Orissa

Kendujhar

CC/36/2016

Sri Sanjib Kumar Behera - Complainant(s)

Versus

Sr. Divisional Manager/ Regional Manager - Opp.Party(s)

Sri B.B. Mahanta & Associates

21 Sep 2016

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

KEONJHAR

                                                        CONSUMER COMPLAINT CASE NO. 36 OF 2016

Sri Sanjib kumar Behera aged about 54 years,

Son of Sashibhusan Behera, of Mining Road,

New Colony,keonjhar, P.o  Keonjhargarh,

Dist.-Keonjahr, (Odisha)…………………………………………………………………………………....…..… Complainant

                     Versus

1. Sr Divisional Manager/Regional Manager,

ICICI Lombard General Insurance Co. Ltd,(Mumbai),

ICICI Lombard House, 414, P Balumarg,

Opp  veerswark Marg,

Near Siddhi vinayak Temple,

Prabhadevi, Mumbai-400025

2. Branch Manager

ICICI Lombard General Insurance Company Limited

Parida complex, 2^nd floor,

Near police High school

At/Po- Keonjhargarh

Dist-Keonjhar Odisha

Pin-758001…………………………………………………………………………………………………….………..Opp.Parties

Email-   Present:

   Shri Purusottam Samantara,President.

   Smt. B.Giri Member(W).

   Sri Bharat Bhusan Das (M).

    Advocate for complainant  -  Nihar Ranjan Mishra & associate.   

    Advocate for O.P-1 & O.P-2 – A.K Pattanaik &associate

  Date of filing  -  30.10.2017                                                                                 Date of Order-  03.01.2018

1. Sri Purussotam Samantara - Succinctly put, the complainant owned Mahindra Scorpio-bearing    Regd No-OR-09G-7377 and obtained a comprehensive Insurance from ICICI Lombard General Insurance Co Ltd. against paid consideration of Rs 8914/-with validity covered from 29/04/13 to 28/04/14.

2. The complainant averred that the above noted vehicle met accident on dt 13.03.14 at about                                 2 p.m, while going from TATA to Ranchi on N.H-33.In consequence sustained gravious injury and airlifted to Delhi for better treatment.

3. It is also stated; the occurrence was intimated to the Insurer and reported with police at Tamal Police Station, Ranchi.

4. Further complained, during absence of the complainant the Insurer deputed the surveyor & loss assessor with advise to shift vehicle to their designed Garage/workshop, being not of Mahindra authorized workshop as per company web-site.

5.  Further it is submitted, in absence of the complainant, the estimate procured from Universal Garage, Jamshedpur. Final Survey done on dt 22.03.14 and settle the claim for a sum of                    Rs 1, 80,000/-in crediting the transfer to the Insured’s account, which is arbitrary, irrational and capricious one, for institute the case being aggrieved with the unilateral settlement of the Insurer.

6.Also submitted prefer a prayer before the Ombudsman, Bhubaneswar and the Ombudsman made observation that the claim form and thereof the submitted signature & consent has manufactured will evil intent and there is sufficient appreciation of evidence on said dubious nature of document and passed  ordered to under-take reassessment but the settlement has not been complimented.

7. Prayed entire procedure is against standing IRDA guidelines which amounts to deficiency of service & unfair trade practice thereby direction be passed to settle with IDV value deducting the payment made along  with compensation and cost as deemed fit under the Consumer Protection Act as in force. Relied on RC Book, policy certificate,  report from IIISLA, station Diary and affidavit.

8. In pursuant  to notice, the O.Ps appeared and filed the version in averring  under para 5 of the  pleading “that upon receipt of the intimation regarding the damage to the vehicle of the complainant along with estimates, deputed the surveyor who assessed the loss………………….under claim No-MOTO 3689280 on policy No-3001/56696883/04/000.

9. The O.P also contended vehemently that the complainant is not a consumer; the petition is not maintainable both under law and facts, no deficiency raised to note and since the petitioner has received amount towards  full and final settlement of the claim by executing discharge voucher so no contract to ensue and liable to be dismissed with cost.

10 Further contended, the complainant has no evidence in corroboration to that the discharge voucher was obtained by fraud.  Misusing the process of Consumer Protection Act,  not a fit case to be allowed to reopen his claim.

11. Also stated in the instant case, the authoritative pronouncements as relied upon are fully attracted. Each case must rest on its own facts. No intimation was given immediately after the accident occurrence and no cogent reasons has not been extended in discard of surveyor report, rather it is abundantly clear that the complainant has tried to perpetuate fraud in getting the amount as urged and not entitled to any amount and petition be dismissed with cost.

12. Heard the O.Ps counsels & complainant at extensive and perused the record.

13. On the outset the core issue left for consideration relates to survival of cause of action and jurisdiction.

14. On cause of action. It is complained, the money as paid is by way of electronic transfer not by any cheque or any communication made with, so also the claim discharge voucher agreement letter and letter dt 20/05/14 is obtained erected in tainted way.

15. Having gone through records at hand and the petitioner’s controvert on the above noted issue, it is observed the complainant retained patient No-IP/14/012139 admitted  to TATA MAIN HOSPITAL on 13 march 2014 and discharged on 14 march 2014.

16. Again admitted in Indian Spinal Injuries center on 14/03/2014 and discharge on dt 08/05/2014 for treatment of spinal injury C6-C7 fracture.

