Presented by Miss Rajlaxmi Pattnayak.
The brief fact of the case is that the Complainant had purchased a loader vehicle bearing Engine No.4H21330700403 and Chassis No. TO7C01122 on finance from L & T Finance Pvt. Ltd. on Dt.31/03/2007 for maintenance of his livelihood by means of self-employment. The said vehicle was registered vide Registration No.OR-17F4412 before the RTO, Bargarh.The Complainant had got the said loader vehicle insured with the Opposite Party i.e. New India Assurance Company Ltd. Bargarh, vide policy No.550901/31/06/01/00001593which was valid from Dt.31/03/2007 to Dt. 30/03/2008. On completion of one year the vehicle was again insured with the Opposite Party in terms of its Registration Number i.e. OR-17-F-4412 vide policy No.550901/31/07/01/00001710 valid from Dt.31/03/2008 to Dt.30/03/2009. Similarly on completion of two years the vehicle was again insured with the Opposite Party interms of its Registration No. OR-17-F-4412 for the third year vide Policy No.550901/31/08/01/00002274 which was valid from Dt.31/03/2009 to Dt.30/03/2010 unfortunately on Dt.12/12/2009 i.e. On the third year of the insurance, the vehicle caught fire in an accident. Immediately the Complainant reported the matter to the Opposite Party, who deputed a Surveyor for sport survey and there after deputed another Surveyor for final survey. The spot surveyor submitted his report on Dt.24/12/2009 informing accident of the Complainant's said vehicle with its actual Engine number 4H2133O7OO4O3 and Chassis number TO7CO1122 as mentioned in the R.C. Book as well as available from the vehicle on physical verification. The Complainant became surprised to learn when the Final Surveyor reported that the Engine and Chassis numbers he found available in the burnt vehicle of the Complainant does not tally with the Engine Number and chassis number mentioned in the policy and the vehicle having those number i.e Engine No. O7OO399 and Chassis No. TO7CO1112 belongs to one Pradeep Biswal. The Complainant further submitted that the Engine and Chassis of the said vehicle are bearing number 4H21330700403 and T07C01122 respectively which have been mentioned in the R.C. Book and so also physically available in the vehicle even as on date from the very first insurance of the vehicle i.e. Policy No. 550901/31/06/01/00001593, valid from Dt.31/03/2007 to Dt.30/03/2008, the Engine number of the Complainant's vehicle has been wrongly mentioned to be H2133/07 22305 and Chassis number to be T07C1122. So also in the subsequent year's policies, the Opposite Party has mechanically repeated the same engine and chassis numbers without referring to the Engine and Chassis numbers mentioned in the R.C. Book or the vehicle itself though the insured vehicle's Registration number has been clearly mentioned in the Policy No.550901/31/08/00002274 valid from Dt.31/03/2009 to Dt.30/03/2010. The Complainant submitted that engine of the said vehicle bearing No. 4H21330700403 was originally supplied by the manufacturer fitted with the Chassis No. T07C01122 since the date of its purchase. The Complainant further submitted that though the engine and Chassis numbers of the vehicle have been wrongly mentioned in the policy and though it was a mistake on the part of the Opposite Party from the beginning i.e. From the first year's insurance issued on Dt.30/03/2007, the Opposite party with a view to avoid payment of the insured is taking advantage of its own mistake. Inspite of several request letters, being sent to the Opposite Party, to physically check the engine number on comparison to R.C. Book and original sale letter and to pay the insured amount as per loss of the vehicle the Opposite Party, put a deaf ear as a result he has sustained a heavy financial loss. Subsequently, the Complainant received a letter from the Surveyor and Loss Assessor Sri K.C. Malhotra, where he has admittedly mentioned that the engine number of the said vehicle has been changed in his policy which has been mentioned as H2133/0722305. Finally the Opposite Party repudiated the claim on Dt. 09/02/2011 on the grounds that, the Engine number and Chassis number of damaged vehicle are not the same as registered by registering authority as well as the insurance policy which is against the principles of natural justice. Hence alleging deficiency in service on the part of the Opposite Parties,he has filed this case with a prayer to direct the Opposite Parties to
(i) pay the insured amount.
