Adv.for the Complainants- M/S. P.C.Naik & Associates.
Adv.for the Opp.Party - Sri J.K.Sai.
Date of filing of the case- 22.08.2014
Date of order - 19.08.2015
JUDGMENT.
Sri P.Samantara, President.
1. In the matter of an application u/s 12 of the C.P.Act,1986, filed by the complainants alleging deficiency in service against the opposite party.
2. In brief case set up by the complainants in the complaint is that Ramphal Agrawal and Laxmibai Agrawal averred on 31.03.2011 a YAMAHA SS 125 was purchased and registered at R.T.O. Bolangir bearing No.OR-03H-1239. and also insured by the Oriental Insurance Co.Ltd under policy No. 346000/31/2012/2557 from 20.07.2011 to 19.07.2012 (Motorized- Two wheelers Package policy-Zone B which includes P.A cover under section-iii, for Registered owner cum Driver (CSI).
3. On dated 13.12.2011 at about 12 noon, the insured while going towards Bargarh, sustained fatal injury on NH-26, near Gaikhai jungle in collision of the motor cycle and a tractor. Consequent to same succumbed to his injury. The P.S. case No.161/2011 and correspond to G.R. case No.160/2011,J.M.F.C.Loisingha.
4. The complainants being parents of the deceased intimated orally to the O.P regarding the occurrence but no step has taken by the O.P. to settle the own damage and P.A coverage claim.
5. The O.P did not take any action in settlement of the claim, so on dated 24.08.2012 one pleader’s notice has been served on the O.P to pay the P.A and own damage coverage and the O.P responded on dt.28.08.2012,that as no intimation has been received on the occurrence from any source, hence the issue can’t be entertained.
6. Prayed. non-settlement the claim amounts to deficiency of service which warrants an early settlement.
7. Relied on original policy certificate, purchase invoice, Pleader’s notice, letter from Insurer, Repair bills and Affidavit.
8. Pursuant to the notice, the O.P appeared and file the version contending the complaint u/s.12 of C.P.Act is not applicable in the present case hence liable to be rejected. Also admitting the motor cycle bearing registered No.OR-03H-1239 is true with modification of chassis No.ME154B029A2200-4257 and Engine ;No.54B2005181.
9. The occurrence as narrated in pra-3 and 4 of the complaint petition is not reported written to the O.P regarding the accident and death.
10. The O.P further stated, the narration under para-5 of the complaint petition is concocted hence denied. Neither the parents nor any relatives of the deceased intimated orally or written to the O.P nor made any impress to depute Surveyor investigator to assess the due loss.
11. The O.P also submit that it is common official procedure that without any written information regarding any accident, it is impossible to take any step. Admitted, the O.P received a pleader notice and accordingly responded on dt.28.08.2012 intimating, in absence of any intimation no step has been ensured regarding the claim.
12. The further submission is that the Insurance policy was issued with terms and conditions, stating the insured has to behold an effective driving license under the requirements of rule 3 of Motor Vehicle Rule,1989 and the fact of accident shall intimate immediately to the Insurance company but in the present case the occurrence has not intimated. So the answering O.P is not liable to pay any compensation. Prayed the petition be rejected with cost.
13. We have heard submissions advanced by the both the parties and perused the record along with written note of argument.
14. The contention raised during the submissions of the O.P is that the occurrence of dt.13.12.2011 is not at all intimated to the O.P which violation of policy condition that reads:-
15. “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company requires conviction of the offender.
16. Perusal of the above noted condition clearly depicts that the complaint failed to intimate the fact of occurrence even after eight months without any sufficient reason to believe.
17. Thus under this condition notice to the Insurance company was required to be given in writing immediately upon the occurrence of any accidental loss or damage and in the event of any claim and it was necessary for the complainant to act promptly and immediately in this regard and to inform the insurance company immediately. In case of New India Assurance Company –Vs Trilochan Jane, the meaning of word immediately has been taken into consideration in detail- and reported in the case is that the word ‘immediately’ means within a reasonable time having due regard to nature and circumstances of the case.
18. The next contention of learned counsel is that even after pleader’s notice, No intimation has been intimated nor ensured to communicate, pleader’s notice and thereof urge in inviting the settlement of claim is against the spirit of the declared/expressed condition. No record persist to note that either in orally or in written any intimation has been served, which is fundamental conditional breach in process of indemnification by the O.P.
