Date of filing :- 08/08/2013
Date of Order :- 21/01/2015
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM(COURT)
B A R G A R H.
Consumer Dispute Case No. 39 of 2013.
Ganesh Debta, S/o Dhaneswar Debta, aged about 56 (fifty six) years, R/o Shrihari
Nagar, P.O. Gudesira, Ps/Tahasil and Dist. Bargarh.
..... ..... ..... Complainant.
- V e r s u s -
The Senior Branch Manager, National Insurance Company ltd., Bargarh Branch Office, Bargarh, At-Canal Avenue, Bargarh, Po/Ps/Tahasil/Dist. Bargarh.
... .... .... Opposite Party.
Counsel for the Parties:-
For the Complainant:- Sri M.K.Satpathy, Advocate with others Advoates.
For the Opposite Party:- Sri Hadu Dash, Advocate.
-: P R E S E N T :-
Miss Rajlaxmi Pattnayak ..... ..... ..... ..... ..... ..... ..... P r e s i d e n t.
Mrs Anjali Behera ..... ..... ..... ..... ..... ..... ..... M e m b e r.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... ..... ..... M e m b e r.
Dt. 21/01/2015. -: J U D G E M E N T :-
Presented by Miss R. Pattnayak, President .
(1) The brief facts of the case is that, the Complainant is the Registered owner of vehicle '' Chevrolet Spark Car'' bearing No. OR-17-J-6933 which was insured with the Opposite Party(In short OP) National Insurance Company Ltd. at on IDV of Rs. 3,52,823/-(Rupees three lakh fifty two thousand eight hundred twenty three)only for the period from Dt.16/07/2011 to Dt.15/07/2012 vide Policy No. 163403/31/11/6100002103. It is alleged that, during the validity of the insurance policy, the insured vehicle was capsized on Dt.26/04/2012 due to the condition of four-way lane construction at Haldipali Chowk and suffered damage completely on the front side of the car. The intimation of the accident was given to the local Sadar Police Station, Bargarh vide Station Diary Entry No.411 Dt.26/04/2012. The Complainant lodged the claim with the Opposite Party vide claim No.16340331116190000117 for indemnification of the loss sustained by submitting required documents. The Opposite Party instead of settling the claim of the Complainant, closed the claim of the Complainant, on some false, baseless ground. Thus alleging deficiency in service on the part of the Insurance Company the Complainant filed the present case with a prayer to direct Opposite Party to pay the claim amount of Rs. 3,61,613/-(Rupees three lakh sixty one thousand six hundred thirteen) only to him for the end of Justice.
(2) In support of his case, the Complainant has filed the following documents:-
Xerox Copy of pleader Notice Dt.08/06/2013.
Letter of bill amount sent by Bharat Motors Ltd. To the Complainant on Dt.26/10/2012.
Copy of extract of Station Diary Entry No.411 Dt.26/04/2012 of Sadar Police Station, Bargarh.
Copy of insurance Policy.
Copy of premium receipt.
Work Shop bill (invoice) issued by Bharat Motors to the Complainant.
(3) On notice being served, the Opposite Party Insurance Company appeared on Dt.08/01/2014 and filed written version on Dt.16/04/2014 along with documents which are marked as Ext No. A to E . While admitting the Insurance Policy, the learned counsel for Opposite Party raised objection that the date, month of the alleged accident of the vehicle mentioned in the Complaint petition are not correct and also the driver of the car driving the vehicle and the son of the Complainant had sustained severe injuries in the alleged accident are also not true facts. The Complainant also not proved through documentary evidence the facts of spending Rs. 1,30,000/-(Rupees one lakh thirty thousand)only to repair the car, therefore he is not at all entitled to get any amount from the Opposite Party, National Insurance Company. The Opposite Party Insurance Company also pleaded that soon after received of the information from the Complainant a surveyor had been appointed who after inspection of the damaged portion of the vehicle had done the assessment for Rs.69,000/-(Rupees sixty nine thousand )only and as such this Complainants claim for payment of Rs.3,61,613/-(Rupees three lakh sixty one thousand six hundred thirteen)only is wrong. Since the Complainant did not cooperative with the Opposite Party for settlement of O.D. claim for which the O.D. claim of the Complainant was earlier closed for his non co-operation with the Opposite Party. Again on the request of the Complainant on Dt. 21/08/2012, the earlier closed claim file was reopened and the O.D. claim of the Complainant was further inquired still then the Complainant could not able to comply all requirements of the company and failed to submits all shorts of documents for settlement of his O.D claim and due to his non co-operation with the insurance company/Opposite Party, this O.D claim case was closed finally by the higher authority and as such the Complainant is responsible for his own fault for non-settlement of O.D. Claim. In view of these submissions as there is no deficiency of service by the Opposite Party against the Complainant, the Opposite Party/ Insurance Company prayed for dismissal of the Complaint case with cost as the repudiation was legitimate and closed the file as “No Claim”.
