Date of Filing: 12-06-2017 Date of Final Order: 15-12-2017
Sri Debangshu Bhattacharjee, Member
This is a case u/s 12 of CP Act filed by Bhaskar Sarkhel against The Branch Manager, Oriental Insurance Company Ltd. claiming for insurance claim amount of Rs.2,58,037/-, Rs.1,00,000/- for mental pain and agony, Rs.1,00,000/- for deficiency in service and Rs.10,000/- for litigation cost.
The case of the Complainant, in short, is that the Complainant purchased a car (MAHINDRA MAXXIMO STDLOADCARO) for earning his livelihood by means of self-employment being Registration No. WB-63/5678 and the said vehicle was registered with the Registering Authority at Cooch Behar and duly insured with the OP/Insurer vide Insurance Policy No.313202/31/2016/706. The period of insurance was 23.05.2015 to 22.05.2016. As per Policy of the said vehicle, the same was covered with total package.
It is pleaded that on 27.11.2015 while the Complainant was driving the vehicle and reached near Hindustan more, it met an accident in collision with one vehicle and it was damaged badly. The matter of accident was informed to the OP and the nearest police station. Then the vehicle was taken to Khokan Motors Pvt. Ltd., Cooch Behar for repairing. On 03.12.2015 Khokan Motors Pvt. Ltd., Cooch Behar issued an estimate of Rs.2,58,037/- for repair of the said vehicle. Thereafter, the Complainant submitted his claim along with all required documents to the O.P on 11.12.2015 for getting insurance claim from the OP. Till date the O.P neither pays the insurance claim nor repudiates the claim of the complainant. The efforts of the complainant to receive the claim form the O.P were in vain. It is further case of the Complainant that such type of activities of the OP was unfair Trade Practice like deficiency in service. The OP willfully had been trying to deprive the Complainant and as such Complainant has filed this case for proper relief.
The OP in order to contest this case has filed w/v denying all material allegations contending inter-alia that the instant case is not maintainable and the Complainant has not cause of action to file this case the vehicle in question was/is a commercial vehicle used for profit and gain. Specific case of the OP is that the Complainant was not a consumer and the present dispute is not a consumer dispute and service as defined in section 2(1)(o) of the C.P. Act, 1986 is not applicable to this O.P. The OP admitted that they issued a Goods Charring Commercial Vehicle (GCCV) Insurance Policy being No.313202/31/2016/706 for the period from 23.05.2015 to 22.05.2016 against the Registration No. WB-63/5678 in the name of the Complainant relying upon the proposal on good faith subject to rules and regulations. After getting the intimation about the accident from the complainant, the O.P appointed Sri Pranay Paul, Surveyor/loss Assessor to survey and assessed the actual loss. The Surveyor submits his interim survey report on 25.01.2016 and final report on 17.07.2017. According to the Final Motor Survey Report the IDV (Insured Declared Value) of the vehicle as per insurance policy was Rs.2,10.000/-. Where the assessment of loss is exceeding 75% of the IDV it is treated as total loss and in that situation an opinion from the second surveyor is required to confirm the report of first surveyor as per norms of the insurance company. The insurance company is waiting for the report from the second surveyor. The claim of the complainant is under process. On the basis of the aforesaid facts the OP prays for dismissal of this case.
Considering the complaint petition and its Written Version, the following points are necessarily come up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P any deficiency in service, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Heard the argument at a length as advanced by the Ld. Agents for the Complainant and the O.P. Perused the documents along with evidence on affidavit of the parties.
Point No.1.
The Complainant Bhaskar Sarkhel purchased an Insurance Policy for his vehicle being Regd. No. WB-63/5678 from the OP Insurer on payment of premium of Rs.18,772/-. Therefore, there is a transaction between seller and buyer, it relates to any goods on consideration and the Complainant paid premium against such insurance policy.
Hence, we hold that the Complainant is a consumer as per provision u/s 2 (1)(d) of the CP Act, 1986.
Point No.2.
The Complainant is a resident of Sitai in the district of Cooch Behar. The Office of the OP is situated within Cooch Behar town. Hence, this Forum has territorial jurisdiction to try this case.
The claim of the Complainant is much less than the statutory limit. Hence, this Forum has pecuniary jurisdiction to try this case. This point is also decided in favour of the Complainant.