(ii)To pay Rs. 6,40,000/-(Rupees six lakh forty thousand)only towards compensation.
(iii)To pay Rs. 2,00,000/-(Rupees two lakh)only towards harassment mental agony and shock.
(iv)To pay Rs. 25,000/-(Rupees twenty five thousand)only towards litigation expenses to the Complainant along with other reliefs as deemed fit and proper by the forum.
(2) In support of his case, the Complainant has filed the following documents as well as written argument.
Xerox copy of R.C. Book.
Xerox copy of Invoice-Cum-Challan No. 411750.
Xerox copy of Assurance Co. Ltd papers relating to Ist Policy, 2nd Policy and 3rd Policy.
Xerox copy of Pleader Notice Dt.09/02/2011 along with A.D. Card and postal receipt.
Xerox copy of Reply Notice.
Copy of Repudiation Letter Dt.09/02/2011.
Sale Certificate form No. 22 and 22(A).
Copy of application for Registration.
Temporary R.C. Book.
Peril print out of Chassis number.
Copy of the Certificate of Registration of the vehicle No. OR-17-E-6289.
Copy of the smart card (Registration Certificate) of the vehicle bearing Regd No. 6289.
(3) Notices were duly served upon the Opposite party and Proforma Opposite Party and they entered their appearance and filed their written statement on Dt.25/11/2011 and on Dt.15/12/2011 respectively.
The Opposite Party in its written version has controverted the claim of the Complainant on the following grounds:
(1)Maintainability:-
The Complainant's case is not maintainable as he is not a consumer as the services were hired by the insured for commercial purpose.
(2) Repudiation of claim:-
The Opposite Party had issued one miscellaneous and special type of vehicles policy bearing No. 550901/31/08101/002274 for a period commencing from dt.31/03/2009 to Dt.30/03/2010 in favour of one L & T Case 770 Loader BACKBOE bearing Engine No. H2133/0700305 and Chassis No. T07C1122 corresponding to Regd. No.OR-17-F-4412 and the Policy was issued subject to the terms, conditions, exclusions, warranties and limitations mentioned in the policy which forms part of the contract between the insured and Insurer. During the currency of the policy, the insured intimated that the insured vehicle was subject to fire on Dt.12/12/2009 at about 6 P.M. Soon after receipt of the information, they have deputed Er. Debabrata Mishra, Surveyor and Loss Assessor for sport survey who submitted his spot Survey report on Dt.24/12/2009. After receipt of the spot surveyor report they appointed the Final Surveyor, K.C. Malhotra for final survey who submitted his report on Dt.26/08/2010 stating that “since the Engine No. and Chassis No. as physically noted by him are neither tallying with the Engine number and Chassis number as given in R.C. Book for loader bearing Regd. No. OR-17-F-4412 nor with the Engine No. and Chassis No. given on the insurance policy, therefore the burnt loader is not of the insured loader and thus the insurers are not liable for the loss as claimed by the complainant.
The Opposite Party further stated that, after receiving the Final Survey report they engaged an Advocate- Investigator Sri Krushna Meher to ascertain from the seller- Konark Automobiles about the correct Engine number and Chassis number of the vehicle sold to the insured, who submitted his report on Dt.12/10/2010 along with all the documents issued by Konark Automobiles stating that, the machine bearing Engine No.0700399 and Chassis No. T07C01112 was sold to Pradeep Kumer Biswal but not to the complainant. The Opposite Party further submitted that they have made several efforts to ascertain the truth and finally repudiated the claim of the Complainant on Dt.09/02/2011 on the ground of fraud committed by the insured.
