BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO-86/2016

Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy, Member (W).

M/S-Horizon Infab(P)Ltd,

represented through it’s Managing Director

Sri Arjun Prasad Singhaged about 69 years,

S/O-Late Sukdeo Prasad Singh,

R/O-At-Power House Road(Behind Bharat Gas),

P.O-Sarbahal,P.S/Dist-Jharsuguda.                                                           …..Complainant

Vrs.

1. General Manager,

Tata Hitachi Construction Machinery Company Ltd,

P.O/P.S/Dist-Kharagpur-721301(State-West Bengal),

2. Manager,

Sriram Equipment Finance Company Ltd.,

3. Manager,

IFFCO-Tokio, General Insurance Company Ltd,

At-Kasturi Nagar,P.O/P.S-Bangalore-560043(state-Karnataka).

4. Trisul Tread Pvt. Ltd,Plot No-220,

Sector-A, Zone-B, Mancheswar Industrial Estate,

Bhubaneswar-10, Dist-Khurda.

5. Trisul Tread Pvt. Ltd,
6.  
7.  

6. General Manager(Mech),

Aditya Aluminum Plant,

P.O/P.S- Lapanga, Dist-Sambalpur.….O.Ps.

Counsels:-

1. For the Complainant:-        M/s S.K Samal, Advocate & Associates.
2. For the O.P-1                        :-         Sri S.N. Mohapatra Advocate & Associates.
3. For the O.P-2                        :-         Sri S.K.Mishra, Advocate & Associates.

4. For the O.P-3                        :-         Sri B.K.Purohit, Advocate.
5. For the O.P-4 & 5     :-                     Sri S.N.Mahapatra, Advocate & associates.

DATE OF HEARING : 22.02.2021, DATE OF ORDER : 24.02.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-       Brief facts of the case is that the Complainant has purchased one Excavator Vehicle of model Tata Hitachi Zaxis 220 LC-Gl from the O.P-1 who is the manufacturer in this case. The vehicle is financed by the O.P-2, Shriram Equipment Finance Co. Ltd, Orissa vide Loan No- SMBLPO10310001 for his livelihood after retirement from his service which was reflected in the agreement. The above Excavator was insured by the O.P-3,IFFCI-TOKYO General Insurance Co. Ltd. Vide policy no- 32067261 and insurance certificate no-10265 in the name of the Complainant as Horizon Infab Pvt. Ltd. The period of insurance was from dtd. 24.11.2014 to 23.11.2015 for an amount of Rs.56,50,000. The said Excavator met with an accident on dtd.24.05.2015. As the Complainant has taken tender for some Excavator work at Aditya (Aluminium)Plant at Lapanga under Sambalpur district, while working in the coal handling plant area of the said plant  during heavy rain at that night, due to improper visibility, it dashed with another Excavator standing nearby as a result of which it got damaged at the rear portion on dtd.24.05.2015.The Complainant produced the said damaged Excavator before the authorised dealer/service station,O.P-4  who is the sub-dealer of M/S-Trishul Tread Private Ltd. At Mancheswar Industrial Estate,Bhubaneswar. The Excavator was got repaired with a cost of Rs.8,49,780.74/- and service charges for seven days amounts to Rs.23,940/- paid by the Complainant on dtd.02.07.2015 and 04.07.2015 to the authorised dealer M/S Trishul Tread Pvt. Ltd. Information was given to the Insurance company and the damage was assessed by the surveyor for Rs.8,49,780.74/- but he turned deaf ear and did not paid the Insurance Claim amount  for which the Complainant is facing financial loss. Hence the Complainant has prayed for a direction to the Insurance company to compensate the claim amount of Rs.849,780.74 along with 18% interest on it and Rs. 2,00,000/-for mental pain and agony and Rs.20,000/- towards cost of litigation.

As per the O.P-1 being a dealer he has no role with settlement of damage claim relating to the Excavator. It is the insurance company who is to settle the claim.

The O.P-2 submits that the case is not maintainable as the complainant does not come under the purview of consumer. The O.P-2 is not any way related to this case as there is no prima facie case is made out against this O.P-2.

That the O.P-3 stated that he had issued a insurance policy to the Complainant Horizon Infab Pvt. Ltd. subject to certain terms and conditions.  After receiving information  about the damage to the insure machine  on dtd.23.06.2015 by the non-motor claim department of the insurance company, Absolute Insurance Surveyor & Loss Assessor Pvt. Ltd was engaged to assess the loss who visited the spot  and assessed the loss . Thereafter he issued a letter requesting certain vehicular documents to consider and settle the claim. In spite of several reminders the Complainant has failed to submit the same. The Surveyor and the loss Assessor sent a mail on dtd. 08.10.2015 to the Insured and closed the case file as Nil Claim which only due to the non co-operation of the Insured. Again the insurance company has denied the allegation that the Surveyor and loss assessor has assessed the loss at Rs. 8,49,780.74 and the repairing charges of Rs. 23,490/-. Again he stated as per provision of 6(D) of policy provision it is the duty of the Insured to assist the insurer in settlement of the claim and as per Sec. 64 Um of the Insurance claim Act no claim can be settled by the insurance company above Rs.20,000/- unless a report from a Surveyor and Loss assessor is received by  the Insurance company. As the present claim is for Rs.2,00,000 so the Insurance Company  had to appoint a Surveyor and Loss assessor. But the Insured neglected in submitting the required documents as sought by the Surveyor and Loss assessor, he closed the case as “Nil Claim”.  Hence he is not liable to be penalised and the case shall be dismissed on cost.

