Date of filing:- 03/07/2013
Date of Order:- 04/05/2016
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM (COURT)
B A R G A R H.
Consumer Dispute Case No. 32 of 2013.
Sri Bedabyas Pradhan Son of Sri Akur Pradhan aged about 23(twenty three) years, resident of Icchapali, Ps. Sohela Dist. Bargarh ..... ..... ..... . Complainant.
Cholmandalam Ms General Insurance Co. Ltd, At. Dare House 2nd Floor, NSC Bose Road Chennai-600001, Tamilnadu
The Branch Manage, Cholamandalam General Insurance V.S.S. Nagar, Bargarh (Near Sudha Clinic) Po/Ps/Dist. Bargarh. ..... ..... ..... Opposite Parties.
Counsel for the Parties:-
For the Complainant :- Sri D. Acharya, Advocate with other Advocates.
For the Opposite Party No.1(one):- Sri A.K.Dash, Advocate with other Advoctes.
For the Opposite Party No.2(two):- Ex-parte.
-: P R E S E N T :-
Mrs Anjali Behera .... ..... ..... ..... ..... M e m b e r.(w).
Sri Pradeep Kumar Dash ..... ..... ..... ..... M e m b e r.
Dt.04/05/2016. -: J U D G E M E N T:-
Presented by Sri Pradeep Kumar Dash, Member.
The Complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act 1986 and the gist of the Complaint is here under.
The Complainant being the owner of the vehicle BOLERO , CAMPER S.C.X.L bearing regd No. OR-17K-6176 has insured the vehicle with the Opposite Parties and here in after the Complainant and the Opposite Parties are termed as insured and insurer respectively.
The Complaint contends that the policy obtained by the Complainant on Dt.02/07/2012 was Comprehensive in nature and was valid till Dt.01/07/2013. The insurer had undertaken to compensate, if any loss accrued to the insured on account of risk covered under the insurance policy. The vehicle met with on accident on Dt.16/10/2012 and the fact was intimated both to the concerned police station and to the Opposite Parties. Claim was lodged before the Opposite Party.
Further the Complaint contends that the vehicle was extensively damaged due to the accident and the Complainant/insured approached the Opposite Parties for its repair. As per the instruction of the Opposite Party the accident vehicle was repaired at the authorized service centre i.e. At Orissa Motors Ainthapali, Sambalpur and at Mahindra Auto Care, Ainthapali chowk, Sambalpur and the Money receipts for the estimated cost i.e. Rs. 1,65,401/-(Rupees one lakh sixty five thousand four hundred one)only incurred in repair of the vehicle were also issued by the service centres. The money receipts were submitted before the Opposite Party for sanction of amount and the Opposite Party assured to sanction the amount after approval of higher authority but finally settled the claim for Rs.82,500/-(Rupees eighty two thousand five hundred)only without assigning any reason for the less sanction. That the Complainant became dissatisfied with the lesser amount and objected to receive the same and the Opposite Party assured him to reconsider his claim after consultation with the higher authority.
Further more the Complaint reveals that the Opposite Parties neither paid the differential amount nor assigned any reason for the non compliance of the claims of the Complainant/insured. Such acts of Opposite Parties is a deficiency in rendering service to the Complainant under the provision followed by the forums.
The Complainant seeks the direction of the forum to direct the Opposites.
To refund the differential amount of Rs.82,901/-(Rupees eighty two thousand nine hundred one)only towards repair of the vehicle with interest @ 18% per annum from the date of accident.
To pay damage of Rs.50,000/-(Rupees fifty thousand)only for harassment/physical and mental agony made to him by the acts of Opposite Parties.
Cost of the litigation and any other equitable relief deemed proper by the forum.
The Complainant in support of his contention relies upon the xerox copies of the following documents.
