DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: BHADRAK : (ODISHA).
Consumer Complaint No. 21 of 2022.
Date of hearing : 20.02.2023.
Date of order : 31.03.2023.
Dated the 31st day of March 2023.
Sri Ganesh Chandra Sahoo, S/o:-Late Maheswar Sahoo,
Vill:-Dehuadihi, Po:- Khadimahara,
P.S:- Dhusuri, Dist:-Bhadrak. ………….. Complainant.
-:Versus:-
Kotak Mahindra General Insurance Co. Ltd.,
Apeejay House, 15, Park Street,
Kolkata, West Bengal.
- The Manager, Kotak Mahindra General Insurance Co. Ltd.,
27, BKC, C-27 G. Block, Bandra Kurla Complex
Bandra East, Mumbai-400051, Inida.
- The Manager, Utkal Automobiles Pvt. Ltd.,
Plot No. 517, N.H.-16, Pahal, Bhubaneswar-752101.
.…………Opposite parties.
P R E S E N T S.
1. Sri Shiba Prasad Mohanty, President,
2. Smt. Madhusmita Swain, Member.
Counsels appeared for the parties.
Counsel for the Complainant :Sri Basanta Ku. Mohanty, Advocate & Anr,
Counsel for the O.P.No.1 & 2 : Sri Amarendra Kumar Panda, Advocate,
Counsel for the O.P. No. 3 : Sri Bishnu Prasad Sarangi, Advocate & Others.
J U D G M E N T.
SRI SHIBA PRASAD MOHANTY, PRESIDENT.
In the matter of an application filed by the complainant alleging deficiency of service against the Opposite Parties under Consumer Protection Act, 2019.
Facts of the case of is that, the complainant is residing within the territorial jurisdiction of Hon’ble Commission & the O.P.No.1 has local insurance activities in the office of O.P. No.3 & O.P.No.2 is head office of O.P. No.1. The complainant is a sincere & law abiding person residing in the above noted address. Complainant’s father Late Maheswar Sahoo purchased a Car AURA -1.2 MT CAPPA SX POLAR WI on 11.09.2020 for a consideration amount of Rs.7,22,900/- which bears RTA registration no.- OD-02BM-2883. The said car met with an accident on 29.11.2021 at Kurudia under Karanjia P.S., Dist. Mayurbhanj for which police seized the damaged vehicle & later on the vehicle was released & the driver was released on bail. The case vehicle was insured with OP No. 1 & 2. The insurance policy bearing No.HKG/00062216 which was valid & effective from 11 September 2021 to 10 September 2022 & the I.D.V. for the above insurance policy was Rs.5,77,020/-. The complainant paid the premium of Rs.12,025/- after the death of his father the complainant changed/transferred the insurance policy in name of complainant.
It is a matter of the fact that a Motorcycle involved in the accident wrongly dashed against the case vehicle & the vehicle was badly damaged, pertaining to that P.S. Case No.279 dtd.29.11.2021 has been registered. The complainant reported the matter to the Insurance Authority on 30.10.2021 as O.P. No. 1 & on their supervision and direction the complainant vehicle has been towed from Karanjia to the service station i.e. OP No.3 M/s Utkal Auto Mobiles Pvt. Ltd. The repair estimate bearing No. ET22010058, dtd.18.01.2022 the cost of parts & labour amount estimated as Rs.2,13,440/-. The complainant reported the matter to O.P. No.1 & 2 without any viable cause & reason, they repudiated the above said claim on 18.02.2022. The complainant also requested the O.P.No.3 & O.P.No.3 did not help the complainant in anyway. The complainant informed the matter to O.P.No.1 by way of Advocate Notice. O.P.No.1 did not answer to the advocate notice. O.P. No.2 repudiated the claim without any verification of police papers, cause of incident etc. The Complainant prayed for refund the insurance claim as cost of repair Rs. 2,13,440/- along with cost of litigation assessed at Rs.50,000/- &Rs. 1,00,000/- towards mental agony.
