JUDGMENT

Shri A.K.Patra,President:

1. This complaint is filed by the complainant named above inter alia alleging deficiency in service & unfair trade practice on the part of Ops for non settlement of insurance claim and for their negligence to depute surveyor for assessment of the loss caused to the complainant due to an accident met with his insured vehicle .
2. The complainant prayed for an order directing the OP   2/insurer   for appointment of one Surveyor and to submit his report within the time stipulated,(b) to direct the Ops to make repair of the damaged vehicle of the complainant within in time stipulated and in case it satisfies the limits of expenses, then ,make such directions to declare as total loss claim,(c) direct the Ops to pay a sum of Rs.1,00,000/-  as compensation for mental agony and harassment,(d) direct the Ops to pay a sum of Rs.5,000/- towards the cost of the case and advocate fees.
3. The facts of the complaint in brief are  that, the complainant is the registered owner of one Maruti  Ertiga VDI bearing Regd. No. OR 08 J 6618 and got it insured with the Bajaj Allianz General Insurance Co. Ltd./OP 2 vide Policy No.OG-19-2413-1801-00000740 covering the period from 08.08.2018 to midnight of 07.08.2019. Unfortunately the said insured car of the complainant met with an accident in the midnight of 3.5.2019 resulting major damage to the vehicle , matter of which is reported before  the Ampani Ps vide FIR No.30/2019 dt.4.5.2019. So also it was informed to the insurance company/OP 2 vide Claim No.OC-20-2403-1801-00000517 dt.4.5.2019. After compliance of the necessary formality and with the knowledge & consent of Insurer/OP 2 the damaged vehicle was sent to OP 1/Legend Car Pvt. Ltd., Service for repairing but till date no surveyor has been appointed by the Insurer/OP 2 to inspect the vehicle for assessment of the actual damage and loss sustained in the said accident occurred during currency of the insurance policy. It is contended that ,the insurer/OP 2 had issued letter dt.29.08.2019 and 13.9.2019 claiming therein that ,at the material time of accident the vehicle was used for hire  & reward purpose and  asked for clarification from the complainant upon which the complainant vide his letter dt.7.10.2019 clarified that, on the alleged unfortunate date of accident  his son along with his cousin brother (deceased co-passenger) had been to Nawarangpur having some personal work and it was never been used for the hire /reward purpose at the material time of accident. The complainant has relied on the statement of witnesses recorded  U/s 161 of Cr.P.C while investigating the matter vide PS case No.30/2019 of Ampani PS corresponding to CT No.217/2019 of the Court of  the JMFC, Koksara,Dist.Kalahandi. However, the insurer/OP 2 has repudiated the legitimate claim of the complainant with the reason that “limitation as to use” has been violated and being aggrieved upon such repudiation the complainant has presented this complainant alleging negligence, unfair trade practice & deficiency in service on the part of the Ops.
4. Complaint is resisted by the Ops by filing their respective reply.
5. The OP No.1 in their written version has admitted the fact that, one Maruti Artiga Car bearing Regd. No.OR-08- J -6618 was brought for repairing by the complainant on 4.5.2019 to the workshop of the OP No.1 . By that time the Car was found completely damage condition due to road accident. They have estimated the cost of repairing at Rs.6,70,675.80. The complainant requested them to start the repair after inspection of the vehicle by the authorized agent of the insurance company/OP 2 but till today the vehicle is inside the workshop of the OP 1 in as it is condition as the insurance company/OP 2 has not settled the claim of the complainant It is stated that , in spite of repeated requests the complainant is not shifting his vehicle from the workshop of OP 1 nor paying the parking charges . It is further submitted that, there is no cause of action against the OP 1 for this complaint and that, there is no allegation of any deficiency in service or  un fair trade practice on the part of the Op 1 rather, dispute is there between the complainant  and OP 2/insurance company . With this submission the OP 1(one) urged to dismiss the complaint against him in the interest of justice.
6. The Opposite Party 2/Insurance Company in their written version has admitted the insurance of the vehicle which was valid from 08.08.2018 to 07.08.2019 under Private Car Package Policy and said policy is subjected to its term & condition and “limitation of use”. Damage caused to the alleged insured vehicle is not disputed. Rather it is contended that, soon after receiving of  intimation of the accident they have registered a claim vide No.OC-20-2403-1801-00000517 and deputed one investigator and IRDA Licensed  Surveyor to investigate the matter and to access the loss. The IRDA Licensed Surveyor accessed the loss at Rs.6,46,893/- but there has been gross violation of term & condition of the insurance policy by allowing the use of the insured vehicle for hire & reward purpose for which the insurance company/OP 2 is not liable to indemnify the complainant. Hence, rightly repudiated the claim of the complainant vides letter dt.20.09.2019.
