West Bengal

Birbhum

CC/154/2015

Shibu Ghosh, S/O Lt Sunil Ghosh - Complainant(s)

Versus

The Manager, HDFC ERGO Gen INS Co Ltd - Opp.Party(s)

Md Sajimuddin

20 Apr 2018

ORDER

 

Shri Biswa Nath Konar, President.

            The case of the complainant Shibu Ghosh, in brief, is that the complainant Shibu Ghosh is the owner of Ashok Leyland Tipper U2518T and he obtained an insurance policy certificate being No. 23152010599620000000 for the relevant period from O.P No.1HDFC Gen. Ins. Co. Ltd., Kolkata and said vehicle was under hypothecated with O.P No.2 HDB Finance Services Ltd, Rampurhat Birbhum.

            It is the further case of the complainant that on 02.01.2015 said vehicle met an accident and sustained severe damage of the new vehicle. He submitted a claim application for said damage to O.P No.1. The O.P No.1 advised him to go to General Motor Pvt. Ltd. for repair of the damaged vehicle. He paid Rs. 1,07,583/- by three bills and also incurred Rs 25000/- extra for pulling the vehicle and other charges.

            It is the further case of the complainant that he submitted total bill of Rs. 127583/- before O.P No.1 with relevant documents but they did not pay any heed and after several request on 16.07.15 the O.P No.1 by sending a notice repudiated his claim.

            It is the next case of the complainant that he has served a legal notice upon O.P No.1 on 12.10.15 but no consequence.

Hence this case for directing the O.P No.1 to pay Rs. 127583/- as claim amount and other expenditure with other reliefs.

The O.P No.1 HDFC Gen. Ins. Co. Ltd. Kolkata has contested the application by filing written version denying all material allegation of the complainant contending inter alia that the case is not maintainable and the plaintiff has no cause of action to bring this case.

It is the specific case of the O.P No.1 the complainant is owner and policy holder for the vehicle Tipper U2518T and same met an accident on 02.01.15 but the complainant has not informed the O.P No.1 about said accident and he was never advised by O.P No.1 to take the vehicle to General Motor Pvt. Ltd. to make repair of the same and the complainant has taken the vehicle to said General Motor Pvt. Ltd. for intention to make forged bill and bill for other charges.

It is the further case of the O.P No.1 that the complainant has not informed the police about accident and there was every doubt about the alleged accident.

It is the next case of the O.P No.1 that they appointed an IRDA approved Surveyor to assess the damage but he opined that the damage of the vehicle were not unconsistence with cause and nature of accident as mentioned in the claim application. The complainant claimed that the damaged occurred when the said vehicle had overturned but no damage were noticed on the vehicle other than the bending of the Tipping Ram and accordingly the damages were found to be inconsistent.

It is the further case of the O.P No.1 that they have rightly repudiated the claim of the complainant and the case is liable to be dismissed.

Inspite of due service of notice O.P No.2 HDB Finance Service Ltd. Rampurhat has not contested the case and the case was heard ex pate against them. 

Point for determination.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.Ps?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Shibu Ghosh has been examined as PW1 and also filed some documents. He was also cross examined by the O.P  No.1.

The O.P No.1 has not adduced any oral evidence but submitted some documents.

Heard argument both sides.

Point No.1:: Evidently the complainant obtained an insurance policy certificate being No. 23152010599620000000 for the relevant period from O.P No.1 HDFC Gen. Ins. Co. Ltd. regarding his vehicle Ashok Leyland Tipper.

So, the complainant is a consumer U/s 2(1)(d)(ii) of the C.P. Act.

Point No.2:: O.P No. 2 has Branch Office within jurisdiction of this Forum.

The total valuation of the case is Rs. 127583/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4:: Both points are taken up together for convenience of discussion as they are related to each other.

            The complainant Shibu Ghosh in his complaint and evidence stated that he is the owner of Ashok Leyland Tipper U2518T and he obtained an insurance policy certificate being No. 23152010599620000000 for the relevant period from O.P No.1HDFC Gen. Ins. Co. Ltd., Kolkata and said vehicle was under hypothecated with O.P No.2 HDB Finance Services Ltd, Rampurhat Birbhum.