O.P. No.1 & 2 denied the allegations of complainant and submit that, the complainant Maheswar Sahoo had taken a Long Term Bundled Policy No. HKG/0040087 in connection to his new Aura-1.2 MT Kappa SX Pollar car having Engine No.G4LALM589887, Chasis No. MALB341CLLM027374 cubic capacity 1197, seating capacity-5, manufactured by Hyundai Motors in the year of 2020 covering risk of Own Damage of the said vehicle for the period from 12:40 hrs on 11.09.2020 to midnight of 10.09.2021 & for the 3rd Party & compulsory P.A. to owner driver for the period from 12:40 hrs on 11.09.2020 to midnight of 10.09.2023 with terms & conditions of policy. After expiry of coverage of risk for Own Damage of the aforesaid vehicle under the Long Term Bundled Policy No.HKG/0040087 father of the complainant, Maheswar Sahoo had taken a Policy No. HKG/ 00062216 in connection to his vehicle bearing Regd. No. OD-02-BM-2883 covering risk of own damage only for the period from 00:00 hrs on 11.09.2021 to midnight of 10.09.2022 with terms & conditions. Thereafter the complainant had filed an application before the O.P.No.1 on 03.11.2021 for transfer of the aforesaid policies to his name on the ground of death of his father & after deposit of requisite fees the aforesaid policies were transferred to his name vide endorsement No. 331671900002, dtd.06.01.2022 with effect from 03.11.2021 & endorsement No. 1701741000001 dtd.29.12.2021 effective from 03.11.2021. On 12.01.2022 complainant intimated the O.P.No.1 about the accident of his car of 29.01.2021 and that he shifted the vehicle to OP No.3 for repair. On receiving the intimation of loss to the vehicle from the complainant the O.P.No.1 supplied the claim form to the complainant with a request to submit the same duly filed in & signed by him along with copy of certificate of Registration, copy of the driving license of the persons who was driving at the time of alleged accident, copy of insurance policy, copy FIR & estimate of loss & enable them to take further course of action. On receiving the intimation of loss/damage of the insured the O.P.No.1 immediately appointed an independent Surveyor/loss assessor Er. Dharanidhar Das, Plot No.3145 Lewis Road, Bhubeneswar duly licensed by the IRDA to survey the vehicle at Utkal Automobiles Pvt. Ltd., Pahal, Bhubaneswar & assess the loss caused due to accident & simultaneously appointed Perfect Vision Investigation Agency, Netaji Nagar, Near NetajiSubash Bose Statute, Madhupatana, Cuttack, 753001 to investigate the genuineness of the own damage claim of the complainant. On 25.01.2022, complainant submitted the claim form duly filed in & signed by him along with estimate of loss with the O.P.No.1. On 21.01.2022 the deputed investigator Perfect Vision submitted his report with the O.P.No.1 along with insured statement, copy of the Aadhaar Card, Pan Card of the insured-complainant, statement of Srimanta Arona At/Po. Khadimahara, P.S. Dhusuri, Dist. Bhadrak, Odisha, Insured Google timeline details, decorative photos of the vehicle, certified copy of FIR, charge sheet, seizure list & Zimanama in connection to Karanjia P.S. Case No.279, dtd.29.11.2021, insured vehicle release copy with an opinion to repudiate the own damage claim of the complainant on the ground of misrepresentation of material fact & planted driver.On 11.02.2022 the deputed surveyor-cum-loss assessor Er.Dharanidhar Das submitted his final survey report with the O.P.No.1 assessing net loss Rs.1,89,500/- after due survey of the vehicle on 14.01.2022 at Utkal Automobiles Pvt. Ltd., Pahal, Bhubaneswar in presence of the complainant & deduction of depreciation of value, salvage value & policy excess as per terms & conditions of the policy taking all the facts & circumstances into consideration. These OP No.1 &2 alleges that without intimation to them, the complainant has shifted the case vehicle to OP No.3 as such the complainant has not given scope to inspect/survey the vehicle at the spot to ascertain the exact nature & cause of the alleged loss & correlate the loss/damage of the vehicle with nature as cause of accident as alleged by the complainant. On scrutiny of the claim form it is ascertained that the complainant has declared that “on 29.11.2021 he had gone to visit Puneswar Temple, At-Karanjia, and on the way at Kurulia Chhak a motorcycle rushed towards them from front side as a result of which their vehicle was met with an accident & further he has declared in the claim form that Mr. Srimanta Aran, At/Po- Khadimahara, P.S. Dhusuri, Dist. Bhadrak was driving the vehicle at the time of alleged accident but investigation report of the deputed investigator Perfect Vision reveals that during investigation they had met with