Orissa

Sambalpur

CC/54/2015

Khirod Behera - Complainant(s)

Versus

Senior Divisional Manager (National Insurance Co. Ltd.) - Opp.Party(s)

04 Jul 2022

ORDER

PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

Consumer Case No- 54/2015

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Khirod Behera,

S/O- Late Rabihari Behera,

R/o-Lapanga

Po/Ps-Rengali, Dist-Sambalpur.                                                       …..Complainant

 

Vrs.

1. Senior Divisional Manager,

National Insurance Company Ltd.

At-Nayapada, Ps-Town, Dist-Sambalpur.

2. Mahindra & Mahindra Finance Services Ltd., Sambalpur.

Counsels:-

1. For the Complainant                   :-Sri. P.K.Mishra, Advocate & associates
2. For the O.P.No.1                          :- Sri. B.K.Purohit, Advocate & associates
3. For the O.P. No.2                         :-None           

 

DATE OF HEARING : 19.04.2022, DATE OF JUDGEMENT : 04.07.2022

DR. RAMAKANTA SATAPATHY, PRESIDENT,

1. The complainant owns a vehicle Scorpio bearing Regd.No.OD-15A-4799 O.P.No.2 is tie up with Rayal Sunderam Alliance Insurance Co.Ltd and first year insurance of vehicle made with the instance of O.P.No.2 for the period 13.8.2014 to 12.8.2015 and paid premium of Rs.19,953/-. The insured declared value (IDV) of the vehicle was Rs.6,50,000/- premium paid to O.P.No.1 towards own damage and for other legal liabilities .O.P.No.1 issued policy No.163700/31/14/630000 4095 valid from 13.8.2014 M N. Premium paid to O.P.No.1 towards own damage and for other legal liabilities. The vehicle met an accident on 25.1.2015 near the Thelkoli High School. Immediately, information was given to the Thelkoli P.S. In the accident one Bhismadev Meher succumbed to injury, brother of the complainant also sustained fracture injury on his person and to avoid law and order situation the police shifted the vehicle to Thelkoli Police Station. The fact of accident was intimated to O.P.No.1 as the vehicle was heavily damaged. Claim of the complainant registered as 1637 00311 56390000033. All documents were submitted with the O.P.No.1. The O.P.No.1 vide letter No.1879 dated 18.3.2015 sought for certain clarification and the complainant clarified it on 25.3.2015.

The repair value of vehicle was excluding IDV as it was seriously damaged. There was negotiation between Sri D.K.Mohanty, SLA deputed by O.P.No.1 regarding “NET OF SALVAGE LOSS” with the Complainant. The complainant agreed to accept the loss or “NET OF SALVAGE LOSS” made as per the acceptance note sheet. The complainant was agreed that the O.P.No.1 would pay a sum of Rs.4,50.000/- and the complainant shall surrender the R.C.Book of the vehicle.

The O.P.No.1 repudiated the claim with an allegation that the complainant had raised claim with the previous insurer i,e, Royal Sunderam Alliance Insurance Co.Ltd. and not entitled for the no claim bonus. The complainant had mis-represented and taken the benefit of no claim bonus during the period of insurance with O.P.No.1. The complainant had never received any amount towards own damage claim of the vehicle from the previous insurer and such repudiation of the claim is illegal, un-justified and beyond the prevision of law. The complainant alleged that there is deficiency in service of the O.P.No.1 and unfair trade practice.

2. The O.P.No.1 after appearance filed its version and challenged the maintainability on the ground that the vehicle was plying for commercial purpose. Passenger carrying commercial vehicle policy is package of insurance bearing no.163700/31/14/6300004095, issued infavour of the complainant covering the risk of Mahindra and Mahindra Scorpio No.OR15A4799 from 13.8.2014 to 12.8.2015. The first year policy was taken by the insured from M/S.Royal Sunderam Alliance General Insurance Co.Ltd covering 22.7.2013 to 21.7.2014 and the second year from O.P.No.1 from 13.8.3014 to 12.8.2015. The IDV was Rs.6,50,000/- and the complainant paid Rs.17,758/- as premium and service tax of @ 12.35 %.

