Orissa

Debagarh

cc/40/2015

Madan Kumar Jayapuriya, S/o-Lt. Kartika Jayapuria, aged about 50 years - Complainant(s)

Versus

Tata AIG General Insurance Co. Ltd., Sambalpur - Opp.Party(s)

19 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

DEOGARH.

                                                C.C.CASE NO.40/2015

Madan Kumar Jayapuria,

S/O.Karika Jayapuria,

At/Post/-Tileibani, Dist/-Deogarh.                              …         Complainant.

  Versus

1. Tata AIG General Insurance Co. Ltd.

Sambalpur Branch,

2. Tata AIG General Insurance Co. Ltd.,

Bhubneswr, At/-Sahidnagar,

Post/-Bhubaneswar, Dist/-Khorda.                 …         Opp.Parties.

 

Date of hearing 02.09.2016               Date of Order 19.10.2016

            Counsel for the parties    :

            For the Complainant       :                         Nemo

For the Opposite Parties                          Shri B.K. Purohit & Shri R.L. Pradhan, Advocate.

 

PRATAP CHANDRA MAHAPATRA, MEMBER - Factual matrix of the case in brief is that, the complainant, a permanent resident of Tileibani, PO–Tileibani, PS/Dist – Deogarh is the registered owner of the Mahindra Bolero CV Chamber (Pick up) bearing Engine No.GHCIE2767, Chassis No.MA1ZN2GHKC1E42488, Regd.No.OR28-2343,  which was insured with Tata AIG General Insurance Co. Ltd , an Insurance company represented through its offficials, the OPs vide Policy No.015500576400 valid from 18.00 hours on 22.8.2014 to midnight of 21.8.2015. According to the averment of the complainant, the said vehicle met with an accident on 15.12.2014 at about 11.00 PM , near Barghat Chowk and he made a claim of Rs.3,50,000  /- submitting Bills/Receipts/Documents alongwith Claim Form  before OP after due process being observed by him.  In spite of several requests/communications to settle the claim, OPs at last repudiated the claim of the complainant vide their letter No. No. 0820002991 Dtd.12.3.2015. Further it has been averred that, the complainant thus sustained financial loss, mental pain and agony due to deficiency in service caused by the O.Ps. Hence the complaint seeking relief detailed in the original complaint petition.

2.         In response to the allegation labeled, answering OPs officials of Tata AIG General Company Limited, while challenging the case not being maintainable in the eye of law as well as on facts available on records since the present case is not a consumer disputes as per the provision of CP Act have contended that there was never any deficiency in rendering services by the Opp.Parties so as to attract the provisions of the CP Act. And also contended further:

1. That Tata AIG General Insurance Company limited had issued one Auto Secure Commercial Vehicle Package Policy bearing No.015500576400 in favour of the insured Madan Kumar Jayapuria for the period commencing from 18.00 hours of 22.8.2014 to 21.8.2015 covering risk of the Mahindra Bolero CV Champers vehicle of 2012 Model bearing Engine No.GHCIE27367 and Chassis No.MAIZN2GHKC1E42488 corresponding to the Registration No.OR-28-2343. This policy of insurance was issued under the provisions of MV Act and it contains certain conditions and limitations as per the Standard from on contract of Insurance Act, 1938, which forms the contract of insurance between the insurer and the insured and only if those parts form of the terms, conditions and limitations are performed by the insured, then only the insurance company would be made liable to indemnity the insured regarding any legal liability.
2. As per such conditions and limitation, inter alia, the insured vehicle mush be driven by a driver having a valid and effective driving issued by the competent authority under the MV Act and is not disqualified from holding and obtaining such a license. Besides this, the policy of insurance covers the use of the vehicle only under proper fitness within the meaning of the Motor Vehicle Act, 1988, and the policy does not cover use of the insured vehicle whilst drawing a trailer except towing use for carrying passengers except employer as per the permissible capacity, and use of the vehicle for organized racing pace making, reliability trials and speed testing. If there is violation of any of the aforesaid policy conditions and any of the provision of MV Act by the insured, the insurance company cannot be legally liable to pay compensation on behalf of the insured I, e, the insurer can never be made liable to indemnify because of breach of conditions of contract of insurance between the insurer and the insured.
3. During the currency of the policy, the insured intimated the Insurance Company about the accident and damage to the insured vehicle in an accident dated 15.12.2014 and in response thereof the Insurance Company as per the provisions of Sec.64UM of the Insurance Act, 1938, engaged IRDA Licensed Surveyor and Loss Assessor Sri Rabi Narayan Tripathy to inspect the vehicle and to assess the damage to the vehicle. Accordingly, the Surveyor and Loss Assessor visited the spot and conducted the surveyor of the vehicle on 25.12.2014 and requested the garage for dismantling of the vehicle with due approval from the insured so as to conduct the final survey and to assess the loss. Thereafter, the final survey was conducted by the surveyor on 25.12.2014 and the loss was assessed for an amount of Rs.23,980/- subject to the terms and conditions of the policy, Survey report was submitted by the surveyor giving his observations on the claim.
4.  In furtherance of the legal requirement, the insured was requested by the Insurance Company to submit a claim form and to submit the required documents like the driving license particulars , self-attested copy of certificate of registration , certificate of fitness and the copy of FIR, if any . It is worth mentioning here that at the time of intimation of the claim by the complainant, the drivers name was informed as one Mr. Birendra Naik, However on examination of the documents submitted by the complainant, it was observed from the claim form that the name of the driver was changed to Prasant Jamkia was submitted from Birendra Naik . Hence, the Surveyor & Loss Assessor requested the insured by Registered Post letter dtd.12.01.2015 to submit the copy of the policy of insurance, the Registration Certificate of the vehicle, driving license of Birendra Niak and Prasant Jamakial, estimate of repair, fitness certificate and tax receipt, proof of identification alongwith a cancelled cheque etc. for processing the claim. However, the insured did not submit all the required papers but submitted only the driving license of Prasant Jamakial, copy of the Registration Certificate whose fitness is valid up to license of the original driver Verendra Nayak who was driving the vehicle at the time of accident. The act of the complaint leads us to believe that the driver declared at the time of the intimation of the claim did not hold a valid and effective driving license at the time of the accident and hence the drivers name was changed to Prasant Jamakial.

