Date of filing:-02/02/2016.
Date of Order:-15/11/2017
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complaint No. 03 of 2016.
Kailash Chandra Agrawal S/o Late Hanuman Prasad Agrawal. aged about 62(sixty two) years, Occupation- Business R/o- Jharpali Market, Attabira Po/P.s/-Attabira Dist- Bargarh. ..... ..... ..... ..... Complainant.
-: V e r s u s :-
HDFC Ergo General Insurance Company Ltd., represented through it’s Managing Director, registered and corporate office at 1st floor,165-166 Backbay Reclamation, H.T.Parekh Marg, Churgate, Mumbai – 400020.
Mr Purva Singhani, Sr.Manager, Customer Experience Management, C/o Managing Director, registered and corporate office at 1st floor, 165-166 Backbay Reclamation, H.T.Parekh Marg, Churchgate, Mumbai-400020.
..... ..... ..... Opposite Parties.
Shree Bharat Motors Ltd represented through it’s General Manager, 9, Industrial Estate, Bareipali, Sambalpur-768006, At/Po/-Dhankauda, Near Bharat Benz Show room, Sambalpur-768006.
Rabi Narayan Tripathy, Surveyor, HDFC Ergo General Insurance Co. Ltd., At-Padhanpada, Po/Ps/Dist. Sambalpur ..... .....Proforma Opposite Parties.
Counsel for the Parties:-
For the Complainant :- Sri T.C.Tripathy, Advocate with others Advocates.
For the Opposite Party No.1(one) :- Sri A.K.Dash, Advocate.
For the Opposite Party No.2(two)
to No.4(four) :- Ex-parte.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.15/11/2017. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
The Opposite Party No.3(three) & No.4(four) are proforma Opposite Parties.
Brief Facts of the case;-
In pursuance to the Section 12 of the Consumer Protection Act 1986 the Complainant has preferred to file this case with an allegation of deficiencies of service on the part of the Opposite Parties as mentioned hereunder.
The Complainant is the registered owner of a Truck vide Regd No. OD-15-D-3611 has insured his said vehicle with the Opposite Party No.1(one) being persuaded by his officers by paying due amount of premium against the same and was issued with Policy No.2315 2008 9150 5800 000 the validity period of which is from Dt.31.10.2014 to mid night of Dt. 30.10.2015. And his case is that during the subsistence of the insurance period on Dt. 08.06.2015 at about 11.30.P.M. his said vehicle met with an accident at NH 55, near Batra gate, so immediately there after the Complainant reported about the same to the local Police of Dhanupali which was registered vide S.D Entry No. 205 and also intimated about the same to the Opposite Party No. 1(one).
Thereafter the Complainant made claim before the Office of the Opposite Party No-1(one), and on his instruction the Opposite Party No.4(four) surveyed the damage caused to the said vehicle and then the Complainant with the instruction of the Opposite Party No.1(one) repaired the same in the authorized service centre of the Opposite Party No.3(three) in presence of the Opposite Party No.4(four), and after the repair the Opposite Party No.3(three) issued a bill amounting to Rs.3,46,886/-(Rupees three lakh forty six thousand eight hundred eighty six)only besides that body of the same vehicle was to be repaired costing an amount of Rs.85,000/-(Rupees eighty five thousand)only, and again the case of the Complainant is that the Opposite Party No.1(one) paid only an amount of Rs.1,25,859/-(Rupees one lakh twenty five thousand eight hundred fifty nine)only against the total amount of Rs.4,31,886/-(Rupees four lakh thirty one thousand eight hundred eighty six)only and transferred the same to the account of the Complainant arbitrarily on Dt.08.06.2015 through R.T.G.S.
