Shri A.K.Patra,President:

1. Complainant remains absent consistently on the date fixed for hearing .However, as per the provision contents there under section 38(3)(c ) of C.P.Act 2019 this complaint is taken up to decide on merit .
2. Peruse the material on record. We have our thoughtful consideration to the contentions of rival parties.
3. The captioned consumer complaint is filed by the complainant named above inter alia alleging deficiency in service  & unfair trade practice on the part of O.ps for delayed in settlement  of clam & for non release of insurance benefit claimed on account of the damages sustained  to his insured vehicle in a road accident dt. 02.07.2020 during policy period .
4. The complainant seeks for an order directing the OPs to pay Rs.2,90,850/-with interest @ 12% PA towards cost of the repairing of the insured vehicle and to pay Rs. 1,00,000/- as compensation for the harassment & mental agony , Rs. 50,000/- towards exemplary cost and Rs. 10,000/-towards cost of this litigation i.e he claimed total compensation of Rs.4,50,850/-. And further prayed for all other relief(s) as this Commission may deems fit & proper in the interest of justice.
5. The facts as stated in the complaint petition and emerged from the documents attached there with are that, the complainant is a registered Owner of a vehicle i.e SWIFT DEZIRE vide Reg. No. OD  -08-9999 and got it insured with Ops/Cholamandalam MS General Insurance Company Limited vide policy No.3362/01845195/000/01 for the period from 29.02.2020 to 28.02.2021.Unfortunately subject vehicle met with an accident on dt.02.07.2020  causing damaged to it loss to the complainant. It is  stated that, on 02.07.2020, his son  Asutosh Panda and driver Bijaya Krishna Mishra were returning from Bhawanipatna to Jaipatna by  the aforesaid vehicle and at about 7.30 PM, when they were crossing Ashram School Khalibhata , all of a sudden a cow came in front of the vehicle and that, in order to save the life of the cow, the driver suddenly applied break, resulting to which the vehicle got capsized on the road side. The vehicle was completely damaged in the accident so that it was unable to move further. Immediately, on the same day the matter of accident was reported to the OP 3/BM, Cholamandalam MS General Insurance Company Limited, Bhawanipatna through telephone who insisted him to visit to the office and also reported before the Jayapatna ,Kalahandi (odisha) Police Station vide S.D Entry No 016 dt.11/07/2020 .The O.P 3 advised the complainant to get the vehicle  repaired form any nearby service station and the expenses will be indemnified on production of the original bills and vouchers. With the assurance of the staff of O.P 3 , complainant  took the damaged  vehicle to Konark Automobiles at Jeypore for repair work and that, while the aforesaid vehicle was being repaired at Konark Automobiles , on the instruction of O.P 3 , an investigator namely Anup visited to the service station in order to ascertain the damage. After the verification, the investigator asked the complainant  to furnish all the necessary documents for annexure and also asked him  to furnish cancel cheque , so that they will immediately disburse the claim amount to his bank account .The complainant acted upon as per the instruction of investigator who assured to release the insurance benefit earliest .But the authorities of the insurance  company preferred to sit silent on this matter due to higher approval and delay due to pandemic of Covid-19.When the complainant visit to the office of O.P 3 he was again asked to submit all the documents and accordingly the complainant has submitted required  documents for third time, (firstly to initiate the claim and secondly to the investigator), the O.P 3 assured disbursement of insurance benefit  directly to the  bank account within a period of one  month but failed. At   the time of issuance of policy, the O.P 3 assured the complainant/insured  about his best service in attending all claims and disbursement on time, But it has been almost about 2 years, claim of the complainant is  pending with the O.pp parties in stagnant manner without any proceed to settled the claim. The complainant made several correspondences to the insurance company but none of these grievances are ever being attained. Every time he makes a visit to the office of the insurance company, the complainant was sent back with a false assurance of approval and disbursement of his claim amount within short period. When the insurance Company kept the claim application under cold storage, the complainant  somehow arranged the money with much hardship and paid Rs,2,90,850/- to Konark Automobiles , Jeypore to release his vehicle .Apart from  the said amount , he was burdened with cost for his  travel, food, stay etc. It is further stated that, there is a reasonable time stipulation for the insurance company to attend its customers claim in case of any mishap but keeping a record pending or adopting any arbitrary method to repudiate the same makes the company liable to be treated in accordance with law along with an exemplary cost to set an example. They are promoting avoidable litigation with a sole motive to harass the consumers and to frustrate the norms & policy designed for the benefit & welfare of consumers. In the facts & circumstances this case, the O.P parties are liable for unfair trade practice and deficiency in rendering fair service to the complainant and for this the complainant, apart from his legitimate entitlements, seeks kind interference of this Hon’ble Commission to impose an exemplary cost on the O.P parties to set an example for their mischief and foul play to harass the innocent consumers. That, the cause of action arose on 02.07.2020 when subject vehicle met with an accident in order to save life of the cow within the territorial jurisdiction of this Hon’ble Commission and on subsequent dates, when the complainant have made several correspondence   to the insurance company and visited to the office of O.P 3 but claim has not yet settled .Hence this complaint.  
6. That in order to substantiate his  stand ,the complainant has  relied on the following documents and filed the true photo copy of the same :

