Orissa

Cuttak

CC/124/2016

Ashok Kumar Mohanty - Complainant(s)

Versus

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

R K Pattanaik

30 Nov 2017

ORDER

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

                                                                                    C.C No.124/2016

 

Ashok Kumar Mohanty,

At:Badathakan,PO:Khandasahi,

P.S:Nischintakoili,Dist:Cuttack.                                           … Complainant.

 

                Vrs.

 

1.         Branch Manager,

Reliance General Insurance Co. Ltd.,

Bhubaneswar Branch Office,

2^nd Floor,5,Janpath,Unit-3,

Bhubaneswar,Dist:Khurda.

                                          

2.        Rashmi Motors,

Authorized Main Dealer,

Ashok Leyland Ltd.,

N.H.5,Manguli,Choudwar,

Cuttack-754025,Odisha.                                                       … Opp. Parties.

 

 

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

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   01.10.2016

Date of Order: 30.11.2017.

 

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

For Opp.Party No. 1:            Mr. R.Pati,Adv. & Associates.

For the O.P No.2:                  None.

 

 

Sri Dhruba Charan Barik,President                                                                              

                The complainant has filed this case on the allegation of deficiency in service and unfair trade practice on the part of the O.Ps and has sought for reliefs against them as prayed for in his complaint petition.