(3)Contract of insurance is the contract of oberima fides :-
The Opposite party submitted that the contract of Insurance is the contract of oberimafides i.e. the contract of utmost good faith. Only on the declaration of the insured, the insurance company acts to issue policy of insurance. Accordingly whatever was the declaration by the insured, the insurance company issued the policy and this has continued for three years. Normally the insured should have noticed as to whether there was any discrepancy in the policy or not and when he has accepted and continued the policy to run for consecutively three years he is estopped to say that there was mistake in the policy of insurance. Therefore contended that there is no liability to settle the claim of the Complainant and since there is no deficiency in service or negligence or unfair trade practice on the part of the Opposite Party, the case is liable to be dismissed against the Insurance Company.
(4) In support of his case, the Opposite Party filed the following documents as well as notes of written argument with citation.
Copy of the Policy of Insurance.
Copy of the Motor Claim form.
Copy of the Survey Report submitted by Er. Debabrata Mishra.
Copy of the Final Survey report submitted by Sri K.C. Malhatra.
Copy of the investigation report submitted by the Advocate-Investigator with attached copy of the letter of Konark Automobiles.
Copy of the Registration Certificate of the insured vehicle issued by the R.T.O.
(5) The Proforma Opposite Party in his written version has submitted that he has financed the Complainant in respect of the L & T Case 770 Loader Backhoe having Serial No. T01122, Chassis No. T07C01122 and Engine No. 4H2133/0700403. Since the Complainant had obtained the insurance policy from the Opposite Party in respect of the loader financed by this proforma Opposite Party from time to time after observing the requirements of insurance, it is not within his exclusive knowledge of about any irregularity in the insurance policy emerging either due to the Complainant or due to the Opposite Party. He submitted that,the Insured has to furnish a proposal form containing all the particulars and then only the policy is issued. It is further submitted that there being no allegation or claim made by the Complainant against this proforma Opposite Party, therefore the case against this proforma Opposite Party is not sustainable in the eye of law and prayed that the Complainant be dealt with in accordance with law absolving this proforma Opposite Party from any liability.
(6) In support of his case the proforma Opposite Party filed the following documents.
Xerox copy of loan-cum-hypothecation Agreement No.0003/TLA/18784 between Complainant and proforma Opposite Party Dt.30/03/2007 along with details of Borrower and summary schedule and supplementary schedule to loan- cum-hypothecation.
we have heard learned counsel for both the Parties and have carefully gone through the evidence and written arguments available on the record.
Issues for consideration:
whether the case is maintainable-
The learned counsel for the Opposite Party raised objection on the maintainability of the case challenging the status of the Complainant that he is not a consumer as the services were hired by the insured for commercial purpose.
With regard to this issue on perusal of the case record we found that the Policy in question is a Miscellaneous and special type of vehicles Policy issued by the Opposite Party in terms of Registration Number OR17F4412 relating to the vehicle L and T Case 770 Loader BACKBOE which stands in the name of the Complainant Subash Chandra Barik, for which the premium was paid by the complainant which is further proved through the documentary evidence i.e copies of assurance co. ltd papers and receipts towards deposit of premium. According to the Consumer Protection Act, if service is to be rendered at price, then it comes under the definition of consumer.
In this context, the Complainant has also disclosed in his pleading that he is a Consumer, as the vehicle was used by him for the purpose of maintenance of his livelihood by means of self-employment.
On this point we rely on the decision of Hon'ble S.C. In case of “ Laxmi Engineering Works Vrs P.S.G. Industrial Institute Reported in 1995(2) CPR-11, where in it has been held that “ A person who buys good and use them himselfs exclusively for the purpose of earning his livelihood by means ofself-employment, is within the definition of expression Consumer”
Another decision of Hon'ble NC reported in 2005 (1) CPJ 26 NC - Horsolia Motors Vrs National Insurance Company, where it was held that “ Petitioner has to be treated as a Consumer qua Insurance Company providing insurance cover for his vehicle even if it was being used for commercial purpose, the vehicle had been insured against accident and the insurance cover by itself cannot be directly related to the generation of profits and hence the insurance company having accepted to insure the vehicle cannot be allowed to challenge the maintainability of the insured on the ground that it was being used for commercial purpose. The purpose of Insurance is to identify the loss of insured. Loss can not be equated with profit. Hence dispute of insurance is different from dispute for Commercial purpose. Therefore the contention of Opposite Party in this regard cannot be sustainable.
