DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 13th day of July, 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
C.D Case No. 131 of 2015
Binod Rout
S/o Rabinarayan Rout
Vill: Mruganayani
Po: Utakuda
Ps: Chandabali
Dist: Bhadrak
……………………. Complainant
(Versus)
1. The Branch Manager
Magma H.D.I General Insurance Company Ltd., Balasore Branch
At: Sahadev Khunta (In front of Canara Bank), Balia
Po/Ps/Dist: Balasore
2. The General Manager
Magma H.D.I General Insurance Company Ltd.
Magma House, 24 Park Street,
Kolkata- 16 (West Bengal
3. Sri Subrat Nayak
Agent, Magma Finance & Insurance Co.
At/Po: Charampa
Ps/Dist: Bhadrak
…………………………..Opp. Parties
Advocate For the Complainant: Sri N. C Barik & Others
Advocate For the O.Ps No. 1 & 2: Sri A. Panda
Advocate For the OP No. 3: Sri Ex-parte
Date of hearing: 05.09.2017
Date of order: 13.07.2018
SRI RAGHUNATH KAR, PRESIDENT
The complainant has filed the complaint alleging against the O.Ps for deficiency of service, that the complainant has purchased done Sonalika Tractor bearing Regd. No. OD-01D 1428, having Engine No. 3100EL143A395060F3 Chasis No. BSESE-39666753 being financed by MAGMA TTL Finance Ltd. Balasore Branch, the finance company, vide customer proposal No. PG/0064/A/12/100027. The aforesaid Tractor of the complainant has been insured by MAGMA-HDI-General Insurance Co. Ltd. having its Regd. office at 24 Park Street, Kolkata- 16 and Branch Office at Sahadev Khunta, Balia, Balasore vide insurance policy No. POO14400002/4107/349946 having customer ID No. 20000307433 with effect from dt. 26.02.2014 to 25.02.2015 through its agent Subrat Nayak At/Po- Charampa, Ps/Dist- Bhadrak the OP No. 3 during insurance coverage period. Unfortunately on dt. 22.01.2015 at about 8 PM the aforesaid tractor of the complainant met with an accident and rolled down by the side of the road at Mousada Bazar near Chandabali under Chandabali police station when it was coming on the road and caused damage to the body and engine. Immediately on the same day the complainant informed about the said accident to the insurance company through the Toll free No. 180030023202 as per the instruction mentioned in the insurance paper. After receiving the telephonic message from the complainant on the next day i.e. on dt. 23.01.2015 the insurance surveyor, Anirudha Babu come to the spot and enquired the matter, took photograph of the aforesaid accidented Tractor at the spot and took all documents in respect of the said tractor along with copy of insurance policy and suggested to shift the said damaged tractor to nearest garage and to repair it and submit expenditure bill in the Branch Office of the insurance company to settle the claim. As per the suggestion of the insurance investigator the complainant brought the said Tractor to the nearest garage of Ahamad Baba Engineering Workshop at Chandabali to checkup and repairing. When the said insured Tractor was kept in the garage, one Behera Babu another insurance surveyor/investigator of the MAGMA HD Insurance Company came to the garage and took further photograph of the aforesaid accident Tractor and after inspection suggested to repair the Tractor and submitted the expenditure bill in the insurance office at Balasore. According to suggestion of the insurance investigator the complainant repaired the said damaged Tractor. During repairing period as per the requirement of the motor mechanic of Ahamd Baba Engineering Workshop. The complainant purchased some spare parts from MORE Traders, Chandabali for an amount Rs 8250/-s and from DUNNOCK DEO (Authorized Dealer of Sonalika Tractor Spares and Accessories) spare parts shop at Charampa, Bhadrak for an amount Rs 24,697/-. The complainant has paid Rs 5,600/- to the mechanic towards repairing charges and for the cost of crank. As such the complainant has spent all total Rs 38,547/- towards purchasing of spare parts and repairing charges of the mechanic for the said accident Tractor.
After the repairing the said insure Tractor the complainant submitted the expenditure bill in the office of the OP No. 1 for settlement of the claim. The OP No. 1 assured to the complainant he would settle the claim after consulting with the OP No. 2 but till the date of filing of this case he did not settle the claim. The complainant sent a legal notice to the O.Ps on 15.10.2015 to settle his claim, but those O.Ps did not send any reply as well as he became heedless towards the legal notice hence the complainant has taken shelter under this Forum for realization of Rs 38,547/-.
The complainant had sought for the reliefs that the O.Ps be directed to pay Rs 38,547/- to the complainant as claim amount. The O.Ps also be directed to pay Rs 10,000/- to the complainant towards financial loss and mental agony. There further directed to pay the compensation of cost of the litigation to the complainant.
