Date of filing:- 20/08/2014.
Date of Order:- 05/07/2017.
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM (COURT)
B A R G A R H.
Consumer Complaint No. 19 of 2014.
M/s. Khusbun Nisha, aged about 39(thirty nine) years, wife of Shaik Zakir, resident of village- Barahgoda, P.o. Barahgoda, under Ps. Bargarh, Dist. Bargarh.
..... ..... ..... Complainant.
Chief Regional Manager, Oriental Insurance Company Limited, Alok Bharti Tower, 4th Floor Saheed Nagar, Bhubaneswar.
Divisional Manager, Oriental Insurance Company Ltd., V.S.S. Marg, Sambalpur.
Goura Hari Behera, Development Section, Oriental insurance Co., V.S.S. Marg, Sambalpur. ..... ..... ..... Opposite Parties.
Counsel for the Parties.
For the Complainant:- Sri S.P. Mahapatra, Advocate with other Advocates.
For the Opposite Parties:- Sri P.K. Mohapatra, Advocate with others Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r(w).
Dt.05/07/2017 -: J U D G E M E N T :-
Presented by Sri P. K. Dash, Member:-
The Complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act 1986. The gist of the complaint following here under:-
The Complaint contends that, the Complainant is the owner of a Pick-up Van bearing Regd No. OR-17-G-0986 and ply it to earn her livelihood and to maintain her family. The Pickup Van was insured with the Opposite Parties vide policy No. 345604/31/2014/494 which include accidental damage and to indemnify for that. On Dt.17/01/2014 the said vehicle was met with an accident and was completely damaged. That the Complainant lodged claim before the Opposite Parties vide claim No. 345604/ 31/2014/494, the Opposite Parties made field inquiry, investigation and hold commission of inquiry to find out the extend of damage and expenditure needed for the service of the vehicle to make it workable condition.
Further the complaint contends that the Opposite Parties have remitted discharge voucher of Rs.9,600/-(Rupees nine thousand six hundred)only towards full and final settlement against the claim of Rs. 30,000/-(Rupees thirty thousand)only by the Complainant which amounts to repudiation of insurance claim by the Opposite Parties. That the delay in granting of smaller amount against huge loss sustained by the Complainant is unlawful and tantamount to unfair trade practice and put the Complainant to lose her bread and butter for the non functioning of the vehicle. The Complainant for which seeks the direction of the Forum to direct the Opposite Parties to disburse Rs. 30,000/-(Rupees thirty thousand)only towards full and final settlement of the claim, Rs.30,000/-(Rupees thirty thousand)only towards loss of earning livelihood, Rs.20,000/-(Rupees twenty thousand)only towards compensation for making harassment, mental agony and Rs.10,000/-(Rupees ten thousand)only towards litigation expenses to the Complainant.
The Complainant in support of his contention relied upon the xerox copy of the documents as follows:-
Discharge voucher issued by the Opposite Parties in favour of the Complainant.
Letter of the Complainant Dt.20/06/2014 to the Branch Manager, Oriental Insurance Company, Jharsuguda.
Certificate issued by IIC Town PS, Bargarh as to accident of said vehicle.
Being noticed the Opposite Parties appeared through their counsels and filed their version denying most of the allegations of the Complaint.
That the version of the Opposite Parties contends that the Opposite Parties are officers of the Oriental Insurance Company Limited, and dealing with its affairs in their Official capacity and designation and the Opposite parties are personally not liable for the insurance claim of the Complainant against the insurance Company. That the Opposite parties have not shown any deficiency in service in any manner towards the Complainant and the Complaint is entirely misconceived, baseless and is not maintainable against the Opposite Parties, so also the Complaint is bad for non-joinder of necessary parties and mis-joinder of parties.
Further version of the Opposite Parties contends that the vehicle of the Complainant is a commercial vehicle meant to gain profit and not for earning livelihood by self employment and the Complainant has availed the services of the Opposite parties for commercial purpose and she can not be termed as a Consumer and the Complaint does not constitute a consumer dispute as per provision described under section 2 (d) of Consumer Protection Act-1986 and as such the Complaint being not maintainable is liable to be dismissed. The Opposite Parties in their version have admitted the fact that the pickup van bearing registration no. OR 17 G 0986 of the Complainant was insured with the Opposite Parties and the said vehicle met with an accident on Dt.17/01/2014 and upon receipt of information claim no. 345604/31/2014/000039 was registered and the Opposite Parties denied the claim that the said vehicle was completely damaged in the accident and necessary procedure was adopted with the officers of the Opposite Parties. The version further contends that the insured and the insurer are strictly bound and liable as per terms and conditions of the insurance policy. The Opposite Parties soon after getting information about the accident of the vehicle adopted required formalities to investigate the claim, deputed independent surveyors to survey the loss and to submit the report and asked the husband of the Complainant to submit relevant documents. More over to ascertain the actual loss of the vehicle Er. Dhirendra Kumar Dash and Er. Manoj Hota were deputed by the Opposite Parties for spot and final survey. Further version of the Opposite Parties contends that the final surveyor assessed the actual loss of the vehicle at Rs.10,000/-(Rupees ten thousand)only as per the terms of the policy and the Opposite Parties observing all the required paraphernalia and with due application of mind have settled the claim of the Complainant for Rs.9,600/-(Rupees nine thousand six hundred)only in full and final settlement which the husband of the Complainant agreed to receive and submitted signed discharge voucher without any objection.
