SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint U/s 12 of the Consumer Protection Act. 1986, (here-in- after called as the “Act”) alleging deficiency in service against the Opp. Parties claiming compensation.
2. The factual matrix of this case is that the complainant was the registered owner of a Indigo ECS LX TDI vehicle bearing registration No.OD-01A-8904. The aforesaid vehicle was insured with the Ops which was valid from 10.4.2013 to 9.4.2014. The vehicle of the complainant met with a road accident at Sahadevkhunta-Chandamari Padia on 22.3.2014 while returning from the workshop after repairing. An FIR was lodged before Sahadevkhunta Police Station vide P.S. Case No.679 dated 23.3.2014. The complainant reported the matter to Ops-Insurance Company and filed claim application claiming Rs.1,25,936.00 for repairing cost as estimated by M/s Auto India, OT Road, Balasore. But on 14.8.2014, the Ops have repudiated the claim of the complainant on the ground that at the time of accident the insured vehicle has no valid permit. Hence, this case.
To substantiate his case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-
- Photocopy of Registration certificate.
- Photocopy of DL.
- Photocopy of Insurance policy document.
- Photocopy of Estimate.
- Photocopy of acknowledgement of IIC, Sahadevkhunta.
- Photocopy of Repudiation letter dated 14.8.2014.
- Photocopy of a receipt showing repairing charge of the vehicle.
3. In the present case, Ops made their appearance and filed their joint written version denying the averments made in the complaint. They have challenged that the complainant has no cause of action to file the case and the case is not maintainable. They have stated, inter alia, that the vehicle in question of the complainant was a transport vehicle for carrying of passengers for hire and was also insured under them covering the period from 10.4.2013 to 9.4.2014. They have admitted the fact of accident occurred in respect of the vehicle of the complainant. It is specifically stated that on receipt intimation about the accident, they deputed a Surveyor to conduct spot survey, who submitted his report on 26.3.2014. On receipt of the claim Form, again the Ops have deputed another Surveyor for final assessment of loss meted out by the insured vehicle, who submitted his report on 1.5.2014 assessing loss of Rs.53,800/-. From the report of the Surveyor, it came to light that at the time of accident, the alleged vehicle of the complainant had no valid permit. Therefore, the Ops have repudiated the claim of the complainant. Hence, the question of deficiency in service does not arise at all.
In support of their case, the Ops have relied on the following documents which are placed in the case record-
- Photocopy of Insurance Policy.
- Photocopy of Claim intimation.
- Photocopy of Spot survey report.
- Photocopy of Claim form with estimate of loss.
- Photocopy of Final survey report.
- Photocopy of Registration certificate of the insured vehicle.
- Photocopy of Permit in respect of the insured vehicle.
- Photocopy of Repudiation letter.
4. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the Ops?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the complainant is entitled to?
F I N D I N G S
5. Before delve into the merits of the case, it is required to be threshed out with regard to the documents produced on behalf of the complainant. On perusal of Annexure-1, it is reflected that the contract carriage vehicle of the complainant was registered before the Transport Authority bearing Registration No.OD-01A-8904. Annexure-2 shows that DL of the driver of alleged vehicle was valid on the date of accident. It is seen from Annexure-3 that the vehicle in question was insured with the Ops vide Policy No.55030131130100000248 which was valid at the time of accident. Annexure-4 is the estimate made by M/s Auto India, Balasore. Annexure-5 is the acknowledgement issued by the IIC, Sahadevkhunta PS which shows that the complainant had lodged a complaint regarding accident of her vehicle. Annexure-6 is a letter issued by the Ops in favour of the complainant repudiating her claim. Annexure-7 is a bill dated 22.3.2014 issued by KGN Motors Workshop, Balasore showing payment of repairing charge in respect of the insured vehicle.
6. The main crux for repudiation of the claim of the complainant is that at the time of accident on 22.3.2014, the alleged insured vehicle had no valid permit to ply as because the insured vehicle was having a contract carriage vehicle. In this context, the complainant claimed that the vehicle of the complainant met with an accident situated at Sahadevkhunta-Chandamari Padia on 22.3.2014 while the vehicle in question was returning from the workshop after repairing. For the alleged accident, an FIR was lodged before Sahadevkhunta Police Station vide P.S. Case No.679 dated 23.3.2014. Also the complainant intimated the matter to Ops-Insurance Company and filed claim application claiming Rs.1,25,936.00 for repairing cost, as estimated by M/s Auto India, OT Road, Balasore, but the Ops have repudiated the claim of the complainant on the ground that at the time of accident the insured vehicle has no valid permit.
