Shri Aswini Kumar Patra,President:

1. The captioned consumer complaint is filed by the complainant named above inter alia alleging deficiency in service & unfair trade practice there on the part of O.ps for non settlement of his insurance claim made on account of the loss sustained when his insured vehicle got damaged in an accident dt.30/11/2022.
2.  The complainant seeks for the following reliefs:- (i)for an order directing the opposite party to pay Rs.9,43,000/- towards the cost of repair of subject insured vehicle and, (ii) to  direct the opposite party to pay Rs.50,000/- only as compensation towards  the mentally agony caused due to deficient services of Ops and, further  pray to award litigation expenses of this complaint .And further prayed to  declare the service of the opposite party as deficient service with regard to not settle his  insurance claim.
3. Heard. Peruse the material on record. We have our thoughtful consideration on the submission of both parties and notes of arguments filed by the learned counsel for the parties present.
4. The facts as stated in the complaint petition and emerged from the documents filed there with are that, the complainant is   the owner of a Chain Mounting machine (Excavator) and, got it insured with Chola MS General Insurance Co. Ltd/OP for the period of 06/01/2022 t 05/01/2023 vide Policy No.2215/00031481/000/00 and it was used for the purpose of contractors plant for digging & clouing at the work site of village  Bharuamunda, near Behera, Ps-Dharmagarh, Dist-Kalahandi. Unfortunately on dt 30.11.2022 during the digging & clouing earth at the work site at Village –Bharuamunda, subject machine suddenly slipped   ten feet down resulting  damaged of  its  cabin, Hydraulic pipe line and chain roller for which the work became stopped. This occurrence was happened in presence of Bajarang Lal Gupta. The matter was immediately informed to the insurer/opposite parties. Accordingly a claim vide No.2215001383 was lodged and after the registration of claim the surveyor of the opposite parties company visited the spot three times to survey the machine and submitted the report to the opposite party company for settlement of insurance claim. It is further submitted that, due to such damaged of the cabin, the pipe line bonnet, Engine spares, Radiator are highly required to be repaired and some parts is   be replacement for smooth function of the said machine. The complainant made several contract to the opposite party /insurance company  and requested to settle his  insurance claim but  in spite of several request the opposite parties company not yet take any steps to settle his  claim for which the complainant  sustained heavy loss . He has borrowed loan form Cholamandalam Investment and finance Company Ltd. to purchase this machine and due to delay in settlement of his  claim  he has  sustained loss due to increase of interest on the loan amount , for which he   suffered mental agony  and harassed . Now subject machine is kept at the garage at Trisul Trade Private Ltd. Jharsuguda for repairing  and the estimated cost of repairing of  said damaged machine comes at Rs.9,43,611/- only. The complainant on dated. 15.01.2023 again approached to the opposite party company with a request to settle his claim but the opposite parties deliberately dishonored his approach and not heard his grievance. Hence, this complaint.
5. The complainant to substantiate his claim has relied on the following documents and filed the self attested true copy of the same as follows for marking as evidence :-

1. Copy Insurance Policy vide No.2215/00031481/000/00 issued by op the Cholam Ms General Insurance Company for the period of the period of 06/01/2022 t 05/01/2023 vide  Annexure-1.
2. Copy of the  Contractor’s plant & Machinery Claim Form vide No.2215001383 with respect to subject machine under  Insurance Policy vide No.2215/00031481/000/00 vide  Annexure-2.
3. Copy of sale quotation issued by Trishul Thread Pvt. Ltd. Jharsuguda dt.08/12/2022 for an amount of Rs.9,43,611/- towards repairing of the subject machine vide  Annexure-3.
4. Copy of PAN card of the complainant vide  Annexure-4
5. Copy of Adhar Card of the complainant vide  Annexure-5
6. The Complaint petition is supported by an affidavit of the complainant.

6. On being notice, the Ops appeared through their learned counsel Sri S.K Panda and   filed their written version denying the complaint aggregation of deficient service & unfair trade practice. It is contended that, the insurance claim of the complaint is rightly repudiated and there in no deficient service & unfair trade practice on the part of the OP/insurer. It is submitted that, as per the  report made by the petitioner over phone, which was recorded by the OP, that, the vehicle met with accident while loading for transporting near Behera Petrol Pump and not while  the machine was used for work and that, after receiving of such intimation the claim of the petitioner was registered and surveyor was deputed to assess the loss of the machine but the petitioner  avoided to sign the declaration as per his intimation of claim to the surveyor and deviate his statement and that, it is false to say that, the petitioner repair the machine spending  Rs.9,43,611/- at Trisul Trade Pvt. Ltd. It is further submitted that, in the course of investigation, the petitioner has changed his stand as the policy does not cover any loss caused due to transportation. The complainant to get insurance benefit has manipulated the facts as because he has no marine policy to cover loss caused by transportation. As per policy condition Exception (h), it is stated that, loss due to transportation not covered. Hence, the insured manipulated the facts and falsely said that; subject machine got damaged during working at the work site. It is further contents that, during investigation, the driver of the machine was not made available to give his statement. In view of the above the claim of the petitioner was rightly repudiated.
7. The opposite party relies on the  following documents:-

