Judgment & Order dt. 13.07.2017
Dire negligence on the part of the OPs in settling the claim of the complainant has galvanized the complainants to file the instant case u/s 12 of the C.P. Act, 1986, alleging deficiency in service against the OPs i.e. National Insurance Company Ltd. The facts leading to the filing of the instant case by the complainants may be epitomized as follows.
The complainant purchased one OMNIBUS of Mahindra & Mahindra Ltd., having its registration No.WB-62-D-2658. The vehicle was got insured with the OPs and the insurance was valid from 4.4.2014 to 3.4.2015. The vehicle was kept in a garage adjacent to the house of the complainant. On 27.3.2015 at about 1:00 a.m. the garage caught fire and the said vehicle also sustained damage due to fire. This incident was intimated to Tapan PS on 28.3.2015. Thereafter, OP-1 was also informed about the incident on 1.4.2015 and claim for insurance money was also submitted by the complainant before the OP-1. The said claim has not been settled as yet; it is still pending for decision by the OPs. Then the vehicle was taken to the authorized service centre of Mahindra Co. by the complainant and he incurred an expenditure of Rs.82,405/- in repairing the vehicle. On 20.7.2015, a legal notice was served upon the OPs, requesting them to dispose the claim of the complainant. But, the claim was not settled by the OPs and therefore, the complainant has filed the instant case claiming payment of Rs.82,405/- as claim amount and Rs.25,000/- as compensation for mental pain and anguish. Hence, arises the case.
One written statement is filed by the OPs, contending inter alia therein that the OP-1 received the information about the incident as alleged by the complainant on 1.4.2015 over telephone, that some miscreants set fire to his garage resulting in damage of his insured vehicle. On 2.4.2015 a surveyor was appointed for spot inquiry and to check damaged parts of the vehicle. It is OP-1 who asked the complainant to submit quotation for estimated cost for repairing of the vehicle and accordingly an estimated cost was submitted by him on 9.4.2015. Then and then, an official was appointed by the OP-1 to verify the costing and repairing of the vehicle. But, no sooner had the official arrived at the service centre, the complainant took away the vehicle and thus no opportunity was given to the insurance company by the complainant to verify and to assess the cost and repairing for the vehicle. The claim of the complainant was settled on 21.7.2015 and it has been informed to the complainant about its incapability to pay the claim amount. According to submission of the OPs, the estimated cost as submitted by the complainant is not proper and as they have been deprived of the chance of assessing the cost of repair of the vehicle, they are not at all liable for deficiency in service as alleged and as such the complaint should be dismissed in limini with cost.
Upon the averments of both the parties the following issues are formulated for consideration in this case.
Issues:
- Whether the OPs are liable for deficiency in service in repudiating / rejecting the claim of the complainant?
- Is the complainant entitled to get claim as prayed for?
Evidence of the parties
The complainant has filed an affidavit-in-chief along with documents as per list, which are kept in the record. On the other hand, one affidavit-in-chief has also been filed on behalf of the OPs-NIC along with some documents, which are also kept in the record for consideration.
DECISION WITH REASONS
Issue Nos. 1 & 2:
Both the issues are taken up for consideration simultaneously for the sake of convenience.
Ld. Lawyer appearing for the OP- Insurance Company has contended that the insurance company has not been given any chance to assess the loss sustained by the vehicle of the complainant and as such the claim of the complainant has been rejected due to negligence of the complainant. According to him, it is not possible for the company to assess the loss, unless a report by loss Assessor is submitted before the company. Loss Assessor / Surveyor went to the service centre to ascertain the loss of the vehicle; but the vehicle was taken away by the complainant before the arrival of the said surveyor and for this negligent act of the complainant, the claim of the complainant has been rejected. Ld. Lawyer appearing for the complainant contended that the insurance company was informed of the incident on 1.4.2015 and the claim was also submitted that day, but the said claim has not been settled by the insurance company till date. Non-settlement of the claim within period of 3 months from the date of submission of the same is deficiency in service on the part of the insurance company and therefore the complainant is entitled to get claim amount from the insurance company.
Perused the affidavit-in-chief filed by both the parties and also their documents filed herein. Considered the same. Also considered the submissions made on behalf of the parties.