1. A copy of vehicle registration details
2. A copy of Station Diary entry vide G.D No.16 dt.11.07.2020
3. A copy of insurance Policy.
4. A copy of Driving License of the driver Bijaya Krishna Mishra
5. Two numbers of correspondence made with O.pp parties
6. A copy of Final Bill. So also the averment of the complaint petition is supported by an affidavit of the complainant.

7. On being Notice the OP No. 1 did not appeared to contest the case.
8. The O.Ps No 2 & 3 /Insurance Company appeared through their Learned counsel Sri. S.K.Panda and file their written version denying the complaint allegation on all its material particular. However, insurance of the subject vehicle and it was valid at the time of accident so also accident caused damage to the subject vehicle is not disputed.
9. The O.Ps No 2 & 3 /Insurance Company in their written version stated that, alleged accident occurred on 02.07.20 and the same has been intimated to the OP 2 only on dt. 14.07.2020 with a delay of 12 days .It is submitted that, the OP2 deputed surveyor who assessed the loss as Rs. 85,000/- only but the claim of the complainant could not be settled as there is  delay intimation of 12 days. The  prevaricating statements of the complainant & his son over phone calls recorded by the OP clearly proves that, the vehicle was driven by son of the complainant having no DL and the vehicle though a private vehicle was used for commercial purpose. It is further contended that, Bijaya Krishna Mishra was falsely implanted having DL though the son of the complainant having no DL was actually driven the subject vehicle at the time of the accident. It is further stated that, the vehicle of the complainant is 8 years old on the date of accident and as per SDE the front glass and a door was damaged due to the accident but the complainant claimed full damages of the vehicle in the claim petition is not admissible rather the claim of the complainant is rightly repudiated on dt. 31.08.2020 and the same has been intimated to the insured complainant .It is further in para 6 (six) of the written version stated that, claim has been repudiated on 30.08.2020 and the present complainant has made on 06.06.2022is barred by limitation.
10. To substantiate their claim the Ops have relied on the following documents :- ((a) Copy of Insurance Policy,(b) Copy of Final Survey report ,(c) Copy of repudiation letter dt. 30.08.2020 (d) copy of all recordings .But no such documents are filed  in the record for our perusal.
11. After perusal of the complaint petition, written version and all the documents relied on by both the parties placed in the record, the points for consideration before this Commission is:-Whether the Complaint is maintainable under C.P.Act 2019  ? Whether the complainant is entitled for insurance benefits as claimed under the alleged insurance policy on account of damages sustained to his insured vehicle in a road accident dt. 02.07.2020 ? and Whether there is unfair trade practice &  deficient  service on the part of the Ops /insurance company for  delayed in settlement & release of   claim of the complainant caused injuries to the complainant ? and Whether the complainant is entitled to get relief(s) as claimed ?
12. Here, we may observe that, the Op s 2&3 /insurance Company has admitted the facts that, subject vehicle was insured with Cholamandalam MS General Insurance Company Limited. Insured vehicle got damaged in an accident during policy period causing loss to the insured /complainant is not disputed .The accident vehicle was attended by an authorized investigator /surveyor of the Ops /insurer who assess the loss at Rs.85,000/- but claim of the complainant /insured is repudiated on the ground of delayed intimation and also on the ground that, the subject vehicle, at the time of accident, was driven by a person having no DL .
13. Law is well settled that, the burden to prove the defense raised by the insurers as regard the question as to whether there has been any breach of violation of policy conditions of the insurance policy has been issued or not, would be upon the insurer.  The breach on the part of the insured must be a willful one being of fundamental condition by the insured himself and the burden of proof, therefore, would be on the insurer.  With a view to avoid its liabilities it is not sufficient for the insurer to show that, the person driving at the time of accident was not duly licensed but it must further be established that, there was a breach on the part of the insured. Reliance, in this connection, may be placed on Narcinva V. Kamath and Another vs. Alfredo Antonio Doe Martins and Others [(1985) 2 SCC 574], Skandia Insurance Company Ltd. vs. Kokilaben Chandevadan and Others [(1987) 2 SCC 654], Sohan Lal Passi vs. P. Sesh Reddy and Others [(1996) 5 SCC 21] and United India Insurance Company Ltd. vs. Lehru & Others [(2003) 3 SCC 338].
14. Nothing placed on record to hold that, at the time of the accident the  subject vehicle was driven by person having no valid DL as such we are not agreed with the insurer that, the complainant is not entitle to be indemnified by the insurer for the loss sustained during policy period .
