Orissa

Cuttak

CC/296/2023

Sheak Emamul - Complainant(s)

Versus

HDFC ERGO General Insurance Company Ltd. - Opp.Party(s)

B.S.Tripathy,Adv. & Associates

04 Jul 2024

ORDER

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

                                                  C.C.No.296/2023

Sheak Emamul,

S/o: Late Sekh Harish,

At/PO:Tala Telenga Bazar,

                     Dist:Cuttack.

 

          Vrs.

 

1.        HDFC ERGO General Insurance Company Ltd.,

Head Office:6^th Floor, Leela Business Park,

Andheri-Kurla Road,

Bori Colony,Vijay Nagar Colony West,

Marol,Andheri East, Mumbai,

                 Maharashtra-400059.

 

2.       HDFC ERGO General Insurance Company Ltd.,

Cuttack Branch Office,

OSL Tower II,2^nd, Canal Road,

Near KFC, Badambadi Colony,

                  Cuttack,Odisha-753012.

 

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    31.08.2023

Date of Order:  04.072024

 

For the complainant:             Mr. B.S.Tripathy,Adv. & Associates.

For the O.Ps               :            Mr. S.K.Ruplal,Advocate.

 

Sri Debasish Nayak,President.                                          

Case of the complainant as made out from the complaint petition in short is that he had insured his Ford Eco Sport vehicle bearing Registration number OD-05P-7577 with the O.Ps vide policy number 2311100210086505000 which was effective from 17.7.2002 to 16.7.2023.  The vehicle was burnt on 28.8.2022 at 4.30 P.M. due to fire accident arising from short circuit within the vehicle as a result of which, the engine and the body of the vehicle was completely damaged.  FIR was lodged before the IIC,Talchhua Marine Police Station, Dist:Kendrapara to this effect and the Assistant Fire Officer had issued a certificate to that effect on 30.9.2022 vide certificate No.5226/KDP.  O.P no.2 was contacted immediately who had advised to take the alleged vehicle to the service station Padma Motors Ford at Pratap Nagari of Cuttack Sadar-753011 with an assurance that the towing expenses of Rs.15,000/- would be reimbursed.  There, the authorised service station gave an estimate of Rs.5,37,390.72p towards the repairing charge of the said vehicle.  Subsequently, the claim was calculated to the tune of Rs.4,47,772/- vide claim number 123002222650.  But the O.Ps were not settling the claim even though the repair estimation as submitted by Padma Motors on 20.10.2022 was filed by the complainant.  Having no other way out, the complainant has come up with his petition before this Commission claiming the total repairing cost as estimated by the Padma Motors to the tune of Rs.5,37,390/- alongwith towing charges of Rs.15,000/-.  He has also claimed compensation to the tune of Rs.1,00,000/- for his mental agony and harassment as caused to him and also for another sum of Rs.50,000/- towards his litigation expenses.  Thus, in total the complainant has claimed a sum of Rs.7,02,390/- from the O.Ps and has further prayed for any other order as deemed fit and proper.

          Together with the complaint petition, the complainant has annexed copies of several documents in order to prove his case.

