Tripura

StateCommission

A/21/2016

The Oriental Insurance Co.Ltd - Complainant(s)

Versus

Sri. Dipak Ch. Kar - Opp.Party(s)

Mr. P.Gautam, Mr. S.Debnath

18 Aug 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.21.2016

 

 

1. The Oriental Insurance Company Ltd.,

Represented by its Sr. Divisional Manager,

44/2, Central Road, Kaman Chowmuhani,

Agartala-799001, West Tripura.

                                        ….    ….    ….    …. Appellant/Opposite party No.1.

                                                           

Vs

 

 

1. Sri Dipak Chandra Kar,

S/o Late Makhan Lal Kar,

Resident of Shibnagar, College Road,

P.S. East Agartala,

District - West Tripura, Pin-799001.

                                        ….    ….    ….    …. Respondent/Complainant.

 

2. Hind Motors,

Tata Motors Authorised Service Station,

By-pass N.H.44, Kalitala, Old Agartala, Khayerpur,

P.O. Khayerpur, P.S. Ranirbazar,

District - West Tripura, Pin:799008.

(Represented by Authorised Signatory of Hind Motors).

 

                                                  ….    ….    ….    …. Respondent/Opposite party No.3.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

For the Appellant:                                           Mr. Pradyumna Gautam, Adv.  

For the Respondent No.1:                                  Mr. Ashish Nandi, Adv.

For the Respondent No.2:                                       Absent.

Date of Hearing:                                        22.04.2017

Date of Delivery of Judgment:                   18.08.2017.

 

J U D G M E N T

 

U.B. Saha, J,

This appeal is filed under Section 15 of the Consumer Protection Act, 1986 by the appellant, the Oriental Insurance Company Ltd. represented by its Sr. Divisional Manager, Central Road, Kaman Chowmuhani, Agartala against the judgment and award dated 05.04.2016 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala  in Case No. C.C. 01 of 2015 whereby and whereunder the Ld. District Forum directed the appellant to pay an amount of Rs.4,48,500/- + Rs.25,000/-, i.e., in total Rs.4,73,500/- to the respondent complainant within two months without fail. In case of failure to pay in time, the amount will carry interest @9% per annum.

1. Heard Mr. Pradyumna Gautam, Ld. Counsel appearing on behalf of the appellant, the Oriental Insurance Company Ltd. (hereinafter referred to as appellant Insurance Company) as well as Mr. Ashish Nandi, Ld. Counsel appearing for the respondent complainant, Sri Dipak Chandra Kar. None appeared for the respondent no.2, Hind Motors (hereinafter referred to as opposite party no.3).
2. Brief facts needed to be discussed are as follows:-