17. Further also admitted on dt 08/05/2014 and discharged on dt 11/06/2014 from Indian Spinal Injuries Center, New Delhi. then the thumb impressioned document of agreement letter, discharge voucher and consent letter as adduced by the O.P as to the evidence on their side is not believable rather incorporated in evil intent of settlement is amply proved to be a tainted one as the petitioner is not available to endorse or give LTI as because he is hospitalized from 14/03/2014 to 11/06/2014.

              Then the LTI taken respectively on agreement letter, discharge voucher and communication letter on dt 20/05/2014 is false and incongruous one. So also the proposal form said to be submitted by the petitioner on dt 22/03/2014 also made on same line, which  is quite apparent on the face of the record. Again the mischief compounded when the Insurer sold vehicle at his end without any letter of subrogation or right ,title & interest such perversity & roguery design of the Insurer is confirmed and sufficient evidenced one. 

            The reckless mischief rebutt of the O.P on execution voucher has no basis,our such view is fortified with the judgment the New India Assurance Company vs M/S R.B TRADERS that discharge voucher may not be treated as final,if it was obtained through undue influence fraud or misrepresentation  2013 (2)  CPR 698 (NC).

         On the same issue the O.P catapalted that the surveyor report has great evidentiary value and cannot be brushed aside, has no leg to stand as the report is not reasoned one and concocted being a perfunctory report of surveyor cannot be accepted -  Veena Devi   vs  National Insurance Co Ltd-2012(3) CPR 219 (NC).we also placed reliance further on the settled principle.

1. Surveyor report is not the last & final word-Jagdish Somya vs Oriental Insurance Co Ltd-2012(49) Gaj.
2. Surveyor report is an important piece of evidence but same is not sacrosanct and can be displaced by cogent evidence.

18. In furtherance the irregularities again come to fore front by the award of OMBUDSMAN,                        dt 29/02/2016 and we prefer to place reference on the para-21 of the award for candid evidence.

19. PARA 21-(i)……..

(ii) The most interesting fact is that the photocopy of claim form contains an L.T.I at the place meant for signature /Thumb impression of the Insured. But there is no endorsement identifying the said L.T.I . the space meant for place and date has been left blank, It is further more interesting to note that direct fund transfer Mandate form is lying blank, but contains signature of the insured. It may be noted that as per SCN .the cash loss settlement was made on the consent of the complainant’s wife. But no such written consent comes to the forefront. In view of the above discussed analysis I come to an irresistible conclusion that the settlement made by the insurer, chiefly, on the basis of the report of the loss assessor suffers from many infirmities. As such, the O.P is hereby directed to reassess the loss suffered by the vehicle in question and settle the claim of the complainant fairly and reasonably without least delay.

20. Further we inclined to mentioned, the insistence of total loss by the complainant was no more sustainable but it became sustainable because the mis leading document and sale of the vehicle unilaterally & capriciously as the insurer is not owner of the vehicle, from sale to transfer conducted in an illegal and criminalizing way. Thus the insurer is liable for total loss for his commission of deficiency in manner of performance which required to be maintained by or under any law for the time being in force under the term 2(g) of C.P Act and without due process of law.

21. Thus it reiterates, the cause of action is recurring until the bonafide claim is settled in fair & transparent manner.

22. On the other hand u/s 11 of Consumer Protection Act the opposite party carries on business or has a branch office or personally works for gain, so the case has got enough jurisdictions to be instituted under this forum and we find no infirmity in same, thus maintainable.

23. In addition to evidence, the petitioner has filed an extensive discussed brief on the procedure of cash loss, total loss and total loss on net of salvage and in the present case, the method or procedure of settlement is no more abided with and the entire settlement is against standing IRDA guidelines meant for insurers which specifically provides protection of a policy holders’ interest. again the insurance claim settlement from obtaining survey report to transfer of fund and disposing  of  the vehicle in manufacturing with dubious document and ground is entirely perfunctory and malicious in nature so same is not acceptable or justificatory one, which is a gross negligence and outright unfair trade practice.

In view of the above made discussion, the case allowed on contest. So also basing on the principle as laid down in the case “ Chaitanya Prasad &  Anr  vs  National Insurance Co Ltd on 10^th oct 2013.we considered the petitioner is entitled to IDV value as mentioned in the policy and the amount paid priorly be deducted in payment.

 O-R-D-E-R

The O.Ps are hereby liable to pay the petitioner a sum of (Rs 3, 47,839 - Rs 1,80,000) i.e Rs 1,67,839-     (one lakh sixty seven thousand eight hundred & thirty nine only)towards IDV value settlement & along with a sum of Rs 5,000/-(five thousand only ) towards compensation inclusive of cost within 45 days of this order, failing @9% p.annum interest will accrue on same from the date of application till complete realization.

   Copy of the Order be made available to the parties as per rule.

    File be consigned to record room.

          Pronounced, 3^rd  jan 2018

 I agree                                                      I agree

 Sri B. B. Das                                                Smt B.Giri                                         Sri Purusottam Samantara

Member (m)                                              Member (w)                                              President

DCDRF,Keonjhar                                      DCDRF,Keonjhar                                   DCDRF,Konjhar

                                                                Dictated & Corrected by

                                                               (Sri Purushottam Samantara)

                                                                         (President)

                                                                  DCDRF, Keonjhar