Date of filing: 20.04.2018 Date of disposal: 30.08.2018
Complainant: Sujit Agasty, S/o- Sri Hiralal Agasty, Vill & P.O.- Maliara, P.S.-Barjora, Dist.- Bankura, Pin-722142
- V E R S U S -
Opposite Party: 1. Oriental Insurance Company Ltd. Address: Chairman, Oriental House, P.B. No. 7037, A-25/27, Asraf Ali Road, New Delhi-110002.
2. The Deputy General Manager, The Oriental Insurance Company Ltd., 4, Lyons Range, Kolkata-700 001.
3. The Divisional Manager, Oriental Insurance Company Ltd., Ajit Banerjee Building, 2nd Floor, Nachan Road, Durgapur, Dist. Burdwan, Pin-713213
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra & Rumania Bagchi Ghosh.
Appeared for the Opposite Party No.1, 2 & 3: Ld. Advocate, Saurabh Dey.
J U D G E M E N T
This is a case under Section 12 of the C.P. Act 1986 directing an award of Rs.5, 35,859=00 under policy, Rs.2, 00,000=00 as compensation for mental pain, agony and harassment and Rs.30, 000=00 as litigation cost.
The complainant’s case in short is that his ‘Maruti SX4’ car was insured under ‘Private Car Package’ Policy for the period of 10.07.2014 to 09.07.2015 for Rs.8, 25,937=00. The car met with an accident on 31.12.2014 at Bhiringi More while the complainant was travelling from Durgapur to Raniganj through NH-2 road and due to that the car was damaged totally. After that the complainant lodged a complaint
before the Officer-in-Charge at Faridpur P.S. which was registered as G.D. Entry No.50 dated 02.01.2015. Then the complainant informed about the accident to the Insurance Company through O.P. No.3. After the inspection of the Company it was stated that the vehicle had been totally damaged and the total liability was assessed for Rs.6, 50,000=00 on net on salvage basis. According to the terms and conditions, the complainant was entitled to get of Rs.8, 25,937=00 towards the loss. But the O.P. No.3 sent a discharge voucher to the complainant along with a letter dated 16.10.2015 by intimating that the competent authority had approved Rs.5, 35,859=00 towards full and final settlement and requested the complainant to accept the same by putting his signature on the discharge voucher. Then the complainant requested the O.P.No.2 to settle the claim as per assessment with the surveyor. But after repeated persuasion, Motor Technical Dept. issued a claim settlement voucher on 16.10.2015 of Rs.5, 35,859=00 towards full and final settlement without proper clarification of deduction of the claim. On 24.11.2015, the complainant requested the O.P. No.2 through a letter to settle the claim as per assessment with the Surveyor and thereafter lodged a complaint before the Assistant/Deputy Secretary of the office of the Insurance Ombudsman on 06.01.2016 against the O.Ps. alleging deficiency in-service and unfair trade practice and the said complaint was registered as complaint No-KOL-G-049-1516-0338. After that the O.P. No.2, against the letter dated 24.11.2015 sent a reply to the complainant on 17.02.2016 thereby explaining the deduction of the claim as alleged by the complainant and requested as earlier to submit the discharge voucher duly signed and accept the amount of Rs.5,35,859=00. On the other hand, after receiving the complaint, the Insurance Ombudsman after hearing both the parties passed an award thereby stating the claim amount of Rs.5, 35,859=00 assessed by the Insurance Company appears to be reasonable and as such the complaint is treated as closed. Then the complainant sent a letter to O.P. No.3 on 04.10.2016 declaring that he was agreed to receive Rs.5, 35,859=00 and also requested the O.P.No.2 to pay it through NEFT. Then the Divisional Manager of Oriental Insurance Company Ltd. sent a reply dated 22.11.2016 stating that the captioned claim had been settled and asked the complainant to return the wreck and discharge the voucher. Then the complainant sent the discharge voucher after signing and also submitted the R.C. Book and the keys. On 27.11.2016 the O.P. No.3 sent a letter to transfer the name of the ownership of the vehicle in favour of the O.P. - Insurance Company and also requested to return the claim with the same requests the O.P.