In support of his case the Opposite Party has filed the following documents which are marked as Exhibit and the judgment copy of C.C. No. 22/2012of this Forum.
Extract of Sadar Police Station Diary Entry No.411 Dt.26/04/2012.
Copy of Requisition for Motor Surveyor Appointment.
Motor claim form submitted by Ganesh Debata on Dt.30/04/2012.
Letter No.211 Dt.28/06/2012 from Opposite Party to Complainant.
Letter Dt.06/06/2012 from Surveyor to Complainant.
Letter No. 346 Dt.03/08/2012 from Opposite Party to Complainant.
Letter from Complainant to Opposite Party.
Motor Final Survey report Dt.01/01/2013.
Perused the Complainant petition, written version written arguments and documents submitted by both the parties to prove their respective claims and denial plea as per annexed list of documents, the following issues are framed for proper adjudication of the case.
ISSUE No.1(one).
Whether the Complainant is a consumer of the Opposite Party ?
It is an admitted fact by both the Parties that the Complainant has insured his vehicle i.e. Chevrolet Spark Car bearing Regd. No. 17-J-6933 having Engine No.131051 745265KL2 and Chassis No. MA6MFBF 188T104941 vide Policy No. 163403/31/11/6100002103 and the Complainant has also paid the requisite premium regarding the policy. The Complainant has also filed the copy of policy and premium receipt in this case which are also not disputed by Opposite Party in any manner. The Opposite Party has neither disputed the factum of policy nor the Complainant is a consumer. As such it is safely concluded that the Complainant is a consumer of the Opposite Party.
ISSUE No.2(two).
Whether the vehicle met with an accident causing damage to both the vehicle and persons therein.
Regarding this issue, the Complainant submitted that while the vehicle was plying, due to condition of four lane road constructions it became imbalance and capsized causing damage to body parts of the vehicle and injuries to the person who were in the car at the relevant time. The incident has duly informed to the local police. Accordingly Station Diary Entry No.411 Dt.26/04/2012 has been entered upon. The Complainant has also filed the extract copy of the said Station Diary Entry in the case issued by Sadar Police Station, Bargarh. The Complainant has also served Pleader's Notice Dt.08/06/2014 on the Opposite Party where he has clearly averred all facts including the injuries sustained by the inmates of the vehicle due to the accident. But the Opposite Party has not replied the said notice denying the factum there in. So, bald denial of the fact in their version, the Opposite party can not be allowed to get absolve there from.
To this the Opposite Party has submitted that the date, month of the alleged accident submitted by the Complainant in his complaint petition on Dt.26/04/2012 is not correct. As per the claim form submitted by the Complainant on Dt.30/04/2012 before the Opposite Party company the date of accident was on Dt.06/03/2012. It is also not true that the driver of the car driving the vehicle and the son of the Complainant had sustained injuries in the alleged accident. The Complainant has not proved the same before the Forum by submitting the original documents in order to prove his Complaint petition and as well as by submitting the injuries certificates of the treating Doctor. The Complainant has informed the facts of the alleged accident to the Opposite Party company on Dt.13/03/2012. Soon after received of the information of the Complainant on Dt,06/03/2012 the Opposite Party officially requested Er. S.C. Senapati, Surveyor, Loss Assessor and Register valuer, Bhubaneswar to assess the loss and to submit his final survey report of the alleged accident for payment of O.D. claim alleged by the Complainant. On receipt of information from Opposite Party Company, the surveyor visited the repair work shop on Dt.16/08/2012 and Dt.06/09/2012 and also conducted the initial inspection and informed the representative for arranging the dismantle of the vehicle for further inspection. However, the surveyor and loss assessor, has reported on Dt.01/01/2013, assessing the loss of the car amounting to Rs.69,000/-(Rupees sixty nine thousand)only after his survey and verification of damaged portion of the vehicle.
On this issue after going through the written version and written argument of Opposite Party and after perusing the Extract copy of Sadar Police Station Diary, report of surveyor, this Forum came to conclusion that the vehicle met with an accident causing damage to the vehicle in question and further the Opposite Party has also not disputed the matter of accident but regarding the injuries sustained by the persons who were in the relevant time inside the said car, the Complainant has neither filed any injuries certificate nor filed any prescription regarding their treatment. Besides this, the Complainant has also declared in the claim form that there is no injury to the third party and the S.D. Entry made in the Sadar Police Station, Bargarh also shows that the Complainant reported regarding the damage to vehicle only but not regarding to injury of any person. As such from the above discussions it can be safely concluded that, the vehicle met with an accident causing damage only to the vehicle in question.
ISSUE No.3(three).
Whether the Complainant has availed policy and he is entitled for the loss ?
