Orissa

Cuttak

CC/106/2019

Mrs Sasmita Tripathy - Complainant(s)

Versus

THe New India Assurance Co Ltd - Opp.Party(s)

B K Mohant & associates

10 May 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                           C.C.No.106/2019

Mrs. Sasmita Tripathy,

W/O:Dhaneswar Tripathy of

Vill:Nankar(Talasahi),

P.O:Jagatpur,Dist:Cuttack-754021.                                            ... Complainant.

 

                                                Vrs.

1.         The News India Assurance Co. Ltd.,

Ist Floor,Surya Vihar,Link Road,

Near Nishamani Cinema Hall,Cuttack-753001

Represented through its Senior Branch Manager.

 

2.        The New India Assurance Building-87 Mahatma Gandhi Road,

Fort,Mumbai-400001.

 

3.        The Regional Manager,

The News India Assurance Co. Ltd.,

Bhubaneswar Regional Office,1^st Floor,Alok Bharati Tower,

Sahid Nagar,Bhubaneswar-751007.... Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    06.09.2019

Date of Order:  10.05.2022

 

For the complainant:          Mr. B.K.Mohant,Adv. & Associates.

For the O.Ps       :                 Mr. A.A.Khan,Adv. & Associates.

 

Sri Debasish Nayak,President.

 

            The case record is put up today for orders.

                Case of the complainant in short is that, the complainant owns a Bolero CAMPER SCXL(Pick-up) Van  bearing Regd. No.OD-05-E-0285.  The said vehicle has been duly insured having valid road permit, fitness certificate and pollution certificate.  The driver of the said vehicle had a valid driving license.  The complainant duly insured the vehicle for a period from 13.9.2016 to 12.9.2017 before the Insurance Company on payment of necessary premium.  The complainant being a lady, utilising the vehicle by a driver getting the amount towards her income for her livelihood.  That on 3.4.17 an auto having goods carrier bearing Regd. No.OD-04D-8994 loaded with iron frames plying from Cuttack, suddenly met with an accident at  Badachana square which dashed her Pick up Van bearing Regd. No.OD-05D-0285.  As a result both the vehicles rolled down towards the road side causing accident.  In spite of his repeated visit to their office, on 6.2.18 the insurance company gave a letter stating there in that the vehicle met with an accident on 4.4.17 but in the FIR it is found that the vehicle met with accident on 3.4.17 and sought for clarification to that effect.  The complainant replied to such letter on 24.3.18.  The Insurance Company on 3.4.18 issued letter to her stating therein that there was violation of policy conditions as regards to “Limitation as to use”.  The surveyor has conducted survey and estimated repair cost of the vehicle as Rs.38,538/- by reducing the actual repairing cost of Rs.97,350/-.  Thereafter the complainant approached the Insurance OMBUDSMAN for redressal of her grievance but the Insurance OMBUDSMAN disposed of the case without applying judicial mind with a finding that she is not entitled to get the claim.  As the Insurance Company did not settle her claim she has filed the present case with a prayer for direction to the O.Ps to give Rs.97,350/- towards repair cost,Rs.1,00,000/- towards harassment and mental agony and  Rs.30,000/- towards legal expenses.

2.            The O.Ps appeared and filed their written version jointly.  It is stated that they have issued a commercial vehicle package policy bearing No.55030331160100002171 valid from 13.9.16 to 12.9.17 in respect of pick up van bearing No.OD-05-E-0285.  On 4.4.17 the vehicle met with an accident.  On intimation of the accident, a spot survey was carried out followed by a final survey by them on submission of the claim form and related documents.  When the G.R records were submitted/obtained it was found that the vehicle had met with an accident on 3.4.17 at about 3.30 p.m  which is different from that of the letter of the intimation and other supporting documents.    The O.P. with an intention to afford an opportunity to the insured to explain the position issued a letter on 6.2.18.  That when the claim was being processed on receipt of the clarification from the complainant, the insured received a summon from Learned MACT,Cuttack in MAC Case No.740/2017.  In view of the new development a further letter was issued to the complainant on 13.3.2018 to explain both the difference in date of accident and carries of three persons as against the carrying capacity of two persons.  On receipt of the aforesaid letters, the complainant submitted a clarification which was considered in the light of the contractual terms and conditions of the Motor Vehicle Act.  When it was found that the insured had violated the policy condition by carrying 3 persons as against 2 in a goods carriage vehicle the claim was rejected.  It is further stated that both the parties are bound by the terms of contract.  When the complainant violated the policy conditions by carrying persons than permitted, the rejection of the claim is fair and passed upon the contractual terms and conditions.  Hence the O.Ps have prayed for rejection of the complaint petition.

3.            Keeping in mind, the averments as made in the complaint petition as well as in the written version, this Commission feels it proper to settle the following issues for proper adjudication in this case.

                i.              Whether the case as filed is maintainable?

                ii.             Whether the complainant has cause of action to file this case?

                iii.            Whether the complainant is entitled to the reliefs as claimed by him?

Issues No.1 & 2.

                For the sake of convenience issues No.1 & 2 are taken up together for adjudication of this case.  Admittedly there was accident.  Admittedly the complainant is the owner of the Pick Up Van which met with an accident.  It is also not in dispute that the said Bolero Pick-up Van was under insurance coverage and the premium of such insurance was duly paid by the complainant to the O.Ps.  Hence, the complainant is a consumer under the O.Ps and the case is maintainable.  Here in this case as it appears from the police report and other reports that the vehicle in question is a goods carrier and only two persons are entitled to travel on the same.  It is not disputed that during the accident, there were three persons in the said vehicle including the driver, complainant and her husband.  The O.Ps repudiated the claim as there was violation of policy conditions as regards to “Limitation as to Use”.  But the complainant has relied upon a decision of Hon’ble Supreme Court i.e. (Amalendu Sahu Vs. Oriental Insurance Co. Ltd.) in Civil Appeal No.2703 of 2010, decided on 25.3.2010.   This decision is applicable to the present case.   As per the decision O.Ps have to settle the claim on non-standard basis as there is violation of policy conditions “Limitation as to use”.  Hence, the O.Ps have to settle the claim on non-standard basis.  Accordingly, these issues are answered in favour of the complainant.

Issue No.3.

                The surveyor report is an important piece of evidence.  The surveyor assessed the loss at Rs.38,800/-.  The O.Ps are liable to settle the claim on non-standard basis.  Hence, the complainant is entitled to get 75% of Rs.38,800/- towards her claim amount.

                                                                                ORDER

                The case is allowed partly on contest against the O.Ps and the Ops are directed to settle the claim by payment of 75% of Rs.38,800/- with interest @ 12% per annum from 6.9.2019, when the complainant filed the present case till the final payment is made to the complainant but no cost.  This order is to be carried out within a month hence.

Order pronounced in the open court on the 10^th day of May,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                                                        

                                                                                                                            

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President

                                                                                                                       

                                                                                                                             

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.