DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK

Dated the 15th day of September, 2018

C.D Case No. 88 of 2017

                                                                                                                                                     Present:-

                                                                                                                       1. Shri Raghunath Kar, President

                                                                                                                       2. Shri Basanta Kumar Mallick, Member

                                                                                                                       3. Afsara Begum, Member                                        

Sri Debadatta Padhi

S/o Rajkishore Padhi

At/Po: Aradi

Ps: Dhusuri

Dist: Bhadrak

                                                        ……………………. Complainant

            (Versus)

 1. The Branch Manager

 National Insurance Co. Ltd.

 Balasore Branch

Zilla School Road, Balasore

 Po/Ps/Dist: Balasore

                                                   …………………………..Opp. Parties

Counsel for Complainant: Muktar Ali Khan and M.A. Khan, Advocates

Counsel for OP: Amarendra Kumar Panda, Advocate

Date of hearing: 04.07.2018

Date of order: 15.09.2018

SRI BASANTA KUMAR MALLICK, MEMBER 

This dispute arises out of a complaint filed by the complainant alleging deficiency of service.

The complainant is the owner of a Mahindra Savari vehicle bearing Registration No.  OR-01-T-6177 which was insured under the OP (National Insurance Co. Ltd) Vide policy No. 163005/31/16/6300001984 for sum assured of Rs 4,00,000/- covering the period from zero hour of 10.07.2016 to midnight on 09.07.2017 on payment of premium of Rs 22,897/-. But unfortunately the said vehicle met an accident at Nakhara under the jurisdiction of Cuttack Sadar police station on 08.03.2017 at about 3 A.M and sustained huge damage. The driver of the vehicle informed the local police about the matter of accident Vide SDE No. 3 dt. 08.03.2017. The complainant also informed the facts of accident to the OP (Insurer) requesting immediate follow up action. After being informed, OP engaged/appointed a surveyor to verify the spot. Soon after completion of all formalities, the complainant was permitted to shift the vehicle from accident spot to workshop for necessary repairing in order to put the vehicle on road. The mechanic of the workshop estimated the cost of repairing as Rs 2,04,480/-. Complainant arranged and submitted all required documents along with the estimate given by the workshop requesting the OP to settle the claim within the stipulated time and also submitted the papers as desired by the insurer time to time. The complainant, time and again, very frequently persuaded the OP to settle the claim but the OP did not take the matter seriously rather turned a deaf ear to the words/requests of the complainant. Being disappointed and aggrieved, complainant served a notice upon the OP through his advocate on 15.11.2012 requesting settlement of claim within a week or else the complainant would adopt legal recourse for getting his claim settled but the OP did not take any step to settle the claim rather preferred to communicate a letter on dt. 21.11.2017 directing the submission of SDE, in original. The complainant obtained SDE personally from the police authority and moved to the office of OP for its submissions but the OP refused to receive the document without assigning any valid reason. In spite of all sincere efforts made by the complainant, when failed to get his claim settled, finding no other way filed this dispute praying for relief as the OP has intentionally caused inordinate delay in settlement of the claim which amounts to deficiency of service.