-3 again sent a letter on 02.12.2016. After that all of a sudden, the O.P. No.3 on 22.12.2016 told the complainant that till the cancellation of ownership of the wreck of the vehicle had been completed before the RTA officer, the O.P. No.3 would not release the amount and threatened the complainant to close the file as ‘No Claim’ if he failed to communicate the O.P. No.3 within seven days. On10.01.2017 the O.P.No.3 again sent a letter asking to cancel the ownership of the wreck. The complainant became very much surprised after receiving these letters as he had already submitted previously all vehicle related documents. After that when the complainant approached with a legal notice on 02.03.2017 stating that it was not the obligation of the complainant to cancel the ownership of the wreck before the R.T.A. and the O.P. No.3 couldn’t refuse to release settlement of Rs.5, 35,859=00 till the cancellation of the ownership of the wreck and after this the O.P. 3 sent a letter dated 24.03.2017, addressing the RTA of Bankura, thereby stating that the O.Ps. were going to settle the above claim on compromised total loss without RC Book and requested to arrange to cancel the registration certificate along with other vehicular documents issued by the RTA of the vehicle. But till date, after several requests, the O.Ps. neither disburses the settled amount of Rs.5, 35,859=00 nor made any effective arrangement to cancel the registration certificate.
Hence the O.P. Nos.1, 2 & 3 in their W.V. stated that after their survey assessed the loss on three basis, i.e.,
i) Net loss on repairing basis for Rs.7, 71,826=00,
ii) On Net on Salvage basis for Rs.6, 50,500=00, and
iii) On Total Loss basis for Rs.8.26, 437=00.
The original wreck value was taken as Rs.3.00 lakhs to Rs.3.25 lakhs. The said vehicle was dismantled at a later stage in Garage which resulted in reduction of salvage/ wreck value to around Rs.1, 75,937=00 which is much lower than the earlier expected value. The O.P. No.3 also stated that as they had not yet received the confirmation about the cancellation of the documents from RTA, Bankura, they could not make any progress. So they had claimed the complaint as wholly misconceived, groundless, false and untenable in Law.
Points for Consideration
1. Is the complainant a consumer as per Section 2(1) (d) (ii) of the C.P. Act 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Have the O.Ps. any deficiency in service?
4. Whether the complainant is entitled to get relief/reliefs as prayed for?
Decision with Reasons
We have gone through the records very carefully, perused the entire documents in the records and also heard the argument at the length advanced by both the parties.
Point No.1:-
From the discussion on this point in terms of the provision of Section 2(1) (d) (ii) of the C.P. Act 1986, the complainant appears to be undisputedly a customer as well as consumer of the O.Ps.
Point No.2:-
The office and place of business of the O.P. No.3 is within the district Burdwan, i.e., within the territorial jurisdiction of this Forum. The value of the case is within the limit of Rs.20, 000.00=00. So, this Forum has territorial as well as pecuniary jurisdiction to entertain and try the instant case.
Point No.3 & 4:-
Both the points are taken up together for the sake of convenience of its disposal.
The case of the complainant is that loss was assessed on total loss basis (salvage loss basis) amounting to Rs. 6, 50,500=00 plus the salvage of the vehicle. But after repeated persuasion Motor Technical Department issued a claim settlement voucher of Rs. 5, 35,859=00 towards full and final settlement without proper clarification of deduction of the claim. The Insurance Ombudsman after hearing both parties passed an award stating that the claim amount of Rs. 5, 35,859=00 assessed by the Insurance Company appears to be reasonable and as such the complaint is treated as closed. The complainant was agreed to receive the same as full and final settlement of the claim and requested the OP-2 to pay the amount through cheque/NEFT and also to make arrangement to give the original vehicular documents with ignition key of the vehicle at the earliest. The OP replied that as it is compromise total loss the wreck is to be returned to the Ops. The complainant sent the discharge voucher after duly endorsing his signature and also submitted the original R.C. Book and the keys along with related documents. Then the OP-3 requested the complainant to transfer the name of the ownership of the vehicle in favour of the OP Insurance Company and also requested to return them the wreck for their further processing of the claim. Thereafter the OP-3 suddenly communicated the complainant that till the cancellation of ownership the wreck/salvage of the vehicle has been completed before the RTA Officer; the OP-3 will not release the amount and threatened the complainant to close the file as ‘No Claim’. Though several requests were made from the side of the complainant, the Ops neither disbursed the settled amount Rs. 5, 35,859=00 nor make any effective arrangement to cancel the registration certificate which indicates deficiency in service and unfair trade practice and compelled to file this complaint.