Copy of R.C. Book (Annexure-I)
Copy of Insurance policy (Annexure-II)
Copy of cash memo of Orissa Motors Sambalpur (Annexure-III)
Copy of cost memo of Mahindra Auto Care Sambalpur (Annexure-IV)
Notice were duly served on both the Opposite Parties but Opposite Party No.2(two) did not appear and absent on call before the forum for many dates and set exparte in this complaint. The Opposite Party No.1(one) appeared through his legal counsel and filed his version having denied all the allegations of the Complaint.
The version of Opposite Party No.1(one) contends that there is no branch office of this insurance company at Bargarh so the Opposite Party No.2(two) needs be deleted from the Complaint. The Assistant manager claims (Legal), Bhubaneswar is the working in charge for the entire state including district of Bargarh.
Further the version contends that the accident of the vehicle took place at Kantasingha in the district of Angul and claim of the Complainant was settled at Rourkela in the district of Sundargarh. Neither the cause of action nor the occurrence took place within the district of Bargarh, thus the case is not maintainable before this Honble forum being barred by territorial Jurisdiction as per provision of sec 17 of Consumer Protection Act ,1986 and this contention is pointed by Opposite Party No.1(one) with a decision of the Apex court reported in IV(2009) CPJ 40(SC). Further the Opposite Party No.1(one) has mentioned in its version that this case is not a consumer dispute from the facts available on record and as per provision of Consumer Protection Act 1986 the Complaint is not maintainable. Further version of the Opposite Party No.1(one) reveals that since the policy issued to the Complainant provides for invoking of arbitration proceedings in all the cases of quantum dispute and the allegation of Complaint being a quantum dispute and as per the policy terms be resolved through Arbitrator as per the Arbitration and conciliation Act 1996. Thus the Complaint is not maintainable on this score only.
Further the version of Opposite Party No.1(one) reveals that one policy of insurance bearing No.3379/00735896/000/00 was issued to the Complainant by the Rourkela branch of the Opposite No.1(one) is respect of the alleged vehicle which was a Goods carrying package policy and the policy issued to the Complainant based on terms, conditions and limitations of insurance contract between the insured and the insurer provided by the Tariff Advisory Committee for Motor insurance business in India. As per the terms and conditions of the claim the insured has to get the vehicle repaired and the cost of repair has to be reimbursed from the insurance company as per approval by the surveyor and loss Assessor following depreciation clause of the policy. In the instant case also claim was lodged at Rourkela branch of Insurance Company surveyor was engaged and loss was assessed at Rs. 65,244/-(Rupees sixty six thousand two hundred forty four)only by him after deducting policy excess, depreciation and salvage value as per bills and vouchers submitted by the insured but the insurance company considered the loss at Rs.82,500/-(Rupees eighty two thousand five hundred)only and paid the said amount to the insured vide cheque No. 481562 Dt.19/02/2013 and accordingly the claim was settled that once a claim has been settled by the insurance company it can not be reopened as per the settle proposition of law laid down by the Honble supreme court, unless some special circumstance exist.
Further more the version of Opposite Party No.1(one) contends that as per the policy conditions depreciation follows after six months from the date of purchase. There are certain items like rubber, plastic and glass which are not reimbursable as per the standard policy condition and accordingly the expense born by the insured in this regard in repairing the vehicle, the insurance company is not liable for this. Accordingly what ever expanse incurred by the insured in repairing the vehicle, the insurance company is only restricted to the surveyor report for the amount assessed and as per Sec 64VM of the insurance Act 1938, the insurance company can not decide a motor claim without obtaining a survey Report but the insurance company can exceed the survey Report and pay more which is there in this case and the paramount importance of survey Report is upheld by the Honble Apex court in many reported cases.
Further the Opposite Party No.1(one) in his version denied the contention of Complaint that the Complainant objected to the settled amount and the insurance company assured him to reconsider his claims after consulting higher officials of the insurance company and the Complainant ran after the Opposite Party for years together in this regard. The Opposite Party No.1(one) also denied any breach of agreement so also any negligence alleged in the Complaint and the extent of loss i.e. Rs.50,000/-(Rupees fifty thousand)only assessed by the Complainant. The Opposite Party No.1(one) has urged to the forum in this version to deal with strong hand with the Complainant to dragg him to the court of law after receiving the claim amount. Further the Opposite Party No.1(one) in his version craved the leave of the forum to argue, to submit documents at the time of hearing and also to modify or alter his version during pendency of the case if necessity arise.