The respondent complainant is the owner of TATA truck bearing Registration No.TR-01-N-1744, which he purchased by obtaining loan from the TATA Motors Finance for carrying materials for his contract works. The said vehicle was insured with the opposite party-Insurance Company on 10.01.2011, bearing Policy No.322700/31/2011/15607 and the sum assured was Rs.17 lacs (IDV). The validity of the aforesaid insurance policy was covering the period from 11.01.2011 to midnight of 10.01.2012. The aforesaid vehicle of the respondent-complainant had met a road traffic accident on 04.06.2011 at about 03.30 p.m. in front of the Abhoynagar Higher Secondary School at Abhoynagar due to a mechanical disorder. After the said accident, Abhoynagar Police Outpost under East Agartala Police Station was informed and subsequently, the said vehicle was taken to the East Agartala Police Station premises with the help of a crane. Admittedly, the aforesaid accident took place within the validity period of Insurance Policy purchased by the complainant-petitioner. He had informed regarding the accident to the insurer, appellant-Insurance Company i.e. the opposite party nos.1 & 2. Spot survey was conducted by the opposite party-Insurance Company in the premises of East Agartala Police Station. A mechanical examination of the damaged vehicle was also conducted in the said premises. Respondent complainant also communicated the General Diary references of the police station and the mechanical inspection report to the opposite party-Insurance Company. Thereafter, at the desire of the insurer, the vehicle was shifted into the workshop of the opposite party no.3, Hind Motors, Authorised Service Station of TATA Motors at Khayerpur, Agartala. The opposite party no.3 after careful inspection of the damaged vehicle made/prepared a detailed estimate subject to enhancement of the cost during processing of the work and in that case, supplementary estimates would be submitted/furnished. The opposite party no.3 Hind Motors has furnished an estimate worth Rs.9,66,177.76 (inclusive of taxes) for necessary repairing of the damaged vehicle. As the opposite party-insurer wanted a claim form supposed to be submitted by the complainant-petitioner along with the necessary up-to-date vehicular documents together with police report, MVI report and a copy of the estimate, accordingly, the respondent complainant submitted those documents along with the claim form. The complainant has paid Rs.2 lacs to the opposite party no.3, Hind Motors to the estimated costs of Rs.9,66,177.76 and the opposite party no.3 started repairing of the vehicle, but as the respondent complainant could not pay the full amount, the vehicle was not repaired fully. Thereafter, when the opposite party no.3, Hind Motors did not repair the damaged vehicle due to non-payment of remaining amount, the complainant-petitioner then to no other alternative, repaired the vehicle from Industrial Engineers at the cost of Rs.2,48,500/-.The appellant opposite party-Insurance Company had deputed one Surveyor, namely, Mr. Shankar Roy for assessment of the damage of the vehicle, who asked for MVI report and original police report and vehicular documents, although all those documents were submitted by the respondent complainant at the time of furnishing the claim form, but the survey report was not provided to him. Then the respondent complainant claimed an amount of Rs.7 lacs for repairing on cash loss basis, but the claim of the respondent complainant was not entertained by the appellant opposite party-Insurance Company, rather closed the same on 31.12.2012 violating the mandatory conditions of payment towards settlement of claim by offering cash loss, when the respondent complainant failed to complete the repairing work. Subsequently, the respondent complainant also renewed his Insurance Policy on 10.01.2012 bearing Policy No.322700/31/2012/17316 covering the period from 11.01.2012 to midnight of 10.01.2013.

Being aggrieved by the action of the opposite party-Insurance Company, the respondent complainant filed a complaint case before the Ld. District Forum, West Tripura, Agartala under Section 12 of the Consumer Protection Act, 1986, which was registered as Case No. C.C. 01 of 2015.

The opposite party-Insurance Company filed their written statement denying the claim. It was stated that the respondent complainant did not spend any amount for repairing of the vehicle and he also did not cooperate in respect of the survey report for assessment of the damage. No advance payment was made for repairing to the opposite party no.3, Hind Motors for repairing of the damaged vehicle. It was also contended that without assessing the actual expenditure for repairing of the said vehicle, the opposite party-Insurance Company could not pay the amount. More so, the respondent complainant did not file the complaint case within time. Therefore, the claim is liable to be rejected.

3. The opposite party no.3, Hind Motors in its written statement specifically stated that the respondent complainant paid Rs.2 lacs to them as advance for repairing the damaged vehicle, but the complete work could not be done as the initial payment of Rs.5,30,000/- was not made. So, the repairing of the vehicle could not be completed.
4. The Ld. District Forum considering the pleadings of the parties framed the following points for deciding the complaint case which are as follows:-

1. Whether the vehicle was damaged and cost of repairing was more than Rs.7 lacs?
2. Whether the petitioner is entitled to get compensation for deficiency of service by the opposite party?