Further the version of the Opposite Parties contends that since the vehicle was insured in the name of the Complainant it was not possible to make payment of the amount to her husband and the Opposite Parties sent one more discharge voucher to the Complainant for her signature and the Complainant returned the discharge voucher without signature with her letter dated 20/06/2014 requesting to revise the settled amount by the Opposite Parties and the Opposite Parties having fully investigated in to the claim of the Complainant and arrived at a bona fide conclusion to make payment of the claim considering the report of surveyors and others circumstances and the present claim being a quantum dispute require detailed investigation, elaborate evidences which can not be dealt with the summary procedure of the consumer forum and the Complainant if not satisfied with the amount settled is required to approach the competent civil court and the non settlement of the claim was not due to any deficiency in service of the Opposite Parties but due to non acceptance of the amount by the Complainant which was offered to her by the Opposite Parties and the Complainant has foisted the present Complaint screening the actual facts which shows are malafide intention and the Opposite Parties are no way liable for deficiency in service as alleged against him by the Complainant.
The Opposite Parties in their version have specifically denied all other averments of the Complaint and have sought for the redressal of the forum to direct the Complainant to pay compensation to the Opposite Parties under section 26 of the Consumer Protection Act 1986 and to dismiss the Complaint against them.
The Opposite Parties in support of their contention have relied upon the xerox copy of the documents as per the list of documents Dt.18/03/2015 and Dt.02/01/2017.
Gone through the entire case record, pleadings of the parties, evidence of both documentary and oral in nature, memo of citations and arguments of the parties and heard arguments of the both the parties at length, the forum found some admitted facts that alleged vehicle has been insured with the Opposite Parties, the vehicle met with an accident on Dt.17/01/2014 and upon receipt of information Claim No. 345604/31/2014/000039 was registered.
The Opposite Parties in their version have alleged some facts like the alleged vehicle being used as a commercial one, the claim being a quantum dispute the forum lacks jurisdiction in its adjudication and the extent of damage of the vehicle in the accident. The Opposite Parties in their version have admitted the fact that this being a quantum dispute and the Opposite Parties after inquiry and investigation by the surveyors appointed, have allowed the claim at Rs.9,600/-(Rupees nine thousand six hundred)only. The Opposite Parties could have simply repudiated the claim holding the vehicle to be commercial one and the claim being a quantum dispute. But surprisingly enough the claim of the Complainant has been allowed with a smaller amount following insurance formalities. The version of the Opposite Parties is a self explanatory to all the issues likely to be decided in the case. The version of the Opposite Parties in defending the allegations of the Complaint is collusive in nature because if the Opposite Parties alleged the vehicle to be commercial one and the claim to be quantum dispute at the same time allowing the claim with a smaller amount. The Opposite Parties at a time can't opt for both hot and cold which is against the nature.
However for the proper adjudication of the complaint it is necessary to answer the point s of dissention between the parties as follows:-
The Opposite Parties alleges the vehicle to be commercial one but the survey report of surveyor Direndra Kumar Dash at para-2(two) reveals that the vehicle was empty at the time of occurrence and the Opposite Parties have failed to establish that the vehicle was used for commercial purpose other than earning livelihood through self employment. The Complainant being a lady and owner of the vehicle is not necessary to proof her self employment in earning livelihood. As per contention revealed inCitation 2004 NCJ page 262 between the Parties Polymer Plast Machine Ltd Vrs Apole Plast. Hence this contention of Opposite Parties is not admitted.The Citation i.e 2008(1)O.L.R(CSR)Page817(Odisha State Commission) filed by the Opposite Parties in this regard is not applicable in this case.
So far as another point is concern, the jurisdiction of the consumer fora can not be outrightly oust in adjudication of quantum dispute. Here in this case few documents have been filed by the Parties for the substantiation of their respective claims. There is no such complicated question of facts and law leading to quantum dispute in this case, hence the consumer fora can adjudicate the matter applying its judicial mind. This point is answered affirmatively. The Citation i.e2008(3)CPR Page22(Para-5) (National Commission)filed by the Opposite Parties is not applicable in this case.
So far as the extent of damage occurred to the vehicle in the alleged accident, the Opposite Parties have miserably failed in establishing it because upon perusal of the deposition of surveyor Direndra Kumar Dash, who has admitted that photographs of external damage of the vehicle have been obtained and submitted before the insurance company along with his report. So what prompted the Opposite Parties not to file the photographs of the damaged vehicle before the Forum. Another Surveyor Manoj Hota has admitted in his cross examination that at the time of repairing of the vehicle he has not made any written objection to the parts used and repairing charges. Hence, the extent of damage is not proved by the Opposite Parties in any manner .The Citation filed by the Opposite Parties in this regard is not applicable in this case.
So far as the reports of surveyors and law accessors as to extend of damage and service charges is concerned due importance is to be given but without brushing aside other documents and evidence in this regard .The Opposite Parties have brushed aside all other documents and evidence available in this case .The Citation filed in this regard by the Opposite Parties is squarely not applicable in this case. In the instant case granting smaller amount, causing delay in disposal of the claim of the Complainant is deficiency in rendering service by the Opposite Parties to the Complainant.
Upon intrinsic perusal of the documents and evidences available in the record, the Forum unanimously arrived at a conclusion and order as follows:-
-: O R D E R :-
The Opposite Parties are jointly and severally directed to pay compensation of worth Rs. 18,000/-(Rupees eighteen thousand)only along with interest @ 6%(six percent ) per annum from the date of the filing of the complaint till the date of order and further directed to pay compensation of Rs.2,000/-(Rupees two thousand)only towards mental agony, harassment and litigation expenses to the Complainant within thirty days of the date of Order, i.e. Dt.05/07/2017, failing which the awarded amount shall carry interest @ 10%(ten percent) per annum till the actual date of realization.
The Complaint is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
(Sri Pradeep Kumar Dash)
M e m b e r.
I agree, I agree,
(Ajanta Subhadarsinee) (Sri Krishna Prasad Mishra)
M e m b e r. P r e s i d e n t.