Documents filed by the complainant (Xerox copies).
1. Insurance papers OD-O1D-1428- 3 sheets.
2. Certificate of registration vide No. OD-01D-1428.
3. Permit No: OR-01/GV-PP/793/2015- PB 0562846- 1 sheet.
4. Goods Carriage Permit, Part- A- C 0324325- 1 sheet.
5. Form 38, RTO Balasore, Certificate of Fitness- FA 01418723- 1 sheet.
6. Odisha Motor Vehicle Dept., Form Receipt of Fess and Tax- 1 sheet.
7. A letter issued from the OP No. 1 to the complainant on 06.03.2014- Page 1 of 5-1 sheet.
8. Appendix- 1- Page 2 of 5- 1 sheet.
9. PG/0064/A/12/100027- Page 3 of 5- 1 sheet.
10. PG/0064/A/12/100027- Page 4 of 5- 1 sheet.
11. PG/0064/A/12/100027- Page 5 of 5- 1 sheet.
12. Letter written in odia issued by OP No. 2 to the complainant- 1 sheet.
13. Money receipt issued by OP No. 1- 1 sheet.
14. Cash memo on dt. 24.01.2015 vide TIN No. 21931505606 Receipt No. 5755 issued by MORE Treders At/Po Chandabali, Dist- Bhadrak- 1 sheet.
15. Retail Invoice, DUNNOCK DEO, TIN No. 21271501119 Authorized Dealer of Sonalika Tractors, At/Po- Charampa, Dist- Bhadrak on dt. 20.12.2002- 1 sheet.
16. Cash Credit Memo, Ahamad Baba Engineering Workshop, Bada Bazar, Chandabali, Bhadrak on dt. 02.02.2015- 1 sheet.
17. Legal notice issued by the concerned advocate of the complainant on 15.10.2015- 2 sheets.
18. Two numbers of Register post receipt- 2 sheets.
19. Customer copy- 2 sheets- 4 pages issued on 30.03.2015, 27.12.2014.
On the other hand the OP No. 1 & 2 have filed their written version analogously. They have challenged the maintainability and cause of action of this case. They have also challenged the non-joinder and mis-joinder of necessary party and jurisdiction of this Forum. The O.Ps have averred that the OP No. 1 & 2 are not liable to pay the claim amount since the complainant is failed to fulfill the terms and conditions of this policy and submits the permit the insured Tractor at the time of accident, as well as they have not caused any deficiency in service against the complainant. They further denied all the allegations made by the complainant against them.
The complainant had obtained a commercial vehicle package Miscellaneous Group of Vehicle Policy No. P0014400002/4107/349946 and P0014400002/4107/349942 against his new Tractor having Engine No. 3100EL143A395060F3, Chassis No. BZESE396667S3, Model D1 740 III Tractor manufactured by Sonalika in the year of 2014 and Trailer having Chassis No. 26908 manufactured in the year of 2014 respectively from Magma H.D.I General Insurance Co. Ltd. 2nd Floor, Anuj Chamber, 24 Part Street, Kolkata- 700016 for the period from 00:01 hrs. on 26.02.2014 to midnight of 25.02.2015 subject to terms and conditions of the policy and under this policy the insures undertakes to indemnify the insured against the loss or damage to the vehicle insured here under whilst thereon.
i. By fire explosion self ignition or lightning.
ii. By burglary, housebreaking or theft.
iii. By riot and strike.
iv. By earthquake (Fire and Shock Damage).
v. By flood, Typhoon Hurricane Storm Tempest Inundation Cyclone Hailstorm frost.
vi. By accident external means.
vii. By malicious act.
viii. By terrorist activity.
ix. Whilst in transit by road rail inland water way life elevator or air.
x. By land side/Rockslide subject to compliance of terms and conditions of the policy by the insured/complainant.
On 23.01.2015 the complainant intimated over the Toll free number mentioned on the face of the policy that the vehicle insured under the policy No. P0014400002/4107/349942 is damaged due to accident at Mausuda Bazar, Motto, Chandabali on 22.01.2015. That, on receiving intimation, call center of the policy issuing office registered the claim and requested the complainant to contact Magma H.D.I General Insurance Co. Ltd. Bhubaneswar Branch to lodge a claim since the place of accident and nearer to him and sent a mail to Magma H.D.I General Insurance Co. Ltd. Bhubaneswar Branch to take up the matter of the complainant to appoint a surveyor/ loss assessor to assess the loss caused due to the alleged accident and process the claim for settlement under policy No. P0014400002/4107/349946 as per terms and conditions of policy. That, on receiving mail from call center Magma H.D.I General Insurance Co. Ltd. Bhubaneswar Branch at Bhubaneswar contracted the complainant over phone and requested him to collect the claim from their branch office and submit the same after duly filled in and sign by him along with estimate of loss issued by authorized repairer, photo copies of RC Book of the insured Tractor, fitness certificate, receipt towards payment of Tax, permit, driving license of the person who was driving the tractor at the time of alleged accident and FIR and enable them to take further course of action.