The Complainant being aggrieved of such payments wrote letters and also through E-mail regarding the loss sustained by him and requested to supply a copy of the surveyor report and photographs of the damaged conditioned vehicle taken by the Opposite Party No.4 (four) during his survey. But to no result, consequent upon which the Complainant filed an appeal before the Ombudsmen, the Opposite Party No.2(two) on Dt.04.11.2015 which was registered vide Complaint No.12816527 but to no effect as at the instance of the Opposite Party No.1(one), in his report he justified the payment made by the Opposite Party No.1(one) as correct. And also the Opposite Party No.1(one) did not supply him with the copy of the surveyor report which amounts to deficiencies of service as per the Complainant hence the case before the Forum claiming the Dt.16.09.2015 when the Opposite Party No.1(one) remitted the amount to the account of the Complainant and Dt.16.11.2015 when his appeal was rejected by the Opposite Party No.2(two), as cause of action of the case, and in his support has filed the below mentioned documents.
Xerox copy of Insurance Policy No.2315200891505800000.
Xerox copy of Registration Certificate No. OD 15 D 3611.
Xerox copy of smart Card No. OD 15 D 3611.
Xerox copy of Rout Permit No. NP/OR/999/112014/44816 Dt.19/11/2014.
Xerox copy of fitness Certificate.
Xerox copy of National Permit No. OR 99/2907/G/2014 (Part A and B).
Xerox copy of Emission Test Certificate bearing I.D. No. OR DP 0000352.
Xerox copy of Driving License (Smart Card) No. OD-1920120196675.
Xerox copy of Dhanupali P.S., S.D. Entry No. 205 Dt.08/06/2015.
Xerox copy Estimate Bill of Bharatbenz Dt.22/07/2015 (JBC No. JBC3918007 BC15000470(3 sheets).
Xerox copy of invoice bill worth Rs.3,46,886/-(4 sheets).
Xerox copy of documents showing payment of amount of G.I.C. Ltd (2 sheets).
Xerox copy of letter Dt.01/10/2015 addressed to Complainant (3 sheets).
Xerox copy of claim No. C230014124048.
Xerox copy of G-mail Dt.29.09.2015.
Xerox copy of G-mail Dt.25/09/2015.
Xerox copy of office copy of notice Dt.08/10/2015 with postal receipt.
Xerox copy of G-mail Dt.09/10/2015.
Xerox copy of G-mail Dt.04/11/2015 (2 sheets with postal receipt).
Xerox copy of letter Dt.05/11/2015.
Xerox copy of G-mail Dt.16/11/2015.
Xerox copy of letter Dt.17/11/2015.
Xerox copy of E-mail Statement Dt.08/12/2015.
Thus having gone through the complaint, the documents filed by the Complainant and after hearing the Advocate of the Complainant it seems to be a genuine one hence admitted and notice was served on the Opposite Parties for their appearance and to file their version if any and in response to the same. The Opposite Party No.1(one) only appeared and filed it’s version but rest three of them did not appear for a long time even though service was served on them so ultimately on Dt.12.07.2016 they were set Ex-parte.
And so far as the version of the Opposite Party No.1(one) is concerned on perusal of the same it is found that it is an evasive one to the case of the Complainant on several ground such as the case is not within the Jurisdiction of the Forum, it has denied to have ever persuaded by any officer of it’s Company for prompt and fair services with zero percent harassment, it has also denied the claim of the Complainant with regard to the cost of repair amounting to Rs.4,31,886/-(Rupees four lakh thirty one thousand eight hundred eighty six)only but has admitted the said accident and the amount paid amounting to Rs.1,25,859.20/-(Rupees one lakh twenty five thousand eight hundred fifty nine and twenty paise)only basing on the report of the surveyors as per the provision of the Insurance Act U/S 64 UM, beyond which they can not go, at the same time has admitted the fact of the repair in the authorized service centre of the Opposite Party No.1(one), And to that effect has claimed to have supplied the copy of the calculation sheet to the Complainant which has been prepared after deducting the depreciation cost and deleting the materials parts which are changed unnecessarily and has justified it’s paid amount, besides that the Opposite Party No.1(one) has also stated that the case as not maintainable before the Forum since the same vehicle was being used for commercial purpose and also denied the case to have any cause of action since the amount paid by him is justified and the Complainant has already received the same and as such there is no deficiencies of service on it’s part as such has prayed to dismiss the case. And in it’s support to substantiate it’s such claim has filed some documents on Dt.15.09.2017.
Survey report of the Er. Rabindra Narayan Tripathy submitted to the HDFC, ERGO Ltd.