7. The Insurance Company/OP 2 (two) further submitted that, on the very face of the insurance policy it has been mentioned that, the policy covers use of any purpose other than (i) hire & reward purpose. Limitation to use clauses of the policy is stated as under:- “ the policy cover use for any purpose other than (a) hire or reward,(b) carriage for goods (other than samples or personal  luggage),(c) organized racing, (d) pace making, (e) Speed testing, (f)  Reliability Trials, (g) Any purpose in connecti0on with Motor Trade”.
8. The Insurance Company/OP 2(two) further submitted that, the complainant has withhold the material information and has falsely stated in Para 8 of the complainant petition that, on the date of alleged accident his son and his cousin brother (who died in the said accident) had been to Nawarangpur with some personal work and during time of their returning they met with such accident. It is further submitted that, on perusal of the entire policy paper vide PS case No.30 of 2019 of Ampani PS  corresponding   to CT 217 of  2019 of JMFC, Koksara no where it has been mentioned that, the son of the complainant was proceeding in the alleged vehicle rather it reveals that, on the date of alleged accident one Thana Sundar Sagar was travailing and the said Car was driven by one Lingaraj Rout. It is submitted that, the complainant had made a false statement only to gain unjust enrichment and that ,the insurer/OP 2 has rightly repudiated the claim of the complainant. With this submission the OP 2(two) urged to dismiss this complaint with cost as there is no deficiency in service or unfair trade practice on their part.
9. Heard. Perused the material on record. We have our thoughtful consideration to the respective contents and submission advanced by the Learned Counsel for the parties as well as carefully considered the notes of argument placed on record by the Learned Counsel of both the parties.
10. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
11. To substantiate his claim the complainant has filed the following documents:- (a) true copy of registration certificate of the vehicle vide Regd. No.OD-08- J -6618,(b) original certificate –cum- policy schedule vide Package Policy  No.OG-19-2413-1801-00000740 (Private  Vehicle) valid from 08.08.2018 to midnight on 07.08.2019,(c ) letter dt.29.08.2019, 13.9.2019 issued by the  Insurance Company/OP 2,(d) copy of pleader notice dt.7.10.2019 served to the Regional Manager, Bajaj Allianz General Insurance company Ltd.,(e) Certified copy of FIR, Charge sheet,  seizure memo, Zimanama, Statement recorded U/s 161 Cr. P.C of  the Case C.T No.217 /2019 of the Court of JMFC, Koksara. The complainant has also filed his evidence on affidavit   fact stated therein are  corroborating  with the averment of the complaint petition. So also Learned Counsel for the complainant submits his notes of argument is taken into record.
12. The OP No.1 & 2  filed no evidence on affidavit as prescribed under C.P.Act,2019 .
13. To substantiate their claim the Insurer/OP 2 has filed the following documents:- (a) true attested copy of policy and terms & conditions vide policy No.OG-19-2413-1801-00000740 dt.08.08.2018 of Geneshram Dhangada  Majhi ,(b) True attested copy of communication letter issued by OP No.2 to the complainant dt.29.08.2019,( c) true attested copy of communication letter issued by OP No.2 to  the complainant on dt.13.09.2019,(d) true attested copy of communication letter issued by OP No.2 to the  complainant on dt.29.10.2019,(e) photo copy of written statement given by Mandara Sagar /(the mother of deceased passenger) ,W/o  Shridhar Sagar of village Olma to the investigator,(f) Photo copies of FIR, Charge sheet, seizure memo, Zimanama, inquest  report, and post mortem report in CT No.217 of 2019,(g) True copy of investigation report for Aryavan Associates Pvt. Ltd Dt.30.4.2019.
14. Evidently undisputed insurance policy placed on record contents limitation clauses as   follows:- The policy covers use of the vehicle for any purpose  other than a) Hire or Reward, b)  Carriage  of goods other than  samples or personal luggage, c) Organized  racing, d)Pace making, e) Speed testing, f) Reliability  Trials, g) Any purpose in connection with Major  Trade.
15. It is an admitted fact is that, the insurance policy was taken for private vehicle and the vehicle met with an accident during policy period.