15. The insurance company further contended that, alleged accident occurred on 02.07.20 and the same has been intimated to the OP 2 only on dt. 14.07.2020 with a delay of 12 days .It is submitted that, the OP 2 deputed surveyor who assessed the loss as Rs. 85,000/- but the claim of the complainant could not be settled as there is  delay intimation of 12 days. On   the other hand the Ops /Insurer have not specifically denied the facts stated there in the complaint petition that, the intimation of alleged accident is made telephonically immediately on the same date to the OP 3/BM, Cholamandalam MS General Insurance Company Limited, Bhawanipatna who assured & advised the complainant to get it repaired and the cost of which  will be indemnified on production of the original bill & vouchers.  Here, we may refer the circular dt. 20.09.2011 of the Insurance Regulatory and Development Authority of India vide their reference no –IRDA/HLTH/MISC/CIR/216/09/2011 wherein certain guidelines have been issued for condoning the delay in claim intimation /documents submission with respect to all life insurance contracts and all non-life individual and group insurance contracts while settling the claims of the insurers. It is particularly pin-pointed that- “the current contractual obligation of the insured to intimate the company or submit the papers within specific time is for the purpose of investigation, loss assessment etc but this condition should not prevent genuine claims when delay is due to unavoidable circumstances”. It further states that- “insurer’s decision to reject the claim shall be based on sound logic and valid grounds, be noted such limitation clause does not work in isolation and is not absolute”. In  the facts & circumstances of this case we found no delayed intimation to the insurer as such  we are of the opinion that, denial of insurance benefit to the complainant on the ground of delayed intimation is not proper rather it is an arbitral & unfair act of the insurance company certainly caused financial loss & mental agony to the complainant cannot be denied.
16. Law is well settled that, cause of action for presentation of complain arose on the date of knowledge of repudiation of insurance claim of the complainant  under  an insurance policy .Here in this case , the  Ops/Insurance company in their  written version mentioned  two numbers of date of repudiation i.e  “the claim of the complainant is rightly repudiated on dt. 31.08.2020 and the same has been intimated to the insured complainant “ .It is further in para 6 (six) of the written version stated that, “claim has been repudiated on 30.08.2020 and the present complainant has made on 06.06.2022 is barred by limitation” but no letter of repudiation is placed on the record for perusal.. So also the Ops /insurer has failed to established that, any letter of repudiation of the claim of the complainant under the subject insurance policy has ever served to the complainant, as such, we are unable to hold that, the complaint is barred by limitation rather cause of action is continue as the claim of the complainant is not yet settled i.e rejected/allowed by  the Ops /insurance company .
17. Law is well settled that, Insurance Policy is taken for reimbursement or for indemnity of loss which may be suffered on account of insured at peril, the services of the insurer cannot be said to have hired or availed for a commercial purpose .Accordingly we are of the opinion that, the complainants is a consumers of the Op/Insurance Company. Insurance claim not yet settled by the Ops/ Insurance Company is found to be not proper rather caused injuries to the complainants as such, there is sufficient cause to file this complaint & it is  continuing as Ops/insurer has failed to proved any settlement of the claim (either allowed /or rejected).Hence we are of the opinion that , complainant presented on 06.06.2020 is well in time and the complaint is well maintainable within the jurisdiction of this Commission.
18. The complainant has stated that he has paid   Rs,2,90,850/- to Konark Automobiles , Jeypore for repairing  of the subject vehicle and he was burdened with cost for his  travel, food, stay etc.but no cogent evidence is adduced by the complainant in this respect as such we are unable to concluded that the complainant has spent Rs,2,90,850/- for repairing  of the subject vehicle rather contention of the Ops/Insurance company that, the accident vehicle was attended by an authorized investigator /surveyor of the Ops /insurer who assess the loss at Rs.85,000/- not disputed remains unchallenged..
19. Based on the above discussion & settled principle of law and on admission of the facts by the Ops/Insurance Company, we are of the considered view that, the complainant is entitled to get release of insurance benefit under the subject insurance policy and non release of claim certainly caused financial loss & mental agony to complainant as such the op 2& 3 / authorities of Insurance company is found deficient in service & have indulged themselves in unfair trade practice. Accordingly the op/ Insurance Company is liable to indemnified the complainant by releasing the insurance benefit of  Rs 85,000/-(eighty-five thousand) only  i.e the undisputed loss assessed by the surveyor only under the subject insurance policy with interest @ 9% P.A from the date of filling of this complaint i.e from 06.06.2022 till its actual payment to the complainant and further liable to  pay not less than Rs. 5,000/(five thousand)- only as cost of this litigation. No further compensation need to be awarded towards mental agony as interest over insurance benefit is payable to the complainant is awarded. Nothing deficient service or unfair trade practice is proved against the Op 1(one) . Hence it is ordered.

