Orissa

Cuttak

CC/95/2022

Pravanjan Das - Complainant(s)

Versus

Branch Manager,Oriental Insurance Co Ltd - Opp.Party(s)

R K Pattanaik & associates

10 Apr 2023

ORDER

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

C.C.No.95/2022

 

Pravanjan Das,

S/O:Ajay Kumar Das,

At present residing in the house of

Ashok Kumar Nayak,At:Rajendra Nagar,

Near Maa Kalu Transpsort Building,

Madhupatna,P.O: Madhupatna,

Dist: Cuttack-753010.                                                           ... Complainant.

 

                                                                Vrs.

1.    Oriental Insurance Company Ltd.,

   Represented through its Branch Manager,

          Baripapda Branch,Lal Bazar,

          Baripapda,Near Juble Library,

          At/PO:Baripada Town,Dist:Mayurbhanj-757001.

 

 

2.   Shriram Transport Finance Company Ltd.,

                                      Represented through its Branch Manager,

                                      101-105,1^st Floor,B Wing,Shiv Chambers,

                                      Sector-11,CBD Belapur,Navi Mumbai-400614.                      ... Opp. Parties.

 

 

Present:               Sri Debasish Nayak,President.

                                                Sri Sibananda Mohanty,Member.

 

               Date of filing:     19.05.2022

Date of Order:    10.04.2023

 

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

For the O.P no.1:                   Miss. J.P.Tripathy,Adv. & Associates.

For the O.P No.2.      :              None.

 

Sri Sibananda Mohanty,Member.      

Case of the complainant bereft unnecessary details as made out from the complaint petition in short is that he had purchased one Harvester (DC-68G-HK)machine after obtaining finance to the tune of Rs.12,00,000/-.  The cost of the said Harvester machine was Rs.24,14,000/- out of which he had paid Rs.12,14,000/-.  The complainant had insured the said vehicle under miscellaneous class package policy bearing policy no.345703/31/2018/9862 effective from 21.3.2018 to 20.3.2019.  The premium was fixed to be of Rs.20,646/- which was paid by the complainant.  The machine was purchased by the complainant in order to earn his livelihood and for self-employment.  While reaping paddy in the field of one Mayadhar Nayak, due to short circuit and fire, the machine was burnt and was destroyed on 15.12.2018 at 7.30 P.M.  The matter was immediately brought to the notice of OIC,Ershama Fire Station who had also given fire certificate to that effect.  The complainant had informed to the O.P no.1 about such fire accident on 16.12.2018, who had on his part deputed surveyor for assessing the loss but on 1.11.2021, O.P no.1 had repudiated the claim of the complainant and even though the complainant had gone for the Insurance Ombudsman no result yielded.  The complainant has come up with this case claiming the total cost of the Harvester machine to the tune of Rs.24,14,000/- alongwith interest there on @ 9% from the date of the claim application till the total amount is quantified.  He has also claimed compensation of Rs.50,000/- towards his mental agony and harassment and the cost of the litigation to the tune of Rs.10,000/- from the O.Ps.

          The complainant has filed certain documents in order to prove his case.

2.       Out of the two O.Ps, O.P no.2 having not contested the case has been set exparte.  However, O.P no.1 appeared and filed his written version.  He has admitted to have issued a “miscellaneous Class-D vehicle package policy” bearing No.345703/31/2018/9862 in respect of new Harvester Vehicle having engine no.BJA3338 and chassis no.101483AL in favour of the complainant covering the risk of his Harvester (DC-68G-HK) which was valid from 21.3.18 to midnight of 20.3.2019,  subject to certain terms and conditions and limitation.  It is stated by the O.P no.1 that the complainant had intimated him about sudden fire in his Harvester machine and he had supplied him a claim form to submit all the relevant documents, so also had appointed IRDA accredited Surveyor and loss assessor for assessment of damage to the vehicle as well as for assessment of liability of insurance company.  It is further stated by the O.P no.1 that during processing the claim of the complainant, it was found that the harvesting machine of the complainant was engaged for business purpose and for getting profit.  So also it is alleged by him that the complainant had himself admitted to have purchased the Harvesting machine for using the same for hiring basis.  As per the policy condition, the Harvesting machine is to be used for agriculture purpose but it cannot be used for hire or reward.  As the machine was hired and engaged for harvesting in the field of one Mayadhar Nayak, the complainant thereby had violated the policy condition, as such he is not entitled to the claim amount for which the O.P no.1 had repudiated the claim of the complainant.  The complainant challenging the repudiation letter had approached the Insurance Ombudsman and the learned Ombudsman had also rejected the case of the complainant.  Hence, it is prayed by the O.P no.1 to dismiss the complaint case with cost.

