Presented by Miss R. Pattnayak, President .
The case of the Complainant in brief is that he had insured his vehicle Mahindra Bolero bearing Engine No. GHB4K78538, Chassis No. MA1WG2GHKB and Registration No. OR-17-J-7199 with the Opposite Party Oriental Insurance Company under the package policy zone-C on payment of due premium vide policy No.345600/31/2013/4548 which was valid till Dt.16/10/2013. While the policy was in force, the vehicle met with an accident on Dt.13/05/2013 at Binka Chowk of Subarnapur District and suffered extensive damage. A case was registered at Binka Police Station bearing PS Case No.303, Dt.13/05/2013. Since the insurance of the vehicle was in force during the material period, the Complainant intimated the fact of accident to the Opposite Party Company and in response the Opposite Party Company deputed their surveyor for assessment of loss who assessed the loss at Rs.34,500/-(Rupees thirty four thousand five hundred)only. Under the instruction of the Opposite Party company and in presence of the company surveyor the vehicle was repaired in anticipation of sanction of claim amount of Rs.92,063/-(Rupees ninety two thousand sixty three) only and also submitted the bills of the claim amount to the Opposite Party company. The Complainant lodged a claim vide claim No.345600/31/2014/000071 of 2013 with a hope to compensate the cost of repairing by the Opposite Party after settlement of the claim but the Opposite party Company instead of making payment of the total claim amount has paid an amount of Rs. 30,400/-(Rupees thirty thousand four hundred)only on Dt.13/08/2013 by depositing the same in the S.B.I. account of the Complainant and he knows the same from SMS received from Bank. The Complainant thereafter approached the Opposite Party company personally and request to pay the rest claim amount of Rs.61,633/-( Rupees sixty one thousand six hundred thirty three)only but the Opposite Party company has been deferring payment of the same on different pretext or other and remained silent for which the complainant served pleader notice on the Opposite Party on Dt.17/08/2013 calling upon to pay the rest claim amount and to compensate for negligence and deficiency in service but the Opposite Party remained silent.
According to the Complainant non-payment of the rest claim amount by the Opposite Party amount to deficiency and negligence in rendering serviced by the Opposite Party towards the Complainant the O.P has received the notice but remained silent without any action for realisation of the due amount for which he has filed this case with a prayer for the following reliefs.
To direct the Opposite Party to pay rest claim of Rs. 61,663/-( Rupees sixty one thousand six hundred sixty three)only to the Complainant.
To direct the Opposite Party to pay Rs. 1,50,000/-(Rupees one lakh fifty thousand) only as compensation towards mental agony and and harassment.
To direct the Opposite Party to Pay Rs.20,000/-(Rupees twenty thousand)only towards litigation expenses.
Notice was duly served upon the Opposite Party. The Opposite party appeared and submitted his written version on Dt.07/04/2014 denying the allegation of the complaint petition. While they have admitted the issuance of insurance policy of the vehicle in Question and accident of the vehicle have submitted that after receipt of intimation of the accident, the Opposite Party carried out all the formalities required for settlement of the claim, taken all possible steps to investigate the claim and settled the claim for Rs. 30,400/-(Rupees thirty thousand four hundred)only in full and final settlement which the Complainant has agreed to receive and signed the discharge voucher without any protest and subsequently the Opposite Party transferred the said amount of Rs.30,400/-( Rupees thirty thousand four hundred)only to the bank account of the Complainant, as such the Opposite Party have not shown any deficiency in service in any manner to the complainant, so no relief against the Opposite Party can be granted under the Consumer Protection Act.
Further the grounds taken by the Opposite Party is on the maintainability of the case challenging the status of the Complainant Under Section-2(d) of the C.P. Act that the vehicle is registered/ insured and used by the Complainant for commercial purpose. So the Complainant is not a is not a consumer under C.P. Act, 1986.
Further the Opposite party contended that the present claim being a quantum dispute, adjudication of the same will require detailed investigation, elaborate evidences which can not be dealt within the summary jurisdiction. Therefore The Opposite Party has submitted that the complaint is not entitled to get any relief hence the case is liable to be dismissed in the end of Justice.
The Opposite Party has also filed a number of documents in support of his case along with citations.
