Rajasthan

StateCommission

CC/87/2017

Hanif Khan S/O Mohd. Khan - Complainant(s)

Versus

The Oriental Insurance Company Ltd. - Opp.Party(s)

Yatendra Prakash Sharmaa

11 Apr 2019

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

COMPLAINT CASE NO: 87/2017

 

Hanif Khan s/o Mohd. Khan r/o Nangla Samavadi Tehsil & Distt. Alwar.

Vs.

The Oriental Insurance Co. Ltd., 70 Panchwati, Raghu Marg, Alwar & ors.

 

Date of Order 11.4.2019

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Mrs.Meena Mehta-Member

 

Mr. Yatindra Prakash Sharma counsel for the complainant

Mr. Prashant Mantri counsel for the non-applicants no. 1 & 2

Mr.Deepak Saraogi counsel for non-applicant no.3

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

 

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This complaint has been filed on 3.8.2017 with the contention that complainant purchased truck trailer registration no. RJ 02 GA 7746. It was insured with non-applicant no. 1 & 2 and financed with non-applicant no.3. During the policy period it was accidented on 24.9.2014. Spot survey was conducted with delay. Claim was lodged which has not been settled till today and on 26.5.2017 a communication is received by the complainant where till today the non-applicant no. 1 & 2 are asking for the documents inspite of the fact that it is a case of total loss. Hence, the complaint is filed for claim of Rs. 23 lakhs which the sum assured alongwith compensation and cost of proceedings.

 

The contention of the non-applicants no. 1 2 is that the vehicle is insured with them. On 25.9.2014 spot survey was conducted and report dated 27.9.2014 is prepared. As per spot survey it was not the case of total loss. The complainant has lodged the claim with delay only on 29.1.2015. On 2.2.2015 S.K.Kaul & Co. was deputed for final survey. Inspite of various reminders the complainant has not cooperated with the surveyor. The cabin was loaded in the trolly and due to the financial constraints the complainant could not get it

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photographed. Reminders were also sent to submit the documents for repairs but the vehicle has not been repaired and as the matter was pending since long the insurance company has taken it fit to re-assess the claim looking to the increase of price and re- assessed the claim as Rs. 18,99,500/- but the appellant has not submitted the tax receipts. Hence, the money could not be disbursed to him. The insurance company is not deficient. They are ready to pay the assessed amount.

 

The contention of the non-applicant no.3 finance company is that as per the award on the day of the reply i.e. on February 2018 Rs. 21,45,238/- are due towards the complainant. Hene, the claim amount be disbursed to him.

 

All the parties entered into evidence. Heard the counsel for the parties and perused the record of the case.

 

There is no dispute about the fact that the vehicle was insured and during insurance period it was accidented. Spot survey report Ex. R 2 speaks about details of damage and final survey was also conducted.

 

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This is also not in dispute that the claim was submitted on 29.1.2015. The complainant was asked to shift the vehicle but he submitted an affidavit on 6.2.2015 to the effect that due to financial constraints and illness of his daughter he could not shift the vehicle and this fact has also been admitted that some parts of the vehicle were stolen as it was lying on the road. The complainant himself has submitted communication of the surveyor dated 26.6.2015 Ex. 21 where the complainant was asked to off-load the cabin from the trolly so photographs and assessment could be done and some other anomalies have also been pointed out by the surveyor regarding tyres of the vehicle, damage to the engine, batteries etc. When compliance has not been done and no repair bills were submitted by the complainant the final survey Anx. R 8 was made and loss was assessed as Rs. 11,75,642/-. The complainant was asked to submit payment receipt vide Anx. R 9. He was also asked to submit repair bills and vehicle for re-inspection.

 

It is not in dispute that the vehicle was not repaired and contention of the complainant is that the case is of total loss but as per the assessment made by the final surveyor it can very well be concluded that case was not for total loss. The

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counsel for the insurance company has rightly pointed out that when matter has not been resolved and complainant was not in a position to repair the vehicle the insurance company has liberally re-visited the assessment and as per Anx. R 14 the assessment was enhanced to Rs.18,99,500/- after giving due weightage to the price increase of the vehicle.

 

The contention of the complainant is that inspite of the final survey of Rs. 18,99,500/- the amount has not been paid to him which is deficiency on the part of the insurance company but the contention of the complainant is not acceptable as Anx. R 15 & 16 clearly speaks that tax receipts have not been deposited by the complainant. This is not the case of the complainant that the tax has been paid. Even in spot survey report Anx. R 2 and final survey report Anx. R 8 tax receipts have not been made available to the surveyor and even in last assessment tax receipts have not been submitted before loss assessor M.Kumar & Co. Hence, in view of the above when requirement have not been fulfilled by the complainant himself, the insurance company cannot be held deficient.