7. On the other hand, it is the stand of the Ops that the insured vehicle was a transport vehicle for carrying of passengers for hire. On receipt of intimation about the accident, one Surveyor was deputed to conduct spot survey, who submitted his report on 26.3.2014. Further, on receipt of the claim Form, again the Ops have deputed another Surveyor for final assessment of loss meted out by the insured vehicle, who submitted his report on 1.5.2014 assessing loss of Rs.53,800/-. From the report of the Surveyor, it came to light that at the time of accident, the alleged vehicle of the complainant had no valid permit. Thus, they have rightly repudiated the claim of the complainant.
8. From the above rival claim of the parties, admittedly, it is found that the vehicle in question bearing Registration No.OD-01A-8904 was insured under the Ops vide Policy No.55030131130100000248 under Annexure-3. It is also the admitted fact that the alleged insured vehicle met with road accident near Sahadevkhunta-Chandamari Padia on 22.3.2014. In the present case, Ops did not raise any claim that at the time of accident passengers were boarded in the alleged insured vehicle. It is the stand of the complainant that while the insured vehicle was returning from the workshop after repairing, accident was occurred and it was damaged. In support of such contention, the complainant has submitted the Bill dated 22.3.2014 issued by KGN Motors Workshop, Balasore vide Annexure-7. It is well made out from Annexure-7 that the insured vehicle was repaired on the alleged date of accident and for the repairing charge, an amount of Rs.750/- was paid. The Ops have not been able to show any evidence contrary to the above stand taken by the complainant.
9. To strengthen her case, learned counsel for the complainant relied on a decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in 2011 (3) CPR 101 (NC) in the case of Reliance General Insurance Co. Ltd. V. Dharwin K.David, wherein it has been observed that –
“Under Section 66(3)(p) of the Motor Vehicle Act use of a vehicle without permit as mandated under Section 66(I) will not apply in case the empty vehicle plies on the road for the purpose of repair.”
10. In the present case, once the complainant has filed his affidavit that his insured vehicle was returning from the workshop after repairs, the burden to prove otherwise shifted to the Ops. In case the insured vehicle of the complainant had indeed not gone to the workshop for repair, the Ops could have obtained the records of the workshop to prove their case. In the absence of any documents produced from the side of the Ops, it can safely be held that the alleged insured vehicle of the complainant was empty at the time of accident and it was returning from the workshop after repairs. It is also admitted by the Ops that the insurance policy in respect of the insured vehicle in question was valid from 10.4.2013 to 9.4.2014, as reflected from the Annexure-3. The alleged accident was occurred on 22.3.2014. Therefore, it is held that at the time of accident the insurance policy in respect of the insured vehicle was valid.
11. Besides the above, Annexure-4 shows that the complainant had filed the estimate from M/s. Auto India, Balasore to the tune of Rs.1,25,936/-. On the other hand, it is stated by the Ops that their Surveyor had assessed the loss of damage to the tune of Rs.53,800/- vide Annexure-E. On a bare perusal of Annexure-E, it is seen that the Final Surveyor & Loss Assessor Er. S.S Mishra had submitted his report with estimate on 29.4.2014. On a bare perusal of the above estimate vide Annexure-E, it is seen that the Loss Assessor had not visited the workshop i.e. M/s. Auto India, OT Road, Near Tamulia Gate, Balasore, who had submitted estimate in favour of the complainant vide Annexure-4, rather estimate was collected from the repairer namely M/s Venus Auto Works Pvt. Ltd., Remuna, Januganj, Balasore. The Ops have not agitated their claim that the estimate provided by the Repairer of the complainant is not an authorized workshop. From the above, it is established that the Loss Assessor of the Ops had not at all visited the workshop of the complainant, who had provided the estimate to the complainant at least to satisfy himself that the estimate so provided was false and fabricated. On the other hand, in a catena of decisions, Hon’ble NCDRC, New Delhi and the Hon’ble Apex Court have been pleased to observe that the report of the Loss Assessor is not a conclusive one. Therefore, the estimate submitted by the Ops is not acceptable.
12. From the above discussions made in the foregoing paragraphs, this Commission is of the considered opinion that repudiation of the claim of the complainant by the Ops is held to be illegal and thus, by repudiating the claim of the complainant, the Ops have committed deficiency in service. Therefore, both the Ops are jointly and severally liable for deficiency in service. Consequently, it is held that the complainant has cause of action to file the case, the case is maintainable and the complainant is entitled to the compensations as claimed for, but not exceeding Rs.72,000/- which the complainant had already paid towards repairing charges.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is allowed on contest against the Ops. Both the Ops are hereby directed –
- To pay a sum of Rs.72,000/- towards repairing cost of the insured vehicle along with interest @ 9% per annum from 14.08.2014 till its actual realization.
- To pay a sum of Rs.25,000/- towards harassment, mental agony and litigation cost.
The Ops are directed to satisfy the above award to the complainant within a period of 45 days from the date of receipt of this order, failing which the complainant is at liberty to take recourse of law in case of failure to comply the order by the Ops.
Pronounced in the open Court of this Commission, this the 7th day of October, 2024 under my signature and the seal of this Commission.
