For Complainant         :           Sri Sudhir Kumar Padhi, Advocate & associates.

For Opp. Party             :           Sri Sisir Kumar Mishra, Advocate.

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1.                     The brief history of the case of the complainant is that he had insured his Honda CB Shine motorcycle bearing Regn. No.OD-10E-2651 with the OP vide Policy No.345402/36/2016/7709 valid from 16.03.2016 to 15.03.2017 on payment of Rs.1753/- and on 10.02.2017 at about 10.30 AM while the complainant coming from Boipariguda to Jeypore with his brother, Dhananjay Mali the vehicle met with an accident when a Bolero bearing No.OR-10H-1469 coming from opposite side with heavy speed dashed the vehicle of the complainant near Patraput while they were standing with the motorcycle on the left side of the road.  It is submitted that the brother Dhananjay Mali was driving the vehicle from Boipariguda and due to accident; the complainant sustained injuries and shifted to Sub Divisional Hospital, Jeypore for treatment where he remained up to 16.02.2017.  It is submitted that due to multiple injuries he could not move and hence intimated about the fact of accident to OP over phone and on 24.03.2017 he intimated the fact in written and also submitted MV documents including estimate towards loss.  It is also submitted that after repair of the vehicle the complainant again submitted the details of repair bill and the OP deputed surveyor, Sri Saroj Sahu to investigate the accident vehicle at repairer’s garage without intimation to the complainant but through a letter dt.20.12.2017 repudiated the claim due to non seizure of the DL of the driver of the vehicle at the relevant time.  Thus alleging deficiency in service on the part of the OP he filed this case praying the Forum to direct the OP to pay Rs.30, 000/- towards cost of repair with interest @ 18% from 09.06.2017 to the complainant.

2.                     The OP filed counter denying the allegations of the complainant and contended that the accident took place on 10.02.2017 at about 10.30 AM but the FIR has been lodged by the father of the complainant on 11.02.2017 evening.  It is contended that from FIR it reveals that Raghunath Mali was going to Jeypore for treatment of his wife but neither the complainant nor his father stated that Dhananjay Mali was driving the motorcycle.  It is further contended that the complainant intimated the OP about accident to the insured vehicle only on 09.06.2017 whereas the accident took place on 10.02.2017 which violates the condition of contract of Insurance.  The OP also further contended that considering the various aspects of the case, they repudiated the claim of the complainant and sent repudiation letter showing proper reasons on 20.12.2017.  Thus denying any deficiency in service on its part, they prayed to dismiss the case of the complainant.

3.                     The complainant has filed affidavit of self along with the affidavit of his co-rider, Sri Dhananjay Mali besides certain documents in support of his case.  The OP also filed certain documents along with affidavit in support of its case.  Heard from the parties through their respective A/Rs and perused the materials available on record.

4.                     In this case, it is an admitted fact that the complainant had insured his vehicle OD-10E-2651 vide Policy No.345402/31/2016/7709 with the OP valid from 16.03.2016 to 15.03.2017 and the accident to the insured vehicle on 10.02.2017.  The complainant stated that he along with his brother, Dhananjay Mali who was driving the vehicle was coming from Boipariguda to Jeypore and near Patraput while they were standing with the motorcycle on the left side of the road, a Bolero bearing No.OR-10H-1469 came with high speed and dashed to the insured vehicle resulting damage to the vehicle and fracture injuries to the complainant.  It is further stated that the complainant was shifted to Sub Divisional Hospital, Jeypore and admitted as indoor patient from 10.02.2017 to 16.02.2017 and during that period he intimated the fact of accident to the OP over phone and in writing on 24.03.2017 besides submission of repair estimate and M.V. documents.  The OP has also deputed Surveyor for spot and garage survey but on 20.12.2017 repudiated the claim.