Whether repudiation of the claim of the Complainant by the Opposite Party was arbitrary, whimsical or opposed to fair trade practice Constituting deficiency in service and whether the complainant is entitled for the claim amount?
On perusal of the Repudiation letter Dt.09/02/2011,we found that the Opposite Party has repudiated the claim of the complainant on the ground that since the engine No. and the Chassis No. of the damaged vehicle as physically noted by the final surveyor are different from engine no and Chassis No. mentioned in the registration certificate as well as mentioned in the insurance policy documents of the vehicle No. OR-17F-4412 hence they did not liable to compensate the loss as the burnt loader was not insured at the materials time of accident.
Regarding this issue we perused all the connected papers relating to the vehicle bearing registration No. OR-17F-4412 i.e Copy of the sale certificate issued to the complainant,copy of invoice issued to complainant, copy of R.C. Book, Letter of dealer, copy of report of spot surveyor, we found the same chassis no and Engine Number
Papers/Report Engine No. Chassis No.
Sell certificate issued to complainant 4H2133/0700403 T07C01122
Invoice issued to Complaint 4H2133/0700403 T07C01122
R.C. Book relating to 4H2133/0700403 T07C01122
Regd. No. OR-17-F-4412 stands in the name
of the complainant
Letter of dealer 4H2133/0700403 T07C01122
Report of spot surveyor 4H2133/0700403 T07C01122
We also perused the copy of report called for by this forum from the manufacturer of the vehicle who reported to this forum through his Authorized dealer that the vehicle bearing Engine No. and chassis No. 4H2133/0700403,T07C01122 was sold and delivered to the complainant Subash Barik.
We perused the copy of the final surveyor who reported that the Engine No. and chassis Number he found in the burnt vehicle is 0700399 and T07C01112.On this point When the Forum on verification of whole record found that the engine no. and Chassis No. of the vehicle in issue is one in all other documents filed before this forum except in the policy document, so on Dt.19/11/2013 we ordered for the production of the vehicle before the forum. On Dt.09/12/2013 we physically verify the vehicle bearing Engine No.0700399 and Chassis No. T07C01112 in presence of the parties as well as the learned advocates of the parties where we come to the conclusion that the vehicle produced before the court has Regd No. OR-17-E-6289 and it belongs to Sri Pradeep Biswal establishing that his vehicle was never burnt and that It had not met any accident and that the same still plies in a very good condition and the said vehicle contains the same Engine number and Chassis number which the Final Surveyor claims to have found in the burnt vehicle of the Complainant. On perusal of the copy of the Advocate-Investigator of the Opposite Party we found that he reported these Engine No.0700399 and Chassis No. T07C01112 respectively belongs to the vehicle owned by Pradeep Kumar Biswal.
We also found from the copies of the insurance policies that during all the period of insurance, when the accident took place and during its previous year, the vehicle was insured in terms of its registration number OR-17F4412. The complainant's contention regarding that the Engine and Chassis numbers mentioned in the R.C. Book must have been compared with the same physically found in the vehicle and so it must be deemed that the vehicle bearing the Engine and Chassis numbers available in the R.C.Book was insured by Opposite Party and further the Engine number and Chassis number stated in the policy issued by the Opposite Party and it is typed out by the Opposite Party itself. So the same can not be binding on the Complainant if it differs from that of the R.C. Book. There was typographical error in the policy issued by Opposite Party and was not noticed for long three years, that itself amounts to deficiency in service is accepted by this forum.
On perusal of the receipt we found that, the Complainant paid the premium towards the policy for the long three years and the Opposite Party company accepted it by giving receipts.
