Orissa

Cuttak

CC/51/2020

Prasanta Kumar Dash - Complainant(s)

Versus

Branch Manager,ICICI Lombard General Insurance Co Ltd - Opp.Party(s)

R K Pattanaik & associates

05 Jul 2023

ORDER

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

C.C.No.51/2020

          Prasanta Kumar Dash,

           S/O: Sasibhushan Dash,

          At/PO:Mahidharapada,P.S:Cuttack Sadar,

           Via:Nakhara,Dist:Cuttack.                             ... Complainant.

 

          Vrs.

 

1. Branch Manager,ICICI Lombard General Insurance Co. Ltd,

Plot No.29, 3^rd Anuj Building,

Satyanagar, Bhubaneswar-751007.

 

2. The Branch Manager,

ICICI Lombard General Insurance Co. Ltd,

Cuttack Branch Office,Kailash Plaza,

Link Road,Cuttack,Odisha.                                              ...Opp. Parties.

 

 

Present:            Sri Debasish Nayak,President.

                             Sri SibanandaMohanty,Member.

 

Date of filing:    13.07.2020

Date of Order:  05.07.2023

 

For the complainant:                   Mr. R.K.Pattnaik,Adv. & Associates.

For the O.P no.1 & 2:                  Mr. R.Pati,Adv. & Associates.

                       

Sri Debasish Nayak,President.

Case of the complainant as made out from the complaint petition in short is that he had purchased a tractor of Mahindra make for a price of Rs.4,48,801/- vide Regd. No.OD-02-W-3136.  The complainant had insured the said tractor with the O.Psvide policy bearing no.3008/171995450/00B00 and had paid the premium of Rs.12,902/- also.  The said policy was effective from 26.5.2019 to 25.5.2020 and the assured sum therein on the said policy was of Rs.4,48,801/-.  The said tractor of the complainant while being parked near his factory premises during midnight of 16.12.2019, some miscreants had torched it, as a result of which the tractor was set ablaze.  The Supervisor of the complainant had informed him about the incident and the complainant had immediately informed the Fire office for extinguishing the fire.   After lot of efforts, the fire could be doused but the engine of the tractor was totally damaged thereby.  In the morning of 17.12.2019 FIR was lodged at the Sadar P.S of Cuttack.  But O.Ps after getting intimation from the complainant had deputed a Surveyor on 17.12.2019 and the said Surveyor had inspected the damaged tractor of the complainant at the spot.  The complainant being instructed had submitted all the relevant documents to the O.Ps for settlement of his claim during the first week of January,2020.  The O.Ps had instructed the complainant to start the necessary repairing work of the damaged tractor and submit the preliminary estimate towards the repairing cost.  The tractor was then taken to the Workshop at Jagatpur called R.K. Tractor Works on 20.1.2020.  The preliminary estimation as provided by the said workshop who was the authorised repairer, was to the tune of Rs.1,58,200/- with the condition that the final estimation will be done only after opening the engine of the said tractor.  The said workshop had given an additional estimate of Rs.87,800/- towards completion of the repairing work and thus, the final estimation towards the repair of the said tractor was of Rs.2,46,000/- but the O.Ps after remaining silent for a prolonged period had issued a letter dtd.30.4.2020 to the complainant intimating that the claim cannot be settled since because the tractor in question had no valid fitness certificate during the relevant time.  According to the complainant, since because the tractor was parked near his factory premises, the requirement of the fitness certificate has got no nexus.  Being harassed, the complainant had borne the entire repairing cost of Rs.2,46,000/-.  Thus, the complainant has come up with this case claiming the said repairing cost of Rs.2,46,000/- from the O.Ps alongwith interest thereon @ 9% with effect from 17.12.2019 till the total amount is quantified together with a sum of Rs.50,000/- towards compensation for his mental agony and harassment and further a sum of Rs.20,000/- towards his litigation expenses.

Together with the complaint petition, the complainant has attached copies of some documents in order to prove his case.