The Drivers Clause under the policy reads as below.

Drivers Clause: Persons entitled to drive:-

“Any person including the insured: provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such license. Provided also that the person holding an effective learners license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Ventral Motor Vehicle Rules, 1989.

(e)  Quoting Section 56 of the MV Act it has been stated that it was also observed that the Fitness Certificate had expired on 01.07.2014 which is prior to the date for loss and despite reminders the complaint had to submit the same which was covering the date of accident.  However in order to afford sufficient opportunity to the complainant to put up his case, he was issued a final reminder letter on 12.3.2015 for submission of the requisite documents, however the complainant failed to submit the same which made to believe that the driver Birendra Naik did not have a valid DL at the time of loss and the fitness was also not valid at the time of the accident and as such the complainant is not entitled to claim any relief from this opponent. Hence this opponent was constrained to close the claim of the complainant for compliance.

(f)  That, the averment’s of the complainant made in Para-1,2,3,4,5,& 6 of the complaint petition have been answered by the Opp.Parties in Paragraph-3 of this written version and my mutatis mutandis be read as the averments of the O.Ps in this case  .

(g)  It is submitted that the Policy of Insurance was issued in favour of the complainant covering risk of the insured vehicle. However it is submitted that the admissibility of any claim under the Policy is governed by the terms and conditions of the Policy. But it is not known as to whether the FIR was registered on account of the alleged accident before Deogarh Police.

(h)  It is admitted that a claim was lodged by the complainant before the Insurance Company and IRDAI Licensed Surveyor and Loss Assessor Mr. Ravi Narayan Tripathy was deputed to conduct the survey and assess the loss as per the legal requirement. The Licensed surveyor and loss assessor conducted the spot survey of the vehicle on 25.12.2014 and the insured was instructed to shift the vehicle to the authorized garage for repair so as to conduct the final survey after dismantling in order to assess the loss. But the insured kept mum and did not intimate anything to the Insurance Company or to the Surveyor and Loss Assessor to proceed further.

(i)   That, as regards to the averment’s made in Para -7,8,9,10,11,12,& 13 of the complaint petition , it is denied that the Insurance Company verified the original documents and assured him to repay the loss , It is also denied that the insured shifted the vehicle to one Jhuntur Garage , Sambalpur for necessary repair and that the repairer estimated the cost of repair at Rs.3,50,000/-.

