The present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service against the afore said O.P No.1 for non payment of insurance amount in respect of a damaged vehicle which was insured with the O.P. No.1 . The brief facts of the case is briefly summarized hereunder.
The complainant is the registered owner of one Loader (M/S JCB 30X—2 Shift Excavator) bearing registration No. OD-08-5033 by borrowing finance from the O.P. No.2. He took the Insurance policy for the said vehicle with the O.P. No.1 bearing No. 150100 / 46/ 12 /9500006036. The said vehicle was engaged on Dt. 20.10.2013 in the work site of one Shivasankar Das, Special Class Contractor at his work site Miangpadar. On the same day night at about 11.00 P.M. some miscreants attacked the said worksite and set fire the said vehicle of the complainant resulting in total loss along with some other vehicles which was completely damaged. The factum of the said attach was reported before Sadar Police Station, Bhawanipatna vide P.S. case No. 166(8) Dt. 21.10.2013 corresponding to C.T. No. 745 /2013 of the Court of the SDJM, Bhawanipatna. Soon after the incident the complainant informed the O.Ps regarding the incident so also regarding the damage condition of the vehicle. In turn the O.P.No.1 appointed Surveyor Sri Dillip Mohanty who had visited the spot and furnished his loss assessment report to the O.P. No.1. After visit of Surveyor appointed by the O.P.No.1 the Engineers of Shanti Automotives India Pvt. Ltd., on Dt. 11.11.2013 was also inspected who had also assessed the damage to the tune of Rs. 37,48,049/- and the copies of the estimate has also been handed over to the Surveyor and a copies of the same was sent to the O.P. No.1. The O.P. No.2 has also taken re-possession of the above vehicle as per hire purchase agreement after the aforesaid incident. The O.P.No. 1 on Dt. 1.8.2014 had sent a letter to the complainant asking him to furnish the some documents such as filled claim form, copy of the R.C. permit, fitness etc. and the complainant immediately submitted the above documents to the O.P. No.1. Despite receipt of all the required documents and the surveyor report and the estimate of the JCB loader of M/S. Shanti Automotives India Pvt. Ltd., the O.P. No. 1 has not yet settled the claim till date. Hence this case before the forum and direct the O.P No. 1 to disburse the claim amount as per estimate report of the damaged vehicle with interest @ 12% per annum from the date of assessment of loss by the Surveyor till the date of realization and further direct the O.Ps to pay cost, compensation towards mental agony, harassment and such other relief as the court deems fit and proper for the best interest of justice.
On being noticed the O.P No.1 filed written version through their learned counsel and submitted that the case is not maintainable in the eyes of law. The O.P. No.1 further submitted that the complainant is called upon to strict proof of the same. The O.P. No.1 submitted that on receipt of the required documents as mentioned in the letter Dt. 1.8.2014 the complainants claim will be settled. The O.P. No. 1 further submitted that the complainant on production of relevent documents as sought he is entitled to Rs. 18,18,000/- as per the final survey report. Further the O.Ps submitted that this forum has no jurisdiction to entertain complaints on account of deficiency in service. The O.P No. 1 therefore prays the forum to dismiss the proceedings against the O.P No. 1 with cost.
The O.P. No.2 filed written version through their learned counsel. The O.P. 2 submitted that the above petition is not maintainable under the C.P. Act before the forum. The O.P. No.2 submitted that the disputes between the parties was referred to the Learned Arbitrator in turn the learned Arbitrator vide its Order Dt. 30.7.2014 awarded a sum of Rs.13,60,475/- in favour of the O.P. No.2. The O.P. No.2 in their written version cited a No. of Judgment in support of his case. The O.P. No. 2 submitted that the hon’ble forum may be pleased to dismiss the present complaint against the O.P. No.2 and if the hon’ble forum decided to pass any award of the complainant the same shall be released in favour of the O.P.No.2 directly will be adjusted in the loan account of the account.
The O.P appeared and filed their written version. Arguments from the learned counsels for the O.Ps and from the complainant heard. Perused the record, documents, filed by both the parties.
The learned counsel for the O.Ps. vehemently advanced arguments touching the points both on the facts as well as on law.
FINDINGS.
On the basis of the pleadings of the parties, the sole question of determination is Whether the complainant is entitled to insurance claim made by him ?
On careful perusal of all the papers we observed that there is no dispute that the complainant purchased a one Loader (M/S JCB 30X—2 Shift Excavator) by borrowing finance from the O.P. No.2 and got it insured with the O.P. No.1 which set fire on Dt. 20.10.2013 in the worksite of Miangpadar village. The policy was effective from 31.1.2013 to 30.1.2014.
On perusal of the written version filed by the O.P. No.1 it is revealed that the O.P. No.1 contended that due to non submission of the following documents the claim of the complainant is not yet settled.
- Final report of the police in connection with the P.S. case No. 166(8) Dt. 21.10.2013,
- Confirmatory letter from M/S. Shanti Automotives as to the estimate for JCB vide No. OD-08-5033 and quotation for a new JCB 3 DX as on the date of loss.
