DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Present: 1. Raghunath Kar, President
2. Sri Basanta Ku.Mallick, Member
3. Afsara Begum, Member
Dated the 17th day of February 2018
C.D.Case No.60 of 2017
Sri Biswanath Jena
S/o: Patitapaban Jena
Vill:Jafarpur, Po-Radhaballvpur,
Ps-Basudevpur,
Dist-Bhadrak …………………….. Complainant
(Versus)
01. Manager Oriental Insurance Co. Ltd
At/Po- Main Road, Burma Bypass
Ps/Dist-Bhadrak ………………………Opp. Parties
For the Complainant: Mr. M.A. Khan, Adv.
For the O.Ps : Sri A.K. Panda, Adv.
Date of hearing : 29.11.2017
Date of order : 17.02.2018
SRI BASANTA KUMAR MALLICK ,MEMBER
This complaint filed by the complainant against opposite party alleging deficiency of service.
The case of the complainant in brief is that he acquired a BHARAT BENZ Truck on hire purchase scheme bearing Registration No OD22E 41442 to earn his livelihood as the complainant is an unemployed youth. The said truck was insured with OP for a sum insured of Rs.27, 77,000/- on payment of 1st year premium of Rs.62187 under Nil depreciation scheme Vide policy No.345701/31/2017/10957 and the said policy was valid for the period from dt.31.12.2016 to 30.12.2017 Midnight. The said truck met an accident on dt.19.01.2017 at Balimunda under Naikanidihi police station while plying on road from Chandikhole to Dhamara. The matter of accident was immediately reported to insured (OP) and filed FIR with Naikanidihi police station requesting immediate action. In response to the intimation of the complainant, OP appointed a surveyor who conducted survey and after completion of all required formalities, complainant was permitted to shift the truck to the authorized service centre of the manufacturing company. Accordingly the complainant shifted the truck to the authorized service centre of Bharat Benz situated at Balasore and at his own cost for repairing of the vehicle and obtained an estimate showing approximate expenditure to be incurred and submitted the claim proposal to the OP, complete in all respects, during January 2017. At the time of submission of claim proposal to the insurer by the insured requesting an early settlement of the claim, OP assured to settle the claim within a fortnight or maximum within one month. Relying on the assurance of the OP, the complainant got his damaged truck repaired spending Rs 3, 20,400/-. When the opposite party did not settle the claim even after elapse of more than five months, complainant served a notice upon the OP through his advocate on dt24.07.2017 requesting settlement within a period of 15 days as he was in acute need of money to pay back to the persons from whom he had made short term borrowings to meet the repairing expenses, but the OP did not take any step till third week of August 2017 and finding no other way complainant filed dispute seeking redressal of his grievances along with settlement of his claim with cost and compensation.
OP resisted the claim and contested the Case. In the written version, the OP has challenged the maintainability of the dispute as there is no cause of action, non-joinder of necessary party and on the point of jurisdiction as the value of the truck is Rs.27,77,000/. It is also further stated by the OP that the said truck was covered under package policy for commercial vehicles and immediately after receipt of information from the complainant, OP appointed/ deputed surveyor/loss assessor Er. Manas kumat Mishra who conducted survey, assessed the loss and submitted report. In the mean while on dt. 23.01.2017 the complainant submitted claim proposal to opposite party along with an estimate of loss for an amount of Rs 2,44,593/- prepared by the authorized service centre of Bharat motors. On receipt of the claim from the complainant, OP requested to the Regional Office at Bhubaneswar to appoint another surveyor/loss assessor as the claim amount exceeds financial authority of the 1st surveyor and accordingly regional office of OP appointed another surveyor/loss assessor on 24.01.2017 to assess the loss sustained due to accident. Further OP has also submitted that no delay has been caused as the complainant has not complied with all requisites on dt, 12.07.2017. As such the OP has not caused any delay contributing to deficiency of service. Therefore the dispute filed by the complainant does not have any merit and as such complaint is liable to be dismissed.
Undisputedly, the vehicle bearing registration No.OD-22-E4142 was covered under insurance with oriental Insurance Co. Ltd, Bhadrak(OP) and the same was Nil Depreciation policy vide No.34570/31/2017/10957 which was valid for the period from dt31.12.2016 to dt.30.12.2017. It is also admitted fact that the said vehicle met with an accident on dt.19.01.2017 while the insured truck was moving from Chandikhole to Dhamara loaded with spull. Soon after the accident complainant has filed FIR with local policy and was also intimated the OP for spot verification and assessment of loss by the OP through surveyor/Loss assessor. But dispute arose when the complainant did not get his claim even after 6 months of the accident and because of such inordinate delay, complainant served a notice upon the OP through his advocate to settle the claim within 15 days from the date of receipt of notice failing which complainant would take shelter in the appropriate court of law.
