SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of illegal repudiation of insurance claim are the allegations arrayed against the Opp.Parties.
2. Complainant availed a vehicle loan from Cholomandalam Investment & Finance Co.Ltd.OP No.3) purchased a Mahindra Maxi Truck bearing Regdn.No.OR-29-3455. OP No.1 & 2 the Cholamandalam M.S.General Insurance Co.Ltd. is the sister concerned of OP No.1 –finance company. The vehicle of the complainant was insured with OP-Insurance Company vide Policy No.3379/00842273/000/00. The policy was valid from dtd.11.02.13 to midnight of dtd.10.02.14. The said vehicle faced an accident on dtd.23.06.13 at about 8.30 PM in between Janara and Mangalpur in Ramnagar-Marsaghai road. The fact of the accident was reported to Mohakalpada Police Station vide Station diary entry No.516 dtd. 23.06.13. The fact was also intimated to OP-Insurance Company and OP No.2 appointed Mr. Swayambhu Mohanty to asses the loss on dtd. 29.06.13 and on dtd.07.09.13 OP No.2 intimated the complainant through letter to furnish some documents within 7 days for consideration. OP-Insurance Company in their letter dtd.24.10.13 issued a show cause to the complainant allowing 7 days time for reply stating that at the material time of accident the vehicle was carrying 4 persons violating the provisions which are allowed within the law with a seating capacity of 2 persons. On receipt of the show cause complainant replied the OP No.1 that only 2 person were travelling i.e. driver and helper of the vehicle at the material time of accident. Complainant also met OP-Insurance company to settle his claim, but when the request remained unheard. Complainant on his own effort spent Rs.2,10,295/- towards repair cost of the vehicle to make the vehicle road worthy and to pay the EMI’s of OP-Financer. Complainant also issued Advocates notice to Ops on dtd.07.11.14, but Ops have not replied the Advocates notice. The inaction of OP-Insurance Company to settle the claim gave financial and mental agony and prayer is made before this Forum to issue a direction to the Ops to settle the claim amount to the tune of Rs.4,10,208/- as cost of repairing of the vehicle including compensation for financial loss and mental agony. The cause of action of the instant case arose on dtd.23.06.13 when the vehicle met accident and finally on dtd.07.11.14 when legal notice was served to settle the insurance claim.
3. Being noticed OP No.2 Cholomandalm MS General Insurance Co.Ltd. appeared through their Ld. Counsel and filed written statement into the dispute. OP-Insurance Company in their parawise objections challenged the maintainability of the dispute U/S-2(d)(ii) of C.P.Act, non-disclosure of the name of repairing workshop and on the grounds of miss-joinder of parties also emphasizes on the terms and condition of the policy. OP No.2 on their objection on merit denied the allegations of the complainant and submitting the facts it revealed that there was no such promise or assurance in the tripartite agreement that OP No.2 insurer to indemnify any damage done to the petitioner by the failure of services agreed or fault of fairness in trade practices. It is further revealed that just entry in the station diary and appointment of Mr. Swaymbhu Mohanty as Assessor/Surveyor does not liable the OP No.2 as deficient in service, as no final form or charge sheet has been submitted under relevant sections of IPC for rash and negligent driving. It is also revealed that more submission of documents and acknowledging the same does not create any favour to settle the dispute. OP-Insurance Company also shifted its responsibility on OP-financer to indiminify the loss and the burden of proof of carrying 2 persons in the said vehicle lies with complainant. In the above circumstances, the OP-Insurance Company has not committed any deficiency in service and payment of compensation amount as to the tune of rs.4,10,285/- does not arise at all.
4. OP N o.3 Cholomandalam Investment Finance and Co. Ltd. appeared through their Ld. Counsel and filed written version into the dispute challenging the maintainability of the complaint on the grounds of clause of Arbitration as per the agreement between the parties and on grounds of jurisdiction. OP No.3 submitting the facts submitted that after execution of loan-cum-hypothecation agreement complainant availed a loan to the tune of Rs.2,61,800/- which is to be repaid on 33 nos. of EMI from dtd.10.03.13 to dtd.10.11.15. OP No.3 is the sister concerned of OP-Insurance Company. It is also stated that an amount of Rs.43,691/- alongwith Rs.69,280/- are pending on the complainant-borrower as outstanding amount. As the answering Ops are no way connected into the dispute and the reliefs are claimed against OP-Insurance Company the complaint be dismissed against this answering Opp.Parties.
5. Heard the submissions of Ld. Counsel for the complainant and case of OP No.2 & 3 on merit as last chances were given for hearing and the contesting Ops failed to appear before this Forum. OP No.1 was set ex-parte by this Forum earlier for non-appearance. The admitted facts of the case are that the complainant by availing a finance from the OP-financer apurchased a Mahindra Maxi Truck bearing Regd. No.OR-29-3455. The said vehicle was insured with OP-Insurance Company. The policy no. of the vehicle is 3379/00842273/000/00. It is further admitted fact that a claim was filed by the complainant before the Op-Insurance Company for settlement of insurance claim of his accident faced vehicle. The claim of the complainant is not settled as per the letter dtd. 24.10.13 of OP-Insurance Company showing the reason that violating the provisions of seating capacity of 2 persons, complainant’s vehicle was carrying 4 persons at the material time of accident.