(j)   It is also denied that the insured complainant submitted bills and original documents to the O.P Insurance Company for settlement of the claim and that the O.P- Insurance Company assured the complainant to release the amount. In this connection, it is submitted that either the documents not the bills, vouchers or any estimate was submitted by the insured either to the Insurance Company of to the Surveyor and Loss Assessor or assisted in any form to assess the loss. Rather, on the service of the registered letters to the insured, no reply was received from his either by the Insurance Company or by the Surveyor and Loss Assessor, except the copy of the Registration Certificate, driving license of a new driver and the copy of the Policy of Insurance. It is further submitted that the claim of the complainant deserves to be not maintainable as the complainant has changed that the claim of the complainant Prasanta Jamakia and also that the vehicle was not with proper fitness at the time of accident, and since fitness of the vehicle goes to the root of the claim, the insurance company on merit also is not liable to pay any claim under the policy arising out of the alleged accident. But at present since no response was received from the complainant, the claim was closed.

(k)  That, as regards to the averments made in Para – 14 of the complaint petition, it is denied that the complainant sustained financial loss, mental agony and pain. It is denied that there is any deficiency in rendering services by the Insurance Company at any point of time.

(l)   It is submitted that since the complainant did not assist the Insurance Company in processing with the claim, there cannot be any financial loss, mental agony and otherwise deficiency in rendering services by the Insurance Company. It is further submitted that the complainant did not assist the Insurance Company because he had changed the driver, and that he did not have the fitness of the vehicle at the relevant of time of accident and sine there was a blatant violation of Policy condition, he did not assist the Insurance Company in settlement of the claim and approached this Hon’ble Forum to get illegal gain in the guise of justice.

(m)        That, the complainant is not entitled for any relief as claimed for , much less of Rs.3,50,000/- alongwith interest or compensation  and cost . Without admitting any liability it is submitted that the complainant has failed to substantiate his claim under the policy and hence on this ground alone the complaint deserves to be dismissed.

(n)  That, the O.Ps crave the leave of the Hon’ble forum to refer to any document at the time of hearing of the case.

(o)  That, the OPs crave the further leave of the Hon’ble Forum to argue on any other point at the time of hearing of the case and also to file any additional version and or to amend or alter this version at any time during the pendency of the case .

(p)  That, any other matter which is not specifically denied or is are not consistent with this written version are all false on material particulars and hence specifically denied.

3.         It ia an admitted fact that there was an contract of insurance between the complainant and the OP Insurance Company namely Tata AIG General Insurance Company Limited where in the Insurer, OP had agreed to cover the  risk of the Mahindra Bolero CV Champers vehicle of 2012 Model bearing Engine No.GHCIE27367 and Chassis No.MAIZN2GHKC1E42488 corresponding to the Registration No.OR-28-2343 for the period commencing from 18.00 hours of 22.8.2014 to 21.8.2015  owned  by the insured Madan Kumar Jayapuria, the complainant through Auto Secure Commercial Vehicle Package Policy bearing No.015500576400. Since the matter relates to Insurance challenge of the OP at the very outset that the instant case is not maintainable both in the eye of law and on facts of the case is not accepted and we are of opinion that it is maintainable under CP Act, 1986.

            It has been stated/submitted by the OP that except providing copy of the Registration Certificate, driving license of a new driver and the copy of the Policy of Insurance no other requisites like bills, vouchers or any estimate and original documents to the O.P Insurance Company for settlement of the claim was furnished either to the Insurance Company or to the Surveyor and Loss Assessor. Also the complainant assisted in any form to assess the loss even after service of registered letters to the insured.

            It has been stated by OP that at the time of intimation of the claim by the complainant, the drivers name was informed as one Mr. Birendra Naik, However on examination of the documents submitted by the complainant; it was observed from the claim form that the name of the driver was changed to Prasant Jamkia. The fact that at the time of registration of the claim insured had furnished name of the driver at the material time as Birendra Naik has not been supported by any documentary evidence. On the other hand complainant has submitted through an affidavit that Birendra Naik was in watch and ward of the accident vehicle when the Surveyor and Loss Assessor visited the vehicle on 25.12.2014. At the time of this inspection by the Surveyor his driver Prasanta Kumar Jamkia was not present since he had still not recouped from injuries sustained.  Surveyor asked for the name of that Birendra Naik and his Driving License and made them to sign on some papers prepared by him requiring the complainant to furnish D.L. of the Driver shri Prasanta Kumar Jamkia later on. This fact has not been denied / objected categorically by the OP. Hence there is no course opened bu to accept that at the material time of accident Shri Jamkia, Driver of the vehicle had a valid and effective Driving License is a fact cannot be denied. Matter would have been difeerent if OP had denied or objected to it specifically.

            We have gone through the terms and conditions  furnished on the body of the  Certificate of Insurance and Policy Schedule Form 51 of the Centre Motor Vehicle Rules,1989 delivered to the complainant  by the OP and found as under:

            “ Drivers Clause : Persons or classes of Persons entitled to drive:-

Any person including the insured: provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such license. Provided also that the person holding an effective learners license may also drive the vehicle when not used for transport of goods at the time of accident and that such a person satisfies the requirements of Rule 3 of the Ventral Motor Vehicle Rules, 1989.

