For the O.P.No.3: Mr. P.C. Panigrahy, Advocate.
For the O.P.No.4: Mr. Raj Kishore Polai, Advocate.
DATE OF FILING: 07.11.2012.
DATE OF DISPOSAL: 10.10.2017
Dr. N. Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in insurance service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he is a permanent resident of Buguda village in Ganjam district. Being a self-employed person, he used to purchase a four wheeler and insured it with different insurance company from time to time. The O.P.No.1 is the general insurance service provider and having tie-up with O.P.No.4 rendering service to the customers. Accordingly, O.P.No.1 insured the vehicle of complainant. The office of O.P.No.1 situated at Magma Cell, 4 Lyons range, 2nd floor, Kolkata-7000 001. The O.P.No.2 is the administrative subordinate office of O.P.No.1 who is functioning as Service Centre for customers. The office of O.P.No.2 situated at Thapar House, 25 Broune Road, Kolkata-760 001. The O.P.No.3 is the Branch office of O.P.No.1 situated at Giri Road, Berhampur in Ganjam district. The O.P.No.4 is the vehicle Financer and financing vehicles to different customers in Eastern Zone of the country. The complainant purchased a four wheeler car namely Indica Vista of TATA Motors Ltd. being financed through O.P.No.4 bearing Regd. Sl. No.15006 and finance proposal No.PG/0018/C07/ 000076 dated 10.10.2008 with service location at Berhampur, Odisha. The complainant insured his vehicle with O.P.No.1 and paid Rs.10,962/- towards annual premium and after receipt of the said amount on 20.09.2010, the O.P.No.1 issued a policy bond for the said vehicle bearing policy No.311500/31/2011/8293 commencing with effect from 13.10.2010 to midnight of 12.10.2011. The vehicle of complainant met with an accident on 11.03.2011 at Pitatali chaka at 2.30P.M under Jatni Police station. The complainant lodged a station diary entry of the accident in the concerned police station bearing No.263 dated 12.03.2011. As per the claim of the complainant, on the date of accident, the insurance policy was valid and the vehicle stands in the name of the insured. When the complainant claimed the insurance to O.P.No.1 on 12.09.2011 and 19.10.2011, the O.P.No.2 on behalf of O.P.No.1 intimated the complainant that, “the policy was cancelled on 03.12.2010 and we have no liability on the claim hence the file is closed as “No Claim”. The complainant has alleged that there was no proper communication of cancellation of insurance policy by the O.Ps to the complainant. So the O.Ps can’t be absolved of their liabilities to compensate the claim of the complainant on this ground. It is also stated in the complaint that on receipt of the written information from O.P.No.2 the complainant issued notice to O.P.No.4 on 10.01.2012 but there was no result. The O.P.No.1 & 2 without the knowledge of the complainant cancelled the policy even after receipt of the insurance premium. It is also mentioned in the complainant that the complainant in order to save his vehicle from further damage got it repaired by spending a huge amount incurring hand loans from friends and relatives. He further stated that he has spent a sum of Rs.76,519/- towards repairing of the damaged vehicle which is liable to be compensated by the O.Ps. However, the O.Ps did not settle the insurance claim of the complainant which amounts to deficiency in service. Alleging deficiency in service on the part of the O.Ps, the complainant has prayed to direct the O.Ps to return the amount of Rs.5.00 lakh towards cost of the car and to pay insurance amount with 10% interest from the date of purchase of the car along with compensation of Rs.10 lakhs for agonies suffered by the complainant physically, mentally and financially and to award cost of litigation in the best interest of justice.
3. Notices were issued against the Opposite Parties but the O.P.No.1 & 2 neither choose to appear nor filed any written version hence they were declared exparte on 23.08.2016 and the case was proceeded exparte against O.P.No.1&2.