The Opposite Party No.1(one) seeks the redressal of the forum to dismiss the Complaint and alleging the Complaint to be frivolous one prays for punitive action against the Complainant.
The Opposite Party No.1(one) in support of his contention raised in his version has relied upon the xerox copies of the following documents.
Copy of final survey Report by Er. Rabi Narayan Tripathy (17 Sheets).
Copy of claim settlement documents (2 sheets).
Heard pleadings of the parties and having in depth perusal of the documents available on record, the forum found the facts which are admitted by the parties as follows :-
Admitted facts :
The Complainant is the owner of the Bolero vehicle bearing registration No. OR-17-K-6176 under R.T.A., Bargarh.
The said vehicle was insured under the Opposite Parties bearing policy No. 3379/00735896/000/00 for the period from Dt. 02/07/2012 to Dt.01/07/2013.
The alleged vehicle met with on accident on Dt.16/12/2012 during the subsistence of the insurance policy.
Claim was lodged before the Opposite Parties for the loss/damage due to accident of the vehicle and claim was settled by the Opposite Parties for a sum Rs. 82,500/-(Rupees eighty two thousand five hundred)only vide cheque No. 481562/ Dt.12/02/2013 after deducting compulsory policy excess, depreciation and salvage value as per the bills and vouchers submitted by the Complainant/Insured.
The facts which are admitted need not be probe.
After spherical examination of the facts and evidence, the forum found the following issues likely to be decided in this case.
Whether the Complaint is maintainable before this forum ?
Whether the Complainant is a consumer under the Opposite Parties ?
Whether the Complainant/insured has discharged his part of liability in bringing a Complaint against the Opposite Parties for service deficiency ?
Whether the Opposite Parties are liable for any deficiency in rendering service to the Complainant enumerated under the provision of Consumer Protection Act 1986 ?
What relief the Complainant is entitled for ?
As for the maintainability of the Complaint before the consumer fora constituted under the Act the four respects are to be passed by the Complainant.
Limitation to file the Complaint.
Pecuniary Jurisdiction to bring the Complaint.
Territorial Jurisdiction to lodge the Complaint.
Any other law which specifically bar the Jurisdiction of the Consumer fora.
The accident of the vehicle took place on Dt.16/12/2012 and the Complaint was filed before the forum on Dt.03/07/2013, which is well within the two years limitation period from the actual date of cause of action.
The pecuniary claim made by the Complainant as to dirrerential amount of Rs. 82,901/-(Rupees eighty two thousand nine hundred one )only along with 18% interest per annum from the date of accident for the repairing of vehicle, compensation for physical and mental agony for Rs. 50,000/-(Rupees fifty thousand)only and cost of proceeding if all accumulated is also well within the pecuniary jurisdiction of the District Consumer Forum.
The accident of the alleged vehicle admitted by took place in the Angul district, claim was lodged and settled at Rourkela under the Sundargarh district but the Opposite Party No.2(two) was having his office at Bargarh and works for gain of the insurance company. Which is proved by his received of the court notice on Dt.29/07/2013 which is also reflected in the ex-parte order Dt. 18/11/2013 of the forum. Hence the Complainant is rightly filed before the territorial jurisdiction of the District Consumer Forum, Bargarh and the decision i.e. IV (2009) CPJ 40(SC) is not squarely applicable in this case.