5.                     The OP stated in its counter as well as in the repudiation letter that the accident took place on 10.02.2017 but the complainant intimated the fact of accident on 09.06.2017.  We have perused the copy of said intimation letter of the complainant which is available on record and found that the OP has received the same on 24.03.2017 with seal and signature.  Thus the averment of the OP in its counter as well as in the repudiation letter dt.20.12.2017 that the complainant intimated the fact of accident on 09.06.2017 has no force.  The complainant advanced reason for delay stating that he remained in the hospital as indoor patient for a week and also after discharge from the hospital he could not move and that is why the delay occurred.  The A/R for the OP has relied a decision of the Hon’ble National Commission in which the Hon’ble Commission up held the repudiation of the Insurance Co.  On perusal of said judgment we found that it is a theft case but not a case of accident.  In the case of accident, where the rider sustained fracture injuries and could not move, that is different from the theft case.  Giving utmost regard to the said order of the Hon’ble National Commission, we come to the conclusion that the present case is different as that of the relied one.

6.                     The other ground of repudiation of claim by the OP is that as per Police report, the DL of the person who was driving at the time of accident is not submitted before the Police or seized by the Police or reflected in the charge sheet but the name of other person as driver is mentioned in the claim form.  It is found from the complaint petition supported by affidavit that one Dhananjay Mali, brother of the complainant was driving the vehicle at the relevant time.  In support of his case, the complainant has filed affidavit dt.04.09.2018 from Dhananjay stating that he was driving the vehicle at that time.  Further the complainant has filed copy of DL of Dhananjay.  In the claim form also the complainant has mentioned the name of Dhananjay as driver.  From all the above records, it could ascertain that Dhananjay Mali was driving the motorcycle from Boipariguda and the complainant was the co-rider.

7.                     It is further mentioned in the complaint petition that while the complainant and Dhananjay were standing with the vehicle on the left side of the road, the offending Bolero had dashed with the motorcycle causing serious damage to the complainant and the vehicle as well.  As per settled principle of law, when a vehicle was kept on the road side and if any accident occurred to the vehicle then there is no role of Driver or DL in that event as because driver was not driving the vehicle at that moment.  Hence in this case effect of DL can be neglected as the accident caused to the insured vehicle when it was in standing position on the left side of the road.  Regarding non submission of DL before the Police, it can be said that the Police might not have insisted the DL due to accident to a parked vehicle.  Similarly, the Police may not feel necessary to mention about the DL in the charge sheet.  In view of above facts, this ground of repudiation is not sustainable before the eyes of law.

8.                     Further the complainant stated that the OP deputed surveyor to the spot of accident and garage for investigation.  The OP has also filed the copy of investigation report of Sri K. C. Nial.  It is stated that the father of the complainant had submitted certain documents along with copy of DL of Dhananjay before the investigator.  The OP has not filed the report of Surveyor for our perusal and hence we do not understand as on which report the OP relied to repudiate the claim of the complainant.  The complainant stated that he had enclosed motor claim form, all MV papers and estimate of loss with the intimation letter dt.24.03.2017 and the said letter along with documents were duly received by the OP on 24.03.2017.  The OP has not filed the estimate as furnished by the complainant.  However, the complainant claims that he had incurred a sum of Rs.30, 000/- for repair of the vehicle.  Further the complainant has filed estimate dt.23.03.2017 for Rs.31, 070/- along with the complaint petition.  The Police and Investigator in their report stated that the front portion of the motorcycle has been completely damaged.  In view of above facts, we come to the conclusion that expenditure of Rs.30, 000/- towards repair of motorcycle is just and genuine.  Treating the repudiation of claim by the OP was not proper, we allow the cost of repair as Rs.30, 000/- to which the OP is to bear.  As the OP has not settled the claim and repudiated on flimsy ground, the awarded amount certainly bears interest @ 9% p.a. from the date of repudiation.  In this case, we are not inclined to grant any compensation except a sum of Rs.1000/- towards cost of litigation.

9.                     Hence ordered that the complaint petition is allowed in part and the OP is directed to pay Rs.30, 000/- towards cost of repair with interest @ 9% p.a. from 20.12.2017 and to pay Rs.1000/- towards cost of litigation to the complainant within 30 days from the date of communication of this order.

(to dict.)