1. Claim intimation.
2. Repudiation letter dated 24.02.2023.
3. Recording of intimation of insured.
4. Claim investigation report.

8. During hearing of the case, both the parties led their evidence on affidavit to substantiate their respective pleadings as prescribed under C.P.Act 2019.
9. Mr.Jyotiranjan Sen, the Manager law, Chola MS GIC Ltd, Bhubaneswar filed his evidence affidavit which contends that, there is no deficiency of service on the part of the OP insurer and that, as per submission made by the petitioner over phone ,which is recorded, the vehicle met with accident while loading the vehicle  for transporting near Behera Petrol Pump and not while the machine was used for work at site and that, the  call record has been shared to our counsel through e-mail and that, the exact time in the recording is at 2.30 minutes where claimant himself described the same, and that, copy of the call recording to be taken into record and annexed here wit as Annexure-1 and that, after receipt of information the claim of the petitioner was registered and surveyor was deputed to assess the loss of the machine and the petitioner avoided to sign the declaration as per his intimation of claim to the surveyor and deviated his statement and that, it is false to say that the petitioner repaired  the machine for Rs. 9.43,111/-at Trisul Trade Pvt Ltd. and that, in course of investigation of the petitioner changed his stand as the policy does not cover loss due to transportation and that, to get his claim he manipulated the facts as he has no marine policy to covered loss caused by transportation and that, as per policy condition Exception(h), it is stated that loss caused due to transportation which not covered and that, the insured manipulated the facts and falsely  said that it was damaged at work site and that, the driver was not made available to give his statement and that, the petitioner is solely responsible for repudiation of the claim and that, the insurer is not at all responsible for any deficiency of service for which the claim may be dismissed as there was no deficiency of service there on the part of the OP/Insurer.
10. The evidence affidavit of one Mr. Mihir Kumar Bisoi, identified himself as the  investigator of  Chola MS GICLtd, Bhubaneswar stated  that:- “I was entrusted by the insurance company to conduct investigation in this case and that, I am well  acquainted with the facts of the case .  It is a fact that, the claim lodged by the insured is not payable as cause of loss not covered under the policy taken by insured. I am filling the investigation report in which I have mentioned that, the claim was not payable as cause of loss covered under marine policy and the insured did not have marine policy.”
11. To substantiate their claim the OP has filed the self attested true copy of the  following documents:- (i) investigation report dt.Nil of one Mihir Kumar Bisoi (ii) Some Photographs of subject vehicle(iii)Contractor’s Plant and machinery insurance policy vide No.2215/00031481/000/00 for the period of 6/01/2022 to 5/01/2023 and, (iv) letter of repudiation dt.24.2.2023. But no other relied document is filed.
12. On the other hand the complainant has filed his additional evidence on affidavit which is corroborating with the averment of the complainant petition and further affirmed  that:- It is not a fact that, his insured machine met accident near Behera Petrol Pump while it was loading for transporting and that, he has  no knowledge whether Mr.Mihir Kumar Bisoi was appointed to survey the subject accident machine and that, he was never  supplied with a copy of surveyor report relied by the Op /insurance company at any point of time and that, he was  never asked to produce his driver/operator Ajit Kumar Kata for recording of his statement and that, he has  never misrepresented any facts to get insurance benefit and that ,his insurance claim is not yet settled and that, he has not yet received any repudiation letter dt. 24/02/2023 relied by the Op/insurance company with respect to subject claim and that, the opposite parties have adopted unfair & deceptive trade practice and deficient in provide service by delay  in settlement of his claim.
13. Here in this case, insurance of the subject vehicle with the   OP/insurer is not disputed so also accident dt. 30/11/2022 resulting damages to the insured vehicle during currency of the insurance policy is not disputed and, it is also not disputed that, matter of accident is intimated to the insured on 01/12/2022 accordingly a claim vide No. 2215001383 was registered and surveyor was deputed to assess the loss.
14. It reveals form the repudiation letter dt.24/02/2023 of the insurer/ O.Ps that, the claim of the complainant vide claim No. 2215001383  under the said contractor’s Plant and Machinery Policy    No. 2215/00031481/000/00 is repudiated solely  based on the investigation report.
