Orissa

Rayagada

CC/350/2016

Sri Govind Prasad Rath - Complainant(s)

Versus

The Manager Bajaj Allianz Co. Ltd., - Opp.Party(s)

Self

16 Oct 2020

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 350/ 2016.                                        Date.   16   . 10   . 2020.

P R E S E N T .

Sri  Gadadhara Sahu,                                                President-In-Charge

Smt .Padmalaya Mishra,.                                 Member

Sri Govind Prasad Rath, Development Officer, LIC of India, Brahmin Street, Po/ Dist.Rayagada, State:  Odisha.    Cell  No.7008052897                                                                                                                                                                                       …….Complainant

Vrs.

1.The Manager, Bajaj Allianz  Insurance Company Ltd., Bhubaneswar.

2.The Branch Manager,  Bajaj Allianz General  Insurance  Company Ltd., Rayagada.                                                                               .…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Sri D. Ravi Prasad, Advocate, Rayagada.

For the O.Ps  :- Sri K.Ch.G.S.Kumandan, Advocate, Rayagada(Odisha).

                                                         

                                           J u d g e m e n t.

         

          The  present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for non payment of  repair bills towards insured  vehicle  Regd. bearing No. OR-18-!-4545 Ford Icon Car inter alia insurance policy  No. OF-15-2426-1801 00000010.  The brief facts of the case  has summarised here under.

 

          That the complainant is the owner of the vehicle bearing Regd. No. OR-18-A-454 FORD ICON CAR which was having  the insurance coverage vide policy No.  NO.OG-15-2426-1801 00000010 commecning from 27.01.2015 to 26.2.2016.  On 26.12.2015 at 8 P.M.  while the complainant was moving in the said   vehicle  had occasion to cross a bumper/hump near    Thakkarbappa Ashram School   on the road.  The height of the bumper/hump is not clearly  visible due to night and when the said bumper/hump  has crossed  with the botton of the vehicle  causing  damage to its brake lines, A.C connection. Compressor, Valve Set, cooling coil, Compressor of  high proster valve set etc . This fact was immediately intimated to the branch office of the O.P. No.2 who has suggested to get it repaired  and accordingly the complainant lifted     the vehicle to Nani Cool Cares, Siripuram Junction, Visakhapatnam and it was kept there till its final repair.   The complainant  was also expecting the payment  by the O.P.No.2 as per his complaint claim No.  OC-16-2403-1801-00003528.  The total expenses incurred for its repair  was Rs.25,680/- paid on 8.5.2016 and another sum of Rs. 27,162/- on Dt. 27.1.2016 and the above  amounts were  not paid to  him till date inspite  of repeated  contact from time to time.  Hence this case. The complainant prays the forum direct the  O.Ps. to make payment of insurance claim amount  and such other relief as the hon’ble forum deems fit and proper for the best interest of justice.

                On being notice the O.Ps. appeared through their learned counsel and submitted written version  refuting the  allegation of the complainant. The averments made by  the complainant  in the complaint may be  considered to have been rebutted and  denied  unless specifically admitted  herein after. The O.Ps disputed that the  complainant suppressed material information.  The O.Ps   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps..    The O.Ps. prays the forum  to dismiss the complaint petition  against the O.Ps. for the best interest of justice.

The O.Ps    appeared and filed their written version through their learned counsel. 

Arguments from the  learned counsels for   both parties   heard.   Perused the record, documents, filed  by  both  the parties. 

            The  learned counsel  for the O.Ps  and complainant  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 ?

            There is no dispute that  the complainant   was the owner of the vehicle bearing Regd. No.OR-18-A-4545 Ford Icon Car with  was having the insurance coverage vide policy No.OG-15-2426-1801 00000010 commencing from 27.1.2015 to 26.2.2016(copies of the policy bond is in the file which is marked as Annexure-I) and the same was in force  on the   date of  accident  i.e. on Dt. 26.12.2015 at 8.00 P.M. near takkarbappa Ashram school on the road.   Further there is no dispute  the matter of  accident claim  was duly  intimated to the   O.P.   In turn the  surveyor has investigated   and given report  to the O.P. The O.P.  has  opened   accident claim  on Dt.5.1.2016  bearing claim No. OC-16-2403-1801-00003528 and  made correspondence to the complainant  to  submit the  required documents  for further processing of the accident claim (copies of the  letter Dt. 5.1.2016  is in the file which is marked as -2)

          The O.Ps in their written version contended that the case is not maintainable before the forum.Prior  to delve in to the merit  of the case on outset  we have to  consider whether the complaint petition  is maintainable   under C.P. Act ?  While answering  the issue  we would like to refer the citation. 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 dilatoriness 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  where in  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. Accordingly answered the issue.   The complaint  petition is  maintainable  under the C.P. Act.