That the O.P-4 & 5 submits that the said Excavator was repaired through the Service centre at Baraipali and handed over to the Complainant. The O.P-5 has the service charges which is mandatory. Again he added that being the authorised service station has no role with settlement of damage claim relating to the Excavator. It is the insurance company who is to settle the claim.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act.2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a one Excavator Vehicle of model Tata Hitachi Zaxis 220 LC-Gl from the O.P-1 who is the manufacturer in this case on payment of Rs. 56,50,000. There is no controversy that the vehicle was insured at the IDV of 56,50,000/- in the insurance policy  which was issued in favour of the complainant. That the Authorised service centre assessed the loss of the damaged vehicle to Rs.8,49,780.74. The only dispute is with regard to the report of the surveyor and non-supply of the documents by the complainant to the Surveyor/Insurance Company. It is not in dispute that the insurance documents have been given and are also with the opposite party-Insurance Company.  In the letter dated 08.01.2015 written by the opposite party-Insurance Company to the complainant, the surveyor has demanded/raised some documents/queries from the Complainant like-Statements of eye witness, giving dates of accident, how it came to light ,immediate action taken, etc. In view of sub-clause (4) of Condition No.15 of the Insurance Regulatory and Development Authority of India dated Hyderabad, the 22nd June, 2017,such frivolous objections are not to be raised by the Insurance Company. It is a common practice that Insurance Companies dilly dallying while giving the claims. As such, the question of presentation of such documents does not arise. It is an admitted fact that the owner is residing in Odisha and the policy was issued at Bangalore and the truck got accident in Orissa. It cannot be said that the claim is false. The demand of unnecessary documents is not justified. The only relevant documents in our view are Registration Certificate of the vehicle, driving license of the driver, insurance policy, the claim application and the estimate submitted by the complainant along with the claim application. Thereafter it is the duty of the Insurance Company and the Surveyor appointed by it to do the needful as per the requirements referred to above. All the said documents except the driving license have not also been supplied to the Insurance Company and the surveyor and the same are also annexed with the present complaint. The copies of these documents can be taken from the file of the complaint, which are otherwise already with the learned Consumer Complaint. Even the complainant is ready to hand over the copies of the same in this Commission. We are of the view that the objections mentioned in the letter dated 08.01.2015 are frivolous and misconceived and do not survive. The judgment of Honble Supreme Court reported in “New India Assurance Company Limited v. Pardeep Kumar ()” is applicable to the facts of the present case, wherein it has been laid down that Surveyors report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. It is mentioned that the prices were taken from authorized dealer of Trishul Tread Pvt. Ltd., where genuine parts are available.  This matter has been well settled in the case of  Sh. Balbir Singh. vs Shriram General Insurance Co. ... decided on 22 November, 2018 by H. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Hence we order as under:-

ORDER

            In these circumstances we are of the view that the present complaint deserves to be disposed of with the observations that the Complainant will submit all the relevant documents with the Surveyor again  and the Surveyor will examine the vehicle afresh and give a report by comparing the prices quoted by the complainant in the estimate submitted by him along with the claim application and the prices he will get from the authorized dealers of Trishul Tread Pvt. Ltd. for the same vehicle, which is in question. In the meantime, we are of the view that the sum of Rs. 8,49,780.74 which was estimated by the Authorised Service Station M/s Trishul Tread Pvt. Ltd. and paid by the Complainant/Insured, 50% of the said amount be released to the Complainant along with interest at the rate of 7% per annum with effect from 08.01.2015 till the date of actual payment within a period of two  month from the date of receipt of certified copy of this order. We direct the O.P-3 Insurance Company accordingly. The remaining amount that will become payable after the fresh assessment after submission of required documents by the Complainant shall also carry same rate of interest i.e. 7% per annum with effect from 08.01.2015 till the date of actual realization.

Order pronounced in the open Court today i.e, on 24^th day of February 2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,

-sd/-(24.02.2021)                                                                                                       -sd/-(24.02.2021)

        Smt. S.Tripathy                                                                                                         Sri. D.K. Mohapatra

        MEMBER.(W)                                                                             PRESIDENT

                                                                                   Dictated and Corrected

                                                                             by me.

                                                                        -sd/-(24.02.2021)

                                                                                                Sri. D.K. Mohapatra

                                                            PRESIDENT