Date of filing: 16.01.2018 Date of disposal: 03.12.2019
Complainant: Mr. Ashoke Nandi, S/o. Dilip Nandi, resident of Baranilput, South Santipara, PO: Sripally, PS: Burdwan, District: Purba Bardhaman, PIN – 713 102.
Opposite Party: 1. The Director, Cholamandalam MS General Insurance Company Limited, 2nd Floor, Dare House, 2 NSC Bose Road, Chennai – 600 001.
2. Cholamandalam MS General Insurance Company Limited, representd through Branch Manager, Cholamandalam MS General Insurance Company Limited, Durgapur Branch, having their office at 2nd Floor, Nazrul Sarani, City Centre, Durgapur, Paschim Bardhaman, 713 216.
Present: Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Ms. Nivedita Ghosh.
Appeared for the Complainant: Ld. Advocate, Gadadhar Mukherjee.
Appeared for the Opposite Party: Ld. Advocate, Shyamal Kumar Ganguli.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C. P. Act, 1986 alleging deficiency in service and unfair service against the Ops as the Ops repudiated his legitimate and lawful insurance claim.
The case of the complainant in brief is that the complainant for his personal use purchased a saloon car of Xylo model from the local dealer of Mahindra & Mahindra being engine No. JJF4F84166 and chasis No. MA1YA2JJKF2F40916 and insured the car with “package-private car policy” being policy No. 3362/01243817/000/00 which was valid from 31.06.2016 to 30.08.2017. Subsequently complainant applied for registration of the vehicle before the Registration Authority of Burdwan District and provided with registration No. Wb42AE0891.
The complainant appointed Subrata Kaibarta Das and the said driver was duly authorized to drive the said vehicle through a valid driving license. The said car met with an accident around 9.00 p.m. to 9.30 p.m. with a Maruti Omni on in the road near Daspur More when his family members were returning after attending the scheduled programme in Kaligram Village near Kurmun Police Fanri under Burdwan P.S. on 08.08.2017. It was a head on collision between the two cars but fortunately no severe injury has caused to any occupants or drivers of those two cars.
The local Police of the Kurmum Fanri immediately came on that spot rescued the two cars as well as the passengers and after getting information from his driver complainant also reached on that spot on that very night and made a call by seeking on road support the OP Company. The representative of the OP Company reached the spot of the accident on the very next day i.e. on 09.08.2017 and inspected the spot of the accident as well as the alleged car and after inspection they handed over a Form mentioning the condition of the said vehicle after the accident.
Thereafter the complainant take away his vehicle from the Kurmum Police Fanri to the local work shop of Mahindra & Mahindra, namely, Saluja Auto Retails Pvt. Ltd. At Metal DVC, NH-2, PO: Chandul, Burdwan on 11.08.2017 and the representative of the said workshop scrutinizing the condition of the car manually made a list in their own format and one copy of the said list handed over to the complainant.
The OP appointed Mr. Amitava as Surveyor who inspected the vehicle in the said workshop and also interrogated the complainant and his appointed driver and collected necessary document from the complainant and the driver. But without getting any information after almost fortnight, contacted the Surveyor as his car remained stand still in the workshop without any repairing and as the authority of the Saluja Auto Retails Pvt. Ltd. Was asking for work order for repairing who calculated an estimate of approx Rs. 1,50,000=00 for total repairing of the said car. The Surveyor replied that an official process has been going on for settlement of the insurance claim. Lastly on 23.09.2017 the complainant again contacted with Mr. Amitava, the Surveyor and he promised that the insurance claim will be completed within few days.
But all on a sudden on 17.10.2017 the complainant received a letter dated 04.10.2017 from the OP Company that the OP has repudiated the said insurance claim on the ground that “the insured vehicle though registered and insured as a private car, was in use for ‘Hire and Reward’, at the material time of accident in fact it has been consistently used for commercial purpose to ‘Limitations as to use’. The OP Company repudiated the insurance claim without mentioning any proper reason on which they come to the conclusion that the said car is being used for commercial purpose.
As the insurance claim repudiated by the OP, the complainant took initiative to repair his car and got delivery of his car in workable condition from the workshop on 02.12.2017 by paying Rs. 1, 40,045=00 as per the bill prepared by the said workshop.