The Opposite Party No.1(one) in his pleading has given emphasis on the Provision of insurance policy and role of arbitration clause as per Arbitration and and conciliation Act 1996 which oust the Jurisdiction of the Consumer fora. But the avowed object of the Act is to provide cheap, speedy and efficacious remedy to the Consumers and it is with this object that sec 3 of the Consumer Protection Act 1986 shall be in addition to and not in derogation of provision of any other law for the time being in force. The provision of this Act therefore do not come in conflict with the provision of any other laws for the time being in force. The very contention upheld by the decisions reported in Shusama Rani Chakrabarty Vrs Division Manager National Insurance Company ltd. II( 1995) CPJ 323 and in Udaipur Cement Works Vrs Punjab Water Supply Severage Board that the Arbitration clause contain in insurance policy does not oust the Jurisdiction of the consumer fora constituted under the Act. Thus from the discussion made above it is concluding finding of the forum that this complaint is maintainable before this forum the issue No.1 is answered as above.
The cover note of Insurance Policy i.e. Annexure-II filed by the Complainant reveals that premium amount of Rs.23,735/-(Rupees twenty three thousand seven hundred thirty five)only has been paid to the insurance company which is a consideration to paid to the Opposite Party to obtain their service. So as per provision contained in Section-2(1)(d)(ii) of the Consumer Protection Act-1986 the Complainant/insured is a consumer under the Opposite Parties. More specifically the provision of facilities in connection with insurance has been included within the scope of the expression “service” by the definition of the said word contained in Section-2(1)(o) of the Act. Hence the Complainant is a consumer under the Opposite Parties. The issue No.2(two) is answered as above.
The version of the Opposite Party No.1(one) reveals that the Complainant's claim was settled as per terms and conditions of the policy and the by surveyor damage/loss assessed. The version of Opposite Party No.1(one) further reveals some facts like (1) the expanse born by the Complainant in repairing the vehicle to be reimbursed from the Opposite Parties as per terms and condition of policy subject to surveyor report (ii) Items like rubbers plastic and glass cannot be reimbursed (iii)The insurance company is restricted to the amount settled by the surveyor (iv) the Opposite Party never assured the Complainant to reconsider his claim. Here the liability or onus to prove or to disprove those facts, the Complainant ought to have fixed the Insurance Policy issued by him by the Opposite Parties and the genuineness of the Survey Report, must have been challenged finding some cogent material in it. Further the Complainant has also not established in any way that he has objected to the settled amount vide cheque No. 481562 Dt.19/02/2013 while receiving the same. So the Complainant without having opted for such rebuttal as onus was heavily on him to prove or disprove the things referred above, has failed in discharging his part of liability in bringing the complaint against the Opposite parties for service deficiency. The issue No.3(three) is answered as above.
In the process of settlement of claim regarding the damages of the vehicle, the Opposite Parties deputed qualified surveyor to assess the actual loss caused to the vehicle in the accident. The Surveyor assessed the loss amount at Rs.65,244/-(Rupees sixty five thousand two hundred forty four)only after deduction of depreciation, policy excess and salvage. The insurance company further verified the bills and voucher and settled the claim at Rs.82,500/-(Rupees eight thousand five hundred)only exceeding the surveyor's assessed amount. The settled amount of Rs.82,500/-(Rupees eighty two thousand five hundred)only was paid to the insured vide cheque No. 481562 Dt.19/02/2013 and finally the claim was settled by insurance company. In the entire process of settlement of claim of the Complainant there seems no fault or negligence on the part of the Opposite Parties. Hence the Opposite Parties are not liable in any manner in rendering service to the complaint. The issue No.4(four) is answered as above.
Delving deep into the matter the Forum found no merit in the complaint. Hence the Complainant is not entitled for further relief sought for by him against the Opposite Parties. This issue is decided as above.
- O R D E R -
Owing to the facts circumstances and all other aspects of the case relating to provision of law the Forum dismissed the complaint bearing devoid of merit against the Opposite Parties. There is no cost awarded in this Complaint.
Complaint disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, (Sri Pradeep Kumar Dash)
M e m b e r.
( Smt. Anjali Behera)
M e m b e r(w).
