Sri Purna Chandra Mishra, President

          Complainant Ajay Kumar Sewak has filed this case alleging deficiency in service on the part the OP No.1 and 2for non-payment of his insurance claim to the tune of Rs. 4,49,555/-along withRs. 50,000/- towardscompensationfor the loss sustained by him prayingthereinfor direction to the OP No.1 & 2 pay the insurance amountand compensation of Rs. 50,000/-.

1.               Brief fact leading to the case is that the complainants is  the  registered owner of one  MAHINDRA MARAZZO 8STR M2 Vehicle  bearing Regd. No. OD08L 9091.the vehicle was insured with HDFC ERGO General Insurance  company  Limited for the period  from 07.05.2019 to 06.05.2022.During  the force of the policy on 21.09.2021 the  vehicle met with an accident   thereby causing  huge damage to the  vehicle and the complainant  intimated the insurance company  to indemnify the loss arising out of  the accident and the OPs denied  to  pass the claim  and repudiated the claim on the  ground that   the driver of  the vehicle  was having  no valid driving license at the time of accident  for which finding   no other alternative   the complainant has been compelled to  take the shelter  of this commission.

2.               Upon  notice the OP No.1 & 2 entered appearance and filed written version  jointly. In their written version the Ops admitted  the facts of accident and also  admitted the fact that on the  relevant day  the insurance policy was  in force  but  from  the report  of  their  own investigation agency they came to  know  that the owner himself  Ajay Kumar Sewak was driving  the vehicle  instead of Bisnu Hans as stated in his FIR and claim form. Since the internal enquiry  established the fact  that Ajay Kumar Sewak was  driving the vehicle at the relevant time having no driving license , his claim was rejected as per terms of the policy and there is no deficiency  in  service  on their part and  therefore pray for  dismissal  of the case with cost.

3.                The OP No.3 inspite of notice didn’t appear nor filed any documents in defense   of his case. He was set ex-parte.

4.               The complainant in support of his case has filed documents  along with  the affidavit  of Bisnu Hans and  the copy of his driving license.

                  On the other hand  the Ops have filed the copy of the RC STATUS, copy of vehicle history report, copy of Insurance policy, copy of survey report( final),copy of survey  of the claim counting, copy of the investigator  report, copy  of the brief description of the incident signed  by Ajay Kumar Sevak,copy of the  statement of Bisnu Hans, copy of repudiation letter, copy of the Money receipt  issued by  OP No.3 for Rs. 3.00 lakh, dated 03.06.2022,Rs. 4.00 lakh,dated 05.09.2022,Rs. 50,000/- dated 26.09.2022, RTGS dated 07.06.2022  for Rs. 1,18, 336.16  & copy of DL of Bisnu Hans.The complainant has filed his evidence  in shape of affidavit.

5.               The only point for adjudication is whether the repudiation of the claim by the insurance company is justified or not?

6.               The  complainant  in his petition has stated that  on dated 21.09.2021 at about 3.00 pm while the driver of the  aforesaid vehicle  was  moving in reverse direction to the main road  of Khariar  from  his Garage  one INNOVA vehicle came from Bhawanipatna dashed against  his vehicle and fled away .At that time the driver of the vehicle  was driving the vehicle.

                  On the other hand , the OP No.1 & 2 in their  written statement have stated that in the claim made by the complainant  he has stated that Bisnu Hans was  driving  the vehicle at the time of occurrence. The insurance company  in addition to appointment  of a Surveyor engaged  one Investigating  agency  i.e.  SJ Perfect Vision Investigation to ascertain  the authenticity  of  the loss of the claim. The Investigating Agency after investigation submitted the report which read as follows:  “ ( a) as per the insured  statement  the accident happened with a Innova car, but   he didn’t  disclose about the TPV details, which is suspicious  in nature.And after seeing  the spot and the vehicle damages, it was suspected that the insured had manipulated the fact about the accident details for the claim.

           b) As per the IV driver statement  he came to know  about the accident while Mr. Ajay Kumar Sewak came to his owner Mr. Milind Khamari  and told him  about the accident details. That the accident happened  on 17.09.2021 at about 3.00 pm while  Mr. Ajay was moving his vehicle  out  of the garage and dashed against the garage wall .His vehicle  had not faced  any accident with any other vehicle.” 