19. Again the complainant violated the Reg.No.9(1) of I.R.D.A.Regulations2002,that reads- claim procedure in respect of a general Insurance policy- An insured or the claimant shall give notice to the Insurer of any loss arising under contract of insurance at the earliest or within such extended time as maybe allowed by the insurance. On receipt such a communication, a general Insurer shall respond immediately and given clear indication to the Insured on the procedures that he should follow. In cases where a surveyor has to be appointed for assessing a loss/claim it shall be done within 72 hours of the receipt of intimation from the insured.
20. The accident occurred on dated 13.12.2011 being the day of cause of action and the limitation survives till 12.12.2013, but the petition has been filed on 22.08.2014,basing on the date of pleaders notice 24.8.2012 which did not entail any enlargement of limitation. Our same view is supported by the case- Manoharlal Vs Raj Motors- Held- Correspondence, representations and legal notice do not extend time of limitation- 2014(3) CPR 285 (NC)- So this is simple case, barred by limitation.
21. The other contention raised is that the insurance policy was issued in the named of the insured Ashis Kumar Agrawal, who has drive his motor cycle with holding a learner’s Driving license without complying the Rule-3 of the Central Motor Vehicle rules 1989. In observance we find the contention is false, concocted and built without any basis as the O.P admitted no intimation on the occurrence has been communicated in either way, so on this paradigm ,the O.P would not be able to know the license of the insured. Again deputing investigator or surveyor is obligatory on the part of the O.P after intimation of the occurrence. So aspersion on the status of Driving license is unwarranted.
22. We further notice, the complainant has not clarified the locu-standi of the person named Ramphal Agrawal son of late Ruliram Agrawal on adducing any documentary evidence in absence of legal heir certificate, which is mandatory in view of section 2(b)(v) of the Consumer Protection Act 1986, also nor sought any leave u/s.12(c) of the C.P.Act in completion of legal provisional sufficiency. Even on authorization has not been procured to make the complainant as an authorized representative. So the application made without legal heir certificate is not tenable under the law when F.I.R has been lodged on the day of the occurrence, the written complaint/claim intimation to the insurer is not entirely convincing to us. In further explanation the say it delayed from our side by the call of the forum the O.P also failed to produces claim intimation register as per the 14(b) of the Insurance Act,1938 which reads-
23. A register of record of claims, in which shall be entered every claim made together with the date of the claim, the name and address of the claimant and the date on which the claim was discharged or in the case of claim which is rejected and the ground therefore- which is a statutory breach on the part of the O.P, yet to remain in unconvinced.
24. We find no merit in non giving intimation of claim to the Insurer irrespective elapsing long span of period from the date of occurrence, which is within terms of the policy besides other latches in filing the application/petition and onus heavily rests on the complainant to answer nor the O.P although committed fault in some extent. from the outset the purpose of application is riddle with various issues inclusive of claim settlement with material irregularity.
25. In the nature and circumstance of the case in hand, it appears the insured did not made any step in intimating the occurrence to the insurer while in deligent lodge the F.I.R in the police immediately. These all shows that the complainant was not intending to inform the insurance company, we find that in the facts of the present case, the non intimating the claim to the company was fatal to the complainant as held by Hon’ble National Commission in the case, that complaint can be dismissed on ground of delay in giving intimation about occurrence- Smt Sumon Vs The Oriental Insurance Co.Ltd- 2013(1) CPR 517 (NC).
(ii)Complainant can be non-suited on ground of unexplained delay in giving intimation to Insurance Company- Bajaj Allianz(GIC) Vs Ram Prasad and Another- 2013(1) CPR 216 (Chhatisgarh).
(iii) Complaint can be dismissed on account of delayed information to Insurance Company- Mallikarjun Vs The Oriental Insurance Co. Ltd- 2013(1) CPR 328 (NC).
In view of the reasons discussed above, we hold that the case is devoid of any merit. It is consequently dismissed with no order as to costs.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 19TH DAY OF AUGUST 2015.
I agree.
Sd/- Sd/-
( G.K.Rath) (P.Samantara)
MEMBER. PRESIDENT.