OP resisted the claim of the complainant and contested the case. In submitting written version on the complaint, OP challenged the maintainability of the case on the ground of cause of action, non-joinder of necessary party and the dispute has been filed at the premature stage. It is also highlighted that the OP has already accepted the claim, whatever has been settled without any protest or objection and therefore this dispute is bad in law and not maintainable. In addition to above, OP has raised the question of jurisdiction as the OP neither resides nor works for the gain within the territorial limit/jurisdiction of this Forum. Apart from above the OP has denied all the allegations/facts of the complaint excepting the facts which are specifically denied in the written version. In narrating the actual fact of the case OP admitted that the vehicle bearing registration No. OR-01-T-6177 was insured with the OP covering period from 10.07.2016 to 09.07.2017 faced accident on 08.03.2017 when the insurance policy bearing No. 163005/31/6300001984 was in force. After having the information about the accident, OP deputed Er. Ashoka Kumar Das to inspect the vehicle but not to assess the loss caused due to accident. Another surveyor namely Er. Manas Kumar Mishra was appointed by the OP on dt. 11.03.2017 to assesses the loss caused by the alleged accident of the insured vehicle. After the survey was conducted, the vehicle was shifted to a private workshop for repairing and the complainant claimed the total assessment amount of Rs 2,04,480/- need to be reimbursed for getting the vehicle repaired as against which the surveyor-cum-loss assessor Er. Manas Kumar Mishra appointed by the OP has assessed the loss as Rs 60,500/- which was settled on 13.12.2017 and credited to the personal accident of the complainant maintained with Indian Bank on 15.12.2017 and the complainant received the amount without any protest and filed the present dispute on dt. 16.12.2017, a day after receipt of settled amount. Hence it is contended by the OP that the complainant has deliberately filed this dispute after receipt of the settled claim amount to harass and to tarnish the good will and hard earned reputation of the OP and its company.

We have gone through the complaint, written version of the OP, heard both the parties in course of hearing, perused materials on record and arrived at the conclusion that the following points/issues need to be discussed to derive the conclusion and to decide the case.

1. Whether the present dispute is maintainable in this Forum or not?

2. Whether the vehicle was insured under OP and whether the accident has occurred during validity period or not?

3. Whether the claim raised by the complainant is genuine or not?

4. Is there any provision for appointment of second surveyor in accident case?

5. Final observation and conclusion.

Admittedly, the complainant had a vehicle (Mahindra Savari) bearing Registration No. OR-01-T-6177 which was insured under the OP (National Insurance Company Ltd.) vide policy No. 163005/31/16/6300001984 for a sum assured of Rs 4,000,00/- on payment of Rs 22,897/- as premium the said policy was valid for a period commencing from 10.07.2016 to 09.07.2016. It is also a fact that the said vehicle met with an accident on 08.03.2017 at 3 A.M which falls within the validity period of the aforesaid policy and on having the information of accident, the OP appointed two engineers in two stages for inspection and assessment of damage of the accident vehicle. It is also a fact that there is no dispute about the accident, place of accident and filing of F.I.R with the police but the dispute arose due to inordinate delay in settlement of claim although claim form duly filled in together with all relevant documents were submitted instantly on the date of survey and subsequently within 15 days.

1. The complainant has claimed that he has made several requests and persuasions for settlement of claim at an early date so as to enable him to meet the expenses incurred for getting the vehicle repaired and to put it on road for generation of income. But the OP did not respond the requests of the complainant and made inordinate delay which compelled the complainant to serve notice upon the OP to settle the claim within a stipulated period which was also not responded by the OP.  In course of hearing OP challenged the maintainability of this case in the Forum on the ground of non-joinder of necessary party, lack of cause of action and the dispute has been filed at a premature stage. It is submitted by the OP that the agent Sri Gauranga Sahoo has not been impleaded as a necessary party for which the dispute is not maintainable in the Forum. Challenging the submission of the OP, the complainant countered in stating that when the OP caused inordinate delay in settlement of claim violating the provisions of I.R.D.A rule, complainant served a notice upon the OP on dt. 15.11.2017 through his advocate demanding settlement of claim within a specific period which is the second date of cause of action and the date of accident that is dt. 08.03.2017 is the first date of cause of action. Hence the objection raised by the OP is irrelevant. In countering the objection of OP on the ground of territorial jurisdiction the complainant stated that the OP has branch office at Bhadrak and engaged a good number of agents to operate its business in Bhadrak District. This clearly proves that the OP has business interest within the territorial jurisdiction of Bhadrak Forum. Therefore the case is maintainable.

2. The complainant as well as the OP have admitted that the vehicle was insured by afore mentioned insurance policy and there is no dispute on the point of accident and date of accident. That apart the insurance policy was valid for the period from 10.07.2016 to 09.07.2017 and the accident occurred on dt. 08.03.2017 as revealed from material evidence available on record. It is therefore crystal clear that the accident has occurred when the insurance policy was operative and was in force.