15. The repudiation letter dt.24/02/2023 placed on the record by the OP/Insurance company contends as follows:- “On scrutiny of the claim file and investigation report ,we observed that, the cause of loss is due to loading of the machine which is not covered under the CPM Policy and we also observe that there is no valid Marine Policy which covers transit losses. Hence the claim is not tenable. As per policy condition –THE COMPANY SHALL NOT BE LIABLE UNDER THIS POLICY IN RESPECT OF –(h) loss or damages whilst in transit ,from one location to another location .(Public Libility will be payable while Contractor Plant & Machineries are on Public Roads.) We also observe that, the insured had tried to misrepresent the fact on cause of loss i.e- as per your statement that the machine was damaged at site where as it was actually damaged during loading of the machine for transportation which was established through our CRM call recording. Hence, the cause of loss was not corroborating with the documents provided by you and also tried to mislead us in order to take advantage of the insurance policy. Based on the above, we regret to inform you that ,as per policy term and conditions, claim is not tenable and we are closing your claim as NO CLAIM in our books of account.”
16. The Learned counsel for the Op /Insurer draws our attention over the investigation report based on which only, the O.ps /insurer have repudiated the claim of the complainant under the subject insurance policy.
17. Law is well settled that, report submitted by the surveyor is an important piece of evidence and has to be given due weight, though it is not sacrosanct and can be ignore, provided there is cogent evidence otherwise.
18. Here in this case, the question is to be decided is that, whether there is any negligence, deficiency in service or unfair trade practice on the part of the insurer/OP for their repudiation of the claim of insurance benefit under aforesaid insurance policy on the ground of breach / violation of policy conditions of the insurance policy i.e  the vehicle met with accident while loading the vehicle  for transporting near Behera Petrol Pump and not while the machine was used for work at site ? 
19. No CMR Call recording is placed on the record by the Op . So also no recording of intimation of insured/complainant as relied by the OP/Insurance Company is filed for our perusal. The affidavit evidence of Mr. Jyoti Ranjan Sen ,the Asst.Manager Legal ,Chola MS GIC Ltd. Bhubaneswer, para 2 & 3 contends that, as per submission made by the petitioner over phone ,which is recorded, the vehicle met with accident while loading the vehicle  for transporting near Behera Petrol Pump and not while the machine was used for work at site and that, the  call record has been shared to our counsel through e-mail and that, the exact time in the recording is at 2.30 minutes where claimant himself described the same, and that, copy of the call recording to be taken into record and annexed here as Annexure-1 but nothing such Annexure-1 is filed for our perusal and to proved the contentions of the  Op. 
20. The learned counsel for the Insurer/Op, relying on the investigation report dt. Nil, of one Meher Kumar Bisoi, placed on the record, submits that, the insurer/OP has rightly repudiate the claim of the complainant and that, there is no any negligence or deficiency in service or unfair trade practice on the part of the insurer/OP. Learned counsel for the Op further drew our attention over    the   decision   of    the Honorable  Supreme Court of India  held   in   the   case   of National   Insurance   Co.   Ltd.  V.   Ashalata   Bhowmik   reported in (2018) 9 SCC 801, where it is settled that; the parties shall be governed by theterms and conditions of the contract of insurance. On the other hand the learned counsel draws our attention over Section 15 of the Insurance Regulatory and Development Authority of India (Protection of Policyholders’ Interests) Regulations, 2017 which contents the CLAIM PROCEDURE IN RESPECT OF A GENERAL INSURANCE POLICY and submits that, the op/insurance company has not comply the said procedure and arbitrarily repudiated the claim of the complainant.
21. Law is well settled that, the burden to prove the defense raised by the insurers as regard the question as to whether there has been any breach of violation of policy conditions of the insurance policy would be upon the insurer.  The breach on the part of the insured must be a willful one being of fundamental condition by the insured himself and the burden of proof, therefore, would be on the insurer.  Reliance, in this connection, may be placed on Narcinva V. Kamath and Another vs. Alfredo Antonio Doe Martins and Others [(1985) 2 SCC 574], Skandia Insurance Company Ltd. vs. Kokilaben Chandevadan and Others [(1987) 2 SCC 654], Sohan Lal Passi vs. P. Sesh Reddy and Others [(1996) 5 SCC 21] and United India Insurance Company Ltd. vs. Lehru & Others [(2003) 3 SCC 338]
22. We think it proper to quote Section 15 :-CLAIM PROCEDURE IN RESPECT OF A GENERAL INSURANCE POLICY of Insurance Regulatory and Development Authority of India (Protection of Policyholders’ Interests) Regulations, 2017 as  follows ;  “(1). An insured or the claimant shall give notice to the insurer of any loss arising under contract of insurance at the earliest or within such extended time as may be allowed by the insurer. On receipt of such a communication, a general insurer shall respond immediately and give clear information to the insured on the procedures that he should follow. In cases where a surveyor has to be appointed for assessing a loss/claim, it shall do so immediately, in any case within 72 hours of the receipt of intimation from the insured. Insurer shall communicate the details of the appointment of surveyor, including the role, duties and responsibilities of the surveyor to the insured by letter, email or any other electronic form immediately after the appointment of the surveyor. 