Regarding this issue, the Forum found that, the Complainant has obtained the insurance policy on payment of due premium before the National Insurance Company which covers the period of liability from Dt.16/07/2011 to Dt.15/07/2012 is an admitted fact. No dispute regarding the policy and premium paid therein by the Parties. The accident took place within the validity period. As because there is a valid insurance coverage to the vehicle and out of the accident, the vehicle sustained damage, the Complainant's claim of damage has to be met by the Opposite Party. Hence, this issue is answer in favour of the Complainant.
ISSUE No.4(four).
Whether the Complainant is eligible to get his claimed amount or the assessed amount of Rs.69,000/-(Rupees sixty nine thousand)only that assessed by the Surveyors ?
Perusal of the Final survey report shows that, the surveyor Er. S.C. Senapati physically inspected the captioned vehicle both in pre-dismantling and post-dismantling condition on reaching at the repairer's work shop on Dt.16/05/2012 and Dt.06/09/2012 and on scrutinizing the estimate of repair issued by an authorized workshop and by taking the necessary photographs from various angles depict the nature and extent of damage sustained reported that the body shell assay of the vehicle requires repairing in order to bring it back to it's existing perfection as well as the body fittings also requires replacement and accordingly assess the loss amounting to Rs.69,000/-(Rupees sixty nine thousand)only. But after perusing the original work shop repair bills bearing invoice No. 000635 of Bharat Motors Ltd., we found that the total expenses towards repair to the damaged vehicle is Rs.1,15,000/-(Rupees one lakh fifteen thousand)only. However we relied upon the bills of repairs submitted by the Complainant and accepted this amount as the claim of the Complainant because we observe that the surveyor has assessed the loss to a lesser extent and not as per the actual loss suffered by the Complainant in the accident of the insured vehicle. Regarding the other claim of the Complainant that he has also spend amount in lifting the vehicle from the place of accident to the service station for repair and besides, the injured of the accident have been treated where in money spent in multiple count, he has not produce any documentary evidence to show the expense. So the Forum will not accept the other expenses, towards lifting of the vehicle and injury of the inmates sitting on the vehicle at the relevant time. Accordingly the Forum has not accounted the objection raised by the Opposite Party in his petition Dt.19/11/2014.
The Opposite Party has submitted the judgment copy of this Forum bearing Consumer Complaint No. 22/12 dated Dt.04/03/2014, that on Dt.04/03/2014, this Forum has passed the judgment that, the report of the surveyor is an important document which can not be brushed aside. We perused the judgment in Consumer Complaint No. 22/2012 but the referred judgment is meant in that case as per the factum and circumstance of the case but that judgment is not binding precedent on this Forum. No doubt, although assement of approved surveyor is pre-requisite for settlement of claim but the survey report is not the last and final word. It is not conclusive. On this point we rely on the decision of Hon'ble Supreme Court in the case of New India Assurance Company Ltd Vrs Pradip Kumar reported in IV (2009) CPJ 46 (SC) where in it has been held that although assessment of approved surveyor is pre-requisite for settlement of claim, but the Surveyor report is not the last and final word. It is not sacrosanct that it can not be departed from. It is not conclusive. The approved surveyor report may be basis or foundation of claim by insurer in respect of loss suffered by the insured but surely such a report is neither binding upon the insurer nor the insured. It can be ignored if it is perverse or arbitrary. Another decision reported in 11(2010) CPJ 40(SC), where Hon'ble S.C. Has rejected the report of Surveyor and investigator appointed by the insurance company as the same was motivated and intended to benefit the insurance company.
Under the above circumstance we are of the opinion that the insurance company should always take positive approach in considering such cases in the larger interest of the Company. This Forum relying upon a citation passed by Hon'ble National Commission, New Delhi in National Insurance Company Ltd Vrs Nandlal Dharmpur District Solam reported in 2010 (I) CPR 114 where Hon'ble Commission has held that insurance claim must be honestly settled without any delay. In the instant case the bills submitted by the Complainant for Rs.1,15,000/-(Rupees one lakh fifteen thousand)only towards the expenditure repair is accepted. We are of the opinion that the insurance company/Opposite Party arbitrarily, erroneously and illegally closed the genuine claim of the Complainant by taking the plea of non co-operation of the Complainant which clearly amounts to deficiency in service on the part of the Opposite Party and therefore the present complaint deserve to be allowed.
Hence Ordered.
O R D E R
The Opposite Party is directed to pay Rs.1,15,000/-(Rupees one lakh fifteen thousand)only to the Complainant with interest @ 6%(six percent) per annum from the date of closer of O.D.Claim i.e. Dt. 03/08/2012 along with compensation of Rs. 6,000/-(Rupees six thousand)only towards mental agony, harassment and litigation expenses to the Complainant with in one month from the date of Order, failing which, the total awarded amount shall carry @12%(twelve percent)only interest per annum till date of actual payment.
The case allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, (Miss Rajlaxmi Pattnayak)
P r e s i d e n t.
(Sri Pradeep Kumar Dash) ( Smt. Anjali Behera)
M e m b e r. M e m b e r.