4. Upon notice the O.P.No.3 appeared through learned counsel Shri P.C. Panigrahi, Advocate and filed written version/ argument. In the written version/argument, it is stated that the averments made in the complaint are not true and correct; the complainant has to prove the same which are not specifically admitted. The averments made in Para 1 & 2 of the complaint are not true and correct. It is not true that the complainant has purchased so called vehicle for his self employment. It is not correct to say that the O.P.No.1 is the service provider having tie up with O.P.No.4. This O.P. has no concern with the averments made in Para-3 & 4 of the complaint. Similarly the averments made in Para 5, 6 &7 of the complaint are not true. It is not true that the so called vehicle of the complainant was insured under this O.P. at the time of the alleged accident. The said vehicle was not insured under this O.P. at the time of the alleged accident. The averments made in Para 7 of the complainant is partly true. It is true that the Insurance Company intimated to the complainant that they have no liability on the alleged claim of the complainant on the ground that the so called policy had been cancelled prior to the alleged accident. But it is not true that the cancellation of policy was not intimated to the insured. When the policy had been cancelled much prior to the alleged accident, the question of liability still continuing after cancellation does not arise. The averments made in Para 9 & 10 of the complaint are not true and correct. It is not true that the o.P.No.1 & 2 have cancelled policy even after receipt of the insurance premium. The averments made in 11 & 12 of the complaint are not true. It is not true that the complainant has spent Rs.76,519/- towards repair of his so called vehicle by incurring hand loan. The so called bills & vouchers are created for purpose the case. There is no truth behind the so called bills and vouchers. There is no cause of action arose to file present complaint against this O.P. The case is otherwise not maintainable under law. The complainant is not entitled to get the amount as claimed by him. The complaint is barred by limitation. Hence this O.P.No.3 prayed to dismiss the complainant with exemplary cost in the interest of justice.
5. On notice from this Forum, the O.P.No.4 appeared through Shir R.K. Polai, Advocate and filed written version. In the written version/argument it is stated that the present complaint in its form is not maintainable against the O.P.No.4 and liable to be dismissed. The vehicle in question was financed by the O.P.No.4 to the complainant and the O.P. being the financier is not liable to pay any compensation, hence on this ground alone the present application is liable to be dismissed against the O.P.No.4. It is further submitted that if in this case the Hon’ble Forum directs the O.P.No.1 to pay any amount, the said amount should be paid to O.P.No.4 towards recovery and realization of dues of EMI and other over dues of the complainant’s loan account. As per the judgment of the Hon’ble Supreme Court reported in AIR 2008 SC 2493 in the case of Godavari Finance Co. versus Degala Satyanarayanamma & Ors, it is settled that the Financier is not liable for any compensation much less the compensation claimed by the complainant. The O.P.No.4 as financier of the vehicle of which the complainant was the registered owner at the time of accident could not be held liable to pay compensation to the complainant as on the date of accident O.P.No.4 was not the registered owner of vehicle in question nor it was in possession and control thereof. The vehicle was neither plying under O.P.No.4’s instructions nor the driver was its employee to work under the supervision and control of the O.P.No.4. The averments made therein against the O.P.No.4 are vague, baseless and with malafide intent. The complainant has made misconceived and baseless allegations of unfair trade practice without any documentary evidence in support of the allegations made in the complaint. The complaint is not maintainable as the complainant has signed a contract with the O.P.No.4 and in the said loan agreement/contract contains the clause for Arbitration where all the disputes, differences, claims and questions whatsoever arising out of the said agreement shall be referred to the sole arbitrator. The complainant has entered into a loan cum hypothecation cum guarantee agreement with the O.P.No.4 as a Borrower for purchasing a INDICA VISTA in which an initial amount was paid by complainant and the remaining amount was financed by O.P.No.4. The complainant has agreed to pay the finance charges. Hence complainant is liable to pay total sum towards the contract value. The complainant has agreed to pay the installments in time failing which the complainant has further agreed to pay the delayed payment charges on the respective installment amounts. The complainant has failed to pay the regular EMIs as per the repayment schedule. The O.P.No.4 have committed no deficiency of service or any unfair trade practice and therefore there is no reason for the complainant to undergo any physical, financial and mental loss and agony attributable to these O.P. extending financial help to a person in need cannot be construed as deficiency of service. The complainant is not entitled to any relief as claimed by him against the O.P.No.4 and this case is liable to be dismissed on merit with exemplary cost, for filing such a frivolous and vexatious complaint against the O.P.No.4.