insured complainant & collected his written statement in which he has stated that on 29.11.2021 he along with his mother Sarasati Sahoo & his sister Truptirekha Sahoo, they all three had been to Kiching of Mayurbhanj district in his vehicle & while they were returning via Jashipur-Karanjia road near Kurulia his vehicle met an accident with a motorcycle. But upon verification of Google timeline history of the insured complainant it is ascertained by the deputed investigator that he was not present at the accident spot. His location was Dhusuri Market of Bhadrak district at the date & time of accident. Further, it is also ascertained by the deputed investigator that the insured complainant was using the insured vehicle for commercial purpose. He was providing the vehicle on rent for marriage ceremony & neighbours of the insured complainant has declared that one Srimanta Aaran At/Po. Khadimahar, P.S. Dhusuri, Dist. Bhadrak was driving his vehicle at the time of alleged accident. But the investigation report of the deputed investigator Perfect Vision reveals that they had visited the said Srimanta Aran & collected his written statement in which he has stated that “while the vehicle bearing Regd. No. OD-02-BM-2883 (Aura-1.2 MT Kappa SX Pollar car) was returning from Mayurbhanj was driven by Kartik Chandra Sahoo, brother of insured complainant on the way near Kurulia, Karanjia met with an accident. As a result of which rider of the motorcycle was dead. Further he has stated that he used to work as driver under Harihara Das for last 8 to 10 years who has good family relation with the insured complainant for which his owner Harihara Das forced him to submit his D.L. before the Karanjia Police to release the vehicle of the insured complainant from the police station since his brother Kartik Chandra Sahoo had no driving license. Furthermore he has specifically stated that he was not driving the vehicle bearing Regd. No. OD-02-BM-2883 (Aura-1.2 MT Kappa SX Pollar car) on 29.11.2021 at 6:00 P.M. Even also he does not know the insured complainant Sri Ganeswar Sahoo. The insured complainant has used fraudulent statements to avail the compensation under Policy No.HKG/0040087 for the period from 00:00 hrs on 11.09.2021 to midnight of 10.09.2022 in illegal way. Hence, the complainant is guilty of negligence & failed to exercise reasonable care in fulfilling the terms & conditions of the policy regarding use of the vehicle by a person having valid & effective license as enumerated under the heading of Driver’s Clause of the policy. The complainant is also guilty of negligence & failed to exercise reasonable care in fulfilling the terms & conditions of policy regarding use of the vehicle for any other purpose other than (1) higher or reward as enumerated under the heading of “Limitation As To Use” of the policy for which the O.P.No.1 repudiated the claim of the complainant & intimated the same to him vide letter dtd.18.02.2022. O.P. No.1 has repudiated the claim of the complainant as per terms & conditions of the policy which is cogent, reasoned & lawful & does not constitute the deficiency service on the part of O.P.No.1 & 2. In the aforesaid the complaint of the complainant being devoid of merit is liable tobe dismissed.
O.P. No.3 submits that, the averments made by the complainant in the complaint petition are vague, baseless & with malafide intent. The allegation as alleged in the complaint filed by the complainant does not fall within the definition of a ‘Deficiency’ under the Sec. 2 (7) of C.P. Act, 2019 as there is neither any fault, imperfection, or shortcoming or inadequacy in the quality, nature & manner of performance which is required to be maintained by or under any law for the time being force or has been undertaken to be performance in service being established against this O.P. hence the averments made therein are frivolous baseless & misconceived and the complaint is liable for rejection. This process is fully regulated by & between the complainant & Insurance Company with O.P. No.1 & 2, O.P. No.3 have no role with the transfer of policy bearing Regd. No. OD-02-BM-2883 & worth of Rs. 5,77,020/-. O.P.No.3 have no liaising with the O.P. No.1 & 2 regarding claim the insurance settlement. After the cost of estimate in the service station, both complainant & Insurance Company which was O.P. No.1 & 2 played zig-zag path not to the knowledge of O.P.No.3.Complainant releases their vehicle bearing Regd. No. OD-02-BM-2883 & Invoice No. B202204301 & paid the amount Rs.1,68,148/- on dtd.30.03.2022. This matter is between O.P. No.1 & 2 .In the aforesaid facts & circumstances, the instant complaint petition is fit to be dismissed with exemplary cost.
