DATE OF DISPOSAL: 08.02.2023.
Sri P.Surya Rao, President:
The fact of the case in brief is that the complainant has filed this Consumer complaint Under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the Opposite Parties (in short O.Ps.) and for redressal of his grievance before this Commission.
The fact of the case as averred by the complainant is that, the complainant is a permanent resident of jagannath Prasad village in Ganjam district. The present complainant was using Hyundai Car model XCENT S VTVT/Saloon bearing chasis No. OD 32a 2882/Ganjam with due permission from the owner of the vehicle Sri Jagannath Panigrahy, S/O Shyamaghana Panigrahy of Avanti Nibas, Nigamnagar-1, Ankoli, Berhampur, Dist: Ganjam. The complainant has insured the vehicle above mentioned under private car package policy with O.P.No.2 on 20.12.2016. The O.P.No.2 has issued a Certificate of Insurance-cum-schedule bearing policy No.P0017400020/4101/100104 for Insured Declared Value of vehicle of Rs.5,20,000/- for a period of insurance is from 15hrs of 20.12.2016 to midnight of 19.12.2017 for which the complainant deposited a premium of Rs.19,322/- for the said declared value. The said insurance policy has covered limited liability. The said vehicle met with accident on 05.01.2017 at 11.30 P.M. at village: Chadhiapalli under Jagannathprasad Police station. The matter was reported to the Jagannathprasad police station in writing and the fact was entered in the station diary and the police has issued a extract copy of station diary entry bearing No. 178/ dated 09.04.2017 of Jagganath Prasad Police station, Dist: Ganjam to the complainant. The accident occurred during period of insurance enforced. Soon after the accident on 05.01.2017, the complainant reported the matter to the O.Ps on 06.01.2017 by submitting the claim intimation. And the O.P.No.2 issued a claim No.C/17/400007/4101/2/05024801/1. The O.Ps deputed their surveyor Sri S.B.Choudhury to inspect vehicle and assess the loss/damages and said surveyor inspected the vehicle on dt.12.01.2017 at workshop. And as per demand of the said surveyor, the complainant handed over all the related documents. Due to ignorant about the law, the complainants could not able to obtain the acknowledgement of such receipt on the day. After survey, the O.P.No.1 issued a letter bearing Ref. No: C/17/400007/4101/2/05024801/01 dated 02.02.2017 to the owner of the vehicle which was received by the complainant. Further, the O.P.No.1 issued similar type of letter on 13.02.2017bearing Ref. No.: C/17/400007/4101/2/0502480/02 and on 01.03.2017bearing Ref. No. C/17/400007/4101/2/05024801/03. On 08.03.2017 the O.P.No.1 issued another letter bearing Ref. No. C/17/400007/4101/2/05024801/closer to the owner of the vehicle and closed the claim without payment and stated that any clam can not be kept open for an indefinite period and we are hereby closing your claim without payment. We considered this as a lost opportunity to serve you. In the meanwhile the complainant in person approached the O.P. to settle the claim but to no avail. The said vehicle of complainant is lying in a workshop in damaged condition and owing to non payment of the insured amount by the O.Ps the complainant is not in a position to repair the vehicle due to paucity of the purse. Since the vehicle is in damaged condition, the complainant sustained irreparable loss which can not otherwise be compensated. However the complainant in order to save the said vehicle from further damage got it repaired by spending a huge amount incurring hand loans from friends and relatives. The total amount incurred for repair, coloring of body and replacement of the parts of the vehicle due to accident is Rs.1,38,505.00 by the complainant. Due to non-payment of the claim amount in accordance to the limits of liability and closer of claim even after receipt of all the related documents from the complainant tantamount to deficiency in service and unfair trade practices. All the O.Ps are having vicarious liability to pay the compensation along with litigation cost and insured amount of the vehicle to the complainant forthwith. Hence this consumer complaint.
2. Admitting the C.C. this commission has issued notice to the O.Ps and duly acknowledging the same & the O.Ps has appeared through advocates.
3. The O.P.No.1&2 filed written version through his advocate. It is stated that the averments made in the complaint are all not true and correct and the complainant is puts to strict proof of the same and averments those that are not specifically admitted herein are deemed to have been denied. The alleged vehicle OD-032A-2882 (HYUDNAI XENT) has registered in the name of one Jaganath Panigrahi and the claim submitted in the name of Jaganath Panigrahi. All such correspondences have made in the name of the above Jaganath Panigrahi. Hence the present complainant has no insurable interest in the present claim and for that the case is not maintainable and the same is liable to be dismissed. On the date and time of accident the owner of the above alleged vehicle was Jaganath Panigrahi and as per the R.C.Book, insurance policy as well as claim intimated by Jaganath Panigrahi. Hence the claim of the complainant is not maintainable as he has no insurable interest over the above alleged vehicle. The complainant have not approached with clean hands and they have played fraud has misled, has adhere to all such frivolous activities, has deliberately suppressed the material evidence, has concealed the truth for the purpose of the claim. Hence the complainant is not entitled for any such relief. On the alleged date and time of accident/loss the vehicle had no such insurance policy. The complainant with an ulterior motive and for the purpose of the insurance claim obtained the alleged insurance policy on 20.12.2016 from the O.P.No.2 and thereafter engineered a false and fictitious story, and given intimation to this O.P. and did not allow an opportunity for spot inspection/sport survey and remove the vehicle from the spot which in turn falls to assess the exact cause and nature of loss and no police case was lodged immediately offer the accident and also did not comply the queries of the letters of the O.P. Hence it proves that the alleged accident occurred much prior to the insurance of the above alleged insurance policy dated 20.12.2016. The complainant has given intimation much after the accident. The complainant with an ulterior motive taking the advantage of the insurance policy is trying to make fortune out of it. The O.P. issued letters to the registered owner (insured) for submission of copy of previous insurance policy (i.e. prior to 20.12.2016), FIR of concerned police station, original repair invoice with payment receipt etc. But the owner of the above vehicle could not complied the letters 02.02.2017, 13.02.2017, and 01.03.2017issued by the O.P. and finally on 08.03.2017 the O.P. has repudiated the claim. Hence the alleged claim made by the complainant are all false and baseless and for that the claim is also not maintainable on the ground that the loss has not occurred during the alleged policy period and the same is liable to be dismissed. The owner of the above vehicle has not submitted any papers inspite of the letters and reminders dated 02.02.2017, 13.02.2017 and 01.03.2017 issued by the O.P. and finally on 08.03.2017 closed the claim file for non co-operation of the owner/insured of the above alleged vehicle and intimated the same to the insured on 08.03.2017. Hence the allegations of deficiency in service as well as unfair trade practice leveled by the present complainant against these O.Ps are all false and baseless. Hence the averments made in the complaint are all false and baseless and for the purpose of the present litigation a cause of action was attempted to invent by filling the present complaint which did not possess any merit. In view of the peculiarity of the case, a series of disputed questions/complicated facts need to be adjudicated and for which examination and cross examination of witnesses and scrutinization of voluminous oral and documentary evidence at length is essential. Hence in the present dispute the complainant can seek remedy before the civil court. Hence the O.P.No1 & 2 prayed to dismiss the case.
4. We heard argument. We perused the complaint petition, written version, written arguments and documents placed on the case record. The complainant in his memo dated 08.05.2018 has stated that his complaint petition be treated as affidavit of evidence-in-chief. In his complaint he has stated that he has insured the vehicle. On the other hand perusal of Insurance certificate shows that one Jagannath Panigrahi has insured the vehicle. Registration Certificate stands in the name of Jagannath Panigrahi. He is not the complainant. The complainant is Satya Narayan Das. As such complainant is not the registered owner of the vehicle. Perused the Insurance Certificate reveals Limitation as to use:- “The policy covers use of the vehicle for any purpose other than (a) Hire or reward (b) carriage of goods (other than sample or personal luggage), (c)organize racing (d) pace making (e) speed testing (f) Reliability Trials (g) Use in connection with motor trade. The complaint petition clearly reveals that the complainant Satyanarayan Das was using the Hyundai Car model XCENT S VTVT/Saloon bearing Chasis No. OD 32a 2882/Ganjam with due permission from the owner of the vehicle Sri Jagannath Panigrahy, S/O Shyamaghana Panigrahy of Avanti Nibas, Nigamnagar-1, Ankoli, Berhampur, Dist: Ganjam. Insurance is a contract between insurer and insured. It is governed by the terms of the contract. In this case the terms of the contract clearly speaks the activity for which the insured vehicle cannot be used. It speaks that the policy covers for use of vehicle for any purpose other than hire or reward. In this case the vehicle of the owner was not using the vehicle. The insurance stands in his name. The vehicle was used by Sri Satyanarayan Das complainant. He has not got insurable interest. Since the vehicle was used in violation of contract of insurance the agreement cannot be enforceable. Accordingly the case is dismissed. No cost.
A copy of this order be also sent to the Secretary, State Consumer Disputes Redressal Commission, Odisha, Cuttack for information and copy of same be sent to the server of www.confonet.nic.in for posting in internet. After compliance the case record be consigned to record room.
The order is pronounced on 8th February 2023 in open Commission.