The complainant is a bonafide customer of the OP and the repudiation is purely illegal in nature and lacks the material fact in question and the OP has no authority to send that type of letter after such delay. The conduct of OP is the acts of deficiency in service as well as unfair trade practice. Finding no other alternative the complainant filed this complaint with a payer for directing the OP to pay a sum of Rs. 1, 40,045=00 to the complainant for the cost of repairing the said car along with an interest @12% from the date of the accident till the date of payment, directing the OP to pay Rs. 60,000=00 to the complainant for hiring private car, directing the OP to pay Rs. 50,000=00for mental pain and agony and directing the OP to pay Rs. 25,000=00 as litigation cost.
This complaint has been contested by the OP-1& 2 by filing conjoint written version denying all the material allegations made by the complainant in his petition of complaint.
The case of the OPs is that as per investigation findings, said accident has been occurred and during time of accident the Investigator found a rent slip of IV which is a proof of commercial usage of IV. Hence, based on this commercial usage of IV the Investigator tagged this claim as repudiated. The statement versions of both Mr. Ashoke Nandi-Insured and Mr. Subrata Kaibarta-Driver also corroborate the observation of Investigator.
The further case of the Ops is that the Motor Final Survey report-Private also recommended for repudiation. The Company shall not be liable under this Policy in respect of …………3. Any accidental loss damage and/or liability caused sustained or incurred whilst the vehicle insured herein is (a) Being used otherwise than in accordance with the “Limitations as to Use”. Therefore, in view of the serious violation of policy conditions as to use the vehicle, the OP informed the complainant through its letter dated 04.10.2017 of its inability to consider the claim. The repudiation notice was also supporting the fact that as per hire slip and audio recording of the driver the claim is repudiated as ‘Hire & Reward’. Therefore, the strong ground of repudiation is violation of policy conditions.
The statement made in para 11 by the complainant in its complaint petition is denied and disputed because as respect to the assessment made by the Surveyor and from the provided repair bills, many pat are included in the bill which is not related with the damages. Other than, only assessed labour charges with the workshop is reflect in the assessment of the Surveyor but in the invoice of labour charges is higher than the assessed labour charges due to extra job done which was not approved in the same damages like interior cleaning and some others. So the bill is not justified with damages and assessment made by the Surveyor.
The complainant has submitted false charges against the OP in connection with deficiency in service and unfair trade practice for non-compliance of the claim. The complainant has filed this complaint with ill motive to earn money in unlawful manner. Prayer is made by the Ops to dismiss the complaint with cost.
Decision with reasons:-
To prove this case the complainant has submitted his evidence-on-affidavit where he has stated the facts as per his complaint petition. OP also filed evidence on behalf of the Surveyor Kanchan Sarkar. The complainant put questionnaires to the Surveyor both Kanchan Sarkar and Debarshi Bhowmick but only Debarshi Bhowmick give answer to the questionnaires and no answer was submitted by Kanchan Sarkar.
From the documents filed by the parties and evidence of the parties, it is admitted fact that the vehicle in question met with an accident. The accident as per complaint occurred on 08.08.2017 when the car was used for personal purpose of the owner. In his evidence the Surveyor & Loss Assessor Kanchan Sarkar also stated this fact and deposed that he visited the place where the insured car was kept in a damaged condition and done his survey and give a final report dated 16.10.2017 and he was appointed by the OP-Insurance Company to assess the loss of accident of the vehicle being No. WB 42A 0891. In his detailed report he assessed net liability of the insurer as Rs. 84,000=00. OP Nos. 1& 2 – Insurance Company also admitted that Kanchan Sarkar was appointed as Surveyor after the accident.
It is also reported that the driver, namely, Subrata Kaibarta appointed by the complainant was duly authorized to drive the vehicle and he is having his valid driving license. But OP alleges that the vehicle was used commercially at the time of accident. To prove the fact OP deposed that the vehicle in question was consistently used for hire and reward basis but they did not get any statement from the driver of the said vehicle, no such statement was recorded by the OP during such survey but OP claimed that the appointed driver was found on the car with rent slip. However, he has no idea about the form of the car rent slip as submitted and whether the same can be available in the local market. OP-Insurance Company had no other personal knowledge about the commercial use.