3. Complainant raised, in course of hearing, that after being informed, the OP deputed Er. Ashoka Kumar Das to conduct a survey in order to assess the loss caused due to accident. The said surveyor-cum-loss assessor made a thorough inspection and obtained the relevant relating to vehicle to submit the report to the insurance authority. But it is surprising that another surveyor Er. Manas Kumar Mishra was appointed once again as surveyor-cum-loss assessor which leads to doubt that the OP has some ulterior motive to suppress the report by the first surveyor. It is also suspected that the loss assessed by the first surveyor may be more then what is reported by second surveyor under the instigation of OP. The second surveyor has assess the loss as Rs 60,500/- as reveals from the surveyor’s report furnished by OP in course of hearing but the actual estimate made by the mechanic of the workshop other than carriage of damaged vehicle from the accident spot to the workshop is Rs 2,04,000/- including all service expenses. On the contrary OP stated that Er. Ashoka kumar Das was appointed to inspect the vehicle at the accident spot but not for assessment of loss. Er. Manas Kumar Mishra was appointed to assess the loss caused due to accident and basing on whose report the claim has been settled. It is also submitted by the OP that the estimate made by the complainant is fake and has been inflated with an unholy intention to deceive the insurance company. The photograph taken on the spot of the accident vehicle shows that the estimate made by the mechanic workshop covering the whole vehicle has been done under the instigation of the complainant to extract a big amount illegally from the OP. In raising another point the OP has claimed that if the settled amount is far less than the claimed amount, why and how did the complainant accept the settled amount of Rs 60,500/- without any protest as against the total claim of Rs 2,04,000/- and such instance leads to believe that the claim settled by the OP is genuine and up to the expectation of the complainant. From the above submissions of both the parties and perusal of all relevant documents on record we are of the opinion that the claim raised by the complainant is inflated and more then what is required for repairing the accident vehicle and the claim settled for an amount of Rs 60,500/- is felt less then what is required to be settled in view of the condition of accident of vehicle.

4. The complainant submitted in stating that according to the provision of I.R.D.A Rules, soon after having the information of accident, the insurance company has to appoint surveyor-cum-loss assessor for assessment of loss caused due to accident and after proper verification and assessment the claim finalized by the surveyor stands final. But in the present case two surveyors were appointed for assessment of loss which was not necessary for the purpose. The OP has appointed second surveyor to serve it’s own purpose as the assessment of the first surveyor is believed to be more than the assessment/expectation of the OP. There for it is believed that with an ill intention and ulterior motive, the OP has appointed second surveyor to settle a less amount as claim. On the other hand the OP claims that the former engineer was appointed for inspection of the spot and accident vehicle and the later one was appointed as actual loss assessor. Hence the allegation made by the complainant is meaningless having no truth at all. We have minutely verified the material evidence and heard the parties to this case and observed that the report submitted by Er. Ashoka Kumar Das is not available on record but the photographs of the accident vehicle which were taken by the said engineer is available on record. Therefore it is believed that the OP has appointed two surveyors violating the terms of regulations issued by I.R.D.A and contradictory to settled position of law.

In view of the discussions made in above paragraphs and on perusal of relevant documents we are of the final opinion that the complainant deserves at least 50% of the estimated amount for getting the vehicle repaired which is more than the claim whatever has been settled by the OP towards loss caused due to accident and the amount of claim raised by complainant is certainly more than what has been actual spent for getting the vehicle repaired. Under the above situation it is finally ordered;      

ORDER

In the result, the present complaint be and the same is allowed partly against the OP. OP is directed to pay a sum of Rs 42,000/- over and above the claim settled and as an additional amount to the complainant towards actual cost of repairing of accident vehicle and Rs 2,000/- as cost of litigation. This order must be complied within 30 days from the date of receipt of this order failing which interest @ 7% P.A will be charged on the award amount from the date of order.   

 This order is pronounced in the open Forum on this day of 15th September, 2018 under the seal of the Forum.