The case of the Ops is that OP-3 informed the RTA, Bankura that this OP is going to settle the claim on compromised total loss basis without R.C. Book and also requested the RTA to arrange to cancel the Registration Certificate along with other vehicular documents issued by the RTA, Bankura in respect of the said vehicle under his control and also informed the RTA that the damaged vehicle lying with the owner’s premises and only after receiving the confirmation from their end about cancellation of the said documents, this OP-3 would be able to proceed further but till date no response has yet been received from the RTA and/or from the complainant and as such this OP are not in a position to process the claim and also to close the file accordingly.
So it is very much clear that the award of the Insurance Ombudsman has got its finality from both sides and the complainant was ready to accept the amount but the Ops though issued discharge voucher but on the pretext of “compromised total loss basis” demanded to transfer the name of the ownership of the wreck/vehicle in favour of the Insurance Company and as the RTA, Bankura till date did not transfer the same, the Ops did not disburse the amount and not make any effective arrangement to cancel the registration certificate.
The OP has filed extract of Motor Vehicle Act, 1988 and attracts our attention on Section 50 of the said Act regarding “Transfer of ownership”.
The complainant has filed one photocopy of order of Hon’ble SCDRC, Punjab being FIRST Appeal No. 738 of 2012 in the case Surinder Pal Mittal Vs. Bajaj Allianz General Insurance Co. ltd.
The moot question is that as the complainant did not transfer the ownership of the wreck/vehicle in favour of the OP, they closed the file. Though the complainant was ready to accept the amount as awarded by the Insurance Ombudsman and the Insurance Company was also ready to pay the said amount and prepared discharge voucher and sent the same to the complainant and the complainant duly returned the same, but the Ops taking one after another plea to delay the process and harassing the complainant regarding payment of the amount of Rs. 5, 35,859=00. In the proceeding report of Insurance Ombudsman nowhere it is written that it is the liability of the complainant regarding transfer of ownership of the wreck/vehicle in favour of the Insurance Company and in the Award portion nowhere it is mentioned that after transfer of ownership of the vehicle/wreck in favour of the Insurance Company, the amount will be disbursed in favour of the complainant. So the Insurance Company after having accepted the amount as settle by the Insurance Ombudsman taking another plea of “compromised total loss basis” and putting pressure upon the complainant to transfer the ownership in their favour is unwarranted being bad in law and ethically indefensible.
Therefore, we are of the opinion that the complainant is entitled to get the amount as decided by the Insurance Ombudsman of Rs. 5,35,859=00 as total liability assessed by the Insurance Company as per T&C and offered to the complainant as full and final settlement. By taking pleas of transferring ownership in favour of the Insurance Company by the complainant is nothing but unfair trade practice and on such ground they have deprived the complainant from getting his awarded amount proves their deficiency in service. Therefore, the complainant is very much entitled to get interest on the awarded amount and also compensation for mental pain, agony and harassment. Therefore, the point Nos. 3&4 are disposed of in favour of the complainant. Thus the complaint succeeds.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 63/2017 be and the same is allowed on contest against the Ops with cost directing the Ops to pay either jointly or severally Rs. 5, 35,859=00 along with interest @7% per annum from the date of complaint till realization to the complainant and also directed to pay Rs. 5,000=00 as compensation for mental pain, agony and harassment and Rs. 2,000=00 as litigation cost to the complainant. The award be complied by the Ops within 45 days from the date of this order, in default, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Tapan Kumar Tripathy) DCDRF, Burdwan
Member
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