ORDER

This consumer complaint is allowed in part against the Ops No 2 & 3 / Cholamandalam MS General Insurance Company Limited authorities on contest and dismissed against the Op 1(one) with the following direction:-

The Ops No 2 & 3 / Cholamandalam MS General Insurance Company Limited authorities is directed to release insurance benefit of Rs 85,000/-only i.e. the undisputed loss assessed by the surveyor only  under the subject insurance policy with interest @ 9% P.A from the date of filling of this complaint i.e from 06.06.2022 till its actual payment to the complainant and to pay to pay Rs. 5,000/-(five thousand) only towards  cost of this litigation to the complainant . As we have already awarded interest over the awarded sum insured amount, there shall be no award of further compensation towards mental agony as claimed.

It is further directed that, this order be complied within 45 (forty-five) days from the date of received of this order failing which the Ops No 2 & 3 / Cholamandalam MS General Insurance Company Limited authorities shall  jointly liable to pay Rs.200/- per day as delayed compensation to the complainant till compliance of this order

Dictated and corrected by me.

   Sd/-    

President

                     I   agree.                Sd/-

                                                        Member.

Order pronounced, in the open Commission today on this 21^st day of February 2024 under the seal and signature of this Commission. The pending application if any is also stands disposed off accordingly. Judgment could not be pronounced on time in want of quorum.  

The judgment be uploaded forthwith in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet  to treat the same as copy of the order received from this Commission .Ordered accordingly.