Now to see whether the insurance company has committed deficiency in service by rejecting the claim of the complainant. A perusal of the complaint reveals that the complainant has not approached the Forum with clean hands. In the complaint, it has been stated that the complainant lodged a complaint before police of Tapan PS and that the said police has started PS Case No.1160 dt. 28.3.2015. One searching slip has been produced on behalf of the insurance company and the said slip is issued by the GRO, Balurghat, Dakshin Dinajpur, on 7.6.2017. From this searching slip, it is available that Tapan PS Case No.1160/2015 dt. 28.3.2015 has not been started. In this context and with reference to the aforesaid searching slip, we feel not a least hesitation to say that the averment of the complainant that a PS Case No. 1160/2015 dt. 28.3.2015 has been started in respect of alleged incident of his complaint in Tapan PS is not at all correct and such statement appears to be a misleading one. That apart, it is found that the complainant has made an attempt to suppress the vital facts relating to his case. The OPs have stated in their affidavit-in-chief and also in their written statement that when their loss assessing surveyor reached the service centre of the vehicle, the complainant had already taken away his vehicle from that service centre and thus, the said surveyor was not given any chance to ascertain the damage suffered by the vehicle. This averment of the OPs has nowhere been denied by the complainant and such being the state-of-affairs, we may hold that the complainant took away the vehicle from the service centre before the said surveyor had reached there. This is the vital fact and the complainant has suppressed this fact; he had made no whisper whatsoever within for corners of his complaint or affidavit-in-chief. This is not a single instance of suppression of vital fact by the complainant in this case. The complainant has stated in his complaint and also affidavit-in-chief that the claim has been kept pending by the insurance company as yet and that it has not been settled till the date. This averment of the complainant is found to be against the reality. Fact goes that the claim was rejected/ repudiated on 21.7.2015 by the OPs and such repudiation of the claim was also intimated to the complainant. This fact of repudiation of the claim has also been carefully kept under the carpet by the complainant so that the Forum cannot have knowledge about it. Why these suppression? Why has the complainant not come before the Forum with clean hands? Is it for fear of the cat being out of the bag? Be that as it may, we are of the opinion that the complainant has not come before the Forum with clean hands and therefore, he is not entitled to get remedy as prayed for.
The case has been brought by the complainant against the OPs alleging deficiency in service on the part of them and not settling the claim of the complainant. It is not a fact, as we have mentioned above, that the claim of the complainant is kept pending still now. It has been repudiated by the OPs on 21.7.2015 and the repudiation letter dt. 21.7.2015 has also been filed before the Forum by the OPs and same is kept in the record. Now arises the question whether such repudiation of the claim of the complainant by the OPs is proper or not. Repudiation of claim of the complainant has been made by the OPs on the ground that the complainant took away his vehicle from the service centre before their surveyor had arrived there. Their surveyor did not get the opportunity to ascertain the loss sustained by the vehicle and therefore, the claim of the complainant was turned down by the OPs. The complainant has made the claim for the damage of his vehicle on the basis of the estimated cost as shown in quotation filed by him. It is merely an estimated cost; it can never be treated as final bill of cost. A surveyor is required to file his report before the insurance company within three months of his appointment. In the instant case, we do not notice that any delay has been caused on the part of the surveyor to visit the service centre for the purpose of ascertaining the loss of the damaged vehicle. The surveyor was appointed on 9.4.2015 i.e. on the very day on which quotation for estimated cost was submitted by the complainant before the OP-1. On that very day, the said surveyor made visit to the service centre; but he could not find the vehicle of the complainant there, as the complainant had already taken away the vehicle from the service centre. So, it can never be said, in the facts and circumstances of the instant case, that the insurance company adopted delaying tactics to settle the claim of the complainant. The appointment of a surveyor is made in accordance with the provisions of Insurance Act and the report of loss assessing surveyor is most vital for consideration or otherwise of loss alleged to be sustained by the insured. Coming to the facts of the instant case, it is found that the complainant has not given a chance whatsoever to the surveyor of the insurance company to assess the loss, if any sustained by the vehicle of the complainant. There is no delay on the part of insurance company to appoint the loss assessing surveyor. The first surveyor only made primary inquiry on the spot and also submitted his report. Regard being had to these, we cannot but say that it is none but the complainant who has stood on the way of his claim being settled after the assessment of loss sustained by his vehicle. In the circumstances, the rejection of the claim of the complainant by the OPs appears to be proper and this being so, we find no deficiency in service caused on the part of OPs in repudiating the complainant’s claim herein. In the result, the case fails.
Hence,
O R D E R E D
that the complaint case be and the same is dismissed on contest against the OPs-Insurance Company but without cost.
Let a free copy of this order be supplied or sent to the parties concerned free of cost.