2.       Both the O.Pshave contested this case and have filed their written version jointly.  According to the written version of the O.Ps, the case of the complainant being not maintainable is liable to be dismissed with cost.  The case of the complainant is liable to be dismissed for non-joinder of necessary party since because it was hypothecated to Canara Bank and the said bank according to the O.Ps is a necessary party in this case.   They admit about the Miscellaneous Vehicle Package Policy issued in respect of the Mahindra & Mahindra tractor bearing Regd. No.OD-02-W-3136 alongwith it’s trailer covering the risk effective from 26.5.2019 to 25.5.2020 with certain terms and conditions.  The complainant had intimated them that some miscreants had set ablaze his tractor for which they had deputed Surveyor-cum-Loss Assessor, Er. Dharanidhar Das for the said purpose.  The said Surveyor had assessed the loss to be of Rs.40,900/- and accordingly hey had asked the complainant to produce all the relevant documents vide their letter dtd.31.12.2019.  The Surveyor could ascertain that the fitness of the vehicle was not valid and the complainant could not produced any document to apprise the O.Ps that his tractor had fitness certificate.  According to them, as per Sec-56 of the Motor Vehicle Act if a vehicle is not having a valid fitness certificate, then the said vehicle will be treated as if the vehicle is not registered.  The O.Ps had assumed that since because the vehicle was not in a running condition, the fitness certificate was not applied by the complainant.  Thus, according to them, the tractor was not road-worthy during the alleged accident and the complainant cannot claim to make it road-worthy.  Thus, the O.Ps urge that they had rightly repudiated the claim of the complainant and there is no deficiency in their service for which they have prayed for dismissal of the complaint petition as filed.

          Together with their written version, the O.Ps have also filed copies of certain documents in order to prove their stand.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

The complainant has filed his evidence affidavit but the same when perused, it is noticed that the same is only the reiteration of the complaint petition as filed by him.

Issue no.II.

Out of the three issues, issue no.ii  being the pertinent issue is taken up  first for consideration here in this case.

On perusal of the complaint petition, the written version as well as all the copies of documents as available in the case record, it is noticed that the complainant had infact owned a tractor bearing No.OD-02-W-3136 which had a valid insurance effective from 26.5.2019 to 25.5.2020.  It is also not in dispute that during the midnight of 16.12.2019, the said tractor of the complainant when parked near his factory was set ablaze by some miscreants for which especially the engine of the said tractor was totally damaged.  It is also not in dispute that the matter was reported to the Sadar P.S at Cuttack and on the same day the matter was reported to the O.Ps who had deputed Surveyor,Er. Dharanidhar Das and the said Surveyor after visiting the spot had prepared his report which he had submitted to the O.Ps vide Annexure-B.  The crux of the case is that during the alleged fire accident, the said tractor of the complainant had no fitness certificate and the complainant is silent about the same.  The O.Ps have harped on the said point by attracting the provision of Sec-56 under the Motor Vehicle Act.  After perusing the said provision of Sec-56 under the Motor Vehicle Act, it is noticed that fitness of a vehicle is required when the vehicle plies on the public road.  Here in this case, the said tractor of the complainant was admittedly parked near his factory premises when it was burnt by some miscreants.  The O.Ps have not proved that if the said tractor was plying by then.  When there was a valid insurance and when the vehicle of the complainant was being parked, requirement of the fitness certificate in order to make a claim under the insurance does not hold good and such plea as taken by the O.Ps thus utterly fails.  This Commission accordingly comes to a conclusion that when the alleged tractor of the complainant which was set ablaze, had a valid insurance on the date of fire accident. The claim as made by the complainant when repudiated by the O.Ps amounts to deficiency in their service only.  Accordingly, this issue goes in favour of the complainant of this case.

Issuesno.i&iii.

From the discussions as made above, the case of the complainant is maintainable and the complainant is entitled to the reliefs as claimed by him.  Hence, it is so ordered;

                                              ORDER

Case is allowed on contest against both the O.Ps who are found to be  jointly and severally liable here in this case.  Thus, both the O.Ps are directed to pay the total repairing cost of the tractor bearing Regd. No.No.OD-02-W-3136 to the tune of Rs.2,46,000/- as estimated by the authorized workshop and is borne by the complainant, to him alongwith interest thereon @ 9% per annum from the date of 17.12.2019 till the total amount is quantified.  The O.Ps are further directed to pay the complainant a sum of Rs.50,000/- towards compensation for his mental agony and harassment and also to pay him a sum of Rs.20,000/-towards the cost of his litigation expenses.   This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 5^th day of July,2023 under the seal and signature of this Commission.  

                                                                        

                                                                                                           Sri Debasish Nayak

                                                                                                                        President

 

                                                                                                          Sri Sibananda Mohanty

                                                                                                                             Member