6. On the date of hearing of the consumer dispute we have heard the learned counsels for concerned parties and perused the materials placed on the case record. During the course of hearing of the dispute, the learned counsel for the complainant submitted that the present complaint insured his vehicle with O.P.No.3 on payment of Rs.10,962/- towards annual premium and a policy bond bearing No.311500/31/2011/8293 was issued which is valid from 13.10.2010 to 11.03.2011. The vehicle of the complainant met with an accident on 11.03.2011 at Pitapalli Chaka under Jatini Police Station. The complainant informed the matter to the police station and a station diary entry was made bearing No.263 dated 12.03.2011. Accordingly the complainant intimated the claim to the O.P. No.3 on 12.09.2011 and 19.10.2011 and the O.P. No.2 on behalf of O.P.No.3 informed the complainant that the said policy was cancelled on 03.12.2010. It is also contended that the O.P.No.3 did not intimate to the complaint regarding the cancelation of the insurance policy. The complainant issued notice to the O.P.No.4 on 10.01.2012 but that also did not reap any result. However, the complainant in order to save the vehicle from further damage, he on hand loan from friends repaired the vehicle on payment of Rs.76,519/- as per the bills and voucher/ receipts placed on the case record as Annexures. The learned counsel for the complainant has also cited a catena of decisions of Hon’ble Supreme Court and National Commission to derive strength in support of his case. He has cited two decisions of Hon’ble Supreme Court vide Civil Appeal No.15611 of 2017 in the case of Om Prakash versus Reliance General Insurance & Anr and United India Insurance Co. Ltd versus Laxmamma & Ors decided on 17.4.2012(SC) respectively. He has also cited a decision of Hon’ble Madras High Court in the case of Oriental Insurance Co. Ltd. Versus Jayanthi in CMA 3375 of 2994 and other two decisions of Hon’ble National Commission reported in II (2013) CPJ 600 (NC) and IV (2013) CPJ 229 (NC) respectively. In view of the above fact and circumstances and considering the citations, the complainant prayed to direct the O.Ps to settle the claim of the petitioner and to pay compensation and cost as per the prayer in the petition.
7. On the contrary, the learned counsel for the O.P.No.3 in his submissions contended that in the present case, the complainant has admitted in his complaint that he has not intimated the alleged accident of his vehicle to the O.P.No.3 immediate after accident. Admittedly he has intimated the incident of so-called accident on 12.09.2011 i.e. after six months of the alleged accident and by then the vehicle was repaired as averred by the complainant. For assuming a moment but not admitting, even if there was a policy by then, the insurance company is not liable to compensate the alleged damage as there was no scope for the insurer to survey the damage and assess the loss due to the late intimation. In the present case, the complainant has submitted the photocopy of the station diary showing the accident and damage of the vehicle without submitting FIR. The said station entry is a self declaration of the complainant. There was no investigation conducted by the police and the complainant without intimating to the O.P insurance company has carried out the repairing works of the vehicle and for that this O.P is not liable to compensate the loss so the complaint filed by the complainant is liable to be dismissed. In support of his argument he has also submitted a catena of citations of Hon’ble Supreme Court and Hon’ble National Commission reported in IV(2011) CPJ 9 SC in the case of Silversons versus Oriental Insurance Co. Ltd, in the case of Jatinder Singh versus Oriental Insurance Co. & Anr reported in II (2015) CPJ 469 (NC) and in the case of Shriram General Insurance Co. Ltd & Anr versus Gurshinder Singh & Anr reported in II (2015) CPJ 750 (NC) respectively where in all the above decisions the Hon’ble Court /Commission have held that due to delayed intimation to the insurance company policy condition is violated and the claim can be repudiated.
8. Similarly, the learned counsel for the O.P.No.4 in his argument submitted that in this case the O.P.No.4 is the financer of the vehicle in dispute and as per the decision of Hon’ble Supreme Court in the case of Godavari Finance Company versus Degala Satyanarayanamma & Ors it is settled that the financer is not liable for any compensation for the damage of the vehicle due to accident. He further submitted that the complaint is not maintainable against O.P.No.4 since the complainant is not a consumer as he was financed the vehicle for commercial purpose. The O.P. No.4 is only concerned for the finance of the vehicle and recovery of EMIs as fixed during the loan agreement and not liable to pay any cost or compensation to the complainant for damage of his vehicle due to alleged accident as there was no deficiency in service. The O.P.No.4 therefore prayed before this Forum to dismiss the case with cost in the interest of justice.
9. We have thoughtfully considered the submissions of learned counsels and have also perused the pleadings and verified the documentary evidence placed on the case record. In view of the above submissions and considering the fact and circumstances of the case, the issues that crop up for our consideration as to - (i) whether the complainant had promptly intimated to the O.Ps regarding the alleged accident of the vehicle in dispute? (2) Whether the claim of the complainant deserves to be considered by this Forum?