 

The other contention of the insurance company is that

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the complaint is time bared as admittedly the loss has caused on 24.9.2014 and complaint has been filed on 3.8.2017 not within two years of accrual of cause of action and reliance has been placed on III (2009) CPJ 75 (SC) Kandimala Raghavaiah Vs. National Insurance Co. where from denial of the claim within two years complaint has not been filed. Here in the present case it is admitted case between the parties that the claim has not been denied to the complainant.

 

The contention of the non-applicant is that cause of action means the action which gives occasion for and forms the foundation of the suit and damage and loss to the vehicle is the foundation of the suit. It may be partly correct but here in the present case not only loss to the vehicle has give foundation to the complaint but also the contention of the complainant is that his claim has not been settled which also gives cause of action to him and when claim has not been settled till the filing of the complaint, it can be construed as continuous cause of action.

 

The insurance company has further relied upon IV (2011) CPJ 210 (NC) Ganpat Rama Vs. New India Assurance

 

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Co. where from the date of occurrence the limitation was reckoned.

 

Further reliance has been placed on (2007) CPJ 380 (NC) Tayal Enterprises Vs. United India Insurance Co., judgment passed by this Commission in First Appeal No. 1550/2015 Oriental Insurance Co. Vs. Jagdish, 2011 NCJ 342 (NC) Smt.G.Rajitha Vs. Devi Constructions, 2011 NCJ 402 (NC) Tata Engineering & Locomotives Vs. Sh.Nathu which deals with issue of limitation but here in the present case the non-applicant has not settled the claim and now he is ready to pay the assessed amount. The issue of limitation seems not relevant.

 

The non-applicant has rightly relied upon I (1995) CPJ 327 Kanhu Charan vs. New India Assurance where claimant was asked to produce certain documents which were not submitted and the insurance company was not found deficient which is the similar case here.

 

In III (2003) CPJ 86 (NC) Ashok Kumar Mishra Vs. New India Assurance Co., the insurance company was waiting

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for relevant information which is the similar case here.

 

Reliance has also been placed on judgment passed by this Commission in Complaint Case No. 45/2017 Ameen Khan Vs. HDFC General Insurance. Hence, in view of the above the non-applicant cannot be termed as deficient but in view of the fact that the insurance company is ready to pay the assessed amount of Rs. 18,99,500/-, it is appropriate to direct the non-applicant to pay this amount to the complainant subject to the charge of non-applicant no.3 finance company. Reliance could be placed on 2018 (2) CPR 511 (NC) New India Insurance Co. Vs. Ashok Kumar Singh where the National Commission has held that financier has first charge on insurance amount.

 

The contention of the complainant is that he paid Rs.80,000/- for taking the vehicle from Ambikapur to his home and receipt Ex. 24 is submitted. In Ex. 24 job of the date has not been disclosed. No affidavit of the concerned goods transport company is submitted. Receipt prepared on a plain paper after more than two months of the accident lacks confidence. The receipt is prepared on 22.11.2014 and it is signed on 25.11.2014. Hence, this type of receipt cannot be

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taken true. The law is settled that the loss assessed by the surveyor should be given due weightage unless contrary is proved. Here in the present case the complainant has not disputed the assessment made by M Kumar & Co. and it may also be noted that from earlier assessment the insurance company has increased the amount by about Rs. 7 lakhs.

 

The contention of the complainant is that he had to pay the amount of the finance company and admittedly he has to suffer loss as interest was due every day and he has also suffered loss of earning.

 

The non-applicant has relied upon II (2006) CPJ 78 (NC) Oriental Insurance Co. Vs. Bhagat Ram where the National Commission has disallowed the compensation for loss of earning and allowed the claim alongwith interest.

 

Further reliance has been placed on III (2008) CPJ 93 (NC) Champalal Verma Vs. Oriental Insurance Co., III (2009) CPJ 98 Rakesh Industries Vs. New India Insurance Co. and judgment passed by this Commission in First Appeal No. 583/2016 Oriental Insurance Co. Vs. Anand Koolwal where

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the loss is assessed as per the facts of the case but there is no dispute about the fact that survey report should be given due weightage unless there are reasons to differ.

 

Hence, in view of the above the non-applicant no. 1 & 2 are not deficient but as they are ready to pay the assessed amount of Rs. 18,99,500/- , they are directed to pay the amount on furnishing of the tax receipts by the complainant. It is also directed that first claim of the finance company be satisfied and remaining amount if any be paid to the complainant.

 

With these directions the complaint is disposed of. Looking to the facts of the complaint the complainant is not entitled for any compensation or even cost of proceedings.

 

(Meena Mehta) (Nisha Gupta)

Member President

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