Perused the complaint as well as written version filed by complainant & OP and other material evidences available on record and observed that the following points are important/relevant to discuss in order to reach at the conclusion.
- Whether the dispute is maintainable in this Forum as raised by the OP.
- Is there any deficiency of service as alleged by complainant and is there any in ordinate delay to settle the claim?
- Whether the policy is, a “Nil Depreciation” policy and what does” Nil depreciation” mean?
- In objecting the points of allegation made by the complainant, OP submitted that as there is no cause of action, non-joiner of necessary party who is the financier of the insured truck and in view of the value of the truck that exceeds the jurisdictional limit of DCDRF, the complaint so filed by the complainant is not maintainable in this Forum and also liable to be dismissed.
In opposing the above submission of the OP, complainant submitted that the cause of action arose when the vehicle met with an accident on 19.01.2017, when the complainant intimated OP about accident on 20.01.2017 and on 26.07.2017 when OP received the notice so served by the advocate of complainant and on dt.11.08.2017 when OP failed to settle the claim as mentioned in the legal notice. Hence the objection of OP, on the point of cause of action is not sustainable. As regard non-joiner of necessary party who is the financier of the case truck, complainant submitted that the financier is not supposed to pay any claim in the accident to the complainant, nor the financier has repossessed the vehicle. Had the vehicle damaged due to accident while under custody of the financier, the complainant would have made the financier as a party to this case but in the present case the financier had no role to play and therefore the complainant did not feel necessary to include the financier as a party in this case. Complainant further submitted in clarifying the point of jurisdiction that had the truck been dragged or repossessed by the financier or had there been any manufacturing defect noticed within the warranty period, the entire value of the truck would have been taken into account while filing the case. But the dispute has been filed for settlement of accidental claim only which remains within the jurisdictional limit of the Forum. Hence the objection filed and submitted in course of hearing by the OP is not sustainable.
Heard both the parties and perused materials on record and reached at the conclusion that the plea’ taken by OP does not hold good and therefore the dispute is maintainable in this Forum.
2. The complainant alleged that the accident occurred on dt. 19.01.2017, intimation about accident was given to OP on dt. 20.01.2017 and the surveyor Er. Manas kumar Mishra Surveyor/Loss assessor appointed by the OP who conducted survey and assessed the loss on dt. 20.01.2017 and the complainant furnished all relevant documents as required by surveyor instantly and submitted the claim proposal to the OP on Dt. 23.01.2017 requesting an early settlement of the claim, and the said surveyor submitted report on Dt.09.02.2017. The motive/intention of the OP was doubtful when appointed another surveyor on Dt.24.01.2017 who also conducted survey and submitted report on what date is beyond the knowledge of the complainant. When the assessment of loss due to accident was done on and before 24.01.2017, why did the OP take so much of time to settle the claim before filing of the dispute which is a clear violation of the provisions of IRDA Rule and whatever may be the amount, the OP could have settled the claim within a period of couple of months. But in spite of several approaches made by the complainant in the office of OP and even after service of notice through advocate, the OP did not take any positive step to settle the claim which is considered as inordinate delay caused by OP. On the contrary OP submitted that after the survey conducted by Er. Suvendhu kumar jena and submission of his report, the complainant was found to have not complied with all requirements, such delay was caused due to delay in complying the requirements for which OP is not responsible. In objecting the submission of OP at the time of hearing, complainant further submitted that he has provided/furnished all required documents instantly on demand of the surveyors in both the times of survey but the claim could not be settled within time frame as stipulated in the IRDA Rule. Waiting for a period of more than 6 months, complainant also issued a notice to OP through his advocate for settlement of claim within 15 days from the date of receipt of notice which was also not responded by OP. Such avoiding character of OP leads to believe that his motive/intention in appointing second surveyor is not beyond doubt. Hence the delay caused in the process of settlement of claim amounts to deficiency of service and indicates malafide intention of the OP to bring down the quantum of genuine claim of the complainant.
Heard the parties on the point of delay and the logic/Justification behind such delay could not be substantiated by the OP. Submission made by the complainant supported by material evidence which convinced the Forum to believe that the delay caused in the process of settlement of claim is intentional and the OP is found negligent in providing proper service within the stipulated time. Here in the present case, Forum feel it wise to cite the decision of National Commission in appeal case No-260 and 261 of 2011 decided on 15.03.2017 wherein the National Commission has held that “insurer is bound to accept or reject the claim within 30 days from receipt of survey report and if claim is to be rejected, reasons have to be recorded in writing” as provided in regulation- 9 of Insurance Regulatory and Development Authority (protection of policy Holders interest) Regulations, 2002. In view of above latest decision this Forum forms the opinion that inordinate delay has been caused for settlement of claim due to gross negligence of OP.