16. Here controversy lies in a narrow compass. Only one point raised by the Insurer is that, claim is rightly repudiated the claim of the complainant as the vehicle used for hire & reward purpose at the time of accident which comes under the exclusion/limitation of uses clauses of the insurance policy .On the other hand it is the contention of the complainant that, vehicle was never used for hire or reward purpose and that, the insurer has not yet deputed any surveyor to inspect the vehicle for which the OP 1 (one) has not proceed towards repairing of the damage vehicle which is nothing but the negligence , unfair trade practice and deficiency in service on the part of the Op 2/ Insurer   which caused financial loss and mental agony to the complainant .
17. Learned Counsel for the Op 2/Insurer submitted that, claim is not payable on two counts, first is that, the vehicle was being used for hire & reward purpose i.e for commercial purpose and therefore, the insured/complainant is not a consumer within the ambit of C.P.Act,2019, and secondly the case of the complainant is covered under exception clauses there in the policy with respect to “limitation as to use”.
18. The Learned Counsel  for the Op 2/Insurer further emphasized that, the case of the complainant is covered under following exception given in the policy:- “Important Notice:- The insured is not indemnify if the vehicle is used or driven otherwise then in accordance with schedule”.
19. Here in this case the admitted fact is that the vehicle of the complainant was insured with the OP 2/Insurer and it met with a accident during the currency of the policy. Law is well settled that, all kind of insurgence cover are being treated as service  cover under Sec.2(1)(o) of C.P.Act,1986/Section 2 (42) of new C.P.Act 2019  .In  the light of decision of the Hon’ble National Commission held in Horsolia Motors Vrs. National Insurance Company Ltd. CTJ 141(CP) NCDRC, the policy holder is definitely a consumer within the ambit of C.P.Act,1986 as well as under Section 2 (42) of new C.P.Act 2019. 
20. The use of  vehicle is to be seen with respect to the policy condition only for settlement of the insurance claim. Here the insurance company has relied on the exception clauses relating to condition in respect to “limitation as to use ”.
21. Here in this case the ground of repudiation of insurance claim of the complainant under the aforesaid policy is that ,the vehicle has been used in violation of clause relating to“ limitation as to use ”i.e. the vehicle was playing for hire/reward at the time of the accident however no proof has been filed by the insurance company that, the vehicle was used on hire/reward at the time of accident . The insurer/O.P 2 has relied on Photo copy of investigation report dt.30 Agu 2019 and on the photo copy of plain application of one Mandara Sagar  saying  to be the mother of deceased Thana Sundar Sagar, the deceased victim of the alleged accident. The O.P 2/insurer filed no evidence on affidavit as prescribed under C.P Act 2019 .Neither the investigator nor the so called clement Mandara Sagar or the scribe of the application of said Mandara Sagar had been examine by the insurer  to prove the averment stated in those document placed in the record . The O.P 2/Insurer has also not taken any pan to file the affidavit evidence of investigator & the scribe of the application of said illiterate claimant Mandara Sagar i.e  the mother of alleged deceased victim co-passenger as such the averment there in the said two paper i.e. photo copy of claim application of Mandara Sagar and photocopy of investigation report dt.30Aug  2019 placed on the record may not be taken as evidence in support of the OP 2/Insurer .
22. Even though the Op 2/insurer has filed the photo copy of investigation report they have  not file any receipt of payment given  to the policy holder or even any proof of payment made by  any member of the family of deceased Thana Sundar Sagar to the complainant/insured to prove that, the vehicle was used for hire/reward purposes at the time of accident as such contention of O.P 2/Insurer that vehicle was used for hire/reward purpose at the time of accident is not acceptable rather rejected in absence of cogent evidence in this regard.
23. Thus, without any proof it cannot be accepted that, the vehicle was involved in any hire/reward purposes at the time of accident resulting damage to the insured vehicle. Rather fact stated by the complainant in Para 7(seven) of his affidavit evidence:-“That on the alleged date of accident my son and my cousin brother (who died on the said accident) had been to Nawarangpur with some personal work and during time of their return they meet with such accident. The alleged vehicle was never used for the hire/reward purpose at the material time of accident rather use only for the personal purpose” which is collaborating  with the averment of the complaint petition remain un rebutted as such we are of the opinion that ,the complainant is entitle for the insurance benefit under the said insurance policy vide No.OG-19-2413-1801-00000740 which was admittedly in force as on date of accident. 