Ops raised the questions of maintainability of the complaint U/S-2(d)(ii) of C.P.Act, on the grounds of jurisdiction and by citing the clause of Arbitration as per the agreement between complainant and OP-Financer. In our opinion the complaint is before this Forum for non-settlement of insurance claim, which comes within the purview of Sec.2(d(ii) of C.P.Act,.1986. As per the complaint the accident of the vehicle took place within the local jurisdiction of this Forum, hence a part of cause of action arose within the local limits of this Forum. Hence, the complaint is maintainable U/S-11 of C.P.Act,1986. So far the Arbitration clause is concerned in this regard, it is our unanimous view that this clause is no way related to the present dispute. Accordingly, considering the total aspect of objection on maintainability, complaint is maintainable and well within the purview of C.P.Act,1986 to adjudicate the dispute.
It is the case of the complainant that he had insured his vehicle with OP-Insurance Company with a IDV of Rs.2,80,000/- and the insurance was valid from dtd.11.02.13 to midnight of dtd.10.02.14 and the policy type was goods carrying vehicle as revealed from the attested Xerox copy of policy filed by the complainant. The vehicle in question faced an accident on dtd.23.06.13 when Bullock suddenly coming across the road between Janra and Mangalpur in Ramnagar-Marsaghai road. A station diary was entered on the Mohakalpada police station bearing No.516 dtd.23.06.13 complainant intimated the OP-Insurance company who appointed Mr. Swaymbhu Mohanty to assess the loss as per the letter of Op-Insurance Company dtd. 29.06.13 the attested Xerox copy of the letter filed into the dispute by the complainant. Complainant lodged a claim application form alongwith required documents for settlement of the claim OP-Insurance Company did not consider the claim and issued a show cause dtd.24.10.13 as the vehicle was carrying 4 persons at the time of accident violating the permitted capacity to carry 2 persons complainant also clarified by replying the letter and an advocates notice also sent to the OP-Insurance Company for settlement of the claim. Complainant when failed in his attempt repaired his vehicle on his own cost to reply the loan outstanding dues of the OP-Financer.
The only grounds of non-consideration of the claim of the complainant by OP-Insurance Company based on the allegation of carrying more passengers than permitted capacity as per the report of the loss assessor appointed by the OP-Insurance Company. Further the OP-Insurance Company raised the question mark that why the FIR has not been registered and steps has not been taken under Sections of IPC. It appears from the contentions of the parties and documents that at the time of accident of the vehicle on td.23.06.13 the insurance policy of the vehicle was valid one and due intimation was given to the concerned police station and insurance company regarding the facts of the accident. The plea of the OP-Insurance Company regarding carrying of excess person at the time of accident to the accident faced vehicle which was insured as a goods transportation vehicle is not supported by any cogent evidence. That apart the report of the so-called loss assessor Mr. Swyambhu Mohanty appointed by the OP-Insurance Company does not see the light of the day. In the absence of those documents/evidences, we are of the opinion that OP-Insurance Company is concealing facts to indeminify the insured. So far the lodging of information before police is concerned, complainant-insured has lodged a complaint before Mohakalpada police station which is entered as a Station dairy No. 516 dtd.23.06.13. Registration of FIR and further investigations are not in the hands of the complainant-insured. It is the duty of police to investigate and to registered the case. In our opinion complainant-insured is at no fault.
Assuming for the shake of argument that the allegation of the OP-Insurance Company may be a fact, but OP-Insurance Company can not reject the claim of the complainant on the said grounds which is supported by a recent decision of the Hon’ble Apex Court of the country in Civil Appeal Nos. 49-50 of 2016 arising out of SLP© Nos. 37534-37535 of 2013 in case of Lakhmi Chand-Vrs-Reliance General Insurance, where the division bench opined that “xxxxx insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance companyxxxxxxx”.
As per the citations and observations made above, the Op-Insurance Company(OP No.1 & 2) is liable for deficiency in service for not considering the claim of the complainant. Complainant to repair his damage vehicle claims Rs.2,10,925/- before the OP-Insurance and Rs.2 lakhs for financial loss alongwith mental agony. In support of repair of the damaged vehicle complainant filed attested cash memos showing the purchase of different spare part and cost of the repairs and in the absence of the report of loss assessor a conclusion can not be drawn to examine the genuniness of the total cost of repair as stated by the complainant. Hence, deduction of 20 per cent from the total cost of repair as submitted by the complainant will be appropriate and lawful. After deduction of 20 per cent the repair of cost of the damaged vehicle comes around to the tune of Rs.1,68,000/-(Rupees One lakh sixtyeight thousand)only. Complainant further claims Rs.2 lakhs as compensation for financial loss and mental agony. In this regard, it is our opinion that the compensation claimed for financial loss and mental agony are in higher side without any basis. Complainant deserves Rs.10,000/(Rupees Ten thousand)only as compensation for financial loss and mental agony. We freed OP No.3 from any such act of deficiency in service as they have no role to play in the dispute.
Having observations reflected above, it is directed that OP-Insurance Company ( OP No.1 & 2) will pay Rs.1,68,000/-(Rupees One lakh fifty sixtyeight)only as repair cost of the vehicle alongwith Rs.10,000/- as compensation for financial loss and mental agony in Toto Rs.1,78,000/- (Rupees One lakh seventyeight thousand)only to the complainant-insured within one month of receipt of the order failing which 9 per cent interest will be charged for the delayed period.
The complaint is allowed in part on merit without cost.
Pronounced in the open Court, this the 27th January.2016.