After hearing the parties, following issues arises for our determination -
Issues
whether the Complaint is a consumer and Whether the case is maintainable ?
Whether the Forum can ignore the report of surveyor ? If yes, under what circumstances ?
Whether the Complainant is entitled for the loss as prayed for ?
Whether the payment to the insured was as full and final settlement ?
Gone through the Complaint petition, version by the Opposite Party, documents on record and also heard the arguments from the parties.
Issue no.1
Regarding the issue raised by the Opposite Party that the vehicle registered / insured as a commercial vehicle and the Complainant having availed the services of the Opposite Party for commercial purpose, hence the Complainant can not be termed as a consumer. On this point we have gone through the decision of the Hon'ble National Commission reported in 2005 (1) CPJ 26 N.C Horsolia Motors Vrs National Insurance Company where it was held that petitioner has to be treated as a consumer qua Insurance company providing insurance cover for his vehicle even if it was being used for commercial purpose, Even if the vehicle is being used for commercial purpose, the vehicle had been insured against accident and the insurance cover by it self can not be directly related to the generation of profits and hence the insurance company having accepted to insure the vehicle can not be allowed to repudiate the claim on the ground that it was being used for commercial purpose. The purpose of insurance is to indemnity the loss of insured. Loss can not be equated with profit. Hence dispute of insurance is different from dispute for commercial purpose.
It is also an admitted fact by both the Parties that, the Complainant has insured his vehicle with the Opposite Party which was valid up to Dt. 16/10/2013 and while the policy is is force. The said vehicle met with an accident on Dt.13/05/2013. There is also no dispute regarding the premium, because the Complainant paid the premium before the Opposite Party and obtained a valid insurance policy and according to the said policy, the Opposite Party will indemnify the Complaint in case of any damages sustained by accident is theft or burn, therefore the Opposite Party will have to give service to the Complainant in case of happenings of the aforesaid accident. Therefore since the insurance policy is a contractual liability and liability has been cost upon the Opposite Party to render service to the Complainant who had paid premium for the same so the Complainant becomes the consumer of Opposite Party and this court has got jurisdiction to decides the matter.
ISSUE No.2(two) and No.3(three):-
As per as the facts of this case are concerned, it is an admitted position that the Complainant was holding a valid policy and during the subsistence of that policy, the vehicle met with an accident. The liability of insurance company under the terms and conditions of the policy is also admitted. The Complainant claimed an amount of Rs.92,063/-(Rupees ninety two thousand sixty three)only as provisional estimate against which the Surveyor-Cum-Loss Assessor of the Opposite Party assessed the loss at Rs. 34,500/-(Rupees thirty four thousand five hundred)only. The insurance Company instead of paying the loss claimed by the insured and instead of paying the loss assessed by the surveyor settled the claim by paying Rs. 30,400/-(Rupees thirty thousand four hundred)only and the Complainant had accepted the sum of Rs.30,400/-(Rupees thirty thousand four hundred)only as full and final settlement of the claim. So this has resulted in giving birth to raise the dispute over the quantum of insurance claim payable by the Opposite Party.
Now the question before us is to consider as to whether the settlement of claim by the insurers is legal and proper. If not to what amount the Complainant are entitled.
On perusal of the case record we feel the bills and money receipts filed by the Complainant are genuine because in the spot survey report Dt.18/05/2013, the surveyor agreed with the insured about the cause and nature of accident and mentioned the damages observed. In the Final Survey report Dt.25/06/2013 the surveyor mentioned the place of survey of vehicle is at M/s Bharat Motors, Bargarh where he found the vehicle lying in a damaged condition. On perusal of Final Survey report we found that, the bills and vouchers of the different work shops are submitted by the Complainant to the surveyor for verification and after going through the bills and vouchers, the surveyor assessed the loss at Rs.34,500/-(Rupees thirty four thousand five hundred) only but instead of paying Rs. 34,500/-(Rupees thirty four thousand five hundred) only paid Rs.30,400/-(Rupees thirty thousand four hundred) only which creates doubt over the activities of Opposite Party. Further as far as legal position in regard to surveyor report is concerned we relay on the decision of Hon'ble S.C. in the case of New India Assurance Company Ltd. Vrs Pradip Kumar reported in IV (2009) CPJ 46 (SC) where in it has been held that although assessment of approved surveyor is pre-requisite or settlement of claim but the survey report is not the last and final word. It is not sacrosanct that it can not be departed from. It is not conclusive. The approved surveyor report may be the basis or foundation for settlement of claim by insurer in respect of loss suffered by the insured but surely such a report is neither binding upon the insurer nor the insured. It can be ignored if it is perverse or arbitrary based on mere inference. Or surmises and/or suspicion. Further we rely on the decision of New India Assurance Co. Ltd Vrs Protection Manufacturers Pvt. Ltd reported in II (2010) CPJ 40 (SC) Where Hon'ble Supreme Court had rejected the report of surveyor and investigation appointed by insurance company as there was no material to support the theory of arson projected by them and the same was motivated and intended to benefit the insurance company. So the decision filed by the Opposite Party reported in 2012 (4) CPR page 48(NC) does not holds good in the instant case.