That, on 23.01.2015 the complainant visited the office of the Magma H.D.I General Insurance Co. Ltd. Bhubaneswar Branch and submitted the estimate of loss and on receiving the estimate of loss, this branch office provided the claim form to the complainant then and there and requested him to submit the same after duly filled in and sign by him along with documents as stated to him earlier (mentioned in Para (d) under the heading of true state of affairs of this written version) and enable them take further course of action. But the complainant promised to submit the claim form along with the documents as stated to him earlier within a week. But he did not submit the same within promised period for which is to avoid further delay this Branch office appointed an independent surveyor cum loss assessor Er. Sadipta Behera on 01.02.2015 to survey the vehicle bearing Regd. No. OD-01D-1428 (Tractor) and assess the loss caused due to alleged accident. That, on receiving the deputation/appointment, the deputed surveyor/loss assessor Er. Sadipta Behera contacted the insured complainant on the same day and ascertained that the insured complainant has shifted the vehicle (Tractor) to M/s Ahmed Baba Engineering Workshop, Bada Bazar, Chandabali, Bhadrak and accordingly the deputed surveyor/ loss assessor Er. Sadipta Behera proceeded to the said workshop on the self same day and conducted survey over the insured tractor on the same day and subsequent days in presence of the insured-complainant and during his survey he took the photographs of the insured tractor and noted down the damages of the insured tractor before and after dismantling and verified the estimate of loss and submitted his report with the aforesaid Branch at Bhubaneswar on 19.02.2016 assessing the net loss of Rs 18,000/- caused to the alleged accident after deduction of depreciation, salvage and policy excess as per the terms and conditions of the policy and taking all the facts and circumstances into consideration.
That, on receiving the survey report, the Branch office at Bhubaneswar scrutinized the same along with claim form, estimate of loss, certificate of registration, fitness certificate, driving license and bills and insurance policy and ascertained that the insured complainant has registered the tractor having Chassis No. 31OOEL143A395060F3, Chassis No. BZESE396667S3, Model D1740III manufactured by Sonalika in the year of 2014 with registering Authority Balasore as Transport Tractor under Certificate of Registration No. OD-01D-1428 (Tractor) and insured the said tractor under a commercial vehicle package Miscellaneous Group of vehicle policy No. P0014400002/4107/349946 for the period from 00:01 hrs. on 26.02.2014 to midnight of 25.02.2015. But he has not submitted the permit of the said transport tractor for which said Branch Office wrote a letter to the complainant on 13.04.2015 to submit the permit of the vehicle bearing regd. No. OD-01D-1428 (Tractor0 at the material time of accident and enabled them to process the claim. But the complainant did not submit the same for which this Branch Office sent a reminder on 27.04.2015 through Regd. post to submit the permit of the vehicle bearing Regd. No. OD-01D-1428 (Tractor) at the material time of accident along with KYC documents (photo identity proof and address proof) within 7 days of the date of said letter or else this office will be constrained to treat the claim as “No claim”. But the complainant did not submit the same and turned deaf ear for which this office closed the claim file as “No claim” and intimated the same to the insured complainant on 14.05.2015 through Regd. post. That, the insured-complainant claims that the insured tractor was damaged due to road accident. But he has neither lodged FIR to that effect nor filed any documents to substantiate the name cause of loss. Moreover it is also ascertained that Road Tax was not paid against the insured tractor at the time of accident. That, as per the condition No. 2 of the policy it is the contractual duty the insured-complainant to give all such information and assistance as the company may require in settlement of claim. But in spite letter dt. 13.04.2015 and 27.04.2015 the insured complainant did not co-operate and submitted the required documents/ permit of the insured vehicle at the time of accident for settlement of claim under policy No. P0014400002/4107/349946 for the period from 00:01 hrs. on 26.02.2014 to midnight of 25.02.2015 and as such he has violated the General Exception Condition 3 (a) “The company shall not be liable under this policy in respect of :- any Accidental Loss or damage and/or liability caused sustained or incurred whilst the vehicle insured herein is being used otherwise than in accordance with the limitations as to use” of the policy.