The  next  point for consideration are :-

Whether there is any deficiency  in service on the part of the O.Ps ?

 “Service” is defined in section 2(1)(o)  of the Act  thus:-

                “Service”means service of any description which is made available  to potential    users and included the provisions  of facilities  in connection with banking,  financing, insurance, transport, processing, supply of  Electrical or other energy, board  or  lodging or both,  entertainment,  amusement or the purveying   of news or information, but does not include the rendering of any service free of charge or under conract or personal service”.

“Insurance” is one of the service  enumerated there and falls  within the ambit of definition.

          The O.Ps disputed that the  complainant suppressed material information.  The O.Ps  repudiated the insurance claim on the  grounds  that  the complainant has not filed any documents to prove factum of incident as  well as damages  and the complainant  has not filed any original repair bills to support of his claim.

           In support of  this case the complainant  has   filed 2(two)  xerox copies  of   the repair bills   No.340 Dt.3.5.2016  amounting to Rs.25,680/-  and another bills Date.27.1.2016 an amount of Rs.27,162/- total amounting  to Rs.52,482.00 was spent  in repair of crucible, in  rebuttal of which the O.Ps have not  produced any document.

            So  far as the question of facts, it is undisputed that the complainant got his vehicle insured with the O.P.   It is also undisputed that the intimation of damage to  vehicle  was given  to the O.P.  The appointment of surveyor  is also  undisputed.  The  O.Ps neither settled the claim nor repudiated  the present case in hand  till  date  for some or other plea.

            On  query it is revealed  and admitted  fact that   the required documents will neither  increase  nor decrease  the loss amount arrived  by the   Investigator in the final investigation  report.

 

For better  appreciation this forum relied citations which are mentioned here under.

 it is held and 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 it is held  and reported in C.T.J. 2008 page No. 917 where in  the Hon’ble  Supreme Court  observed “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”.

The O.Ps   in their written version contended that  there are street lights and also Govt. offices situated on the Thakker Bapa Ashram School road.    It is most surprising that the height of the bumper/hump is not clearly visible due to night when the said bumper/hump has crossed with the bottom of the vehicle causing  damage  to its brake lines, A.C connection, compressor, valve set, cooling   coil, compressor of high poser valve set etc.   The said road is situated  in the heart of the town having sufficient lighting through the street lights.  Assuming but not  admitting  that the vehicle involved in the said crossing is  true while crossing the hump such  a damages to all the   parts will not be effected at best there will be  little  touching to the chassis if the height  from the bottom is very short.

In this  context  this forum relied  citation it is held and reported in the  C.P.R. 2010(3) page No.228  where in  the   Hon’ble  State CDR  Commission,   Himachal  Pradesh  observed “ Insurance company is required  to explain  the insured expressly telling him all  pros and cons, benefits warrants  exceptions   and conditions  of the insurance policy.”

Further   in the said  judgement  the    Hon’ble  Commission where in  observed  C.P.Act, 1986- Section 2(1)(g) – Deficiency  in service -  repudiation of insurance claim- Claim  rejected by the  insurer    on  the ground  that policy  condition  violated-  Warrants  exceptions  and conditions  of policy  not explained   by the  insurer  to the insured- requirements  of the (Protection   of policy   holder’s interests)Regulations,2002    not complied with- Insurer  liable  to compensation- 50% of the claim amount  allowed  in favour of the complainant.”

Basing on the above judgement of the  Hon’ble Commission   we are of the view that  with a view to avoid further litigation   and interest  of justice   will be  well  served  if  the complainant  is allowed   a sum of Rs.26,200.00  only  by treating his claim  50%.

 

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

.

          Hence  to  meet the  ends of justice, the following order is passed.                                                                       

                                                          ORDER.

          In the resultant the complaint petition is allowed on contest against  the  O.Ps  in part.

The O.Ps  are   ordered  to pay Rs.26,200.00 (Rupees twenty six thousand  two hundred)only i.e. 50% of the repair bill amount to the complainant as per the  repair bill  submitted by the complainant. Parties  are left to bear their own cost.

The complainant is directed  to supply  repair   bills to the O.Ps if they required.

The O.Ps  are  ordered to make compliance the aforesaid Order within  45 days  from  the date of   receipt of this order. Service the copies of the order  to the parties free of cost.

Dictated and corrected by me. 

 Pronounced on this    16th   Day     of        October,   2020.

                                                                  Member.                                                                           President-In-Charge.