DISTRICT CONSUMER FORUM, DUMKA

CC No. 28 of 2014

Sonu Kumar…………………………….. Complainant

                             Vs

The Oriental Insurance Company Ltd……….. OP

.2016                                                ORDER

By filing this complaint, under the provision of The consumer Protection Act 1986, the complainant has claimed to issue an order to direct the OP to pay a sum of Rs.98883/ as principal amount with  interest RS. 12000/ for one year besides compensation of Rs50000/ and litigation cost Rs5000/ total Rs165883/.

 Case of the complainant is that he is the owner of vehicle Tata Magic bearing registration No.JH04C/7557 which he got insured with OP under Policy no.332401/31/2014/128 valid and effective from11.04.2013 to 10.04.2014. It is said that the said vehicle met with accident on 26.04.2013 resulting damage of the vehicle for which Saraiyahat PS Case no.95/2013 u/s279,337 &338, IPC was registered and after investigation Charge sheet was submitted by the police against the driver. The information regarding the accident and damage caused to the vehicle was given to the OP who in their turn deputed a surveyor to assess the loss/damage. The surveyor assessed the loss to the tune of rupees one lac, though copy of the same was not provided to the complainant. Complainant submitted duly filled in claim Form along with estimate to the OP (Insurance Company) which was registered as Claim NO.332401/31/2014/000012. It is said that on the advice of the OP the complainant got repaired the vehicle and also submitted bill to the tune of Rs98883.40. The final survey was also done. But the OP arbitrarily repudiated the claim of the complainant on the ground that the vehicle was plying without permit as the permit date expired on 20.04.13. The complainant protested the repudiation by representation dated 11.02.2014 to which the OP failed to consider.

Hence this Consumer complaint.

The OP entered their appearance and filed their version through its Branch Manager.

            The OP in its written version has   contested the case of the complainant protecting its ground of repudiation of the complainant’s claim. Besides taking plea of no valid cause of action and deficiency of service, it is  submitted that complainant intimated the OP only on 29.04.13 and immediately the OP deputed Sri A.K. Jana, Surveyor for preliminary survey. The complainant shifted the vehicle to the workshop for repairing and submitted estimate of repairing to the office on 20.0513 whereupon the competent authority of OP deputed Sri K.P Hamirwasia, Surveyor of Bhagalpur for final Survey report who submitted his report on

03.06.13 asseessing the payable loss Rs.46290/ only. But during process of the claim of the complainant it was came to their notice that the vehicle permit no.1177/2012 submitted by the insured/complainant was not effective on the alleged date of accident which was serious violation of the M.V.Act as well as terms and condition of the Policy. The complainant was asked to clarify vide letter dated 3001.14 the reply of which was found not acceptable. On the violation of provision of section 149(2) of the MV Act the claim of the complainant was found not maintainable and accordingly it was repudiated after applying proper mind by the authority and it was communicated to the complainant vide regd. Letter dated05.03.14 and as such there is no deficiency on the part of the OP at all. The claim of value of parts/spares are alleged to be false and fictious. On these versions the complaint is prayed to be dismissed.

We have heard the parties and have gone through the record.

 Affidavit evidences of (1)  Sonu kumar  (2) Neelkanth Mandal (3)  Suresh Mandal and (4) Sublal Mandal are filed on behalf of the complainant. Their oral statements are of no help to the point for violation of use clause to say expiry of permit. No evidence is filed on behalf of OP.

It is admitted fact that the insurance policy was taken by the complainant and the accident occurred within the effective period of the policy. Then the facts disputed to be considered by us is that Whether the repudiation of the claim by OP in toto  on the basis of violation of use clause is  justified or not ?

   Lawyer for the complainant contended that there is guidelines of the IRDA to settle the claim falling under violation as to use clause.     

 The claim of the complainant in repudiated by OP1 solely on the ground that the vehicle was used having expiry of the permit. No doubt the permit of the vehicle  was valid till 20.04.13 whereas the accident is alleged to be occurred on 26.04.13. The policy contains the Limitation as to use clause which reads as under: The Policy covrs use only under a permit within the meaning of the MOtor Vehicle Act 1988 or such a carriage falling under sub-section 3 of section 66 of the Motor vehicle Act1988.

 We are brought to notice that there did exist a policy based on the guidelines of settling certain claims, which are not strictly falling within the limitation as to  use  clause in the Policy, as non-standard claim and provided that such claims could be settled up to  maximum of 75%. Reference may be made II(2001)CPJ 60 (NC). Such guidelines are contained in the Procedural Manual of Motor claims

In view of the existence of this procedure and practice ,  we are of the view that the repudiation of the claim of the complainant in toto is not justified.  

It is easy for us to say in the fact and circumstances of the case and our findings that the complainant is entitled to get  75% of the  loss assessed value Rs.   46290/ as per final surveyor’s report brought on record on behalf of the OP which is to be given due weightage.  

We therefore direct the OP  ( Oriental Insurance Company Limited) to pay 75% of the assessed loss Rs.   46290/ which comes to Rs34717/(Thirty four thousand seven hundred and seventeen ) . We also allow a sum of Rs7000/ (seven thousand) compensation and Rs. 2000/ (two thousand)as litigation cost.               

       The order shall be complied within one month from receiving the copy of this order or from the date of producing a copy to the OP1 by the complainant failing which the complainant will be at liberty to take action u/s25 and 27 of the consumer Protection Act, 1986.

   Let free copy of the order be supplied to the parties.                     .