                  In the face of pleading and counter pleading it is to be ascertained which one is correct? The Ops company has filed  one statement signed by Bisnu Hans  plain reading of the  written statement by Bisnu Hans reveals that  the incident took place  on  17.09.2021 at 3.00 pm and the vehicle was not dashed  against any vehicle ,but the owner himself  while bringing out the vehicle has dashed the vehicle against  the wall of the Garage .He has    heard it  from his owner Milind Khamari and Milind Khamari without intimating him gave  the copy of the DL to Ajay Kumar Sewak and he has  no connection  with the incident.

                  On the other hand , the complainant has filed affidavit  of Bisnu Hans who  in his affidavit categorically  stated   that he was the driver of the accident vehicle  owned by Ajay Kumar Sevak  bearing regd.mno.OD08L 9091 and he has never given any statement  before any Investigating Agency  except Khariar Police  and the claim of SJ Perfect Vision  Investigating Agency that he has given his statement  before him is  totally false  and fabricated. The vehicle was dashed against the another vehicle   on 21.09.2021.The documents  filed by the Ops is only a xerox copy  and the name of scribe  of the documents has not  been mentioned  in it. On whose instruction  and what for he has written it is not  mentioned  in that statement. When the driver files an affidavit  and has given the copy of the DL and Adhar Card  along with  affidavit  the plain paper statement filed by the OP No.1 & 2 are   not admissible  in evidence and the documents  filed by the Ops in this regards  is unacceptable  in the eyes of  law.

7.               From the discussion in the preceding paragraph  it is clear that one Bisnu Hans  S/o: Sudam Hans  of Khariar  bearing License No.OD-2620170015884 was driving the accident vehicle  on 21.09.2021 at about 3.00pm  which was  valid  from  18.04.22017 to 17.04.2037 which implies  that  the license  of the driver was valid on the relevant day and time of accident. As the OPs have rejected the claim on the ground  that there was  implant  of a  driver instead of  actual  driver, so  the  ground taken  by the Ops is completely  false and evidence  of the driver is  supported by the evidence  of  the complainant which  remains unchallenged ,uncontroverted  and unrebutted.

8.               As the   OP No.1 & 2 have rejected  the claim of the complainant  without any valid ground it amount to deficiency in service  and thereby have caused sufficient  harassment  to the complainant .

9.                The complainant has claimed a sum  of Rs. 4,49,555/-( Rupees  Four Lakhs forty nine thousand five hundred fifty five) only towards the cost of repair  of the vehicle. The OP No.1 & 2 have filed  copy of  the motor survey report ( final)  prepared  by the Surveyor ER. Balakrushna  Patra  in  which   he has  quantify the loss  to be Rs. 2,57, 036.14 and after deduction quantify  the net loss to be Rs. 2,46,036/-.Even though  the complainant has  made the claim for Rs. 4,49,555/-  he has filed repair bill of Rs. 6,29,589/- .The complainant has also  filed money receipt of Rs. 6,50,000/-  of  the OP No.3 paid  in three phases on 03.06.22, 05.09.22  and 26.09.22  for Rs. 2,00,000/-,Rs.4,00,000/- and Rs. 50,000/-  respectively. It is settled principle of law  that the Surveyor  report is an important documents and it can’t be brushed  aside unless  contrary to the report  is proved. The complainant  has not whispered  a single word  in his evidence filed by way of affidavit  that the report the Surveyor is  incorrect since the complainant  didn’t challenged  the report of the surveyor in any manner we have no other alternative but to allow the assessment made by the surveyor in his final survey. So in our consider view  the complainant  is entitled  to receive a sum of Rs. 2,46,036/-( Rupees Two lakhs  forty six thousand thirty six )only as quantified by the Surveyor in final survey.

                  As a case of deficiency in service coupled with harassment is made out against the OP No.1 & 2.they are liable to compensate the petitioner for the loss sustained  by him and hence the order:-

                                                                  O R D E R

The complaint petition is allowed on contest in part against OP No.1 & 2 and dismissed ex-parte against OP No.3.The OP No. 1& 2  are made  liable for causing deficiency in service  and harassment   to the complainant. The OP No.1 & 2 are directed to pay a sum of Rs. 2,46,036/-( Rupees Two lakhs  forty six thousand thirty six )only  to the complainant  with interest  @  9% p.a  from the date of claim till   it is paid  to the complainant. The OPs are further directed to pay a sum of Rs. 50,000/-( Rupees Fifty thousand) only  towards  compensation for  deficiency in service and harassment caused  to the complainant and a sum of Rs. 10,000/- ( Rupees ten thousand) only towards the cost of litigation. The order is to be complied within a period of 30 days from the date of receipt   of the order, failing which interest @ 12% shall be charged on the cost and compensation as awarded.