During arguments the Opposite Party submitted that the bills and money receipts filed by the Complainant are forgery and fraud one but about this allegation of Opposite Party the Surveyor did not raise any objection regarding the forgery of bills and money receipt submitted by the Complainant before him during survey. The insurance company has not been able to establish beyond doubt through credible evidence that the bills and money receipts were obtained fraudulently. The liability to prove fraudulent act of the Complainant lies heavily on the insurance company. Since the Opposite Party not established that the bills and vouchers placed for the claim are false,manufactured or fabricated so we accept the bills and money receipts to be genuine. Thus the Opposite Party contention in this regard is not sustainable. The Opposite Party is liable to pay the claim of Complainant as prayed for.
ISSUE No.4(four)
While deciding this point a reference is required to be made to a usual circumstances namely practically in no case insured is paid the claim as settled by the insurers themselves without signature of insured on the vouchers indicating full and final settlement between the parties. If the insured refused to sign the voucher for full and final settlement, the insurers pay nothing and repudiate the claim.
Opposite Party raised the point that since the Complainant has received the amount as full and final settlement and signed the discharge voucher at (Exhibit-'O') with out any protest. So he can not claim further. On this point we rely on the decision of Oriental Insurance Company Ltd Vrs Government Tool Room and Training Center reported in I (2008) CPJ 267 (NC) where Hon'ble National Commission held that it is a wrong practice followed by insurance companies in not paying single pie without having discharge voucher. It is a coercive bargaining as insured has no option but to sign the discharge voucher. Mere execution of discharge voucher and acceptance of insurance claim will not estop the insured from making further claim. In the instant case Complainant had immediately after receipt of the amount had protested and requested the insurers though Pleader Notice to reconsider. The Complainant had filed the consumer case after 1(one) month and 5 days. The filing of a Complaint case can also be considered as a protest against so called full and final settlement. Under this circumstances the payment to the Complainant can not be said to be by way of voluntary full and final settlement. So the decision filed by Opposite Party company M/s-Vijay stationers, prop, Vrs United insurance co. Ltd. Reported in 2013 NCJ 248 (NC) and citation reported in 1996(1)CPR Page 4 NC does not holds good in the instant case. So the Opposite Party's contention in this regard is not sustainable.
Under the above circumstances we have observed that there is negligence, harassment and unfair trade practice by the Opposite Party to the petitioner. So we have also decided to award compensation towards harassment mental agony and for unfair trade practice will meet the end of justice. The citations filed by the Opposite Party reported in 1999(3) CPR Page 102 SC and 1997(2) CPR page 266 (NC) does not holds good because there is cleanly deficiency in service on the part of Opposite Party against the Complainant.
O R D E R -
Hence we direct the Opposite Party to pay Rs.61,663/-(Rupees sixty one thousand six hundred sixty three) only as claimed by the Complainant along with 6% interest per annum from dated 08.08.2013 to till date of Order along with compensation of Rs.5,000/-(Rupees Five Thousand) only towards mental agony, harassment and litigation expenses within thirty days from the date of Order i.e. 26.11.2014 failing which the total awarded amount shall carry 12%(twelve percent) interest per annum till date of actual payment.
The Complaint disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree,
(Miss Rajlaxmi Pattnayak) (Smt. Anjali Behera) (Sri. Pradeep kumar Dash)
P r e s i d e n t. M e m b e r. M e m b e r.