Affidavit sworn by Rabinarayan Tripathy.
Photo Copy of HDFC ERGO GIC Ltd. to Kailash Agrawal.
Having gone through the complaint, version of the Opposite Party and respective documents filed by the Parties and after hearing the respective counsels of both the Parties, it came to our notice that there are some points for determination for proper adjudication of the case as follows.
Whether the Forum lacks territorial jurisdiction to adjudicate the case ?
Whether there is any deficiencies in rendering service to the Complainant on the part of the O.P ?
Whether the Complainant is entitled to get the claim amount ?
Whether the Complaint is maintainable in view of the said vehicle being used for commercial purpose ?
So while considering the first points of determination it reveals from the record in the paragraph No.1(one) of it’s version itself it has admitted that the Opposite Party is an Insurance Company running it’s business throughout India having it’s branch office at each District Head Quarter of the Country, And as per the provision of the Consumer Protection Act 1986 a case under the Act can be filed anywhere, where the Opposite Parties resides or carries on it’s business or has a branch office or personally works for gain, further more it reveals from the record that it has accepted the policy of the Complainant knowing fully the address of the Complainant so it should not have accepted the policy at the proposal stage of the insurance of the vehicle, further more it reveals from the materials available in the record that it has made the payments to the Complainant through Net Banking by remitting the amount to the account of the Complainant, to the Axis Bank, Janhapada, Attabira, and has made several correspondence to the Complainant through mail and letters, which it-self clarify the provision of the Act that the case can be filed at any place where the cause action arose in whole or in part, so now it’s such claim of lake Jurisdiction is not tenable, as such our view with regard to the Jurisdiction the Forum is answered in favor of the Complainant.
Secondly while dealing with the point of determination with regard to the deficiencies of service on the part of the Opposite Party, on perusal of the materials available in the record, that immediately after the accident the Complainant has reported the matter to the police and to the Opposite Party too and on it’s direction has repaired the said vehicle in the authorized service centre of the Opposite Party i.e the Opposite Party No.3(three) and has issued the bill amounting to Rs.3,46,886/-(Rupees three lakhs forty six thousand eight hundred eighty six) only so in this case now the Opposite Party is esstoped from disputing the same amount since the service centre itself is a part of it’s Company and even if it had got any dispute with the repair made by the service centre it could have stop him from the very beginning of the repair or could have ensure his appearance before the Forum and could have justify the repair or the bill submitted by it is not made as per their rules and more over it’s absence before the Forum would be taken to be final regarding the such repair and the bill submitted by it to be genuine one, further more with regard to the non supply of the surveyor’s report in time and submission of the same at the last part of the hearing of the case after a long lapse of time on Dt.15/09/2017 that too without the counter signature of the Complainant creates a cloud of doubt in the minds of the Complainant and in the mind of the Forum too, and more over non-supply of the same in time to the Complainant justifies his allegation of deficiencies of service in giving so to the Complainant especially when the said surveyor was also made a party as Opposite Party No.4(four) and duly notice was served on him and even then he did not appear nor the Opposite Party No.1(one) could take any steps for his appearance before the Forum and to give his reply if any with him which is inconsistence to the repair, but he did not do so and at the end of hearing without appearing before the Forum has filed his report along with an affidavit through the Advocate for the Opposite Party No.1(one), in such circumstances in our view his report along with the affidavit is not worth staking and in turn proves to be deficient in giving service to the Complainant to which the citation filed by the Advocate for the Complainant reported in C.P.R.(Vol-3) Page-786, 2014 squarely applies to the case accordingly our views is affirmative to the claim of the Complainant and answered accordingly in his favor.
On going through the claim of the Complainant for an amount of Rs.85,000/-(Rupees eighty five thousand)only and the bill submitted thereof is not convincingly produced or proved before the Forum as genuine one hence we are not inclined to consider the same to be genuine as such our views is expressed against the Complainant and answered against him.
