Presented by Miss R. Pattnayak, President .
The brief facts of the case is that the Complainant namely Sri Purna Chandra Pattnaik who is the owner of a “Tata 709 Bus” bearing Registration No. OR-15-E-2695, had insured the said bus with the Opposite Party namely the National Insurance Company Ltd. for the period from Dt.18/03/2010 to Dt.17/03/2011 vide comprehensive insurance policy bearing Policy No. 163403/31/09/6300003098. The bus met with an accident on Dt.27/08/2010 and suffered extensive damage while it was proceeding from Sambalpur to Bargarh. The Complainant lodged claim bearing claim No.163403/31/10/63/90000049 with the Opposite Party for indemnification of the loss sustained by submitting required documents. The Opposite Party deputed their Surveyor for assessment of damage caused to the bus to which the Complainant submitted another set of documents. The Opposite Party after receipt of the documents remained silent over the matter and after delay of about 265(two hundred sixty five) days surprisingly on Dt.19/05/2011 repudiated the claim on the ground of non-submission of documents and hence its claim is treated as “No claim” which is against the principle of Natural Justice. So the entire action of the Opposite Party amounts to gross deficiency in service. Hence alleging deficiency in service on the part of the Opposite Party, he filed the present case with a prayer to direct the Opposite Party to pay the claim amount of Rs.1,25,004/-(Rupees one lakh twenty five thousand four)only with 12%(twelve percent) interest and cost of this proceedings to the Complaint along with compensation of Rs.50,000/-(Rupees fifty thousand)only for harassment, mental agony and other relief deems fit and proper.
Complainant in support of his case has filed the following documents:-
(a) Copy of insurance policy.
(b) Copy of schedule of premium.
© Original letter of the Opposite Party regarding appointment of Surveyors.
(d) Original letter Dt.19/05/2011 of the Opposite Party intimating closure of the claim file.
(e) Registered letter of the Complainant requesting Opposite Party for a settlement of claim on the existing documents already supplied.
(f) Copy of F.I.R.
(g) Copy of Registration Certificate.
(h) Copy of fitness certificate.
(i) Driving license of Driver Nehru Patra.
(j) Copy of Bills and vouchers towards cost of repair, purchase of parts amounting to Rs.1,25,004/-(Rupees one lakh twenty five thousand four)only.
On Notice being served, the Opposite Party appeared and submitted version on Dt.03/07/2013 along with documents i.e. letter Dt.23/03/2011 letter Dt.02/05/2011 and letter dated 21/04/2011/ Surveyor report / Policy copy. While admitting the insurance policy and occurrence of accident during the valid period of insurance policy, the Opposite Party controverted the claim of the Complainant on the following grounds.
(i) Maintainability
Firstly, the Complainant's case is not maintainable, as he is not coming under the purview of definition of consumer as defined in the Consumer Protection Act, because the vehicle was used for commercial purpose.
(ii) Repudiation of claim
Secondly, the Complainant has violated the condition stipulated in the policy by not producing the Rout permit and also by non submission of required documents. Since the Opposite Party have not committed any deficiency of service, so he has rightly repudiated the claim after application of proper judicial mind.
Therefore, the Opposite Party prayed before this Forum for dismissal of the complaint case, as the repudiation was legitimate and closed the file as “No claim”.
Perused the Complaint petition, written statement and documents submitted by both the Parties to prove their respective claims and denial plea as per annexed list of documents, the following issues are farmed for proper adjudication of the case.
Whether the case is maintainable ?
Whether repudiation of claim due to non-submission of documents is illegal constitute deficiency in service ?
Whether he is eligible to get his claimed amount or claim loss assessed by the surveyor ?
Issue No.1(one) - Whether the case is maintainable ?
Learned counsels for the Opposite Party raised objection on the point that the Complainant is not a consumer as the said bus was used for commercial purpose. In this context, the Complainant has disclosed that he is a consumer as the bus was used by him for the purpose of earning his livelihood by means of self employment. On this point, the Complainant rely on the decision of Hon'ble Supreme Court in case of Laxmi Engineering Works Vrs P.S.G. Industrial institute reported in AIR 1995 Page 1428 and also in 1995 (2) CPR II, where the Hon'ble Court has held that “A person who buys goods and use by himself exclusively for the purpose of earning his livelihood by means of self employment is within the definition of expression “Consumer”. Another decision of Hon'ble National Commission Reported in 2005 (1) CPJ 26 ( NC) Horsolia Motors Vrs National Insurance Company where it was held that “Petitioner has to be treated as a consumer qua insurance company providing insurance cover for his vehicle even if it was being used for commercial purpose. Even if the vehicle is being used for commercial purpose, the vehicle had been insured against accident and the insurance cover by it self can not be directly related to the generation of profits and hence the insurance company having accepted to insured the vehicle can not be allowed to repudiate the claim on the ground that it was being used for commercial purpose. The purpose of insurance is to indemnity the loss of insured. Loss can not be equated with profit. Hence dispute of insurance is different from dispute for commercial purpose. It is also the admitted fact, that the Opposite Party has issued the policy for the goods in question and for that the Complainant paid the premium and obtained a valid insurance policy which covers the period of liability form Dt.18/03/2010 to Dt.17/03/2011. The accident took place on Dt.27/08/2010. As because there is a valid insurance coverage and out of the accident the good losted, the Complainant's claim of loss has to be met by the Opposite Parties. So the Complainant petition has a prima facia case and it is maintainable under the Consumer Protection Act. Thus the Opposite Party's contention is not sustainable in this regard.