2.       Both the O.Ps have contested this case and have filed their written version jointly.  According to the written version of the O.Ps, the case is barred by principles of estoppels,waiver,acquisance, non-joinder and mis-joinder of necessary parties.  According to them, the case is concocted one which is vexatious and is liable to be dismissed since because it is not maintainable.  The O.Ps have urged that  the insured person listed in the proposal form is to abide by the terms and conditions of the policy.  They admit to have issued a Private Car Package Policy bearing number 2311100210086505000 in favour of the vehicle of the complainant bearing Registration number OD-05P-7577 which was effective from 17.7.2022 to 16.7.2023.  They received telephonic intimation from the complainant towards damage of his vehicle on 28.8.2022 but no claim form was submitted to them by the complainant.  The O.Ps had demanded the fire report estimation, copy of the repairer of the damaged vehicle of the complainant, technical report from the Ford Service Engineer. But those were not furnished by the complainant.  It is for the said reason, the O.Ps had closed the claim of the complainant and thereafter they had issued the repudiation letter to the complainant.  The O.Ps have relied upon a decision of the Hon’ble National C.D.R.Commission in the case of Devendra Kumar Verma Vrs. Oriental Insurance Company decided on 12.8.2013 wherein it is held that “the State Commission and the District Forum have not committed any illegality or irregularity in arriving at the conclusion for dismissing the said complaint.  There is also no reason to agree with the contention of the petitioner that the claim should have been allowed at least on ‘non-standard’ basis.  It is quite apparent from the letters sent by the surveyor to the petitioner that the insurance company and the surveyor tried their level best to obtain the requisite documents from the petitioner, but he did not take adequate interest in supplying the requisite information.  We, therefore, find no justification to amend the orders passed by the State Commission and the District Forum in any manner.  The revision petition is, therefore, ordered to be dismissed with no order as to costs.”

The O.Ps have also relied upon the other decisions in this connection which are as follows:

1. M/s. Seemax Constructions Pvt. Ltd. Vs. SBI, AIR 1992(Delhi) 197 wherein the suit was liable to be dismissed without going into the merits as the Plaintiff therein had suppressed the material facts from the Hon’ble Forum.
2. S.P. Chengalvarya Naidu V/s Jagannath, AIR 1994 SC 853 wherein the litigant had withheld vital documents and suppressed material fact from the Opposite Party and the Hon’ble Court relating to litigation.It was held that it was fraud being committed on court and the guilty party be thrown out at any stage.
3. Bam Dev V/s United India Insurance Co. Ltd. I(1994) CPJ 425 wherein it has been held that where the repudiation of any claim is ordered after due application of mind and on relevant reasons, it does not amount to deficiency in service.
4. New India Assurance Co. Ltd. V/s Pradeep Kumar, I(1997) CPJ 94 at 96(Delhi) wherein it was held that Hon’ble Forum does not have the jurisdiction to entertain the present complaint since the complainant has failed to show any deficiency of service on part of the O.P since the claim of the complainant was repudiated by the O.P only after due application of mind and the conclusion reached was a bona fide one.
5.  An insurance contract is a contract between the insurer and the insured and is executed by both the parties after understanding all the terms and conditions of the contract.  It has been held by Hon’ble Supreme Court in Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. [2010 10 SCC 567] as under Insurance contract – In a contract of insurance, rights and obligations are strictly governed by the terms of policy and no exception of relaxation can be given on the ground of equity.
6.    It has been held by Hon’ble Supreme Court in General Assurance Society Ltd. Vs. Chandmull Jain 1966 AIR SC 1644 as under: In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.                                                                                                                                                                                                            Thus, according to them there is no deficiency on their part as alleged by the complainant for which they have also relied upon the case of Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) 1 SCC 66 where the Hon’ble Supreme Court laid down that the test of deficiency in service lay in the complainant improving that there was some fault, imperfection, shortcoming or inadequacy in the matter of the Insurance Company and further such fault etc must be wilful.  More importantly the Hon’ble Supreme Court has held that where there is a bonafide dispute between parties and where the service provider has after considering all the material with them and the relevant facts has acted in a particular manner, then such acts will not amount to deficiency in service.  Thus, as there is no “deficiency in service” on the part of this respondent, the complaint is liable to be dismissed on this count alone.

 Accordingly, it is prayed by the O.Ps to dismiss the complaint petition as filed by the complainant.

          Together with their written version, the O.Ps have filed copies of several documents in order to support their stand.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps and if they have practised any unfair trade ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.II.

Out of the three issues, issue no. ii being the pertinent issue is taken up first for consideration here in this case.