Thirdly with regard to 3rd point for determination as to whether the Complainant is entitled to the claim, after examining the total materials available in the record before us, it is found that the said vehicle is repaired in the authorized service centre of the Opposite Party No.1(one) i.e in the service centre and has been made party in the case as Opposite Party No.3(three) but surprisingly he did not appear nor the service centre being the Authorized personnel and is an important Party for both the Complainant and the Opposite Party No.1(one) too, and since the matter was within the knowledge of Opposite Party No.1(one) he should have instructed to appear before the Forum and give reply, but as he did not appear, his billing amount is taken to be the genuine one for the amount of Rs.3,46,886/-(Rupees three lakh forty six thousand eight hundred eighty six)only, And further it reveals from the record that the copy of the Surveyor’s report and the photograph of the damaged vehicle if taken by him is not supplied with the Complainant and the report which has been filed before the Forum after long lapse of time without any information to the Complainant nor has obtained the signature of the Complainant if at all any such survey has been conducted then the same should have been done in presence of the Complainant. More over the said repair has been done in the authorized service centre of the Opposite Party No.1(one) it should have accepted by the Opposite Party No.1(one) correct and should have paid the claim of the Complainant. But it has not done so which amounts to deficiencies of service causing mental and physical harassment to the Complainant. So taking all these facts and circumstances in to consideration we are unanimously of the views that the Complainant is entitled for his claim to the extent of the billing amount of the Opposite Party No.3(three), the authorized service centre after deducting the paid amount of Rs.1,25,859.20/-(Rupees one lakh twenty five thousand eight hundred fifty nine and twenty paise)only for which, to which of our views is supported by a decision filed by the Advocate for the Complainant, reported in 2014(Vol-3)C.P.R.786. Hence our views is expressed in favor of the Complainant.
Fourthly whether the case is maintainable in view of the said vehicle being used for commercial purpose, while going through the materials available in the record, it reveals that the Opposite Parties has categorically made an averments in it’s version it-self that the vehicle being used for commercial purpose and also has vehemently argued in this regard in the form of oral and written arguments along with a voluminous citation of different Higher Authorities but the pleas of the Complainant is that the purpose of the insurance is the deciding factor for the claim from the insurer, who has insured the vehicle in question by receiving the due premium to indemnify the loss, if incurred in the said vehicle in case of any damage due to accident or for any mishaps in this regard we want to refer one decision of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported in the year 2005(1)C.P.R volume one wherein the Hon'ble Commission has clarified the concept of the provision of the Consumer Protection Act 1986 U/s 2(1)(d)and 2(1)(o) with that of the insurance policy in a very clear dictum quoted here as- “Consumer & service’’ whether insurance policy taken by commercial units could be said to be hiring services for commercial purpose and thereby excluded from the purview of Consumer Protection Act1986. No-taking the meaning of words “for any commercial purpose’’ would mean that goods purchased or service hired should be used in any activity directly intended to generate profit-person who takes insurance policy to cover the risk does not take policy for Commercial Purpose as policy is only for indemnification of actual loss and is not intended to generate profit-‘’ In view of the Decision of the Hon'ble Forum it reveals from the case of the Complainant tahat the said policy has been taken by him only for the purpose of the indemnification of the loss sustained to the said insured vehicle. Thus now the case became clear of any ambiguity regarding the point for determination as such those citation filed by the opposite party need not to be discussed in detail, and our view is expressed accordingly in favor of the Complainant. Hence the order follows.
O R D E R
Hence the Opposite Party No.1(one) is directed to pay an amount of Rs. 2,21,027/-(Rupees two lakhs twenty one thousand twenty seven) only with interest @ 6% (six percent) per annum from the date of filing of this case to till the date of Order i.e. Dt.15/11/2017 and an amount Rs.5,000/-(Rupees five thousand)only against the mental and physical harassment caused to him, within thirty days from the receipt of the order, in default of which, interest @ 12% (twelve percent) per annum would accrue upon the total amount till the actual realization of the same.
Accordingly the Complaint is allowed against the Opposite Party and the same is pronounced to-day i.e Dt.15/11/2017 and is disposed off.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree, I agree,
(Sri Pradeep Kumar Dash) ( Ajanta Subhadarsinee)
M e m b e r. M e m b e r (W)