5. The respondent complainant has produced the police report, investigation report, FIR, copy of estimate, letter, copy of Insurance Policy, letter addressed to the Oriental Insurance Co. Ltd., copy of M.V.I. report, copy of bill dated 07.10.2014 which were exhibited and marked as Exhibit-1 series and also examined himself as a witness.
6. The opposite party-Insurance Company, on the other hand, produced Insurance Policy, letters, FIR, Motor Claim Form, surveyor report, estimate of Hind Motors, letter dated 05.07.2012 and also examined one witness, namely, Sri Dilip Kumar Das, Senior Divisional Manager of the opposite party-Insurance Company.
7. The Ld. District Forum after considering the documentary evidence as well as the oral evidence adduced by the parties passed the impugned judgment. Hence the appeal.
8. Mr. Gautam, learned counsel of the appellant Insurance Company while urging for setting aside the impugned judgment has submitted that the learned District Forum has miserably failed to appreciate the terms and conditions of Insurance policy, particularly, that the terms and conditions and the exclusion clause are the essence of the contract of the insurance and no court has the power to re-write the conditions in view of the judgment of the Apex Court in United India Ins. Co. Ltd. Vs. Harchand Rai Chandanlal (2004) 8 SCC 644 as well as the Apex Court judgment in Vikram Greentech India Limited and Another Vs New India Assurance Company Limited (2009) 5 SCC 599 wherein the Apex Court held that the policy document being a contract, it has to be read strictly without venturing into extra-liberalism and an endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. He has also contended that the complainant did not file the complaint case within one year from the date of cause of action as arose on 31.12.2012, but the same was filed on 31.12.2014 i.e. beyond the period of limitation. Thus the complaint petition is liable to be dismissed on the ground of delay alone.
9. He further submits that the appellant in its written statement categorically denied that no advance payment was made by the respondent-complainant for repairing of his vehicle to the concerned service center, Hind Motors. He has finally contended that the Surveyor deputed by the appellant Insurance Company served several notices and also issued registered letters to the respondent-complainant for submitting all bills, cash memos, paid up vouchers, on taxable items in originals salvage and completion report of repairing works, but the respondent-complainant did not pay heed to that and as such, there is no deficiency of service on the part of the appellant Insurance Company.
10. Learned Counsel Mr. Nandi appearing on behalf of the respondent complainant per contra has submitted that admittedly the vehicle was insured with the Appellant Insurance Company for a sum assured of Rs. 17 lacs only. The said policy was valid till mid night of 10.1.2012. The accident of the insured vehicle occurred on 4.6.2011 at about 3.30 p.m., i.e., within the validity of the insurance policy. He again submits that the insured respondent complainant informed regarding the accident to the appellant Insurance Company and also submitted the relevant documents regarding the accident. As per instructions of the appellant Insurance Company, the vehicle was placed in the repairing unit, i.e., in the premises of Hind Motors, opposite party no.3, Tata Motors authorized Service Station and the Surveyor was appointed by the appellant Insurance Company to survey the vehicle for assessment of actual requirement of costs for repairing towards the damage of the insured vehicle. After placing the insured vehicle, the opposite party no.3, Hind Motors, furnished an estimate amounting to Rs.9,66,177/-. On the other hand, the surveyor/assessor, namely Sankar Roy, of the appellant has also submitted his report wherein it was mentioned that total damages assessed for Rs.6,39,463/- and both the estimates were produced by the appellant Insurance Company.
11. He has further submitted that the respondent complainant has admittedly paid Rs.2 lac to the opposite party no.3, Hind Motors which would be evident from the written statement of the opposite party no.3.  But the insured vehicle was not repaired due to non-payment of the remaining amount. Thereafter, the respondent complainant claimed an amount of Rs.7 lacs towards repairing of the damaged vehicle as on cash loss basis to the Appellant Insurance Company, but the said claim was repudiated on 31.12.2012. He has also submitted  that as the vehicle was not repaired  by the opposite party no.3 for want of  remaining amount, the complainant had taken away  his vehicle from the workshop of the opposite party no.3 and placed with another Agency, namely, Industrial Engineers and the said vehicle was repaired there at a cost of Rs.2,48,500/-. Thus, admittedly, the respondent-complainant has paid in total Rs.4,48,500/- for repairing of his damaged vehicle. He has finally contended that the learned District Forum has directed the Appellant Insurance Company to pay the full expenditure for repairing amounting to Rs.4,48,500/- and for deficiency of service  Rs.25,000/-, in total Rs.4,73,500/-, i.e., even the lesser amount assessed by the Surveyor/Assessor appointed by the Appellant Insurance Company. In reply to the contention of Mr. Gautam, Mr. Nandi urged that the complaint petition was filed within the period of limitation as prescribed under the law.
12. We have gone through the impugned judgment as well as the evidence on record and also considered the submission of the learned counsel for the parties. On careful examination of the  evidence on record, it is found that the insured vehicle of the respondent complainant was met an accident within the life time of the insurance policy and  the respondent complainant has paid  Rs.4,48,500/-, out of which Rs.2 lacs was paid to opposite party no.3,  authorized Agency of the appellant Insurance Company, namely, Hind Motors, as advance and the remaining Rs.2,48,500/- was paid to Industrial Engineers, in support of which, the respondent complainant has produced the relevant vouchers.
13. There is no doubt that the Court cannot re-write contracts between the parties, but at the same time, if the claim of the insured is genuine, then the same cannot be repudiated by the Insurance Company on mere technical grounds. It also appears from the record that even subsequent to the accident of the insured vehicle, the insurance policy of the respondent complainant was renewed. Not only that,  it would also be evident from the cross-examination of opposite party no.1, Sri Dilip Kr. Das, the Senior Divisional Manager of the appellant Insurance Company that the appellant Insurance Company offered the respondent complainant to repair his vehicle. The Insurance Regulatory & Development Authority vide Circular No.IRDA/HLTH/MISC/CIR/216/09/2011, Dated 20.09.2011 has directed all the Insurance Company not to disallow the entire claim of the claimants only on the ground of delay in intimation if the claim is otherwise payable. In the instant case, the respondent-complainant made his claim immediately after being got damaged of the insured vehicle to the appellant-Insurance Company and from the records it also appears that as per instructions of the appellant-Insurance Company, the vehicle was placed in the repairing unit i.e. in the premises of the Hind Motors, the opposite party no.3 and the complainant also paid an amount of Rs.2 lacs out of Rs.9,66,177/- i.e. the estimated cost and also paid Rs.2,48,500/- to the Industrial Engineers from which subsequently he repaired the damaged vehicle i.e. in total he paid Rs.4,48,500/-, though the Ld. District Forum in Paragraph-10 of its judgment wrongly mentioned that Rs.2,58,500/- was paid to the Industrial Engineers and subsequently corrected it saying “for repairing he spent Rs.4,48,500/-”.
14. It is revealed from the record that though there is application filed by the appellant Insurance Company for summoning Sri Sankar Roy, the Surveyor/Assessor for his examination, but from the order of the learned District Forum dated 28.09.2015, it appears that there was no step on behalf of the opposite party nos.1 and 2 as well as the respondent- complainant. Therefore, it can be presumed that the said application was not moved and admittedly, the Surveyor/Assessor was not produced and examined by the opposite party no.1 and 2.
15. There is no quarrel with the decisions of the Apex Court as referred to by the learned Counsel for the appellant Insurance Company. Every decision has to be considered on the basis of its own facts and circumstances. The facts of the case at hand are totally different than the case referred to by the learned counsel for the Appellant Insurance Company.
16. On proper scrutiny of the impugned judgment, it appears that the learned District Forum in its finding considered the case of the parties, which would be evident from para- 9 and 10 of the impugned judgment. For better appreciation, the same are reproduced hereunder:

