West Bengal

Paschim Midnapore

CC/182/2017

Sri Biswajit Pattanayek - Complainant(s)

Versus

The Manager, Cholamondalm MS General Insurance Co.Ltd. - Opp.Party(s)

Ranjan Maity

30 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

   Bibekananda Pramanik, President,

 And

Pulak Kumar Singha, Member

 

Complaint Case No.182/2017

 

                          Sri Biswajit Pattanayek, s/o Atul Krishna Pattanayek, Vill. Gangra,                                            

                                 P.O. Paschim Pingla,  P.S. Pingla,Dist.Paschim Medinipur.

                                                                                                               ………..……Complainant.

                                                                              Vs.

1. The Manager,Cholamandalam MS General Insurance Co.Ltd.,Chhabildas Tower,3^rd Floor,6A Middleton Street,Kolkata-700006.  
2. The Branch Manager,Cholamandalam MS General Insurance Co.Ltd.,Atwal Estate   

Building Tower,1^st Floor,At-O.T.Road,Near KGP College,Kharagpur,Paschim Medinipur,Pin-721305.

3. The Manager,Indusind Bank Ltd.,Tamluk Branch,At Ground Floor,Ward  

     No.17,Sankarara,P.O.Tamluk,P.S.Tamluk,Dist.Purba Medinipur,Pin-721636.

                                                                                                        ………..Opposite Parties.                                                                                                     

              For the Complainant: Mr.Ranjan Maity, Advocate.

              For the O.P.               : Mr.Pinaki Sengupta, Advocate.

                                                         

                                                                            Date of filing:21/11/2017                                                                                                                                                           

                                                                            Decided on: - 30/05/2018

                               

ORDER

                   Bibekananda Pramanik, President – This consumer complaint u/s.12 of the C.P.Act has been filed by the complainant Sri Biswajit Pattanayek against the above named O.P.-Insurance Company alleging deficiency in service on their part in repudiating the claim of insurance policy.                                                                                                                                                                                                         Contd………P/2.

                                                                                                                                

                                                        

                                                                                            ( 2 )

                                    Complainant’s case in brief is as follows :-

                                    The complainant is the owner of a pick-up van being Registration No.WB-33C/1137 and for his self-employment and livelihood he purchased the same. The complainant insured his said pick-up van with the O.P. Cholamandalam MS General Insurance Co. Ltd. vide Policy No.3379/00992932/000/01 covering the period from 25.1.2015 to 24.1.2016 with contract for payment of any kind of  accidental damage in the head of OWN DAMAGE CLAIM.

                        On 5.11.2015 about 11.30 a.m. while the said vehicle of the complainant was proceeding towards Chandrakona Road from Midnapore side then one truck which was coming from the opposite direction dashed the vehicle of the complainant, as a result of which the said vehicle of the complainant was badly damaged. Complainant thereafter submitted a claim vide claim No.3379154826 before the O.P.- Insurance Company who thereafter sent a surveyor for spot investigation. Complainant submitted all documents before the said surveyor alongwith an estimate of  repairing cost of Rs.4,97,960/-, so given by Satyanarayan Motor Works, Kharisha, Purba Medinipur. On 22.1.2016 the O.P.No.1 vide letter dt.22.1.2016 repudiated the claim of insurance on the ground that the vehicle was carrying 4 persons in the insured vehicle. It is stated that the said ground of repudiation is illegal and improper and there is gross deficiency in service on the part of the O.P.-Insurance Company.

                                     Hence the complaint, praying for an order directing the O.P.-Insurance Company to pay Rs.4,97,960/- along with interest towards repairing cost of the vehicle and for compensation and other  reliefs.

O.P. No.3, the Indusind Bank Ltd. refused to accept the registered notice for which the case was ordered to be heard ex-parte against the O.P. No.3.

O.P.No.1 & 2, the Insurance Co. has contested this case by filing a joint written version.                                                                          

                       Denying and disputing the case of the complainant it is the specific case of the insurance company that after receiving the claim of insurance they engaged a spot surveyor who assessed the loss/damage of the vehicle at Rs.2,59,756.25 but the said amount was not given to the complainant as he violated the terms and conditions of the policy. It is stated that the vehicle was authorised to carry only 2 persons including driver but from the F.I.R. and investigation report it was established that the vehicle was overloaded beyond permissible seat capacity at the relevant time of accident. It is also stated that it was informed by the complainant that one Milan Kumar Pahari was driving                                                                                                                                                                                                                                           

                                                                                                                                                                  Contd………P/3.

                                                                                                                                

                                                                           ( 3 )               

the vehicle but in the F.I.R.it was stated that one Supriya Kumar Pradhan was the driver of the vehicle which is misrepresentation of fact and the said Milan Kumar Pahari had no driving licence to drive the vehicle.  O.Ps. therefore claim dismissal of the case.

                                 To prove his case, the complainant has examined himself as P.W.1 and the documents, relied upon by the complainant, have been marked as exbt.1 to 5 respectively. On the other hand, O.P. adduced no oral evidence but the survey report submitted by the O.P. insurance company was marked as exbt. A without objection.