Having heard the Ld. Counsels for the parties and after carefully considering the rival contention of belligerent parties and after examining the evidence on record, this Commission finds it proper to frame the following issues to settle the consumer complaint:-
- Whether the contention of OP No.1 & 2 regarding their Investigator collecting statement of the alleged driver Srimanta Aran(Annexure- G/9 & G/10), wherein it is said that he has stated that he was not driving the case vehicle at the time of accident rather brother of the insure namely Kartik Chandra Sahoo, was driving, is to be believed?
- Whether the version of Investigator of OP insurance Company regarding Google timeline history(Annexure- G/2) which says that he was not present at the accident spot and that his location was Dhusuri Market of Bhadrak district at the date & time of accident, is to be believed?
- Whether the version of Investigator of OP insurance Company regarding plying of the case vehicle for commercial use(Annexure- G/1) in breach of terms and condition of policy, is to be believed?
- Whether these OPs are liable for deficiency in service?
- If so then to what relief the complainant is entitled to?
So far as the Issue No.1 is concerned, the police case registered at the concerned police station abundantly clearly states in the seizure list that DL of Srimanta Aran was seized on 30/11/2021. There after PW-1 namely Srimanta Aran appeared before this commission and adduced his evidence that he was driving the case vehicle at the material time of accident. The OP No.1 & 2 have cross examined the witness at length but the facts remained as before. Rather, he denied to have executing any affidavit about not driving the case vehice at the material time and handing the said affidavit to these OPs. So, there remains no doubt in the mind of this commission that the said Srimanta Aran was driving the case vehicle at the material time and place of accident. So Annexure-G/2 is not to be believed and Issue No.1 is answered in faour of the Complainant and against these OP No.1 & 2.
So far as the issue no.2 is concerned, all the Zimmanama of Karanjia police station shows that Ganesh Chaandra sahoo was very much present at their police station and executed the Zimmanamas on 30/11/2021 but the Google Time Line of the investigator in his evidence says , the said Ganesh Chandra Sahoo was present at Dhusuri. There is no reason to disbelieve the police papers. So, the evidence of the investigator of the Insurance Company and Annexure-G/2 is ignored.
These OPs have neither alleged nor there is any evidence in the record to say that when the case vehicle met the accident, it was used as a commercial vehicle! So, it can not be said that at the relevant time of accident the vehicle was plying commercially in breach of terms and conditions of the policy. So, Issue nO.3 is answered in favour of the complainant and against OP No.1 &2.
Despite specific direction and several opportunity, these OP No.1 & 2 failed to produce the original of the affidavit said to be executed by said driver Srimanta Aran wherein he has stated that he was not driving the case vehicle at the time of accident, but they failed to do so within time. So, adverse inference is taken and this commission is constrained to believe that such a document never existed. So, there remains no doubt that the complainant has been subjected to schematic harassment by OP No.1 & 2 which amounts to deficiency of service and unfair trade practice also. OP No.3 has prepared the estimate and after receipt of the repair cost, it has released the vehicle in favour of the complainant. This commissions did not find any positive or negative role of OP No.3 in this claim settlement.
O R D E R.
In the result complaint be and same is allowed against OP No.1 & 2 and dismissed against OP No.3. These OP No.1 & 2 is to pay Rs. 1,68,148/- to the complainant along with 6% interest from 30/03/2022 to actual date of payment. This order is to be carried out within 30 days from receipt of copy of this order by these OP No.1 & 2, failing which additional 6% interest P.A shall be charged on the awarded amount from the date of order till the date of payment.