 “9.      It is fact that the vehicle was insured with the Oriental Insurance Co. Ltd. The Policy certificate is also produced. Total coverage was Rs.17,00,000/- as per policy certificate. Assistant Manager of Oriental Insurance Co. Ltd. by letter dated 31.12.12 repudiated the claim of the petitioner stating that the petitioner was not interested in the matter of claim as required papers were not submitted. Petitioner was asked to inform the Insurance company about the present status of the vehicle but that matter was also not informed. From the report of the Motor Vehicle Inspector it is found that front glass, bumper, head light and lightening system, radiator, battery, exhaust pipe, front wheel, right hand side driver cabin, chassis, steering, meter panel all were damaged by the accident. So, assessment done by the assessor of Hind Motors is supported by the M.V. Inspector report. It is true that petitioner could not repair the vehicle for want of money. But from the written objection of O.P. No.3 Hind Motors, it is found that Rs.2 lacs were paid by the petitioner for repairing and some repairing was done. The vehicle was repaired thereafter by Industrial Engineer. We have gone through the bill given to the Dipak Chandra Kar, petitioner. Total cost of repairing was Rs.2,48,500/-. So, it is clear that petitioner spent Rs.2,48,500/- for repairing of the vehicle. But as per report of the assessor and the estimate given by Hind Motors cost of repairing was Rs.9 lacs. Petitioner could not pay the amount and the vehicle was not repaired. As per terms and conditions of the Insurance Policy certificate petitioner is entitled to get cost of repairing on cash loss basis. Repairing basis or on total loss. Here in this case petitioner claimed the amount of repairing basis not on cash loss basis or on total loss. In case of repairing basis cost of damage of the vehicle the petitioner is to place the documents, vouchers, to support that the amount was spent by him. But the petitioner could not produce any documents to support that this amount of Rs.9 lacs or Rs.7 lacs as assessed by the assessor was spent by him.