It is admitted fact that both the parties are admitted Final report of the police will not be available early as the same are done by Maoists and it will take more time. In support of this case the complainant filed a xerox copies of No. of Odia daily News papers published on Dt. 22.10.2013 and Dt. 23.10.2013. The daily odia New papers are Sambad, Pragatibad, Prameya, Samaya, Khabar, Prajatantra, Sambad Kalika, Samaj where the maoists incidents was published.
On query it is revealed and admitted fact that the required documents will neither increase nor decrease the loss amount arrived by the Suveyer in the final surveyer report.
Further it is held as reported in SCC (1979) 4 page- 178 “Resort to the plea of limitation by public authority to defeat just claim of citizen depreciated- Though permissible under law, such technical pleas should only be taken when claim is not well founded”. Again the Hon’ble Supreme Court opined that “ it is high time the “Govts. and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Further the Hon’ble Supreme Court in deciding the said U/S- 136 of the Constitution of India has kept in mind, the constitutional duty imposed on the public sector Company/organization. Being public sector Company/organization are supposed to facilitate the concept of welfare state and interest of the citizens and do not extract monetary benefit by rejecting just claim of the citizen on technical grounds.
Further the learned counsel for the complainant filed citation reported in CPR- 2004(2) page No. 80 where the Hon’ble State Commission allowed similar type case in absence documents required by the O.P. No.1.
Further in the present case Engineers of Shanti Automotives India Pvt. Ltd., on Dt. 11.11.2013 assessed the damage to the tune of Rs. 37,48,049/-. The Surveyor assessed to the tune of Rs. 25,24,464.00 towards repair cost. The Surveyor assessed total loss basis to the tune of Rs. 18,18,000.00 in the final surveyor report.
The Ist. Question whether the complainant qualifies to be a Consumer? In a Catena of Judgements the Hon’ble National Commission has held and reported in C.P.R. 2009(1) page No. 44 the Hon’ble National Commission, New Delhi observed when a company or any one obtains an Insurance it is not part of commercial activity, but it is obtaining in order to cover the risk to the commercial activity, hence, even companies obtaining a insurance cover will fall within the defination of ‘Consumer’.
Further Para- 21 as per regulation 9(5) of the IRDA Protection of policy holders interest regulation 2002 the Insurance company was obliged to finalise the view based on the report of the surveyor within a period of 30 days. Section 9(3) states that if the insurer on the receipt of the survey report finds that it is in complete in any respect, he shall require the surveyor under intimation to the insured to furnish an additional report on certain specific issue as may be required by the insurer such a request may be made within 15 days of receipt of the original survey report. Provided that the facility of calling for an additional report by the insurer shall not be resorted more than once in the case of claim. The other facts which is necessary is also dealt within Sub- section (4) and (5).
Further it is held and reported in C.P.R. 2009(2) page No. 91 the Hon’ble Moharastra State Commission observed when a person taken insurance policy to cover the envisaged risk, he does not take it for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit.
Further it is held and report in C.T.J. 2008 page No. 917 the Hon’ble Supreme Court held that the insurance company after having accepted the value of a particular insured goods at the time of insuring the goods cannot disown that very figure on one pretext or the other when they are called upon to pay the compensation. Take it or leave it attitude in such a case is not only unwarranted being bad in law but ethically indefeasible would be liable to pay the compensation on the insured amount on it had accepted the premium for the entire amount covered under the policy.
Further we perused the case law in the instant case. It is held and reported in CPC- 1991, page -540 the Hon’ble Hariyana State Commission held that when ever there is any delay or delatoriness in finalizing the insurance claim, the same would be tentamount to a deficiency in service and thus comes squarely within the purview of Consumer Forum. Once it is held that default or negligence in the settlement of an insurance claim is a deficiency in service then an arbitrary or mischievous rejection of an insurance claim would patently be a default within its larger meaning. On principle , it would seem some what manifest that the mere repudiation of the insurance claim cannot itself operate as a jurisdiction bar for redressel forums under the Act. This is further made it clear it is held and reported in CPR-1991(2), page No.18 the Hon’ble National Commission clearly defines the mere unilateral rejection of an insured parties claimed by the insurer does not per se operate as jurisdictional bar to seek redressal before the forums under the Act. It is on the strength of the above decision the instant case is admitted by this forum.
On going through the final surveyor report of O.P. No.1 we are of the view that the complainant is entitled to get Rs.18,18,000.00 on total loss basis.
In the above facts, circumstances & on perusal of the record, the complaint petition, documents, and referring on above Citations there exists a strong “prima-facie” case in favor of the complainant.
On the strength of the aforesaid rulings of the Hon’ble National Commission this forum allow this case.
Hence to meet the ends of justice, the following order is passed. ORDER.
In the result with these observations, findings the complaint petition is allowed on contest against the O.P No. 1 and dismissed against O.P. No.2.
The O.P No. 1 is ordered to pay Rs18,18,000.00 to the complainant as per the contract of insurance. The O.P No. 1 is further directed to pay Rs.2,000/- towards cost of litigation.
The OP No. 1 is ordered to make compliance the aforesaid Order within 30 days failing which an interest @ Rs.11% would accrue on the decreetal amount . from the date of final survey report submission i.e.on Dt.09.4.2014 till realization.
Dictated and corrected by me
Pronounced on this 9th. Day of October, 2015.