Issue No.2(two) - Whether repudiation of claim due to non-submission of documents is illegal constitute deficiency in service ?
It is submitted by the learned counsel for the Opposite Party, that it is mandatory on the part of the insured to provide all the relevant documents to the insurer for the purpose of settlements of the claim. But as the Complainant did not provide the documents to the Opposite Party, the claim was rightly repudiated. According to the Complainant, he has co-operated the surveyor by supplying him another set of the vehicular documents along with cash memo of repair, Bills and vouchers towards purchase of parts replaced. From the record, it appears that, the insurance company admitted the ownership of the bus and its insurance and validity of the period of insurance. Since the insured did not produce the relevant documents, the insurance company was not obliged to entertain the claim. On examination of record in question we found that, the xerox copy of insurance policy, Registration Certificate, Fitness certificate, D.L. of the driver and F.I.R. relating to P.S. Case No. 239 Dt. 27/08/2010, Cash memo of Sapna body builders Sri Shyam Enterprises and Dash Spring Works as required by the company are in record. On perusal of the Surveyor report, it is found from the remark column that, Surveyor had enclosed photographs taken by the surveyor, claim form, estimate, final survey bill along with survey report. The claim of the Complainant has been fully supported by documentary evidence. He has also filed the estimate relating to the repair works, that the vehicle suffered damaged as a result of the accident which is also admitted by the insurance company in as much as the surveyor found damage of the vehicle occasioned by the accident. The xerox copy of the repair bills are on record. Therefore the repudiation of claim due to non-submission of documents is illegal and clearly amounts to deficiency in service. On this point we rely on the decision of Hon'ble National Commission reported in 2008 (1) Consumer Protection Cases 186, G. Kathainchair Vrs United India Insurance Company Ltd., where in it was held that, the breach with respect to plying of the vehicle without permit is only a breach with respect to the provisions of M.V. Act (Motor Vehicle Act) and it is not a breach of the terms and conditions of the policy. So the Opposite Party can not legally repudiate the claim on this ground. As such repudiation of the claim by the Opposite Party on the afore-said ground amounts to deficiency of service.
Issue No.3(three) - Whether the Complainant is eligible to get his claim amount or claim loss assessed by the Surveyor ?
It appears from the record that the Complainant's vehicle met with an accident on Dt.27/08/2010 i.e. within the validity period of the policy as it was valid from Dt.18/03/2010 to Dt.17/03/2011 as evident from the policy. The driving license of the driver who was plying the bus at the time of accident is also valid up to Dt.04/05/2013. It further appears from final survey report that the surveyor assessed the loss and gave his final report by assessing the loss to the tune of Rs. 42,900/-(Rupees forty two thousand nine hundred)only. The Complainant has produced only the bills and vouchers towards the estimate of assessment of loss and accordingly claimed Rs.1,25,004/-(Rupees one lakh twenty five thousand four)only but he has not sustained the claim by adducing any cogent and convincing evidence. So his claim can not be believable in toto. But contrary to that, the Opposite Party produce the relevant documents i.e. surveyor report. The Surveyor is a technical man and competent to access the loss. The surveyor report carries greater importance for assessing the damage of the vehicle in case of accident and that should not be easily over looked as has been held in the decision M/s Narain Cold Storage and Allied industries ltd Vrs Oriental Insurance Co Ltd reported in 2003 CPR-114 (NC) by the Hon'ble National Commission that “Surveyor's report is an important document which can not be brushed aside.” On this point we have also gone through another decision of Hon'ble National Commission reported in (2004) 9 CLD 884 (NCDRC) Dt.24/03/2004 National Insurance Co. Ltd Vrs Sardar Gurmit Singh. It reveals from the placitum which read as follows:- “Report of Surveyor's appointed under insurance Act are to be given due importance and one should have sufficient ground not to disagree with the assessment made by them”. It has been stated in a case United India Insurance Co. Ltd and other Vrs Roshal lal Oil Mills Ltd. and others reported in 2000 (10) SCC 19, that report of the Surveyor is an important document and it should be considered before arriving at a Judgment.
In the present case, the Complainant has not been able to give any cogent and convincing explanation to rebut the conclusions arrived at by the surveyor. Mere filing of documents/bills by the Complainant as regards to the repair expenses does not create any evidence, in support of the claim and there fore can not be taken in to consideration. However we accept the Surveyor's assessment and the Opposite Party's liable to reimburse the amount assessed issue by the final Surveyor to the Complainant towards loss of the vehicle.
Under the above circumstances, we come to the conclusion that the loss in this case falls very much within the terms of the policy and not settling it, rather repudiate the claim clearly amounts to negligent and deficiency in service under the provision Sec-2(1)(g) of the Consumer Protection Act.
O R D E R
Hence the Opposite Party is directed to pay Rs. 42,900/-(Rupees forty two thousand nine hundred)only to the Complainant towards the loss as assessed by the surveyor along with interest @ 9%(nine percent) per annum from the date of repudiation Dt.19/05/2011 till the date of Order i.e. 04/03/2014 and compensation of Rs.10,000/-(Rupees ten thousand)only towards harassment, mental agony and litigation expenses within thirty days from the date of Order failing which the total awarded amount shall carry @ 12%(twelve percent) interest per annum till the realization of amount.
The case is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree, (Miss Rajlaxmi Pattnayak) ( Smt. Anjali Behera) (Sri Pradeep Kumar Dash)
P r e s i d e n t. M e m b e r. M e m b e r.