The accident took place on 25.1.2015 but the insured reported on 12.2.2015 a delay of 18 days . Claim form was issued “without prejudice” on the same day but the complainant submitted the completed form on 13.03.2015 after 27 days . Clarification was sought vide letter no.1879 dated 18.03.2015 about non arrangement of spot survey and estimated loss of Rs.10,05,839/-. The second point was delay in intimation and submission of claim form.

The complainant clarified vide his letter dated 25.3.2015 that spot survey could not be arranged as the police took the vehicle and claim intimation due to injuries sustained by the occupants.

     Sri D.K.Mahanty “A” Grade Surveyor was deputed and he assessed the loss Rs.4,49,5000/- on “Total Loss” or “Net of Salvage loss “ basis  since the projected liability on “repairing made “ excluded 75% of the IVD.

     The insured while taking first policy had signed the declaration that “No claim has arisen in expiring policy period and that if this declaration was found to be incorrect, all benefits under the policy in respect of section -1 of the policy will stand forfeited ”. The insured would be entitled to 20% “No claim Bonus”. The O.P.No.1 sought for a clarification from Royal Sunderam Alliance Insurance Co.Ltd. about claim under previous policy. The Insurance Company vide their mail dated 09.04.2015 informed that “NIL NCB due to O.D Claim “. It means one O.D claim under the previous policy was settled and accordingly the claim of the complainant was repudiated due to mis-information and misrepresentation of facts.

The reply of the O.P.No.1 is further that Mr.Jatin Behera was the driver in claim intimation and later it was cut and written as Biswamitra Nayak . Police record shows M/S. Jatin Behera was the driver of the vehicle on 25.1.2015 at 2 P.M while coming from Bhusan Square to Lapanga, capsized near Thelkoli High School due to rash and negligent driving . Mr.Jatin Behera and including other two passengers seriously injured and one Bhismadev Meher of Khudiapali died in the hospital. Driver Jatin Kumar Behera was having D.L.No.OR-1520010003662 valid upto 11.12.2016.

The insured tried to show Sri Biswamitra Nayak as the driver in material facts and violated basic principles of insurance. The repudiation of the claim is proper on the non-disclosure of material facts of expiring policy and mis-representation of the fact of driver in alleged accident. The Company, O.P.No.1 is no way liable for the claim. The complaint is liable to be dismissed.

After perusal of the complaint, version and documents filed the following issues are framed:  

                              I S S U E S.

1. Is the complaint not maintainable on the point that the alleged vehicle No.15A-4799 is a commercial vehicle and used for commercial purpose ?
2. Is the complainant entitled for the loss sustained during accident amounting to Rs.6,50,000/- and the letter of repudiation issued by O.P.No.1 is proper?
3. What relief the complainant is entitled to receive ?

ISSUE NO.1 :      The complainant has purchased the vehicle No.OR-15-A-4799 on loan basis from the O.P.No.2. The complainant earns his livelihood from this vehicle although the vehicle is a commercial vehicle. The complainant has paid Rs.17,758/- to the O.P.No.1 towards insurance premium  for the period 13.08.2014 to 12.8.2015 MN. Accordingly the complainant is a consumer of the O.P.No.1 and the complaint is maintainable.

ISSUE NO.02:     The insurance contract between the complainant and the O.P No.1 was valid for the period 13.08.2014 to 12.08.2015 MN. Even on the date of accident on 25.1.2015.

     It is admitted by the complainant and O.P.No.1 that the vehicle in question was having declared value of Rs.6,50,000/- met the accident and on the very day matter was reported to Thelkoli Police Station . The complainant explained that due to human fatality and casuality the Thelkoi Police shifted the vehicle to Police Station to avoid law and order situation.

              The O.P.No.1 vide letter No.1879 Dtd. 18.3.2015 sought for clarification on two points:

(a):         The reasons for not arranging spot survey.