2. The insurer / surveyor shall within 7 days of the claim intimation, inform the insured / claimant of the essential documents and other requirements that the claimant should submit in support of the claim. Where documents are available in public domain or with a public authority, the surveyor/insurer shall obtain them. 3. The surveyor shall start the survey immediately unless there is a contingency that delays immediate survey, in any case within 48 hours of his appointment. Interim report of the physical details of the loss shall be recorded and uploaded/forwarded to the insurer within the shortest time but not later than 15 days from the date of first visit of the surveyor. A copy of the interim report shall be furnished by the insurer to the insured/claimant, if he so desires. 4. Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor, as the case may be, shall inform in writing to the insured under information to the insurer about the consequent delay that may result in the assessment of the claim. It shall be the duty equally of the insurer and the surveyor to follow up with the insured for pending information/documents guiding the insured with regard to submissions to be made. The insurer and/or surveyor shall not call for any information/document that is not relevant for the claim. 5. (i) The surveyor shall, subject to sub-regulation 4 above, submit his final report to the insurer 24 THE GAZETTE OF INDIA : EXTRAORDINARY [PART III—SEC. 4] within 30 days of his appointment. A copy of the surveyor’s report shall be furnished by the insurer to the insured/claimant, if he so desires. Notwithstanding anything mentioned herein, in case of claims made in respect of commercial and large risks the surveyor shall submit the final report to the insurer within 90 days of his appointment. However, such claims shall be settled by the insurer within 30 days of receipt of final survey report and/or the last relevant and necessary document as the case may be. (ii) Where special circumstances exist in respect of a claim either due to its special / complicated nature, or due to difficulties associated with replacement/reinstatement, the surveyor shall, seek an extension from insurer for submission of his report. In such an event, the insurer shall give the status to the insured/claimant fortnightly wherever warranted. The insurer may make provisional/ on account payment based on the admitted claim liability. 6. If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor, under intimation to the insured/claimant; to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the final survey report. Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim. 7. The surveyor, on receipt of this communication, shall furnish an additional report within three weeks from the date of receipt of communication from the insurer. 8. On receipt of the final survey report or the additional survey report, as the case may be, and on receipt of all required information/documents that are relevant and necessary for the claim, an insurer shall, with in a period of 30 days offer a settlement of the claim to the insured/claimant. If the insurer, for any reasons to be recorded in writing and communicated to the insured/claimant, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the final survey report and/or additional information/documents or the additional survey report, as the case may be. 9. In case, the amount admitted is less than the amount claimed, then the insurer shall inform the insured/claimant in writing about the basis of settlement in particular, where the claim is rejected, the insurer shall give the reasons for the same in writing drawing reference to the specific terms and conditions of the policy document. 10. In the event the claim is not settled within 30 days as stipulated above, the insurer shall be liable to pay interest at a rate, which is 2% above the bank rate from the date of receipt of last relevant and necessary document from the insured/claimant by insurer till the date of actual payment.”
23. The investigation report of Mr.Mihir Kumar Bisoi placed on the record concludes that::-  “From the above investigative finding we are of the opinion that, claim of insured might be rejected.” It further contents that:-“After all our investigation & verification, here we conclude that, this might be a genuine accident case but the owner was unable to produce the IV driver or his statement to us” .
24. It is   found that,  the  complainant has admitted the facts that, the surveyor of the opposite parties company visited the spot three times to survey the machine and submitted the report to the opposite party company for settlement of insurance claim but he has disputed the appointment Mr.Mihir Kumar Bisoi to survey the subject accident vehicle and affirm in  his evidence affidavit that :-‘‘ I have no knowledge whether Mr.Mihir Kumar Bisoi was appointed to survey my accident machine. I have never supplied a copy of surveyor report relied by the Op /insurance company at any point of time. I have never asked to produce my driver/operator Ajit Kumar Kata for recording of his statement. I have never misrepresented any facts to get insurance benefit. My insurance claim is not yet settled .I have not received any repudiation letter dt. 24/02/2023 relied by the Op/insurance Company with respect to my claim.” Which  remain un-rebutted.
