JUDGMENT

Shri A.K.Patra,President:

1. This complaint is filed by the complainant named above alleging deficiency in service & unfair trade practice on the part of ops for non release of insurance benefit.
2. The facts of the complaint in brief are  that, the complainant has purchased a Maruti Swift Dezire VDI Car vide Regd. No.OD-08- D -7789 and insured his vehicle  with the Opposite Party  paying adequate premium of Rs. .19614/- vide Policy No.346001/31/2017/4382 which was valid from dt.21.01.2017 to 20.01.2018. On dt.02.12.2017 the complainant allowed his younger brother to use the said vehicle and accordingly his brother took the car to Gunupur. His brother stayed there for two days and during the time of his return the vehicle shows some mechanical problem he left the car in the garage of his father in law at Gunupur who got the vehicle repaired and thereafter on 08.12.2017 the vehicle was sent to the complainant being driven by a prudent driver namely Suresh Pattnaik who identified himself as a licensed holder to drive four wheeler light motor vehicle. On 09.12.2017 the complainant got a message that, his vehicle met an accident near Sikerkupa under Narla P.S. of Kalahandi district. The matter was reported at Narla Police Station vide Narla P.S. Case No.187 dt.10.12.2017 upon which the vehicle was seized by Narla Police. Soon after receiving the information of the said accident the complainant also intimated the fact to the insurance company/OP to assess the damage and to indemnify the loss. The insurer took no action for one year in spite of repeated approaches for which the complainant served a notice dt.29.05.2019 to the Ops to redress his claim which is duly received by the Ops but the Ops did not responded. The insured vehicle remained stranded for more than a year unrepaired and it is now completely damaged beyond repair for which the complainant is entitle to a sum of Rs.5,00,000/- towards the cost of the car. The petitioner is also entitled to accrued interest @ 13 % per annum from 09.12.207 till the date of realization. It is further contended that, the complainant is a business man and he has purchased the vehicle to use in his business work along with personal use when free but as the vehicle remained stranded for years together he sustained huge loss in business and suffering severe mental pain & agony. Thus the complainant is entitle to a further sum of Rs.50,000/- as compensation along with cost  of this litigation.
3. To substantiate his claim  the complainant has filed the copies of the  following documents :- (i) vehicle particulars vide Regd. No.OD-08 B- 7789 ,(ii) Insurance Policy schedule vide Policy No.346001/31/2017/4382 valid from 21/01/2017 to midnight of 20/01/2018,(iii) certified copy of FIR vide Narla PS Case No.187 dt.10.12.2017(iv) Charge Sheet vide No.187/17 in C.T.,398/17 of the Court of J.M.F.C, M.Rampur corresponding to Narla P.S.Case No.187dt.10.12.2017,(v) copy of pleader notice with 2 Nos. of postal receipts dt.20.5.2019 issued to the Ops,(vi) copy of Aaadhar Card No.5214 5239 4590 of Complainant Monaranjan Nanda  . The averments of complaint petition are supported by an affidavit of the complainant.
4. On being notice, the Opposite Parties  appeared through their Learned Counsel Shri S.K.Panda and filed their written version denying the petition allegation. It is submitted that , the alleged accident occurred on 09.12.2017  but the complainant intimated about the loss to his vehicle on 15.12.2018. It is further submitted that ,on  the same day of receiving of intimation of accident  the Op No.2  deputed  Er.Kanwaljit Singh for spot survey and OP No.2 asked   the complainant to submit  estimates for repair of the  vehicle however , the complainant  submitted the estimate on 26.12.2018. After that, the OP No.1 deputed Er. Surendra Kumar Mishra for final survey and the final surveyor assessed the loss as net loss for an amount of Rs. 41,900/- which the complainant accepted.  After submission of final survey report, the Op No.2 collected certified copy of GR Case record vide CT No.398/2017 from the Court of JMFC, M.Rampur and while processing the claim it came to light that, at the time of accident the vehicle of the complainant was involved in criminal activity for which the Opposite Party intimated the complainant on 22.05.2019 about nonpayment of his claim. It is further submitted that, the Opposite Party/insurance company acted promptly for settlement of the claim of the complainant but as the claim is not payable as per law, they are not deficient in their service to the complainant. Hence, prayed to dismiss the case with cost.
5. The Opposite Parties have not adduced any evidence or documents to substantiate their claim though sufficient opportunities are availed.
6. Complainant is remaining absent on the date fixed for hearing. However, in view of Section 38(3)(c)  of C.P.Act,2019 case record taken up today to decide the complaint on merit on being heard the learned counsel of the ops.
7. Perused the material available on record. We have our thoughtful consideration to the contention of the Complaint petition, written version, all the documents placed on the record and submission advanced by the learn counsel of the opposite parties.
8. The fact that, the vehicle is insured under the Ops/insurance Company vide Private Car Package Policy  No.346001 /31/2017/4382  covering risk of the vehicle from 21/01/2017 to  20/01/2018  and that, the vehicle met with an accident on dt. 09.12.2017 causing damage to the vehicle itself and that, on being intimated the insurer has deputed IRDA Licensed Surveyor who has estimated the loss at Rs.41,900/- against the claim of 5,00,000/- is not disputed. 
9. We have carefully considered the arguments advanced by the learned counsel for the opposite  parties and have examined the record .The admitted facts are that, the alleged vehicle of the complainant was insured with the Ops 1&2  and the vehicle met with an accident during the currency of the policy. As all kinds of insurance covers are being treated as service covered under Consumer Protection Act in the light of decision of the Hon;ble National Commission in Harsolia Motors Vrs. National Insurance Company Ltd. CTJ 141(CP) (NCDRC) ,the policy holder is definitely a consumer within the ambit of Consumer Protection Act .
