Orissa

Cuttak

CC/18/2017

Anand Prakash Das - Complainant(s)

Versus

Divisional Manager,New India Assurance Company Ltd - Opp.Party(s)

R K Pattanaik

28 Nov 2017

ORDER

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

                                                                                    C.C. No.18/2017

                Anand Das @ Anand Prakash Das,

Res. of Plot No.C/1237,

Sector-6,CDA,Markat Nagar,

Dist:Cuttack.                                                                                  … Complainant.

 

                Vrs.

 

New India Assurance Company Ltd.,

Represented through its

Divisional Manager,

Cuttack Divisional Office-II,

1^st Floor,Mahashraman,

Cantonment Road,Cuttack-753001.                                          … Opp. Party.

 

 

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

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   09.02.2017

Date of Order: 28.11.2017

 

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

For Opp.Party.    :                     Sri P.K.Panda,Adv. & Associates.

 

Sri Dhruba Charan Barik,President.

                The complainant has filed this case having attributed gross deficiency in service and unfair trade practice to the O.P. and seeking appropriate relief in terms of his prayer in his complaint.

1. The fact of the complainant’s case in short is as follows:-

He has purchased a Ford Figo 1.4 TDCI ZXI bearing Regd. No.OR-05-AS-1100 for his personal use.  It was covered under insurance policy obtained from O.P vide policy No.550-123 in respect of the period 5.10.13 to 4.10.14.  The policy was issued to the complainant to indemnify him in the event of any damages caused by accidental and fire hazards. Annexure-1 is the copy of the said policy as well as its terms and conditions.

On 2.2.2014 at about 12.30 A.M while the complainant and his wife were returning in that car from Bhubaneswar to Cuttack, the vehicle met with an accident at Khannagar Chhak.  Suddenly a dog came in front of the vehicle and the complainant driver applied sudden break but the vehicle ultimately went out of control and got dashed against the road divider.  It over turned to the road side and got substantially damaged. The complainant also sustained injuries on his person and was taken to Ashwini Hospital,CDA,Cuttack for treatment.   The fact of the accident was reported to the O.P as well as to the authorized repairer on 10.2.14 after the complainant recovered from injuries.  The copy of the claim intimation given to the O.P on 10.2.14 has been annexed and marked as Annexure-2.

On receipt of such claim application, the O.P as per established procedure, deputed a surveyor to assess the loss of the said vehicle which was in the custody of the authorized repairer M/s. Odisha Ford.  After thorough assessment of damages, the surveyor discussed with the complainant and it was decided to settle the claim on total loss basis as damages were extensive and the cost of the repairing would be more than that of the vehicle.  The complainant also agreed to cooperate with the surveyor for settlement of his claim on total loss basis.

The said surveyor submitted his report to the O.P. in time but the latter did not do anything even after a long period.  Having no other alternative, the complainant made representations to the O.P on 9.1.15, 16.2.15 and 25.3.15 with a request to settle his claim as early as possible.  The O.P did not take any action on such representations even after lapse of 9 to 10 months.  The inaction of the O.P as such is tantamount to deficiency in service and unfair trade practice.  Annexure-3 series are three representations stated above sent to the O.P by speed post and registered post.

After lapse of such a long period, the O.P on 9.7.15 sent a letter to the complainant stating that his claim could have been well considered but for non-submission of the cancellation of registration certificate of the damaged vehicle issued by the concerned R.T.O.  It was also intimated that the value of the vehicle had been assessed at Rs.50,000/- on total loss basis and if the complainant consented to it and complied with the requirement, the claim can be settled without delay.  Two subsequent letters dt.23.7.15 and 11.8.15 issued by the O.P to the complainant to this effect have also been sent for necessary action by the complainant.  Copies of the above letters have been filed and marked as Annexure-4 series.  After receipt of those letters, the complainant replied that he has already repaired the vehicle in question by spending a lot from his own pocket because of inordinate delay in settlement of his claim by the O.P and as such he requested the latter to settle his claim at the earliest by taking into consideration the repairing bill issued by the authorized repairer.  While the matter stood thus, the O.P intimated the complainant vide his letter dt.9.9.15 that the claim was repudiated as ‘no claim’ for want of the required documents as stated above.  Annexure-5 is the copy of the later of repudiation of the claim of the complainant dt.9.9.15.  The complainant was quite astonished the manner in which the O.P unilaterally closed his claim without any justifiable reason and on that very date on 11.9.15 he requested the O.P by his representation to keep his claim file open and allow him  further time for submission of the required documents.  Annexure-8 is the copy of the letter dt.11.9.15 issued by the complainant.  But the O.P remained silent over the matter and subsequently the complainant issued another letter dt.22.3.16 requesting the O.P for the same purpose.  Annexure-7 is the copy of the above letter dt.22.3.16 issued by the complainant.  The O.P despite receipt of that reminder did not take any action.  The overt act of the O.P gives a clear picture of arbitrary use of the statutory power by him which has resulted in gross deficiency in service and unfair trade practice.