Further Opposite Party in his version has submitted that the contract of insurance is the contract of oberimafides i.e. the contract of utmost good faith. Only on the declaration of the insured, the insurance company acts upon to issue policy of insurance. Accordingly, whatever was the declaration by the insured, the insurance company issued the policy and this has continued for three years. Normally the insured should have noticed as to whether there was any discrepancy in the policy or not and when he has accepted and continued the policy to run for three consecutive years, he is now estopped to say that there was mistake in the policy of insurance. This version of opposite party cannot be sustainable. On this point we rely on the decision reported in III(2008)C.P.J page No.389 at 393 in new india assurance company Limited vrs Dinesh Kumar Mittal and another decision M/S-Modern insulators Ltd vrs Oriental Insurance Company reported in AIR 2000 S.C 1014,where it was held that it is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties knew. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agent to disclose all material facts in their knowledge since obligation of good faith applies to both equally.
Further the Opposite Party did not produce the proposal form instead of several opportunities were given to the Opposite Party to create policy for the said vehicle No.OR17F4412 relating to Engine no.4H2133/0700403 and chassis No..T07C01122 so as to ascertained the alleged facts which creates doubt on the conduct of Opposite Party, further giving weightage to the version of Complainant.
Further the Opposite Party has not produce the proposal from the creat policy fro the said vehicle No. OR-17-F-4412 so as to ascertained alleged facts, which give weighage to the version of the Complainant.
The spot surveyor in its investigation report stated that the engine no and chassis no of the brunt loader vehicle of the complainant is.4H2133/0700403 and T07C01122 in terms of its registration no. OR17F4412. It would be pertinent to point out that Er. Debabratta Mishra was appointed by the Opposite Party company itself. Since the O.P Company's spot surveyor himself submitted that the engine no and chassis no. is 4H2133/0700403 and T07C01122 respectively, then we cannot understand how the final surveyor submit a different engine number and chassis number. Further opposite party company has not cited him as witness nor show any credible evidence why the engine no and chassis no. cited by the spot surveyor is discarded. Further the liability to prove fraud lies heavily on the Opposite Party. So we accept the submission of spot surveyor regarding the engine no and chassis number. It is a settled principle of law that the report of the surveyor is an important document and cannot be brushed aside. In view of the settled law and admitted fact of the Opposite Party, we found that the Opposite Party has brushing aside the report of its spot surveyor who has confirmed and affirmed the engine number and chassis numbers of the accident vehicle to be the same as claimed by the complainant. On perusal of the whole record we come to the conclusion that the final surveyor has submitted his report mentioning wrong numbers of the engine and chassis only with an intention to harass the Complainant and with an ulterior motive and, as such, the same is not acceptable.
Therefore the Opposite party company is not justified in repudiating the claim of the complainant and should have settled the claim amount. Non payment of the Insurance claim clearly amounts to deficiency in service on the part of Opposite Party and the complainant needs to be compensated for the same.
Hence Ordered.
O R D E R
The Opposite Party i.e. New India Assurance Company Ltd., Bargarh is directed to pay insured amount of vehicle Rs. 9,79,412/-(Rupees nine lakh seventy nine thousand four hundred twelve)only to the Complainant with interest @ 9%(nine percent) per annum from the date of repudiation i.e. Dt. 09/02/2011 till the date of Order i.e. Dt.24/09/2014, along with Rs. 10,000/-(Rupees ten thousand)only towards compensation, mental agony and harassment Rs. 3,000/-(Rupees three thousand)only towards litigation cost, within thirty days from the date of Order, failing which the awarded amount shall carry 12% (twelve percent) till date of actual realization.
The Proforma Opposite Party is exonerated from any charges and allegations in this case.
The case is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me
I agree, I agree, (Miss Rajlaxmi Pattnayak) (Sri Pradeep Kumar Dash)
P r e s i d e n t. M e m b e r.
