Orissa

Debagarh

CC/27/2021

Md. Pappu, aged 50 years, S/O-M.B. Moulabaks - Complainant(s)

Versus

The Branch Manager, IFFCO TOKIO General Insurance Co. Ltd - Opp.Party(s)

26 Nov 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, DEOGARH

C.C NO-27/2021

Present-Sri Dipak Kumar Mahapatra, President, Smt. Arati Das, Member.

Md. Pappu, aged about 50years,

S/O- M.B.Moulabaks,

At-Mathasahi, Deogarh,

P.O/P.S/Dist-Deogarh.                                                                                                              ....Complainant.

Vrs.

1.         The Branch Manager,

IFFCO TOKIO GENERAL INSURANCE CO. LTD.

Budharaja Main Road Near Phatak Over bridge,

Budharaja Sambalpur.

2.         The Branch Manager,

IFFCO TOKIO GENERAL INSURANCE CO. LTD.

IFFCO Sadan, C-1, District Centre,

Saket, New Delhi.

3.        Suryasmita  Acharya,

Agent,

C/O- Sri Ashok Kumar Acharya.

IFFCO TOKIO GENERAL INSURANCE CO. LTD.

In front of Sushree Bajaj,College Road,

Deogarh, PO/PS/Dist-Deogarh.                                                                                    …. O.Ps.

COUNSELS

For the Complainant           :-         Self

For the O.P-1                                    :-         None.

For the O.P-2                                    :-         None.

For the O.P-3                                    :-         None.

                                                  DATE OF HEARING : 05.11.2021, DATE OF ORDER : 26.11.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:- Brief facts of the case is that,  the Complainant  for his livelihood has owned a Bolero Pick-up bearing registration no-OD-09-5911 having Chassis No- MBLJA05EMG9G44512         and Engine No- JA05ECG9G43066. The said Bolero was insured with IIFCO-TOKIO General Insurance Company Ltd vide policy No- 1-14K3TF9M which is effective from dtd. 28.05.2019 to 27.05.2020. On dtd.30.12.2019 when the Complainant was moving from Kuchinda to Badgaon Under Sundargarh District sitting inside the Bolero being driven by the driver  Jakrias Tirkey, S/O-Bartholami Tirkey, at about 1.15 p.m near the Trust Fund College Bamara, a cow crossing the road suddenly came in front the Bolero for which the Bolero driver suddenly applied brake and lost his control over the vehicle. To save the cow, the Bolero dashed with a road side electric pole and then to a Hero Passion Motorcycle standing near the road side. There were two occupants excluding the driver (Total Three)at the time of accident and one of the occupant got minor injury. Due to the accident the front bumper, glass, Indicator, bonet, headlights, radiator, roof , side grill etc are got completely damaged. But other damage will be confirmed after dismantling of the Bolero. The Complainant informed the matter to the Insurance  and got registered a FIR in Govindpur Police station Under Sambalpur District vide  P.S Case no- 0169 dtd. 30.12.2019 u/s-279/337 IPC. The Complainant made contact with the O.P-3 who is the authorised agent of the O.P-1, about the repair of the said bolero, who in consultation with the Insurance company and as the insurance allowed him to shift the Bolero to the garage of his own choice. The complainant shifted it to one garage named K.K. Motors at Rourkela after one month of the accident. An estimate was prepared by the garage amounting to Rs.78,000/- and the Complainant has already submitted the estimate along with required documents for settling the accident claim as asked by the agent at Deogarh. But now the expenditure is expected to be doubled after lapse of one year. But due to pandemic of COVID-19 the work could not be progressed the vehicle had remained unattained up to October-2020. The Complainant in the first week of November-2020 met with the Agent (O.P-3) and requested him to proceed the claim settlement but he said that the Insurance Company has repudiated his claim as at the time of accident the bolero was carrying three person sitting inside it, though two person are permissible. But the repudiation letter though issued by the O.Ps has not been handed over to the Complainant for which the Complainant is in confusion. Again the son of the Complainant had made some telephonic contact with the higher officials of the Insurer (O.P-1) and submitted the relevant documents with Bhubaneswar office and Sambalpur office but no response was made till today. In the month of January-2021 the O.P-3 Agent told the Complainant that if he will compromise with the company then he will arrange to give him Rs.25,000/- from the Company and the Complainant will have no rights to file any claim case relating to this accident against the insurer in future but the Complainant did not agree to the proposal of the agent. As the Bolero is a finance vehicle and the financier is regularly making follow ups the Complainant for repayment of EMI against the loan. It is near about one year has been passed the vehicle is kept at the garage with a hope that the claim will be settled but the O.Ps are silent the matter for which the Complainant is facing untold troubles in earning his livelihood and to maintain his family.  In spite of having a valid insurance of the said Bolero the O.Ps did not bother settle the accident Claim and the act of the O.Ps amount to deficiency in service as well as unfair trade practice. The O.Ps has harassed the Complainant/customers and compelled him to visit their offices several times, which is expensive and wastage of time for the customers. So due to non-settlement of claim in proper time by the O.P-1, the Complainant is now in trouble and sustaining financial loss, mental agony and pain.