24. Law is well settled that surveyor report is an important piece of evidence and it cannot be disbelieved unless there is any cogent and convincing reason to do so and the assessment made by the surveyor should be given proper weightage and unless and until there are contrary reason to disregard the same. The OP 2/Insurer company in their written version contended that, soon after receiving the intimation of the alleged accident the OP 2/insurer has registered a claim vide claim No.OC-20-2403-1801-00000517 dt. 04.05.2019 and deputed one investigator & IRDA licensed surveyor to investigate the matter and to assess loss but no iota of evidence is placed on record to prove that the OP 2/Insurer has ever deputed any IRDA License surveyor or investigator is placed in the record. Moreover, contention in their written version that, the liability of OP 2/Insurer will not be more that, the loss assessed by IRDA License surveyor  i.e. Rs.6,46,893/-  is not acceptable in absence of surveyor report placed in the record. The averment of OP 1 that, estimated cost of repair of the vehicle comes to Rs.6,70,675.80 without supporting cogent  evidence the same is not acceptable rather the facts stated in Para 4 of the affidavit evidence that :- “to my knowledge till date no surveyor has been appointed by the present OP 2  to inspect the same vehicle and till date the damage vehicle has been lying with the OP 1 though almost four years lapsed” which is corroborating with the compliant averment para-5 remaine unchallenged /un rebutted as such we may safely hold that, OP 2/Insurer has not deputed any surveyor to inspect the alleged vehicle certainly is an act of negligence and deficiency in  service on the part of the  OP 2/insurer.
25. Law is well settled that :- It is mandatory to appoint a surveyor for the insurer for assessment of loss exceeding Rs.25,000/- U/s 68 UM of Insurance Act, Reported in 2022(1) CPR 307 NC.
26. Law is further settled that pleading in a case does not if so facto construed evidence. It has to be proved as prescribed manner to be accepted a evidence. Law is well settled that placing documents in the case record or mark of the documents as exhibits are mere reference and conveyance of the commission and it has nothing to do its evidentiary value. Even just because a document is marked without objection will not dispense with the prove of the said documents in accordance of law.
27. Here in this case, no cogent evidence is adduced by the insurer/OP 2 to prove that, the insured vehicle was used for hire/reward/commercial purpose at the time of accident as such repudiation of insurance claim on the ground that, the vehicle was used on hire/reward and in connection with motor trade, which is not covered under the term and condition of the policy is not acceptable.
28. Repudiation of insurance claim without obtaining report Surveyor and neglecting in appointing of an  IRDA license Surveyor to assess the loss caused to the insured is an act of deficient service on the part of Op 2/insurer   as such we found  sufficient cause of action exists against the OP 2/Insurer to present this complaint. However we found no allegation proved against the Op 1(one) .
29. This complaint is presented on 1.1.2020 being aggrieved upon the repudiation of insurance claim by the OP 2 vide letter dt.29.10.2019, within the jurisdiction of which the complainant is residing is found to be in time and well within the  jurisdiction of this Commission.
30. Based on the above discussion we are of the opinion that ;-the claim of the insurance benefit as repudiated vide letter dt.29.10.2019 by ignoring the explanation made by  the complainant vide his letter dt.07.10.2019 which was admittedly received by the OP 2 on 14 Oct 2019 in reply to letter dt.29.08.2019 & dt.  30.09.2019 of the OP 2/Insurer is found to be arbitrary and illegal.  Repudiation of insurance claim without obtaining report of Surveyor and neglecting in appointing of an  IRDA license Surveyor to assess the loss caused to the insured/complainant  is an act of deficient service on the part of Op 2/insurer   certainly frustrated the very purpose of insurance causing financial hardship & mental agony to the insured/complainant.  Hence, it is ordered.                                

 ORDER

           This consumer complaint is allowed in part against the Op  2(two) /Insurer  Bajaj Allianz General Insurance Company Ltd. and dismissed against the OP 1 on contest.

The Insurer /OP 2 is directed to appoint IRDA License Surveyor to access the loss caused to the complaint on account of the aforesaid accident and settle the insurance claim as per term & condition of the policy within  four weeks of receiving of this order .The Op 2/Insurer is further directed to pay Rs.25,000/- as compensation towards mental agony and harassment caused due their deficiency in service which includes cost of this litigation. Application if any stand disposed of accordingly.

Dictated and corrected by me.

  President

                            I agree               

     Member

           Pronounced in open forum today on this 17th  May 2023 under the seal and  signature of this Commission .