25. No cogent evidence is place on the record to hold that, Mr.Mihir Kumar Bisoi was ever appointed to investigate /survey the subject accident machine & to assess the  loss caused to the complainant. Nothing placed on record to hold that, the driver/operator of the vehicle namely Sree. Ajit Kumar Kata  was ever asked for recording of his statement before the investigator/surveyor. Nothing material placed on record to hold that, the Op/insurer or the surveyor has ever took pain to  procure the  attendance of driver/operator of the vehicle/machine to record his deposition. The date of conclusion of survey/investigation & date of submission of it to the insurer is not found in the said investigation report there placed on the record. The loss has not been assessed. The copy   of the photographs of the machine placed in the record contained no image of surveyor rather; the image there in is identified as the image of the complainant/insured only. Nothing placed on record to hold that, the surveyor/investigation report is supply to the insured/complainant at any point of time. Nothing placed on record to hold that, the letter of repudiation dt. 24/02/2023 is ever served to the insured/complainant.  As such, the investigation report dt.Nil  of Mr.Mihir Kumar Bisoi is not reliable rather, we are of the opinion that ,repudiation of the claim of the insured/complainant solely based on said investigation report of  Mr.Mihir Kumar Bisoi is not proper.
26. Based on above facts & circumstances this Commission may safely conclude that, the Op/insurance company has failed to comply the CLAIM PROCEDURE IN RESPECT OF A GENERAL INSURANCE POLICY as prescribed there under Insurance Regulatory and Development Authority of India (Protection of Policyholders’ Interests) Regulations, 2017 and thereby, we  hold deficient service  & unfair trade practice there on the part of the Op/Insurance company for  settlement of claim of the complainant .
27. Here in this case, insurance with the OP , accident dt.30/11/2022 caused damaged of the vehicle and driver/operator  has valid DL is not disputed. Law is well settled that, once the assured has proved that, the case comes within the general risk, it is for the insurers to prove that, it comes within an exception. The insurance company is, thus, required to establish the said breach by cogent evidence. It may observe here in this case that, the insurance company /OP has failed to prove that, there has been breach of any conditions of policy on the part of the insured. Hence, we are of the opinion that, the insurance company/op cannot be absolved of its liability.
28. The op/insurance company has failed to assess the   quantum of loss. However, disputed the estimated cost of  Rs. 9,43,611/- for repairing of the subject machine which is   issued from the Trishul Tread Pvt dt. 08 Dec.2022  placed on the record vide Annexure 3 of the complaint petition but not disputed over the claimed  amount of Rs 7 lakh as mentioned by the insured/complainant there on the Claim Form submitted to the OP/Insurer vide Annexure 2 of the complaint petition placed on the record  . As such we are of the opinion that the Op/insurer should settled the claimed amount of Rs.7,00,000/- (seven Laks) only with interest @ 9% p.a from the date of filling of this complaint in favour of the insured/complainant. 
29. Admittedly, insurance benefit is not yet released to the complainant/insured by the Ops which certainly caused financial loss & mental agony to the complainant cannot be denied as such we are of the opinion that, there is sufficient cause of action continuing to bring this complaint.
30. This complainant is filed on 03/04/2023 before this Commission within the jurisdiction of which the ops carries on business /has a branch office is not disputed as such  this consumer complaint is found to be in time and well within the jurisdiction of this Commission  maintainable under Consumer Protection Act 2019. Hence, it is ordered.
6698606.  

This consumer complaint is allowed in part against the op/insurance company on contest with following directions:-

1. The Op/Insurance  Company is here by directed to release Rs 7(seven) lakhs with interest @ 9% p.a  from the date of  filling of this complainant i.e 03/04.2023 till its realization
2. And further, directed to pay litigation expenses of Rs.10,000/-to the complainant .
3.  As we have awarded interest over the insurance benefit payable to the complainant, hence, there shall be no order of compensation towards mental agony as claimed.
4. This order is to be is to be complied within  four weeks from the date of received of this order failing which the Op shall liable to pay interest @  18% p.a interest over the above said awarded amount to the complainant  till its realization .

Dictated and corrected by me.

  Sd/-   

  President

                       I   agree.

                                                           Sd/-

                                                        Member                                                            

Pronounced in open Commission today on this 3^rd October  2024 under the seal and signature of this Commission.

The Pending application if any is also disposed off accordingly.

This complaint could not be decided on time in want of quorum of the Commission.

      Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties.

      Complaint is disposed of accordingly.