                                                                   Points for decision.

                                    1. Is the case maintainable in its present form and prayer?

2. Is there any deficiency in service on the part of the O.P.-Insurance Co. in    

    repudiating the claim of insurance ?

                                    3. Is the complainant entitled to the reliefs, as prayed for ?

                                                                

                                                                 Decision with reasons.

                   Point No.1 :

                                       Maintainability of this case has not been questioned by any of the parties   and we also do not find anything adverse regarding maintainability of this case.

                                       This point is accordingly decided in favour of the complainant.                               

                   Point no, 2:

                Admittedly the complainant insured his vehicle, a pick-up van, being Regn. No. WB 33C/1137 with the O.P. Insurance Company covering the period from 25.01.2015 to 24.01.2016 vide policy no. 3379/00992932/000/01. It is undisputed that the said vehicle of the complainant met with an accident on 05.11.2015 and due to such accident his vehicle was badly damaged. Admittedly after such accident the complainant lodged claim of insurance before the O.P. and O.P. company also engaged a surveyor who assessed the loss/ damage of the vehicle at Rs. 2,59,756.25/-. Admittedly the O.P. insurance company repudiated such claim of insurance on the ground of violation of policy condition pertaining to ‘Limitation as to use’ as because at the time of accident 4 persons including the driver were travelling in the insured vehicle at the time of accident although from the Certificate of Registration it was found by them that the vehicle was authorised to ply with a carrying capacity of  2 persons as per seat capacity. It is therefore alleged by the O.P.-Company that the vehicle was overloaded and the complainant therefore violated the terms and conditions of the policy.

                                        Now let us consider as to whether be said ground of repudiation is justified or not. From the copy of  F.I.R. (ext.5)  we find that admittedly at the time of

                                                                                                                                    Contd……..P/4.

 

                                                                                 

                                                                                           ( 4 )         

                 accident there were 3 persons in the vehicle including the driver although from the R.C. Book (ext.2) we find that sitting capacity in the vehicle was 2 including driver. In the written version the O.P-Company has stated again & again that the vehicle was overloaded for carrying 3 persons including driver. Now the question arises as to whether carrying of an extra person in the vehicle in question can be said to be overloaded. The vehicle in question is a pick-up van and not a passengers van. From the certificate of Registration (ext.2) we find that the said vehicle is light motor vehicle, unladen weight of which is 1710 kg. Nowhere in the written version as well as in the reputation letter it has been stated by the O.P-Insurance Company that at the time of accident the said pick-up van was carrying any goods exceeding the weight or capacity for carrying in a light motor vehicle. If there is no goods exceeding the limit of capacity then carrying of an extra person in the vehicle cannot be said to be overloading of the vehicle. In absence of any cogent evidence regarding  overloading it cannot be said the complainant violated the terms and conditions of the policy regarding ‘Limitation as to use’ the vehicle. Therefore,  the said ground of repudiation regarding overloading and violation of policy condition pertaining to ‘ Limitation as to use’ is vague and illegal and repudiation of claim of insurance on that ground alone is not at all justified and it amounts to deficiency in service on the part of the O.P.-Insurance Company.

                    This point is accordingly decided against the O.P.-Insurance Company.

                Point no. 3:

                   In view of our above finding under point no 1 and 2 the complainant is entitled to get the amount of damage/loss of the vehicle and for other reliefs.

                   About the extent of damage, we find from the survey report (exbt- A) that after spot survey, the surveyor concerned so appointed by O.P.-Insurance Company assessed the loss and net liability of the company to the tune of Rs. 2,59,756.25. Although the complainant has claimed that the concerned motor workshop gave an estimate of repairing cost of Rs. 4.79.960/- but he adduced no cogent evidence at all to prove his case. Therefore the complainant is entitled to get an amount of Rs. 2,59,756.25/-, so assessed by the surveyor of O.P-Company. That apart, the complainant is entitled to get compensation for mental pain and agony and an award of  litigation cost.

                                  All the points are accordingly disposed of.

                                  In the result, the complaint case succeeds in part.

                                                                                                                                                                            Contd……...P/5.        

 

                                                                                                                                                                                      

                                                                                ( 5 )

 

                                                 Hence, it is,    

                                                                   ORDERED

                                                     that the Complaint Case No.182/17 is allowed on contest in part with cost against the O.P.No.1 & 2 and dismissed ex-parte without cost against O.P.No.3. O.P.No.1 & 2 are directed to pay Rs.2,59,756.25 to the complainant with interest @8% p.a. from the date of filing of this complaint till payment and they are further directed to pay Rs.10,000/- as compensation and Rs.5,000/- as litigation cost to the complainant.

                                   All such payment shall be made within a month from this date of order i.d. 9%  penal interest shall carry over the awarded amount payable in favour of Legal Aid Fund.

                                  Let plain copy of this order be given to the parties free of cost.

             

              Dictated and Corrected by me.

                        Sd/-B. Pramanik.                      Sd/-P.K. Singha.                          Sd/-B. Pramanik.                    

                             President.                                  Member.                                        President,

                                                                                                                                 District Forum

                                                                                                                              Paschim Medinipur.