The case of the OP is that the claim was repudiated on the ground of “hire and reward” vide letter dated 14.10.2017. To this effect, Ld. Counsel for the complainant cited a Ruling of Hon’ble SCDRC of Maharashtra, Mumbai in First Appeal No. A/03/1507, dated 10.01.2012 wherein it is specifically stated that there must be some cogent documentary evidence on record that the complainant had used the insured vehicle for hire and reward in violation of the terms of the policy. But nobody came forward to adduce as a witness in this case in favour of OP to prove this fact. No document is filed. The rent receipt submitted by the OP does not bear any signature of the driver or occupant of the vehicle in question at the relevant time. Therefore, it is not possible to believe by this Forum that the rent receipt was actually found in the vehicle at the time of accident as claimed by the OP-Insurance Company. Authenticity of the document is also questioned. Therefore, ld. Lawyer for the complainant argued that the document was manufactured and procured for the purpose of this case.
Debarshi Bhowmick, witness of OP replied in his affidavit that Kanchan Sarkar was appointed as Surveyor after the accident to assess the loss, but he has no personal knowledge regarding commercial use of the said vehicle. He has no idea that the rent slips as submitted by the OP-Insurance Company only available in the local market. No other evidence is forthcoming to establish that the complainant had employed the insured vehicle for commercial purpose. Therefore, from the evidence of the parties, as well as, documents filed by the OP, it is found that the OP-Insurance Company failed to prove his case by cogent oral, as well as, documentary evidence that the car in question was used for commercial purpose consistently and also at the material point of time.
OP submitted decision of Hon’ble NCDRC in Revision Petition No. 2158-2189 of 2011 dated 05.01.2018 where survey report admitted that the vehicle was used for commercial purpose and as per FIR it was also reported by the vehicle owner. This decision is not in any help to the OP-Insurance Company in this case. In this case Amitava Nandi and Kanchan Sarkar, both names mentioned as Surveyor and it transpired Kanchan Sarkar signed on the survey Final Report and this fact was deposed by the evidence of Debarshi Bhowmick of OP.
In reply to questionnaires why the number of the policy is different, and date of accident instituted on 09.08.2011 besides 08.08.2017, the OP-Insurance Company failed to give any satisfactory answer. We have already stated that OP failed to prove that the insured car was actually used on ‘hire and reward’ basis and hire slip as claimed is not duly proved.
From the survey report submitted by Kanchan Sarkar we found that, he assessed the loss to the tune of net loss Rs. 84,000=00. Therefore, we find that if the complainant who admittedly suffered damage of his vehicle following the accident and bear the expenses for repairing of the car is entitled to get compensation for such damages as per the insurance policy.
Complainant submitted documents showing that he incurred expenses to the tune of Rs. 1, 40,045=00. As the Loss Assessor assessed the net loss to the tune of Rs. 84,000=00 which is in his report, therefore, if the same is allowed to the complainant as cost of damage of the vehicle in question, then we find that it will meet the ends of justice.
From the above discussion, we are of the opinion that the complaint filed by the complainant with payer for reliefs should be allowed in part.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 08/2018 be and the same is allowed on contest in part against the OP Nos. 1 & 2 with a direction to the OP Nos. 1 & 2 to pay Rs. 84,000=00 (Rs. Eighty four thousand) only either jointly or severally as repairing cost of the insured car along with interest @8% (eight per cent) per annum from the date of accident, i.e., 08.08.2017 till its realization and the OP Nos. 1 & 2 are also directed to pay to the complainant either jointly or severally compensation to the tune of Rs. 7,000=00 (Rs. Seven thousand) only for mental pain, agony and harassment and Rs. 3,000=00 (Rs. Three thousand) only as litigation cost.
The above award should be complied by the OP Nos. 1 & 2 within 45 (forty five) days from the date of passing of this order, failing which, the complainant is at liberty to put the award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me:
(Jayanti Maitra (Ray)
President
(Jayanti Maitra (Ray) D.C.D.R.F., Purba Bardhaman
President
D.C.D.R.F., Purba Bardhaman
(Nivedita Ghosh)
Member
D.C.D.R.F., Purba Bardhaman