10.      From the careful scrutiny of evidence on record it is found that the petitioner actually spent Rs.4,48,500/-. He paid Rs.2 lacs to the Hind Motors as advance and some repairing was done. He also paid Rs.2,58,500/- to  Industrial Engineers. The Proprietor of the repairing shop produced vouchers dated 07.10.14. So, for repairing he spent Rs.4,48,500/-. As per documents available petitioner is entitled to get this amount. Insurance company repudiated the claim without considering the real damage done. This is deficiency of service. So for the deficiency of service petitioner is entitled to get Rs.25,000/-. Thus in total petitioner is entitled to get Rs.4,48,500/- + Rs.25,000/-. Total Rs.4,73,500/-. Thus points No.1 and 2 are decided accordingly.”

17. In Section 24 A of the Consumer Protection Act, 1986 the Ld. District Forum can admit a complaint petition filed within two years from the date on which the cause of action arose. In the instant case, the appellant-Insurance Company repudiated the claim of the complainant on 31.12.2012 and the complaint petition was filed admittedly on 31.12.2014 i.e. within two years from the date of cause of action. In New India Assurance Company Ltd. Vs B.N. Sainani, AIR 1997 2938, the Hon’ble Apex Court considered the Section 24 A of the Consumer Protection Act, as inserted in 1993 as well as Article 44 of the Limitation Act and held that limitation beings to run from the date of denial or repudiation of the policy by the insurer. Paragraph-8 of the B.N. Sainani (supra) is as follows:-

“8. It would appear that the complaint was filed on the basis that claim on the policy was denied wholly by the insurer which was by letter dated July 25, 1989 of the insurer. The cause of action, therefore, arose on the date of denial or repudiation of the policy by the insurer. The question does arise as to when the claim on the policy should have been lodged. It appears the claim on the policy should be lodged within a reasonable time. As to what is reasonable time would depend on the facts and circumstances of each case. Since on the basis of the record we are handicapped to know as to when the claim was lodged, we would, therefore, treat the date, July 25, 1989, when the time for the purpose of limitation had begun to run. As noted above this is the date when the insurer repudiated the claim on the policy. From this angle, therefore, the complaint filed by the assignee on July 23, 1992 is within the period of limitation. It is, however, a different matter when the insurer raises the defence that it had earlier informed the insured that the policy had ceased to be operative in terms para 9 of the policy. As far as the insured is concerned he can file the complaint within three years of the date of occurrence causing loss or from the date when the claim on the policy is denied by the insurer. For him time for lodging the complaint would not start running while the goods are still in transit as he can claim the policy to be valid till he lodges the complaint.”

Therefore, we are of the opinion that the complaint petition is filed within the stipulated period as prescribed under Section 24 A of the Consumer Protection Act, 1986.

18. From the impugned judgment, it also appears that the learned District Forum after considering the report of the Surveyor/Assessor and the written statement of the opposite party no.3 and the voucher of the Industrial Engineers passed the impugned judgment and award even at a lesser amount than the amount assessed by the appointed Surveyor/Assessor of the Appellant Insurance Company.
19. In view of the above, we are of the considered opinion that the learned District Forum did not commit any error. Hence, it is not necessary to interfere with the impugned judgment. Thus, the appeal is dismissed being devoid of merit.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura