Date of Filing: 08.05.2015 Date of Final Order: 24.11.2015
The Complainant, Dipak Rajbhar has filed the present case U/S 12 of C.P. Act, 1986 praying for issuing direction upon the O.P to pay Rs.2,60,000/- to the Complainant for his compensation and relief.
The brief facts of the case as can be gathered from the case record is that the Complainant after purchase of the vehicle bearing registration No. WB-72-F/5377 (Tata Indica) insured the vehicle with the O.P, Magma HDI, General Insurance Co. Ltd., Kolkata and accordingly after full receipt of the insurance premium of Rs.7,817/- and after full satisfaction of the Opposite Party issued Insurance Policy Certificate vide No.P0014400004/4101/220505 valid up to 01/10/2013 to 30/09/2014.
Unfortunately, on 23/04/2014 at 1.30 A.M the vehicle of the Complainant was parked in front of his house, then the vehicle caught fire and on getting smell, the Complainant along with some neighbors extinguished the fire of the vehicle for which the vehicle of the Complainant was totally damaged. On 24/04/2014, the Complainant informed the said matter to the office of the O.P insurance company over phone and they advised to the Complainant to inform the said matter to the Kotwali P.S at Cooch Behar. Accordingly, on 25/04/2014, the Complainant lodged a complaint vide G.D.E. No.2385/14 dated 25/04/2014 and M.A Case No. 12/14 dated 25/04/2014 to the I/C, Kotwali P.S, Cooch Behar.
According to the advised of the O.P, the Complainant submitted total Claim Form and total estimate repairing cost issued by Anup Welding Work to the O.P insurance company for getting his claim. After receiving the aforesaid documents the O.P processing the claim No. C/15/400004/4101/1/05000601 in respect of policy No. P0014400004/4101/220505. The Complainant requested the O.P to get his claim but they did not pay any heed towards the Complainant.
Afterwards, on 16/06/2014 the O.P repudiated the claim in writing on whimsically ground. Due to such activity of the O.P the Complainant suffered great financial loss and mental pain & agony. As such the Complainant is entitled to get total insured value of Rs.1,70,000/- along with compensation for such deficiency in service on the part of the O.P.
The O.P, Magma HDI, General Insurance Co. Ltd., Kolkata has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the complainant has no cause of action to bring the case. The main contention of the O.P is that after getting information, the O.P has appointed IRDA approved one surveyor namely Bibekananda Bhadury for assessing the exact cause and extent of loss. The assessment by the surveyor was done and assessed the Complainant at best may claim compensation of Rs.59,118/-.
The O.P further contended that while scrutinizing of all claim related documents submitted by the Complainant, the policy was issued by the O.P in favour of the Complainant which was valid from 01/10/2013 to 30/09/2014 based on proposal form signed by the Complainant. Moreover, the vehicle was also registered in favour of the Complainant as well as the policy was also issued in favour of the Complainant but it was noticed that the previous Policy No.88010649 issued from Iffco Tokio General Insurance Co. Ltd. was in the name of one Swapan Kumar Paul whereas, the Complainant had submitted the said policy in his name. Due to above mentioned discrepancies and claim stands repudiated by the O.P due to violation of policy terms, conditions, warranties and exclusion. The O.P further stated in their W/V that the policy was issued by them on the basis of misrepresentation and suppression of material fact and by using fraudulent means and recourse hence, claim of the Complainant rightly repudiated by the O.P. Considering the above facts and circumstances of the claim, the Complainant is not entitled to get any relief as prayed by him.
Ultimately, this answering O.P prayed for dismissal of the case with exemplary cost.
In the light of the contention of the complainant, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, perused the entire documents in the record also heard the argument by the parties at a length.
Point No.1.
The Complainant obtained an insurance policy from the O.P regarding his vehicle on payment of premium of Rs.7,817/-. So, the Complainant is a consumer U/S 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
Cause of action of this case arose on 23/04/2014 at night when the vehicle in question caught on fire, while it was lying infront of the house of the Complainant situated at R.N. Road, P.S. Kotwali, Dist. Cooch Behar within jurisdiction of the Forum and the complaint value is Rs.2,60,000/-, which is far less than Rs.20,00,000/- i.e. maximum pecuniary limit of the Forum.
So, this Forum has pecuniary and territorial jurisdiction to try this case.
Point No.3 & 4.
Both the points are taken up for consideration for convenience of discussion.
The Complainant, Dipak Rajbhar in his complaint and evidence stated that after purchase of the vehicle bearing registration No. WB-72-F/5377 (Tata Indica) insured the vehicle with the O.P, Magma HDI, General Insurance Co. Ltd., Kolkata and accordingly after full receipt of the insurance premium of Rs.7,817/- and after full satisfaction of the Opposite Party issued Insurance Policy Certificate vide No.P0014400004/4101/220505 valid up to 01/10/2013 to 30/09/2014.
‘Annexure-A’ i.e. Certificate of Registration issued by Registering Authority, Jalpaiguri and ‘Annexure-A1’ is Tax payment token show that the Complainant, Dipak Rajbhar is the owner of the vehicle No. WB-72-F/5377.
‘Annexure-B & B1’ i.e. Insurance Certificate and Receipt dated 04/10/2013 show that vehicle in question was under insurance coverage of the O.P insurance company for the period from 01/10/2013 to 30/09/2014 (mid night) and Rs.7,817/- was paid as premium.
Alleged accident happened on 23/04/2014 at 1.30 A.M. So the accident happened within insurance coverage period.
The Complainant in his evidence also stated that Unfortunately, on 23/04/2014 at 1.30 A.M the vehicle of the Complainant was parked in front of his house, then the vehicle caught fire and on getting smell, the Complainant along with some neighbors extinguished the fire of the vehicle for which the vehicle of the Complainant was totally damaged. On 24/04/2014, the Complainant informed the said matter to the office of the O.P insurance company over phone and they advised to the Complainant to inform the said matter to the Kotwali P.S at Cooch Behar. Accordingly, on 25/04/2014, the Complainant lodged a complaint vide G.D.E. No.2385/14 dated 25/04/2014 and M.A Case No. 12/14 dated 25/04/2014 to the I/C, Kotwali P.S, Cooch Behar.
‘Annexure-C’ i.e. copy of G.D shows that the Complainant lodged Kotwali P.S G.D.E. No.2385/14 dated 25/04/2014 alleging that on 23/04/2014 at 1.30 A.M (night) his Tata Indica car being WB-72-F/5377 caught on fire due to short circuit.
The Complainant further stated that his car was repaired by Anup Welding Works and he submitted Claim Application before the O.P but on 16/06/2014 the O.P repudiated the claim of the Complainant in writing.
‘Annexure-D’ is repairing costs voucher issued by Anup Welding Works in favour of the Complainant shows that Rs.2,19,370/- was expended for repair of the vehicle No. WB-72-F/5377.
‘Annexure-E’ is Letter dated 16/06/2014 issued by the O.P, Magma HDI infavour of the Complainant shows that the claim of the Complainant was repudiated.
So, admittedly the O.P insurance company issued Insurance Certificate in favour of the Complainant in respect of his vehicle No. WB-72-F/5377 for the period from 01/10/2013 to 30/09/2014 and alleged incident of accident of the vehicle i.e. catching on fire took place on 23/04/2014 within coverage period of insurance.
We further find that the O.P insurance company repudiated the claim of the Complainant mainly on the ground that the previous Policy No.88010649 issued from Iffco Tokio General Insurance Co. Ltd. was in the name of one Swapan Kumar Paul but the Complainant submitted the said policy in his name.
During argument, the Ld. Agent/Adv. of the O.P insurance company submitted that the Complainant made false statement at the time of obtaining policy. So, he has not come to Forum in clean hand and not entitled to get any relief in this case.
In support of his contention he submitted three rulings i.e. 2015 (2) CPR 199 (NC), 2015 (2) CPR 88 (NC) and 2015 (2) CPR 573 (NC).
We find from the ‘Annexure-D’ i.e. Proposal Form submitted by the Complainant for obtaining Insurance Policy that there the Complainant noted that previous policy number of his vehicle was 88010649 and it was issued by Iffco Tokio General Insurance Co. Ltd.
But ‘Annexure-B’ is the copy of the Insurance Policy No.88010649 shows that the said policy relates to one Swapan Kr. Paul and in respect of one Maruti Omni Car.
So, it is clear that the Complainant put wrong policy number in the said Form in respect of previous policy.
However the O.P insurance company accepted and issued the said policy after proper enquiry and at this stage at the time of payment of compensation cannot take such plea that the Complainant put false number of previous policy and also cannot repudiated the claim of the Complainant.
Regarding ruling reported in 2015 (2) CPR 199 (NC) we find that the Complainant concealed the fact that he applied for several other Life Insurance Policy.
We find in the ruling reported in 2015 (2) CPR 88 (NC) the Complainant suppressed the facts of his health and previous hospitalization.
In the ruling reported in 2015 (2) CPR 573 (NC) the Complainant suppressed history of hysterectomy, there were extensive hypochandrial mental adhesions.
But we find that in the present case putting wrong number regarding his previous policy is not crucial like above noted rulings. So, the said rulings are not applicable in this case.
In the present case, the Complainant has claimed Rs.1,70,000/- as compensation i.e. entire amount of risk covered and by submitting Repairing Costs Voucher claimed Rs.2,19,370/- was expended by him for repairing of the vehicle in question.
But ‘Annexure-A’ i.e. Report of surveyor, Bibekananda Bhadury dated 27/05/2014 shows that he assessed loss of the Complainant at a price of Rs.59,118/-.
During hearing of argument, Ld. Agent/Adv. of the O.P submitted a ruling reported in 2015 (2) CPR 459 (NC), where Hon’ble National Commission pleased to hold that unless there are sufficient grounds to make departure from report of surveyor same should not be discarded.
We find that in the present case no such defects have been pointed out by the Complainant to discard the report of surveyor.
We find that during argument, Ld. Agent/Adv. of the Complainant submitted three rulings reported in IV (2008) CPJ 1 (SC), I (2009) CPJ 484 New Delhi and IV (2008) CPJ 39 (SC) regarding compensation.
But facts of the said cases are not relevant to the present case and as such said rulings are not applicable in this case.
Considering over all matter into consideration and materials on record, we are constrained to hold that the O.P insurance company repudiated the policy illegally, which amounts to deficiency in service and they are liable to pay Rs.59,118/- as compensation for damage of the vehicle in question as assessed by the surveyor and they are also liable to pay Rs.20,000/- as compensation for mental pain & agony, harassment and deficiency in service.
Thus, these points are decided in favour of the Complainant.
Accordingly, the case succeeds in part with costs.
ORDER
Hence, it is ordered that,
The present Case No. CC/41/2015 be and the same is allowed on contest but in part with payment of costs of Rs.5,000/- against the O.P, Magma HDI, General Insurance Co. Ltd., Kolkata.
The O.P, Magma HDI is also directed to pay Rs.59,118/- as compensation for damage of the vehicle in question as assessed by the surveyor and they are also liable to pay Rs.20,000/- as compensation for mental pain & agony, harassment and deficiency in service to the Complainant, Dipak Rajbhar.
The ordered amount shall pay to the Complainant within 45 days failure of which the O.P insurance company shall have to pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
A plain copy of this order be made available and be supplied to the parties by hand/Registered post, free of cost with A/D.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
