company Ltd.,

“One Janpath”,3^rd Floor,2C,Janapath,

Shriya Square,Kharvela Nagar,

Unit-3, Bhubaneswar.                                                                                  … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

                                Sri Bichitrananda Tripathy, Member.

                                Smt. Sarmistha Nath,Member(W).

 

Date of filing:   21.04.2014

Date of Order: 16.01.2017.

 

For the complainant       :            Sri R.B.Das,Adv. & Associates.

For the Opp.Paries1& 2:             Sri R.K.Pattnaik,Adv. & Associates.

 

Sri Dhruba Charan Barik,President.

                The complainant has filed this case alleging deficiency in service against the O.Ps and seeking appropriate relief against them in terms of the prayer in the complaint petition.

1. The facts of the complainant’s case stated in brief are that he is an agriculturist and for that purpose he had owned a tractor bearing Regd. No.OR-06-E-7684 and a Trailer bearing No.OR-06-E-7685.  Annexure-1 series are the copies of such registration certificates.  Both of his vehicles were duly insured by the O.P.1 vide policy No.OG-14-2423-1811-00000185 in respect of the period from 16.8.13 to 15.8.14 and the total insurance coverage was Rs.2,50.000/-.  Annexture-2 is the copy of the insurance certificate of the above vehicles.
2. On the fateful day on 26.9.2013 some miscreants set fire to the above tractor and other vehicles of the complainant while it was standing in front of his market complex and the tractor was gutted.  Soon after this incident, the complainant lodged an FIR at Athagarh Police station and also sent intimation to the local fire station.  Copy of the FIR No.202 (01)/2013 and copy of the fire certificate No.1121 dt.30.10.13 have been filed in this case and respectively marked as Annexure-3 & 4.  He also intimated about such fire accident to O.P.1 and on his instruction submitted the insurance claim to O.P.1.  Annexure-5 series are the copies of such insurance claim and the letter dt.7.10.13 of the complainant.  A surveyor was also deputed to the spot by O.P.2 for physical verification and assessment of loss.  As per the instruction of the said surveyor the damaged vehicle was produced before the mechanic of Jayadurga Motor Service,Athagarh for necessary repair.  After complete verification, the said mechanic made estimation of Rs.95,304/- on 31.10.13 and Rs.13,075/- on 15.11.13 of the damaged tractor.  Copies of the above two estimation have been annexed and marked s Annex-6 series.  Although the complainant had filed the claim form along with all requisite Annexures to O.P.2 to settle his claim yet the O.P.2 did not do anything and lastly on 7.11.13 sent a letter to the complainant asking him to produce the valid fitness certificate before him lest consequential order would be passed on his claim.  Annexure-7 is the copy of the letter dt.7.11.13 of the O.P.2.  Thereafter, the complainant requested the O.P.2 by his letter dt.20.11.13 and 21.1.13 to expedite the matter and settle his claim at the earliest but in vain.  Annexure-8 series are the copies of the above two letters of the complainant.
3. Lastly the O.P.2 vide his letter dt.2.12.13 intimated the complainant stating that his claim stood repudiated for non-production of the valid fitness certificate and violation of Section-56 & 66 of M.V.I Act.  Annexure-9 is the copy of the said repudiation letter dt.2.12.13.
4. It is specifically stated in the complaint that the action of the O.P.2 is arbitrary and illegal and he has repudiated his claim without any just cause.  He was put to serious mental agony and financial loss because of the deficiency in service on the part of the O.Ps.
5. It is therefore prayed that the O.ps may be directed to settle his insurance claim at Rs.1,50,000/- as per the estimation in Annexuire-6, to pay compensation of Rs.1,30,000/- for his suffering and mental agony and Rs.20,000/- towards litigation cost in the interest of justice.
6. Both the O.Ps in written version of their case havecategorically denied the material averments in the complaint.  It is strongly pleaded that repudiation of the insurance claim of the complainant is legal and justified due to violation of the terms and conditions of the policy in as much as at the relevant time of fire accident, the said tractor did not have valid permit and fitness certificate.  In view of the breach of the conditions of the policy the claim of the complainant was repudiated.  He has filed the copy of the letter of repudiation of the claim of the complainant which has been marked as Annexure-A.  Annexure-B is the copy of the surveyor’s report in this case.  It is therefore prayed that the case of the complainant is devoid of merit and may be dismissed.
7. The point for determination in this case is whether O.Ps 1 & 2 are found deficient  in rendering service to the complainant by repudiating the claim for insurance on the ground assigned in Annexure-9 which corresponds to Annexure-A.
8. The complainant himself has filed his evidence in the form of affidavit separately in this case which is found in conformity with the averment made in his complaint.
9. We have heard the learned counsels from both the sides and gone through the case records as well as the Annexures filed by both the parties.
10. The crux of the matter in the present case is the repudiation of the insurance claim of the complainant by O.P.2 vide Annexure-9.  The learned advocate for O.P.2 has categorically stated that since the complainant did not have the route permit and the fitness certificate of the tractor in question at the time of fire accident, repudiation of his claim for violation of the terms and conditions of the policy is legal and justified.  But the learned advocate for the complainant has stated that since the fitness certificate and route permit of the said tractor had already expired since long, the said tractor was no more in running condition and as such it had been standing on the public road in front of the market complex of the complainant at Athagarh when the fire accident took place.  This is clearly revealed from Annexure-8 which is the reply given by the complainant to O.P.2.  Annexure-7 is the copy of the letter dt.7.11.2013 issued by the O.P.2 to the complainant wherein it is stated that the complainant had submitted the fitness certificate of the tractor in question which was valid from 12.12.2007 to 11.12.2009 and the said tractor was gutted on 26.9.13.  From the above it is clear that the route permit and fitness certificate of the said tractor had already expired since 2009 for which the vehicle had been kept idle and standing in front of the market complex of the complainant.
11. The learned advocate for the O.Ps has fairly advanced his argument that even in absence of the above two document s the claim of the complainant may be calculated on non-standard basis in view of the report of the surveyor vide Annexure-A which shows that the total loss or damage caused to the said tractor was Rs.42,000/- only.  His further submission is that the insurance company while settling the claim of the complainant for rs.20,000/- or above,  should take into consideration the report of the surveyor deputed to the spot for the purpose and without it no claim can be settled.  Contrary to it the learned advocate for the complainant has submitted that the two estimations of the damage or loss made by the competent garage authority can be the basis of assessment of the loss.  He has placed a reliance on a decision reported in AIR 2010 S.C-2090(Amalendu Sahoo Vrs. Oriental Insurance Company Ltd.). It has been held by his lordship that when a vehicle taken on hire by a person met with accident during subsistence of policy and such use of the vehicle was not permitted under the policy, the Insurance Company cannot repudiate its claim in toto in such a case in view of the guidelines issued by it. He is of further opinion that the Insurance Company should pay consolidated sum of 50% of the claim made by the complainant who is the owner of the vehicle.   Keeping in view the ratio of the aforesaid decision it is held that the prayer of the complainant should be allowed.  Hence ordered;

                                                                                                 ORDER

The prayer of the complainant is allowed on contest against the O.Ps.  The O.Ps 1 & 2 are directed to pay Rs.54,290/- which is 50% of the total claim of the complainant for loss or damage caused to his vehicle together with compensation of Rs.15,000/- to the complainant within 45 days of receipt of copy of this order.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 16^th day of January, 2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                         President.

                                                                                                                 (Sri B.N.Tripathy )

                                                                                                                           Member.

                                                                                                              ( Smt. Sarmistha Nath)

                                                                                                                        Member(W)