The O.P-1, 2 & 3 despite of service of notice they did not bother to appear before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose the case as well setting the O.P-1 & 2 as ex-parte in this case. Hence hearing conducted exparte under Rule-6 of Order-9 of Civil Procedure Code.

 

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

 

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a new Mahindra Bolero Pick-up and got it insured with the O.P-1 through O.P-3. The Complainant came to know about the repudiation of the claim from the O.P-3 who is the agent of the O.P-1 for the reason that at the time of occurrence there were three occupants inside the Bolero Pickup though as per the vehicle registration certificate the seating capacity was two(1+1). Basing on the FIR the O.Ps repudiated the accident claim. the National Commission in the case of National Insurance Co. Ltd. v. Pravinbhai D. Prajapati, wherein it was held that if the number of persons travelling in the vehicle at the time of the accident did not have a bearing on the cause of accident, then the mere factum of the presence of more persons in the vehicle would not disentitle the insured claimant from claiming compensation under the policy towards the repair charges of the vehicle paid by the appellant.  In the matter of “B.V. Nagaraju vs M/S. Oriental Insurance Co.” ... on 20th  May, 1996, Hon’ble Supreme Court of India has held that the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle. Again going through the judgments of Hon’ble Supreme Court of India in the matter of “Amalendu Sahu vs Oriental Insurance Co. Ltd.” on 25 March, 2010 it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis and payment shall be paid up to 75% of the admissible claim. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:-

 

Sl No.             Description                                                 Percentage of Settlememt

1          Under Declaration of                                  Deduct three years Difference in

          Description under Declaration                    premium from the amount of claim or deduct 25% of                                                                                                                             claim amount, whichever is higher. 

 

2.         Overloading of Vehicles                             Pay claims not exceeding 74% of           

             beyond Licensing                                        admissible Claim 

                         carrying capacity.

 

             3.        Any other breach of warranty/                     Pay up to 75% of the Claim

                       Condition of policy including                                                              

                      Limitation as to use.

           Again the Complainant has incurred an expenditure for an amount of Rs. 78,000/- to make the Bolero roadworthy and submitted the estimate provided by the Body garage as on the date of filling this Complainant petition. So we reached to a conclusion that the O.P-3 has no role to play in this case hence she discharge from liabilities.  But the O.P-1 & 2 has committed deficiency in services and we order as under:-

                                                                                           ORDER

              The complaint petition is allowed. The O.P-1 & 2 are jointly and severally directed to consider and settle the claim of the Complainant amounting to Rs.78,000/- incurred towards  the repair of the accident Bolero. The O.P-1 & 2 are jointly and severally further directed to pay Rs.70,000/-(Rupees Seventy Thousand)as compensation loss due to detention of the Bolero and Rs. 10,000/- towards the litigation costs. This amount shall be paid by the OP-1 & 2 to the Complainant within a period of one month from the date of receipt of a certified copy of this order, failing which the O.P-1 & 2 shall pay interest @ 5% per annum on this amount from the date of filing the complaint, i.e., 15.03.2021 till its realisation."

Order pronounced in the open Court today i.e, on 26^th day of November 2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

 

I agree,                                                                                            

 

MEMBER                                                                                           PRESIDENT

                                                       Dictated and Corrected

                                                                       by me.                                   

 

                                                                   PRESIDENT