10. To address and adjudicate the first point in dispute as stated above, we would like to state that as far as intimation to the O.P. insurance company is concerned, on perusal of materials it reveals that alleged accident of the vehicle was occurred on 11.03.2011 at Pitapalli Chhaka at P.30 PM under Jatini Police Station and a diary entry of the said accident was made on 12.03.2011 bearing No.263 in the Jatini Police Station as is evident from the case record. As admitted by the complainant, he intimated the alleged incident of the vehicle to O.P.No.3 on 12.09.2011 and 19.10.2011 i.e. exactly after six months of the alleged accident. The complainant failed to adduce any documentary evidence to prove the fact that he had promptly intimated the O.P. insurance company soon after the occurrence of the alleged accident of the vehicle. In view of the above, in our considered view we would like to say that no explanation given for delayed information whereas as per the term and conditions of the policy, the insurance company was to be intimated immediately. This shows clear violation of the terms and conditions of the policy in dispute which is proved beyond any doubt on record. However, the learned counsel for the complainant has submitted that in spite of delayed information, the claim of the complainant should be considered by this Hon’ble Forum. In support of his contention he placed reliance on the decision of the Hon’ble Supreme Court of India in the case of Om Prakash versus Reliance General Insurance and Anr vide Civil Appeal No.15611 of 2017 in which the claim was directed to be settled by the O.P. insurance company. We have gone through the above judgment of Hon’ble Supreme Court and after going through the decision we feel that this judgment does not help the complainant because as per the terms and conditions of the policy, the complainant was required to give intimation to the insurance company immediately after accident whereas the case in hand intimation was given after elapse of six months of the alleged accident. Secondly, in the above decision, there was delay of only 8 days in informing the O.P. insurance company, whereas in the present case there was a hopelessly delay of six months in informing the insurance company by the petitioner. Thirdly, in the said citation, the insurance company had deputed their investigator to assess the loss after receipt of intimation from the complainant and accordingly the loss of the theft vehicle was assessed by the investigator and was also got approved by the Corporate Claims Manager whereas in the instant case the O.P. insurance company was deprived of getting an opportunity to depute an investigator to assess the loss of the alleged accident vehicle. Further, in the present case there was no copy of FIR filed by the petitioner though there was a station diary entry made as discussed above. In the light of above discussions, the citation filed by the complainant as discussed is not at all applicable to the instant case due to distinguishable factual differences of both cases hence we are not inclined to accept same. In view of the foregoing discussion, it becomes clear that the complainant has committed breach of conditions of the insurance policy by intimating after six months of accident to the insurance company hence the O.P. insurance company has not committed any error repudiating the claim of the complainant. Similarly, all other citations as submitted and discussed during the course of hearing by the learned counsel for the complainant in support of his case is also not applicable due to factual differences of said cases to that of the present case hence rejected.
11. With regard to second issue as framed above as to whether the claim of the complainant deserves to be considered by this Forum since he has spent an amount of Rs.76,519/- towards repairing of the accident vehicle and has also submitted the bills and vouchers placed on the case record. In this regard we would like to view that in this case as per contention of the complainant, the vehicle met with an accident on 11.03.2011 but he did not even feel it to intimate to the insurance company for a long delayed period of six months and even did not give an opportunity to the insurance company to assess the loss of the accident vehicle. In this case he himself repaired the vehicle apprehending further damage of the vehicle on payment of aforesaid amount which is beyond the informed knowledge and consent of the insurance company. Under the foregoing peculiar fact and circumstances, it will not be just and proper to direct the O.P. insurance company to settle the claim of the complainant going beyond the conditions of the policy. In view of the above discussions, we feel that the complainant is not entitled to claim, cost or compensation as prayed in the complaint due to non- intimation of the alleged accident immediately to the O.P. insurance company. Similarly, in the case, the O.P.No.4 i.e. the financer of the vehicle is also no way concerned for payment of compensation or cost to the complainant for the alleged accident of his vehicle since the O.P. No.4 is the financer of the said vehicle. Our finding is fortified with the judgment of Hon’ble National Commission reported in II (2013) CPJ 21B (NC) in the case of Jasmer Singh versus Reliance General Insurance Co. Ltd where it was held “petitioner has committed breach of condition of insurance policy by intimating after 69 days of accident to the insurance company, O.P. has not committed any error in repudiating claim and petitioner is not entitled to get compensation even on non-standard basis”. In the light of above discussions, decision and considering the fact and circumstance of the case, we feel that the case of the complainant has got no merit for consideration hence ordered to be dismissed against all O.Ps.
12. Resultantly, the complaint of the complainant is ordered to be dismissed due to devoid of any merit. However, there is no order as to cost. The case of the complainant is disposed of accordingly.
13. The order is pronounced on this day of 10th October, 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