(b):         Reasons for such delay in the claim intimation (date of accident 25.1.2015, intimated on 12.2.2015 after 18 days) and submission of claim form and estimate (submitted on 13.03.2015).

     The O.P.No.1 in its version stated that the complainant reported and clarified that spot survey could not be arranged as the police took the vehicle away to the police station. The claim intimation was delayed due to injuries sustained by the occupants and death of one of the occupant and in submitting the claim form was because of the time taken by repairer. This fact is also supported from the Surveyor and Loss Assessor report dated 26.5.2015 . The assessor Assessed the vehicle and preferred the liability on “NET OF SALVAGE LOSS” basis. Because “Salvage loss” made of loss adjustment appeared the assessor quite economical in comparison to “Repairedy”made (Para-6 of the report). In this respect the Assessor prepared an acceptance note sheet from the complainant on 25.5.2015 wherein the complainant has undertaken that he is not at all interested to repair the vehicle by investing such a huge amount, as the repairing cost is much more than the limit of IDV. The complainant agreed to accept “NET OF SALVAGE LOSS” mode,

                        I.D.V          Rs.6,50,000.00

                        Less Salvage         Rs.2.00,000.00

                                           Rs.4,50,000.00

with a condition to surrender R.C.Book. From the action of Assessor/Surveyor it is apparent that the complainant has made a task to decide whether he will repair the vehicle by examining with the repairer M/S. OSL Auto Car Pvt.Ltd, Sambalpur , authorized repairer and then a private place at Bareipali.

              From the proposal form for motor insurance the proposer asked question “Are you entitled to NO CLAIM BONUS” ? the insured answerd “20% yes”, again during proposal stage name of the previous insurer Rayal Sundedram Allianz Insurance Co.Ltd. has been reflected as on 13.08.2014 declaration of complainant . The O.P.No.1 replied the proposal accepted on good faith as the proposer had also signed the declaration. From the above facts it is clear that the complainant has not suppressed any facts before the O.P.No.1 , accordingly , the allegation  misrepresentation is not acceptable . Thed O.P.No.1 submitted a claim history report wherein an amount of Rs.6,123/- has been shown paid for the period 06.01.2014 to 13.01.2014. This period does not cover the insurance coverage period of O.P.No.1. The complainant has filed an affidavit that he has not received any claim from the previous owner. The O.P.No.1 failed to file any document showing the receipt by the complainant . Accordingly , I am of the view that the complainant has not mis-represented anything before the O.P.No.1.

              Regarding driving of the vehicle No.OD-15-A-4799 at the time of accident, all the documentary evidence of police clearly say that Mr. Jatin Kumar Behera was the driver. The O.P.No.1 admits that in the initial claim intimation also Mr.Jatin Behera was the driver. It is supported with D.L of Sri Jatin Behera and charge sheet no. 22 dated 26.2.2015 .Under what circumstances the name of Jatin Kumar Behera was cut down and name of Biswamitra Nayak was written it has not been narrated by neither of the party. So it must be taken that Mr. Jatin Kumar Behera was the Driver at the time of accident. On the ground of suspicious circumstances the O.P.No.1 cannot repudiate the claim.

              From the aforesaid facts and circumstances the issue No.2 is answered in favour of the complainant.

ISSUE NO.3: What relief the complainant is entitled to receive?

              From issue No.2 it is clear that the repudiation made by the O.P.No.,1 is not proper and the complainant is entitled for the relief as the insurance contract was valid. The decision of Hon’ble NCDRC, New Delhi 2015 NCJ 425(NC) is not applicable in this case. Accordingly it is ordered

                        O R D E R.

              The complaint is allowed on contest. The O.P.No.1 is directed to pay a sum of Rs.6,50,000/- to the complainant with 4% interest towards damage of the vehicle from the day of accident i.e. 25.1.2015 within one month from the day of receipt of this order , failing which the amount will carry 12% interest till realization . For harassment the O.P.No.1 is to pay Rs.50,000/- and litigation  expense of Rs.15,000/-.

              Order pronounced in open court on this 4^th  day of July 2022.

              Supply free copies to the parties.