3.On the point of ” Nil Depreciation” policy, the complainant stated that, as he ordinarily mean, “Nil Depreciation” means, the loss sustained or own damage caused by the accident and the cost incurred for getting the truck repaired would be borne by the insurer to the extent of actual expenditure. Here the complainant has met all the expenses for repairing of truck which should have been paid by the insurer to the Authorized service provider of Bharat Motors. On the other hand OP submitted that the truck was insured under commercial vehicle package policy and the settlement of claim shall be made on depreciation according to age of the vehicle. Accordingly the surveyor has calculated the amount of Rs.1,88,370/- as against the claim raised by the complainant of Rs 3,20,400/- which is unrealistic and imaginary. In opposing the submission of OP, the complainant claimed that the OP has admitted their loss of Rs 2, 47,593/- in the W.V. due to accident excluding lifting and shifting charges. It is also further stated by the complainant that actually he has paid a sum of Rs 2,57,900/-to Shree Bharat Trucking through cheque on proper acknowledgement excluding other expenditures incurred for lifting and shifting of damaged truck from Balimunda to Balasore covering a distance more than 85 K.Ms and the expenses incurred for the purpose is of Rs.14500/-. Other than the above expenditures the complainant has also purchased two numbers of tyres which costs of Rs.48, 000/- and in the above manner the complainant has paid Rs. 3, 20,400/- to get the damaged truck repaired and to bring the truck on road. As the complainant has paid an amount of Rs.12, 860/- premium in excess for coverage under Nil depreciation, he is entitled to get, entire amount spent for repairing, reimbursed from the OP. Had the policy not covered under “Nil Depreciation” the complainant would have paid only Rs 49327/- or less as premium for commercial vehicle package policy. It is claimed by the complainant that since he has paid premium of Rs 62,187/- under “Nil Depreciation” policy scheme, he has every right to get the actual cost of damage excluding 50% of the cost of tyre. As calculated above and the total claim of Rs 2, 86,400/- is to be settled under this policy.
Heard the parties and perused materials on record and observed that complainant has paid Rs12, 860/- in excess as insurance premium and entitled to get entire amount, spent for repairing, reimbursed from the insurer(OP). The complainant has actually paid an amount of Rs 150,000/- on Dt.17.02.2017 Rs 7900/- in cash on the same day, Rs 50,000/- in cash on Dt. 28.01.2017 and Rs50,000/-by way of transfer on Dt. 31.01.2017 to authorized service centre of Bharat Benz named as Shree Bharat Trucking at Ganeswarpur Industrial Estate Balasore. As such the complainant has paid Rs. 2, 57,900/- for repairing of the truck. In addition to above expenditure the complainant has also spent Rs 48,000/- for purchase of two tyres out of which 50 percent is to be reimbursed by the company. Other than this the complainant has paid Rs. 10,000/- for chain pully to lift the damaged Truck at accident place and spent Rs. 4500/- for carrying from the accident spot to the authorized service centre of Bharat Benzsituated at Ganeswarpur Industrial Estate Balasore covering a distance of 85 kilometers. In this manner the complainant has spent Rs 3, 20,400/- out of which 50 percent of the tyre cost shall be deducted from the total claim as per rule. However, after deduction of 50 percent of the tyre costs, the complainant is entitled to get Rs 2, 96,400/- as his claim from the OP. Moreover if depreciation would be allowed, as submitted by the OP, the complainant will be entitled to get less 10 percent depreciation of the claim as above which would be Rs 2,66,760/- as per package policy. Commercial vehicle package policy reveals that 10 percent would be deducted as depreciation from the net claim as the vehicle was purchased during January 2016 and as such the age of the vehicle is complete one year and less than one month. As this policy covers Nil Depreciation the complainant is entitled to receive Rs 2,96,400/- as accidental claim from the opposite party.
In view of the discussion as made in foregoing paragraphs and considering the submission of parties to this case, this Forum observed that the OP has caused unnecessary delay in settlement of claim violating the provisions of Regulation-9 of IRDA (protection of policy holders’ interests) Regulation, 2002 which amounts to deficiency of service, failed to establish objections so raised in the written version and taken shelter of falsehood as the insurance policy is not covering “Nil Depreciation” and therefore liable to pay the actual cost involved in the process of repairing of the vehicle.Hence it is ordered.
O R D E R
The complaint be and the same is allowed on contest against OP with compensation and cost. OP is directed to settle the claim for Rs 2, 86,400/- together with compensation of Rs 5,000/- for mental agony and harassment and Rs.3000/- as cost of litigation within 30 days from the date of receipt of this order. Failure to comply this order will warrant interest @ 9% P.A. on the order amount from the date of filing the dispute till date of final payment.
Pronounced in the open Forum on this 17th day of February 2018, under the Seal of the Forum.