            Copy of the certificate of insurance shows that vehicle in question was under coverage of insurance of O.P No.1 for the period 06.05.15 to 05.05.16 with IDV of Rs. 2500000/-.

            Copy of the registration certificate (Form 23) shows that vehicle in question being No. WB53B/5841 has been registered in the name of the complainant Shibu Ghosh.

            The complainant in his evidence further stated that on 02.01.15 said vehicle met an accident and sustained severe damage of the new vehicle. He submitted a claim application for said damage to O.P No.1. The O.P No.1 advised him to go to General Motor Pvt. Ltd. for repair of the damaged vehicle. He paid Rs. 1,07,583/- by three bills and also incurred Rs 25000/- extra for pulling the vehicle and other charges and submitted total bill of Rs. 127583/- before O.P No.1 with relevant documents but they did not pay any heed and after several request on 16.07.15 the O.P No.1 by sending a notice repudiated his claim.

            Copy of the invoice dated 21.07.15 issued by GNB Motor Pvt. Ltd. show that Rs. 96070/- and Rs. 7513/- has been incurred by the complainant for repair of the vehicle in question.

            Copy of the letter dated 16.07.15 issued by O.P Insurance Co. shows that the claim of the complainant was repudiated by the O.P Insurance Co.

            It is the next case of the complainant that he has served a legal notice upon O.P No.1 on 12.10.15 but no consequence.

            Copy of notice, registration slip and A/D card show that legal notice duly served upon the O.P Insurance Co.

            We find that it is the specific case of the O.P Insurance Co. that alleged incident took place on 02.07.15 but the complainant did not report the incident before any Police Station.

            The complainant Shibu Ghosh as P.W1 in his cross examination admitted that he did not informed the police station about the accident.

            But in view of clause (i) regarding submission of the claim documents in respect of accidental damage to insured vehicle a copy of police FIR /Panchanama is required for TP injury/Death/Property damage.

            So, it is clear that the complainant has not submitted the essential documents like copy FIR before the O.P Insurance Co. in respect of the present case.

            We find that the Surveyor Mr. Ashok Kumar Khanuja in his report dated 13.07.15 opined that due to unloading, vehicle was capsized and hydraulic jack bent.

He also opined that on his physical inspection of the vehicle no external damage/impact were found on the load body.

Copy of the claim application also shows that cause of accident was described by the complainant by this way – at the time of unloading the vehicle was sat down and capsized into right side.

            We find that in view of the ruling reported in 2015(2) CPR 459(NC) unless there are sufficient grounds to make departure from report of Surveyor same should not be discarded.

            During hearing of the argument Ld. Advocate/Agent of the O.P submitted that as there was no damage due to accidental external means, the claim of the complainant did not come under coverage of the insurance and the claim has been duly repudiated by the O.P.

            In support of his contention he cited a copy of the judgement passed in M/s Aggcon Equipment =Vs.= Iffco Tokyo Insurance Co. Ltd. on 04.04.16 by Hon’ble National Commission.

            In the said case a machine (MAITHR180) used for drilling deep boring of foundation and bores in the earth, belonged to the complainant and under coverage of the insurance company. On 16.09.13 said machine met an accident where damage was caused by soil collapsing whereby the machine drilling shaft got stuck into earth and could not be recovered.

            The complainant lodged a complaint case before Hon’ble National Commission. The Surveyor opined that damaged to machine was due to soil collapsing and not due to any mechanical or internal failure of the machinery.

            Hon’ble National Commission pleased to dismiss the case with observation that there is not even an iota of evidence to show that there is any external or internal damage. No expert evidence is forthcoming. Soil collapsing is not covered under the policy. Due to lack of evidence the case against the O.P does not stand.

            Considering the overall mater into consideration, evidence on record and relying upon the report of the Surveyor (which cannot be discarded) and ruling cited above we have no other alternative but to hold that the complainant has failed to prove his case of any deficiency in service on the part of the O.P and the O.P has rightly repudiated the claim, as the claim has not been covered under the insurance policy and the case is liable to be dismissed.

Accordingly both these points decided against the complainant. Case fails.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 154/2015 be and the same is dismissed on contest against the O.P without any cost.

             Copy of this order be supplied to the parties each free of cost.