10. Controversy lies in a narrow compass. Only one point raised by the insurer is that, the Ops have  rightly repudiated the claim of the insured /complainant for the reason that,  at the time of accident the vehicle of the complainant was involved in criminal activity. The insurer has relied on the Certified Copy of Charge Sheet No 187/17 corresponding to CT 398/17 of the Court of J.M.F.C ,M.Rampur there placed in the record and  intimated the complainant on 22.05.2019 about nonpayment of his claim.
11. The Insurer OP 1 & 2 can certainly take the defense that, there is violation of term of the insurance taking plea that the insured vehicle was involved in the crime. However, the onus of proving that, there was willful breach of condition of insurance policy or the contract of insurance or the insured have intentionally put the vehicle in the alleged crime is there with the insurer.
12. On perusal of the said Charge Sheet submitted by the investigating officer of Narla Police Station it is found that, the complainant /owner of the alleged vehicle has allowed his younger brother to use the vehicle as it is a family car. The brother had been to the house of his father –in –law at Gunupur. At the time of returning said  car shows mechanical trouble for which he leave the car at his father-in–law house and came back by bus to his native Medinipur. After repairing, his father –in-law sent the car through driver one Suresh Patnaik to handed over the car. Swift Dezire along with other co-accused committed kidnapping /robbery of one Satyaranjan Sha of Bolangir with the alleged car near Banjari temple at Kadalighati, in this connection Langigarh PS Case No.62 ,dt.09.12.2017 U/S 363/394 IPC has been registered and investigated in to the matter  . After operation the accused party divided in to two party .1^st party took the new Boleno car along with its owner Satyanarayan Sahu and driver towards Muniguda side .The driver of the Swift Dezire involved in the kidnapping group and accompanied with 1^st party though he was not driving new Boleno car at the time of kidnapping. 2^nd party followed the 1^st party by Swift Dezire .On the way SH-6 near Sikerkupa due to rash and negligent driving by the driver Anil Bagh the Swift Desire dashed against a road side tree and met with an accident. The involved vehicle has been seized in Lanjigarh PS and left in Zima and submit the charge sheet for an offence U/S 279/337/338 IPC, R/W 181 MV Act against the accused driver Anil Bag (27) ,S/O- Chatur Bag ,Village- Bad-kumudabahali ,Ps- Ambodala,Dis-Rayagada in Ps CS NO 187/17 .
13. The Ops have not adduce any evidence whatsoever that, the Honourable JMFC ,M.Rampur has finally pronounced its verdict holding the opinion that the alleged vehicle Swift Dezire was involved in the alleged  criminal activity. Evidently the driver of the Swift Dezire namely Suresh Patnaik has not been charge sheeted rather, investigation report shows that, the alleged vehicle was driven by one Anil Bag. Nothing whispered by the investigating officer that, the owner /here the complainant is involved in the alleged crime in any manner.
14. No iota of evidence whatsoever  is placed on record that, the insured /owner have ever involved in the alleged crime rather, it is clearly proved the innocence of the  owner/complainant as such we are of the opinion that, repudiation of the claim of the insured /complainant by the insurer on the ground that  that,  at the time of accident the vehicle of the complainant was involved in criminal activity is not proper
15. This complaint is presented on 31.10.2019 just after repudiation of claim dt. 22.05.2019 i.e. within a stipulated period as prescribed under C.P. Act , before this Commission where the complainant is residing and ops have their branch office carries on business as such, this complaint is found to be in time, well within the jurisdiction of this Commission maintainable under the C.P.Act,2019.
16. Loss caused to the complainant due to accident of his insured vehicle but insurance benefit is not yet released by the Ops even after receiving of surveyor report and pleader notice of the Complainant through  registered post vide receipt dt.20/05/2019 available in the record as such there is sufficient cause of action continuing to bring this complaint and complaint is maintainable under Consumer Protection Act 2019 .
17. In view of the discussion stated above and settled principle of law we are of the opinion that repudiation of insurance claim of the complainant under insurance policy vide No.346001/31/2017/4382 is un- warranted and unjustified. We are of the opinion that the complainant is entitle to get insurance benefit under the aforesaid insurance policy and the Ops have neglected for settlement of claim and are deficient in providing insurance service to the complainant.  The complainant in this case is entitle for the loss as assessed by the surveyor i.e. Rs.41,900/-only as admitted by the Ops in their Written Version as per the assessment of loss obtained from the surveyor which is also in no way disputed by the complainant   and further the complainant is  entitle for the interest @ 9% per annum over the said amount Rs.41,900/ from the date of filling of this complaint i.e 31.10.2019 .As we have awarded interest over the assessed loss ,there is no order as to other compensation as claimed by the complainant.
18. Hence, it is ordered.

ORDER

This complaint is allowed in part against the Op 1 & 2 on contest. The Insurer Op 1 & 2 are directed to release the insurance benefit of Rs. Rs.41, 900/- with interest @ 9% per annum from the date of assessment i.e. 31.10.2019 till its realization and further directed to pay Rs.10,000/- as litigation cost within four weeks of receiving of this order failing which interest @18% per annum shall be attracted on all of the aforesaid awarded amount till its realization.

This consumer complaint is partly allowed in above terms. Any application pending if any stand disposed of accordingly.

 Dictated and corrected by me.

                 President

I agree               

                       Member

       Pronounced in open forum today on this 6^th April 2023  under the seal and       signature of this Commission .

        Copy of this order be supplied to the parties free of cost for their perusal and compliance. Further this order be uploaded in the website of this Commission and Confonet. Parties may download the same from the website for their reference be treated as copy served to the parties.

The complaint could not be decided within the statutory period of time due to Covid -19 situation &   in want of quorum in the Commission.