As such the complainant set the law in motion by filing the complaint against the O.P with a prayer to direct the latter to pay Rs.3,55,800/- to him towards I.D value of the damaged car  together with interest @ 12% per annum, Rs.50,000/- towards compensation and Rs.20,000/- towards cost of litigation  in the interest of justice.

2. The O.P has filed written version and contested the case.  At the outset he has taken a complete plea of denial of the material averments in the complaint.  It is further stated that the complainant has suppressed the material facts and has not approached this authority in clean hands.  The important point for repudiation of the claim of the complainant was non-submission of cancellation of registration certificate of the damaged vehicle as required U/S-55 of the Motor Vehicle Act,1988 especially when the claim of the complainant was agreed to be settled on total loss basis.  Even after repeated reminders vide Annexure-A,B,C & D, the complainant has failed to obtain such certificate from the concerned R.T.O and to produce same before the O.P. which was mandatory.  It is also stated that in such an event surrender of the damaged vehicle was  also required to be made before the O.P by the complainant which has admittedly not been done.
3. The most important point as revealed from the written version is that after the alleged accident/repair of the vehicle by the authorized repairer, the complainant clandestinely sold that damaged vehicle first to one Firoj Kumar Patel on 7.7.14 and again to one Chita Ranjan Sahoo on 19.1.16 which is evident from the true copy of the change of ownership filed in this case vide Annexure-E.  It is also stated that even when the complainant has already received the reminders from the O.P for production of cancellation of registration certificate, the vehicle was not in the custody of the complainant and as such he was unable to produce the cancellation of such certificate.  It is blatant violation of the terms of agreement.  The complainant has intentionally did not utter a single word about the sale of the damaged vehicle subsequent to such accident to other person with some ulterior motive. It is tantamount to suppression of material fact as such it is prayed that the case of the complainant may be dismissed in limini.
4. We have carefully gone through the case records and verified the annexures filed by both the sides.  We have also heard the learned counsels of the complainant as well as of the O.P.
5. It is not disputed by the complainant that he has agreed to assessment of his claim on total loss basis and that production of cancellation of registration certificate of the said vehicle is essential in view of Sec-55 of M.V.Act.  It is admitted that such certificate has not been filed before the O.P even after repeated reminders issued to him for the purpose.  When it is a case of settlement of the claim of the complainant on total loss basis, the damaged vehicle is to be produced before the O.P.  There is no contrary submission on this point made by the learned advocate for the complainant.  It is discernible from the complaint that the complainant has suppressed the material fact that the damaged vehicle has been sold to two different persons namely Firoj Kumar Patel and Ranjan Kumar Sahoo subsequent to the accident without the knowledge of O.P.  The oblique motive of the complainant is clearly established for suppression of the material facts as stated above, and for that reason the complainant has failed to comply with the requirements of mandatory provisions of production of cancellation of registration certificate of the damaged vehicle before settlement of his claim.  There is no submission to the contrary made by the learned counsel for the complainant on this point.  As rightly submitted by the learned advocate for the O.P that the complainant is guilty of suppression of material fact with some oblique motive and has not approached this authority in clean hand.  This has also resulted in violation of the terms and conditions of the agreement.
6. In the above premises, it cannot but be held that the complainant has failed to prove deficiency in service or unfair trade practice on the part of the O.P in dealing with his claim application.  Hence ordered;

 

ORDER

                                The case be and the same is dismissed on contest against the O.P.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 28^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)