          The O.P no.1 in order to prove his case has filed some documents as well as evidence affidavit.

3.     Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.P no.1, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion 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?

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.

          Admittedly, the Harvesting machine of the complainant having Engine No.BJA3338 and Chassis No.101483AL was duly insured bearing policy no.345703/31/2018/9862 with the O.P no.1.  While the said machine was employed in the field of one Mayadhar Nayak of Jagatsinghpur, there was incident of fire due to short circuit in the machine by which the said machine was destroyed on 15.12.2018.  The complainant intimated the fire incident to OIC, Ershama Fire Station, who also had given fire certificate to that effect.  The complainant also had informed the O.P no.1 about the said fire incident on 16.12.18.  The O.P no.1 repudiated the claim of the complainant on 1.11.21 on the ground that the policy does not cover for hire or reward or for racing purpose whereas the complainant had used the machine for hiring purpose by violating the terms and conditions of the policy.

In support his case, the learned counsel for the complainant has cited a decision of Hon’ble Supreme Court in the case of B.V.Nagaraju Vrs.Oriental Insurance Co. Ltd., where the Hon’ble Apex Court has held   “if the breach of condition not so fundamental  so as to afford ground to the insurer to deny indemnification unless there were some factors which contributed to the causing of the accident _ Exclusion term of the insurance policy must be read down to serve the main purpose of the policy”. He also cited another decision in the case of Amalendu Sahoo Vrs. Oriental Insurance Co. Ltd. reported in 2013(3) CPR 641(SC) wherein the Hon’ble Apex Court has held that in case of breach of warranty/condition of policy including “limitation as to use” the insurer is liable to pay up to 75% of admissible claim. 

In the present case, the complainant admitted to have used the machine for hiring purpose for his self-employment to earn his livelihood.  Hence, he has violated policy condition but it is not so fundamental in nature, which contributed to the fire accident. 

Hence, as per the above decisions as discussed above, the O.P no.1 has to settle the claim of the complainant on non-standard basis as there is violation of policy conditions as regards to “limitation as to use”.  To add to this, the claim was lodged by the complainant before the O.P No.1 on 16.12.18 for settlement but he repudiated the claim only on 1.11.21.   Hence, such inordinate delay of 3 years in settling the claim of the complainant itself amounts to deficiency of service by the O.P No.1.  The O.P no.2 is only the financier of the complainant and he has no role to play in this case.

 

 

 

Issues no.i & iii.

          From the discussions as made above, the complainant is maintainable and the complainant is entitled to the reliefs but to some reasonable extent.  Hence it is so ordered;

                                                          ORDER

           Case is decreed on contest against O.P no.1 and exparte against O.P no.2.  The O.P no.1 is directed to pay the complainant 75% of the insured amount of Rs.24,14,000/- alongwith interest @ 9% per annum with effect from 16.12.2018, when the complainant intimated about the incident of fire on his Harvesting machine till the final payment is made.  The O.P no.1 is also directed to pay a sum of Rs.50,000/- to the complainant towards compensation for his mental agony and harassment and a sum of Rs.10,000/- towards cost of his litigation within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 10^th day of April,2023 under the seal and signature of this Commission.          

 

                                                                                                                                                                                                                                                                                                                                   Sri Sibananda Mohanty

                                                                                                                                     Member.

 

                                                                                                                 Sri Debasish Nayak

                                                                                                                            President.