Point No.3 & 4.
Both the points are taken up together for convenience of discussions as well as the points are related with each other.
The accident of the alleged vehicle took place on 27.11.2015. The Complainant submitted his insurance claim along with all require documents to the O.P on 11.12.2015 for getting insurance claim from the OP. Till date the O.P neither pay the insurance claim nor thy repudiate the claim of the complainant. The complainant served a legal notice to the O.P on 07.03.2017 and the same was received by the O.P on 09.03.2017. The O.P in their W/V admitted the fact. But, all efforts of the complainant to receive the insurance claim form the O.P were in vain.
The O.P in their evidence on affidavit also admitted the fact that after getting the intimation about the accident from the complainant, they appointed Sri Pranay Paul, Surveyor/loss Assessor to survey and assessed the actual loss. So, it is not in question that they are totally aware of the whole story.
The first Surveyor Sri Pranay Paul submits his interim survey report on 25.01.2016 and final report on 17.07.2017. According to the Final Motor Survey Report the IDV (Insured Declared Value) of the vehicle as per insurance policy was Rs.2,10,000/-. The assessment of loss is exceeding 75% of the IDV it is treated as total loss and in that situation an opinion from the second surveyor is required to confirm the report of first surveyor as per norms of the insurance company. The insurance company neither mentioned the name of the second Surveyor whom they gave appointment nor they mentioned the time of receiving the second survey report.
There is no iota of evidence produced by the O.P that they informed the status of the claim to the complainant.
On 11.12.2015 the Complainant submitted his claim along with all required documents to the O.P for getting insurance claim from the O.P. The first Surveyor Sri Pranay Paul submits his interim survey report on 25.01.2016 and final report on 17.07.2017. After that a long time has already been elapsed but the complainant has not received any amount from the O.P.
The O.P Insurance Company‘s first Surveyor Sri Pranay Paul submits his interim survey report on 25.01.2016 and final report on 17.07.2017. According to the Final Motor Survey Report that the IDV (Insured Declared Value) of the vehicle as per insurance policy was Rs.2,10,000/-. The assessment of loss is exceeding 75% of the IDV it is treated as total loss Thus, we have reason to give emphasize on the surveyor report of Insurance Company. We can’t ignore the Surveyor report as and when it is settled in a case reported in 2015 CJ 965 (N.C) that “Surveyor’s report has significant value”. (Submitted by the O.P) In the light of foregoing discussion and Rulings of Higher Forum it is our considered opinion that the surveyor report is an important document and should not be ignored, specially when we have no other cogent evidence to the contrary. It is settled principle that the surveyor report has the infinite value. Thus, the Complainant is entitled to get payment of claim as per report of the Surveyor. The O.P never pleaded that the complainant is not entitled to get the insurance claim.
Fact remains that the O.P already took about 24 months time to settle the claim after receiving the claim application though even after filing the present case. It is well settled in a case reported in 2015 CJ 114 (N.C) that “Insurance claim must be settled or rejected within reasonable time of two months”. It is also settled in a case reported in 2012 CJ 1797 (N.C) that “delay in settlement of claim amounts to deficiency of service” (Submitted By complainant). Thus, in this context the deficiency in service of the O.P. is clearly proved for which the Complainant is entitled to get relief and compensation.
Be that as it may, in view of the facts and circumstances of the case we are in considered opinion that present case deserved to be allowed in favour of the Complainant. We think that the Complainant is entitled to get Rs.1,57,500/- (75% of the Insured Declared value of Rs.2,10,000/-) from the O.P. and Rs.20,000/- for deficiency in service.
In the result, the Case succeeds.
Hence,
It is Ordered,
That the Complaint case be and the same is allowed on contest against the O.P with cost of Rs.5,000/-.
The O.P is directed to make payment of Rs.1,57,500/- (75% of the Insured Declared value of Rs.2,10,000/-) to the Complainant also to make payment of Rs.20,000/- as compensation for deficiency in service by not settling the claim within a reasonable time.
The entire order shall be complied with by the O.P within 45 days i/d the entire amount shall carry interest @ 6% p.a. till realization and the amount so accumulated is to be deposited in the Consumer Legal Aid Account.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