After perusing the complaint petition, written version, written notes of submissions as filed from both the sides as well as the copies of documents available in the case record, It is noticed that admittedly the complainant is the owner of Ford Eco Sport vehicle bearing Registration number OD-05P-7577 which was insured through the O.P company and was effective from 17.7.2022 to the midnight of 16.7.2023 vide policy number 2311100210086505000.  It is not in dispute that the said vehicle of the complainant had met with a fire accident on 28.8.2022 at 4.30 P.M thereby causing damage to the body, accessories and engine of the said vehicle.  A report that effect was lodged before the IIC, Talchhua Marine Police Station of Kendrapara on 23.9.2022.  The Assistant Fire Officer of Kendrapada had also provided a certificate to that effect bearing number 5226/KDP on dated 30.9.2022 wherein it was mentioned that the Ford Eco Sport car of the complainant was gutted by fire on 28.8.2022 causing severe damage to the vehicle.  It is admitted fact that the damaged vehicle of the complainant was towed to Padma Motors Ford at Pratap Nagari of Cuttack on towing charge of Rs.15,000/-. The complainant has submitted that initially the repairing cost was estimated to be of Rs.5,37,390.72p but subsequently it was calculated to be of Rs.4,47,772/-.  The complainant urges that he was issued claim number 1230022226502.  According to the complainant though he had initiated his insurance claim, the O.P company had not settled his claim for which he had to approach before this Commission.  Per contra, it is the contention of the O.Ps that they had issued several letters to the complainant seeking from him the fire brigade report, estimate copy and technical report which the complainant had not furnished for which they had also issued reminder letters to the complainant.  In this context while scanning the documentary evidence as provided from the side of the O.Ps of this case, it is noticed that Annexure-C series were the reminder letters issued by the O.P company on 2.9.2022 and 16.9.2022 to the complainant as regards to his claim but interestingly there is no scrap of document in order to apprise this Commission that if infact such reminder letters had been really sent to the complainant and the complainant had received those.  Similarly, Annexure-D is the closure of the motor insurance claim of the complainant.  But it cannot be said to have been actually despatched from the O.P company and had reached the complainant since because there is no scrap of document to substantiate the same.  Thus, the claim of the O.Ps that they had issued several reminders to the complainant seeking Fire Brigade report, estimate copy and technical report from the complainant appears to be afterthought concocted and  ridiculous averments made by the O.Ps.  Moreso, it would be quite pertinent to quote the decision of the Hon’ble Apex Court in Civil Appeal No.4071 of 2022 in the case of Gurmel Singh Vrs. Branch Manager,National Insurance Co. Ltd. decided on 20^th May,2022, wherein  it is held that “Insurance companies refusing claim on flimsy grounds and/or technical grounds – While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control”.  Thus all the other decisions as cited by the O.Ps do not hold good to the facts and circumstances of this case. Without actually contacting the complainant and by closing down the claim of the complainant appears to be unilateral, arbitrary and whimsical action of the O.Ps in this case which is without any basis.  As such, the action of the O.Ps in this case indicates that they were deficient in their service and that they have also practised unfair trade.  Accordingly, this issue goes in favour of the complainant.

Issues no.i & iii.

          From the discussions as made above, the case of the complainant is definitely maintainable and the complainant is entitled to the reliefs as made by him.  Hence it is so ordered;

                                                       ORDER

            The case is decreed on contest against the O.Ps who are found to be jointly and severally liable here in this case.  The O.Ps are thus directed to reimburse the towing charge of Rs.15,000/- and repairing charge of the damaged vehicle of the complainant to the tune of Rs.5,37,390/- by paying the same to the complainant.  The O.Ps are further directed to pay a sum of Rs.1,00,000/- to the complainant as compensation for the mental agony and harassment as caused to him and  further to pay a sum of Rs.50,000/- in order to meet his litigation expenses.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

               Order pronounced in the open court on the 4^th day of July,2024 under the seal and signature of this Commission.

 

                                                                                               Sri Debasish Nayak

                                                                                                         President

                     

 

                                                                                   Sri Sibananda Mohanty

                                                                                                   Member