Hence the OP No. 1 & 2 have prayed for the dismissal of the complaint with cost. The OP No. 3 has neither appeared nor filed his written version. Hence he has been set ex-parte.
OBSERVATION
We have already perused the complaint as well as the documents filed by the complainant, as well as the OP No. 1 & 2 have also filed their written version analogously. The complainant had filed a petition under order 1 rule 10 to impaled the OP No. 4. The petition is allowed but till 09.05.2017 the order passed by this Forum on 30.03.2017 could not be carried out by the complainant, after granting him the last chance so the learned Forum has recalled the order for impleding the OP No. 4.
The complainant has averred the facts such as the brand of the Tractor, Regd. No., Engine No., Chassis No., Name and style of the Financer, Customer proposal No., Name of the insurer or Insurance Company Ltd., Address of the Regd. Office, Policy No. and Customer ID No. with effect from dt. 26.02.2014 to 25.02.2015 through the OP No., all the above matters are describe in the Page No. 1 of this order and those are admitted by the OP No. 1 & 2 in their written version. The O.Ps have also admitted the said Tractor was accidented at about 8 PM on 22.01.2015 at Mausuda Bazar, Chandabali, Bhdarak. The complainant informed the insurance company through the Toll free No. 180030023202, the facts are also admitted by the OP No. 1 & 2. The facts, surveyor Anirudha Babu came to this spot and enquired the matter, two photograph of the aforesaid Tractor at the spot and took all documents in respect of the said Tractor along with copy of the insurance policy and suggested to shift the damaged vehicle two nearest garage and to repair it and submit expenditure bill in the Branch Office of the Insurance Company to settle the claim, such averments have not been admitted by the OP No. 1 & 2. Further the O.Ps have averred that Er. Sadipta Behera was appointed as surveyor on 01.02.2015 to serve the accidented vehicle. He suggested to the complainant shifted the vehicle to Ahmad Baba Engineering Workshop, Bada Bazar, Chandabali, Bhadrak. On the same day the surveyor conducted the survey over the insured Tractor in presence of the complainant. During his survey he took the photographs of the insured Tractor before and after dismantling and verified the estimate of loss and submitted the report with aforesaid branch on 19.02.2016 assessing the net loss of Rs 18,000/- caused due to the alleged accident, salvage and policy excess as per the terms and conditions of the policy and taking all the facts and circumstances into consideration. These facts have not been described in the complaint. But actually Sadipta Behera has submitted his report and such report has been submitted by the OP No. 1 & 2 and is enclosed with the case record.
FINDINGS
The settled principle of law is that the complainant should have submitted all the relevant documents before the surveyor. It is found from the report that the complainant has submitted the relevant documents except (1) police report, (2), tax particulars, (3) the road permit. We have found that the complainant has not furnished such documents till the date of preparation of the survey report which is essentially required for the settlement of the claim. That means the complainant did not go to the nearest police station where the accident was occurred and did not lodge any written report there. So the station diary could not be made, no PS Case No. has been registered which is mandatory according to law. The surveyor has also reported that the settlement of the claim could not be possible until police report or the FIR would not be submitted.
Secondly the road permit was also required for settlement of claim according to law. But the complainant has failed to furnish such documents till the date of survey.
Further it is also mandatory that the particulars of road tax and other taxes are required for the settlement of the claim. The surveyor has asked the aforesaid three numbers of documents to be submitted by the complainant before the settlement of the claim, but the complainant has failed to do so.
The surveyor Anirudha Behera was appointed to survey the alleged vehicle is a false story because no report has been furnished in the case record. The estimate of DUNNOCK DEO show room has been manipulated and furnished in the case record. The complainant has filed Xerox copy of fees and tax report in which it is shown that the tax was paid from 01.10.2015 to dt. 31.12.2015 so this documents is a not a valid document for the settlement of the claim. In fact the aforesaid three numbers of documents could not be furnished at time of settlement of the claim due to the negligence of the complainant so the O.Ps have caused no deficiency of service towards the complainant. It is also prima facie that the complainant has suppressed the matter before the police and the complaint is lacking the police report. After repeated reminder the complainant has submitted a permit. The permit vide No. OR-01/GV-PP7793/2015 is valid with affect from 05.07.2015 to 04.07.2020. So this documents is not an authenticated one. In spite of repeated reminder the complainant have failed to submit the relevant documents which were asked by the surveyor to be submitted at the time of settlement of the claim. So the complainant is not entitled to any claim. Hence it is ordered;
ORDER
The complaint be and the same is dismissed against the OP No. 1 & 2 and the OP No. 3 set ex-parte without merit and cost.
This order is pronounced in the open Forum on this day of 13th July, 2018 under my hand and seal of the Forum.