1. The facts that give rise to the case of the complainant in short are that the complainant purchased an Ashok Leyland truck Model No.3116 bearing Regd. No.OR-05-AP-9525 to earn his livelihood by way of self-employment.  The cost of the said truck was Rs.18 lakhs and it was financed by Indus Ind Bank Ltd.,Bhubaneswar Branch.  It was insured with O.P.1 under ‘Reliance Goods Carrying Vehicle Package Policy’ against any accidental or fire hazards in respect of the period from 7.5.15 to 6.5.16 and accordingly the policy bearing No.604-176 was issued in his favour.  The assured value of the said policy was Rs.14 lakhs.  The copy of the said policy bond and the receipt for payment of premium have been filed and marked as Annexure-1 series.
2. It is stated that the said truck met with an accident on 22.4.16 under Motogaon P.S in the district of Dhenkanal.  This truck was loaded with iron ingots and coming from Rourkela to Cuttack and there was head-On collusion between this truck and another truck No.OR-04K-4277 coming from the opposite side, at the spot.  The insured truck sustained extensive damages because of such accident.  The fact of accident was reported to Motogan P.S and intimated to O.P.1 immediately.  Annexure-2 is the copy of the station diary entry no.515 & 519 dt.23.4.16 of Motogan P.S.
3. On 24.4.16, O.P.1 deputed the surveyor Manoj Kumar Pattnaik to the spot for assessment of loss and on his advice the complainant  shifted the damaged truck to the O.P.2, the authorized repairer on 28.4.16 who after verification  estimated the repair cost at Rs.12,54,207/- and then sent to the O.P.1 for settlement of the claim of the complainant.
4. It is further stated that O.P.1 did not take any action for settlement of the claim.  The damaged vehicle has been kept in the garage of the O.P.2 since May,2016.  Then O.P.1 vide his letter dt.16.7.16 requested the complainant to furnish the repair bill, payment receipt and to physically produce that damaged vehicle before it for inspection.  Annexure-3 is the copy of the letter dt.16.7.16 issued by O.P.1.  On 1.8.16 the complainant replied to the said letter of O.P.1 and stated that he has already submitted the repair bill and the damaged truck has been still lying in the garage of O.P.2 for repair due to his monetary constraint.  It is also stated that unless payment is made by O.P.1, he is not in a position to bear the repair costs.  In such a situation there is no possibility of production of the damaged vehicle before O.P.1 for inspection.  Annexure-4 is the copy of the reply dt.1.8.16 sent to O.P.1 and Anenxure-5 is the postal receipt of sending Annexure-4 by registered post.  Even after receipt of such reply from the complainant, the O.P.1 remained silent and lastly the complainant sent a legal notice to O.P.1 to take shelter of law if his claim was not settled earlier preferably within 14 days of date of receipt of such legal notice.  Annexure-6 is the copy of the said legal notice along with postal A.D.  Even thereafter, O.P.1 did not take any action.  The complainant has again filed the copy of repair estimate issued by O.P.2 to O.P.1.  It has been marked as Annexure-7.  It is also stated that the O.P.1 has not supplied the copy of the surveyor’s report to the complainant.  It speaks a volume about the inaction of O.P. which is tantamount to deficiency in service and unfair trade practice.  It has caused serious mental agony to the complainant and put him into financial hardship.  The complainant thereafter filed this complaint case before this Forum with a prayer to give necessary direction to the O.Ps to pay repair cost of the damaged truck amounting to Rs.12,54,207/- together with interest @ 9% per annum from the date of submission of claim till the date of its realization as well as to pay Rs.50,000/- towards compensation and Rs.20,000/- towards cost of litigation.  The total claim made by the complainant against the O.ps comes to Rs.13,24,207/-.
5. O.P.1 files its written version and contested the case but the O.P.2 was set exparte.  O.P.1 in his written version has taken complete a plea of denial of the material averments in the complaint petition.  It is stated that the case is not maintainable since the complainant is not a consumer and there is no cause of action to file this case.  It is specifically stated that the claim of the complainant was repudiated when the complainant failed to respond to a series of letters and reminders issued by O.P.1 for submission of required documents as mentioned therein with a view to settling his claim at the earliest.  Annexure-A & A/1 are respectively the insurance policy and its conditions issued in favour of the complainant.  Similarly the letters and reminders dt.26.5.16, 16.7.16 and 21.10.16 issued by O.P.1 to the complainant calling upon him to produce the required documents have been filed and marked as Annexure-C series.  It is also stated that Indus Ind Bank Ltd.,Bhubaneswar which has financed the purchase of the damaged truck although is a necessary party to this case yet has not been so arrayed and as such the complaint case is liable to be dismissed.,  O.P.1 has also denied to have received any legal notice from the complainant as alleged.  Accordingly it is prayed that the complaint case is devoid of merit and the same is liable to be dismissed in limini.
6. We have heard the learned counsel for the complainant and for the O.Ps at length.  We have gone through the case record and the annexures filed by both the sides in support of their respective contentions.  At the outset it is revealed that the complainant has taken a specific stand that he had purchased a truck bearing Regd. No.OR-05-AP-9525 to earn his livelihood by self-employment.  The O.P, as opposed to it, has averred in the written version as well as in the written note of argument that the said vehicle was used for commercial purposes in as much as it was driven by a driver engaged by the complainant.  The bald statement made by the O.P on this point is not substantiated by any evidence.  No detailed particulars of the said driver have been given.  In that view of the matter it cannot be held that the vehicle was used for commercial purposes, so as to disentitle the complainant to the reliefs sought for, in this case.
7. It is further submitted by the learned advocate for the O.P that this Forum lacks jurisdiction to deal with the case because the place and occurrence does not come within the purview of this authority.  It is fairly submitted by the learned advocate for the complainant that admittedly the place of occurrence is outside the jurisdiction of this Forum but the O.P.2 being the authorized dealer of O.P.1 and repairer of Ashok Leyland vehicle, has his repairing shop at Manguli,Choudwar in the District of Cuttack and the damaged vehicle has been still lying  in the garage of O.P.2 awaiting permission of the O.P.1 for repair.  The submission of the learned counsel for the complainant has force in it and therefore the objection raised to the jurisdiction of this Forum by the learned advocate for the O.P. holds no water.
8. The next point that comes for consideration is non-submission of required documents as called for by the O.P.1 and non-production of the vehicle in question before it for inspection.  The learned advocate for the O.P.1 has categorically stated that the complainant was requested to file the repair estimate, payment receipt before it and also to produce the vehicle soon after its repair for physical verification, so that his claim can be settled.  But the complainant despite receipt of such letter vide Annexure-‘C’   has not complied with it.  The learned advocate for the complainant has taken the clear stand that the repair bill of the damaged truck has been sent to O.P.1 by the complainant as well as by the O.P.2.  The vehicle has not yet been repaired due to paucity of fund at his disposal.  For that reason, payment receipt could not be obtained as required by the O.P.1.  It is specifically stated that the complainant was not in a position to get the vehicle repaired by spending money from his own pocket and as such he is waiting for the permission of O.P.1 to O.P.2 to proceed with the repair work but it has not been done.  This fact finds clear mention in annexure-6 which is the legal notice sent to O.P.1 by complainant’s advocate.  In this back drop, it is to be considered that this is a case where non-compliance of the request of O.P.1 cannot be attributed to the complainant.  There is apparently no breach of condition of the agreement.  Rather O.P.1 has failed to respond to the legal notice sent by the complainant by registered post merely on the ground that it was not received.  Law is well settled that claim of the policy holder cannot be rejected in entirety even if there is some breach of policy conditions.  This view has been taken by the Hon’ble National C.D.R.Commission, New Delhi in its judgment reported in 2017(3) CPR 480(NC) (Residence Flat Buyers Association and others Vrs. M/s. Unitech Ltd.).
9. It is also revealed that the repudiation of the claim of the complainant in this case although has been made by O.P. 1, yet it has not been communicated to the former only on the ground that the complainant has already filed this case before this authority by the time the claim repudiated.  It does not stand to reason as to how there was inordinate delay in repudiation and it was doneonly during pendency of this case.  Another infirmity appearing in the case of the O.P is that he has not filed copy of the surveyor report in this case although it is averred in the written version that the same document has been filed and marked as Annexure-B.  In fact it has not been filed.  The amount of loss said to have been assessed by the surveyor does not find mention in the appropriate paragraph in the written version for the reasons best know to O.P.1 although other relevant facts about the surveyor’s report have been clearly narrated.
10. From the above it is clear that the O.P.1 is found deficient in rendering service to the complainant and also following unfair trade practice against him.  Hence ordered;

ORDER

The case of the complainant is allowed on contest against O.P.1 and exparte against O.P2.  O.P.1 is directed to pay the repair cost of Rs.12,54,207/- together with compensation of Rs.20,000/- and cost of litigation of Rs.5000/- to the complainant.  This order shall take effect within a period of 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   30^th   day of November, 2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                       President.

                                                             

                                                                                                                   (Sri B.N.Tripathy )

                                                                                                                     Member.

                                                                                                              (Smt. Sarmistha Nath)

                           Member(W)