In addition to it some limitations as to use have been furnished as under:

            Limitations as to use:

Policy covers use under a permit within meaning of the Motor Vehicles Act,1988 or such a carriage falling under sub-section(3) of Section 66 of the Motor Vehicles Act, 1988.

The policy does not cover

1. Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle.
2. Use for carrying passengers in the vehicles except employees(other than the driver) not exceeding the number permitted in the registration document and comong under the purview of Workmen’s Compensation Act,1923.
3. Used for a) Organized Racing, b) Pace Making, c) Reliability Trials d) Speed Testing.

Nothing more or less than this form the basis of this Insurance Contract. We have already dealt the Drivers Clause and now we look in to the aspect of Fitness Certificate of the Vehicle. On the basis of documents on record we find that the Fitness Certificate was valid up to 30.06.2014 as it expires on 01.07.2014. Nothing has been adduced by the complainant that it was renewed after that period. Hence it is evident that at the material time of accident there was no valid Fitness Certificate but this cannot restrict to decide whether it tantamount to contradiction of terms and conditions of the contract of Insurance.  In the case of National Insurance Company Ltd. Vrs. Krishan Chand & Others decided on 17^th.October 2011 while disposing First Appeal Case No.04/2011, Honorable State Consumers Disputes Redressal Commission, Himachal Pradesh, Shimla have observed as hereunder:

“13. After hearing learned Counsel for the parties and going through the record of the case minutely, we are of the considered view that there is no infirmity in the order of the Forum below and the Court has rightly partly allowed the complaint by directing the opposite party No.1 to pay compensation to the tune of Rs.98,677/- and also directing payment of Rs.5,000/- as compensation and awarding of cost of Rs.2,000/- which relief is clearly mentioned in para-9 of the order and also referred to in this order in the opening para. Reason being that the fitness of the vehicle had expired on 2.5.2009 and date of accident was 3.5.2009 which had expired only one day prior to the accident and there is nothing on the record to suggest that the plying of the vehicle without fitness certificate had contributed to the accident and it had also not been established by opposite party No.1 that fitness of the vehicle had any nexus with the cause of the accident, however the Forum below had rightly placed reliance on the judgment of the Honble National Commission given in the case of G.Kothainchiar Versus United India Insurance Company Ltd., 2008, (supra) wherein it was held that the breach with respect to plying of the vehicle without permit is only a breach with respect to the provisions of Motor Vehicles Act and it is not a breach of the terms and conditions of the policy and as such opposite party No.1 cannot legally repudiate the claim on this ground.

In the instant case OPs can not wash off their hands from liabilities as per the contract on the ground that there was no valid Fitness Certificate at the time of accident of the vehicle on 15.12.2014.

            OP in their version have submitted that the Surveyor & Loss Assessor appointed, has quantumised the loss/damage caused to the vehicle to Rs. 23,980/-. The photographs filed by the complainant of the accident vehicle tells much more and this fact is supported by the filed Estimate prepared by the Garage who took up repairing. Although Surveyor’s Report is of immense importance it is astonishing how superficial assessment was made.  It is visible to the naked eye that the chasis has got bent and alone the cost of a chassis is Rs.77,400/- as per the Estimate. This makes us not to take in to consideration the amount of loss assessed by the Surveyor.

            Complainant has averred that OP repudiated his claim but no such speaking letter of repudiation has been filed and OP has also not used the term “Repudiation” anywhere but have submitted since the complainant failed to assist they were constrained to close the Claim Case. Whatever be the term, result is one, denial of payment of assured value by virtue of the contract of insurance to the Insured by the Insurer. We therefore find OPs deficient of Services and order as under:

O R D E R

Complaint Petition is allowed. OPs are directed to pay Rs. 3,50,000/- (three lakhs fifty thousand) towards reimbursement of repairing cost of the accident vehicle and Rs.15,000/- (fifteen thousand) towards  compensation for mental pain and agony and Rs.3,000/- (Rupees three thousand towards cost of litigation to the complainant within 45 days of receipt of Certified copy of this order, failing which, they shall have to pay in addition to these amounts interest @ 9% from date of order  till the amount is paid actually in due process of law. Office is directed to supply free copies order to concerned parties obtaining receipt thereof.

I agree,

 

MEMBER.                                                                                                        MEMBER.

                                                Dictated and Corrected

                                                            by me.

 

 

MEMBER.