Date of Filing: 22.01.2015. Date of Disposal: 26.08.2022.
Complainant :Armina Khatun , W/O Sk. Abul Kalam, resident of Kamal Sagar, P.O. Rajbati, P.S. & Dist. Burdwan, Pin -713104.
-VERSUS -
Opposite Party : Magma HDI General Insurance Company Ltd, Represented through its Branch Manager, Durgapur Branch having its office at Banerjee Bajaj Building, G.T. Road, Bhiringi (West), Durgapur, Pin -713203.
Present : Mohammad Muizzuddeen -699Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu kr.Dutta - Hon’ble Member.
Appeared for the Complainant : Shri Suvro Chakraborty Ld. Advocate.
Appeared for the Opposite Party : Shri Saurav Kumar Mitra Ld. Advocate.
FINAL ORDER
On 22.01.2015 the complainant Armina Khatun lodged this complaint u/S 12 of the Consumer Protection Act, 1986 against the OP-Magma HDI General Insurance Company Ltd.
The case of the complainant, in brief, is that the complainant purchased a heavy goods vehicle with the help of the financial assistance from the S.B.I. As such the vehicle was hypothecated to the State Bank of India. The complainant got renewed insurance policy every year. For the year 2013014 the policy No. was P 0014400006/4103/114390 and the same was valid from 23.04.2013 to 22.04.2014. But the address of the complainant in the policy has been recorded as Kamalnagar instead of Kamalsagar by mistake. Subsequently, the said vehicle met with an accident in the State of Andrapradesh under the West Godavari Police Station for which the vehicle got severe damage. The matter was intimated to the Insurance Company and the OP Insurance Company lodged a claim bearing No. MDH/1128 dt. 08.06.2013. After spot survey, the vehicle got released by your complainant after paying a sum of Rs.300/- . The vehicle was brought to Burdwan and put in the garage of Chowdhury Fabricators and Classic Automobiles. The Xerox copy of the money receipt so issued by the said Police Station has been annexed. After that, a surveyor namely S. Roy was appointed and made his survey work and an estimate for repairing the vehicle was handed over to the complainant. The estimate of labour charges was of Rs. 2, 11,500/- . Meanwhile on 12/08.2013 a letter was received by the complainant for production of copy of FIR and police intimation. The complainant forwarded the documents vide her letter dt. 26.08.2013. Again, on 19.09.2013 the complainant was asked for filing all documents. Lastly the complainant came to know in view of letter dt. 03.12.2013 that her claim was repudiated on illegal, imaginary grounds by the OP No.1. The complainant is a bonafide customer of the OP-Insurance Company. She has done neither any act of detrimental interest of the OPs. Moreover, no survey report has been produced by the Insurance Company to the complainant. The act of the OP No.1 is deficient in service and unfair trade practice. Due to such illegal repudiation of the OP, the complainant has no other alternative but to stop the repairing works of her vehicle and the condition of the vehicle is more deteriorating day by day. Apart from it, the complainant has been facing causeless interest of the Proforma Opposite Party –State Bank of India. Further the case of the complainant is that in the Written version no such report has been produced about the Surveyor’s Assessment of Rs.1, 00,000/- . On the other hand, from the report of expert, it appears that the vehicle was not in repairable condition as the chassis has been bent. The complainant strongly believes that the assessor has not assessed the loss which is also a deficiency in service and unfair trade practice on the part of the OP No.1. As the vehicle is not repairable, the complainant is entitled to get I.D.V of the vehicle.
Upon this background, the complainant prayed for an order directing the OP No.1 to pay a sum of Rs. 9, 85,500/- for deficiency in service and unfair trade practice of the OP No.1 along with a direction to pay a sum of Rs.25, 000/- for mental pain, agony and harassment and Rs.5, 000/- as litigation cost and interest @ 18% p.a. from the date of accident till the date of realization.
OP No.1 has contested the case by filing W/O (Written Version) contending inter alia that the complainant has no bonafide cause of action for the case and that the complaint is not maintainable under the Consumer Protection Act, 1986 and that the complaint is mis-conceived one and is barred under the principle of estoppels, waiver and acquiescence and that the complainant is not a consumer as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 and that the complaint is frivolous , mala fide , baseless and motivated and that same is liable to be rejected with exemplary costs.
The specific case of the OP is that OP admitted the insurance policy issued by it in favour of the complainant by covering the risk of vehicle No. WB 41D-4641 subject to the terms and conditions stipulated therein and the said policy was valid from 18.04.2013 to 17.04.2014. The Original copy of the policy and registration certificate are in the custody of the owner and those are very essential for proper disposal of the case. The policy was issued as commercial vehicle class (GCV) package policy. So, the complainant cannot be a consumer as per Sec. 2 of the Consumer Protection Act. He further stated that the intimation of vehicle No. WB 41D-6461/TATA 2515 was lodged before this OP because due cause due to accident and as per intimation one spot surveyor namely V.V. S. Sitaram , License No. SLA 29345 was appointed for spot survey. He submitted his report on 13.06.2013. In his report he mentioned that in spite of contacted with the Insured, the documents were not produced. It is also stated that subsequently the claim form was submitted and one Surveyor namely Subarna Roy was appointed for survey and the survey report was submitted from the Survey report it appears that the surveyor assessed the loss of Rs.1,00,000/- and made a proposal for cashless settlement at Rs.80,000/- but the complainant was not agreed in such settlement. It is further stated that the OP vide his letter dt. 12.08.2013 asked the complainant for submitting the copy of FIR and/or and police intimation. . Again on 19.09.2013 the complainant was asked for supplying of copy of FIR and Police intimation but the complainant was also asked for time required to complete the repairing work of the accidental vehicle. As the complainant has not replied to the said letter, then the claim of the complainant was repudiated on two grounds vide letter dt. 3.12.2013 of the OP. There is no act and unfair trade practice on the part of the OP rather the claim has been repudiated for non-co-operation of the complainant on the one hand and on the other hand for not producing of the required documents. The complainant has not produced the required documents and has not taken any steps towards the repairing of the vehicle, the claim was repudiated. The OP cannot be liable for any further damage which has been occurred as alleged for her own fault. The complainant, knowing fully well that she is not entitled to get any claim, has filed this instant case with all sorts of false, frivolous and contradictory allegations.
Upon this background, the OP claims for dismissal of the case.
Decision with Reasons.
The complainant, in order to prove the case, has filed the evidence-on-affidavit. The OP Magma HDI General Insurance Co. Ltd. filed the questionnaire against the said evidence and complainant filed replies to those questions.
The OP No.1 has filed evidence-on-affidavit. The complainant has filed questionnaire against the said evidence. The OP No.1 also filed replies to the said questionnaire.
The expert opinion was called for and the expert submitted the report dt. 29.05.2017 along with notice dt. 16.05.2017. OP No.1 filed questionnaire to the expert. The motor vehicle expert submitted the replies to those questions.
The complainant also filed Xerox copies of registration certificate (Annexure A), Xerox copy of Insurance Policy (Annexure-B) , Xerox copy of money receipt (Annexure-C) , Xerox copy of the estimate and one quotation (Annexure-D) , Xerox copy of the letter dt. 26.08.2013 (Annexure-F) and letter dt. 03.12.2013 (Annexure-G). OP also filed some Xerox copies of documents.
The complainant has filed Written Notes of Argument. OP also filed Written Notes of Argument.
Heard the arguments in full from both sides and the perused the written notes of arguments.
Admittedly, the vehicle in question was purchased by the complainant with the aid of finance from the State Bank of India and the said vehicle was insured under the OP-Insurance Company and the accident period was covered by the Insurance Policy. It is also admitted that the complainant intimated the fact of accident to the OP and claim was registered. The OP argued by taking defense that the vehicle was a goods carrier vehicle and the same was used for commercial purposes. As such no complaint is maintainable before this Ld. Forum for a commercial vehicle and the case is also not maintainable as the crucial question of law and fact are involved. It is a fact as per evidence that the vehicle was insured under the OP and the complainant paid insurance premium amount and the accident period was also covered by the Insurance Policy. Therefore, the plea taken by the OP that the vehicle was goods carrier vehicle and was used for commercial purpose for which the complaint is not maintainable, cannot be accepted. By paying the premium of the insurance, the complainant hired the service of the OP and not providing the said service by the OP, is deficient in service in that field of matter whether the vehicle is a goods carrying vehicle or used for commercial purpose or individual purpose is immaterial.
The OP has also taken plea that the complainant was asked to produce for some documents as per their letter dt. 12.08.2013 and again on 19.09.2013 along with complete working were received by the OP and they repudiated the claim by a letter dt. 03.12.2013 and repairing work was not started in respect of quarries from their end. But the complainant has filed copy of registration certificate and copy of insurance policy. The complainant also filed information regarding the accident, a receipt issued by the Traffic Police, West Godabari Police Station of Andrapradesh and the complainant clarified her inability to submit copy of FIR to the OP by a written letter and requested the OP to settle the dispute.
According to the well-settled principle of law, the intimation of the accident either over phone or in writing is sufficient in respect of having of such information, the complainant also submitted the challan issued by the Traffic Police, Godavari Police Station of Andrapradesh wherein it is clear that the vehicle met an accident. This is sufficient to prove the case that the vehicle met an accident. The complainant also filed an estimate dt. 07.07.2013 mentioning that the labour charges was Rs.2, 11,500/- for the accident vehicle in question. In this scenario the OP also has taken plea that the from the report of the Surveyor , it appears that the surveyor has assessed a loss of Rs.1,00,000/- and the Surveyor offered a cashless settlement of Rs.80,000/- by the insured but the complainant was not agreed with that amount and the Ld. Advocate for the OP citied a decision reported in 2019 (2) CPR 602 (NC) as mentioned in the Written Notes of Argument and submitted that the insurance claim is to be settled on the basis of the report of the loss assessor appointed by the Insurance Company and the Insurance claim is basically to be settled on the basis of the surveyor’s report until there are cogent reasons for not accepting the same. But no such surveyor’s report is forthcoming regarding the assessment of Rs.1, 00,000/- and surveyor offered a cashless settlement at Rs.80, 000/- . The repudiation letter dt. 03.12.2013 issued by the OP disclosed that as the FIR was not produced and till the repairing work was not started, the claim was repudiated.
In this regard, Ld. Advocate for the complainant has argued that once there was a valid insurance of huge sum by way of premium and the challan issued by the Traffic Police of Godavari Police Station of Andrapradesh regarding the accident, the insurance policy ought not become too technical ought not to refuse to settle the claim on non-submission of the copy of FIR. The submission of the Ld. Advocate for the complainant is hereby accepted in as much as it has already been discussed above.
As regards ‘till repairing work not stated’ which is another ground for repudiation as mentioned in the letter dt. 3.12.2013, it can be said that the according to the Xerox copy of the estimate of the accident vehicle dt. 07.07.2017, it appears that labour charges were Rs.2, 11,500/- and report dt. 29.08.2017 of Automobile Expert, it appears that it is not possible to repair and it found that the chassis of the vehicle has seriously bent and the expert reported in respect of point No.3 of the petition under M.A. 36/2017 ‘it is not possible’ i.e if the vehicle be repaired whether it be able to carry approved load as mentioned in the registration certificate or not. The expert answered ‘it is not possible’. Therefore, there is no cogent reason for not accepting the lesser amount of the cashless settlement of Rs.80,000/- though no document is forthcoming in respect of the surveyor’s report disclosing the amount of Rs.1,00,000/- and the surveyor offered a cashless settlement of Rs.80,000/-. Therefore, the submissions of the Ld. Advocate for the OP as regards the point No.3 in line of defense cannot be accepted.
The complainant has prayed that she is entitled to get the entire I.D.V of the vehicle, as her vehicle is not repairable.
Above made discussions of the case and the documents clearly indicates that the complainant is entitled to get the entire I.D.V. of the vehicle in question and the I.D.V has been mentioned in the copy of the Insurance Policy as Rs. 9, 85,500/- but the damaged vehicle in question should be handed over to the OP-Insurance Company, after getting the said I.D.V. The complainant is also entitled to get Rs.25, 000/- as compensation for mental pain, agony and harassment and Rs.5, 000/- as litigation cost as the OP committed deficiency in service as negligent.
As a result the case succeeds.
Hence, it is
ORDERED
That the Consumer Complaint No. 29/2015 be and the same is hereby allowed on contest against the OP but without any cost.
The OP-Insurance Company is directed to pay a sum of Rs.9, 85,500/- to the complainant along with Rs.25,000/- as compensation and Rs.5,000/- as litigation cost by account payee cheque within 30 days from the date of receipt of this order along with interest @ 10% p.a from the date of accident , failing which the said amount shall carry further interest @ 10% p.a till realization.
The damaged vehicle may be handed over to the OP at the time of payment.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C. Purba Bardhaman, D.C.D.R.C , Purba Bardhaman.
