DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,KALAHANDI AT BHAWANIPATNA.

                                                     C.C. Case No.91 / 2017

                                   Dated the  15^th day of  September ,2018

P R E S E N T .

Sri Aswini Kumar Sahoo, M.A, LL.B    OSPS(I) Sr. Retd.                   President.

Smt.Bhawani Pattnaik,M.A,LL.B,PGDCLP,                                            Member

            Mahapatra Kandha, S/o Dhani Kandha, Residing At/Po Mukhiguda, P.S.      Dharmagarh,     Dist.     Kalahandi.                                                                                             …………Complainant

                                                            Versus

1.  The Branch Manager, Bajaj Allianz General Insurance Company Limited,3^rd Floor,2C,Janpath,Sriya Square,Kharvel Nagar,Unit III,Bhubaneswar-751001.
2. The Manager, Bajaj Allianz General Insurance Company Limited, At/Po/Ps Bhawanipatna,Dist.Kalahandi.                                                                    
3.  

For the Complainant: Sri Sisir Kumar Ptttjoshi & Associate Advocate.

For the O.Ps:  Sri Dibya Ranjan Bohidar, Advocate,Bhawanipatna.

                                                                 JUDGMENT

                        The  facts of the case in brief is that  the complainant purchased one Mahindra Bolero vide Registration No.OD 08 E 6969 from Aditya Motors, Bhubaneswar and  taken the insurance policy from OP NO.1 which was valid from 28.10.2016 to 27.10.2017 vide Policy No.OG 17 2403 1803 00000568 by paying Rs.27,809/- . On 12.05.2017 while the vehicle was going from Mukhiguda to Behermpur all of a sudden it  met with an accident near Dandimaha Bridge  under Daringbadi Police Station and the vehicle was completely damaged . The complainant along with co passengers were seriously injured  and was taken to Daringbadi Medicals  for treatment.  The matter was  reported to the Daringbadi Police Station and accordingly a FIR was lodged vide FIR No.56 dt.12.05.2017.   Then the complainant was shifted to Vishakapatnam for his medical treatment.   Thereafter the insurance agent was contacted and the complainant visited the office of the OP N0o.2 and submitted all the documents  and the Op NO.2 assure3d the complainant  for cash less settlement  and asked the complainant to bring all the vehicle documents  along with photos and FIR for necessary verification. Believing the same the complainant  lifted his damage vehicle to Adiatya Motors Service Center at Bhubaneswar  and the Aditya Motors Showroom issued an estimate of Rs.5,00,000/- . The complainant handed over the documents to the OP NO.1 and the OP NO.1 assured the complainant   that he need not pay any amount towards his vehicle repairing cost as he will  avail cash less settlement.  But  surprisingly on 24.06.2017 the OP NO.1  issued  one letter to the complainant asking him to submit the required documents and after receiving the letter the complainant immediately rushed to the office of the OP NO.1 and met the concerned person to whom he had submitted the documents earlier. The concerned person  verified all the documents and  asked the complainant  not to worry about his claim  and being convinced  the complainant returned  to his home and waited for the release of his vehicle.  But on 21.09.2017 the OP NO.1 sent a letter  to the complainant repudiating his genuine claim with some whimsical and unsubstantiated grounds.  The complainant being  an unemployed person  had no money to repair his vehicle and release it from Aditya  Motors and the vehicle is still in the garage  where they are charging rent towards the vehicle. Finding no other option the complainant  filed this complaint and prayed before this forum to direct the Ops  to make cash less  settlement directly to Aditya Motors, Bhubaneswar and  after repair handover the vehicle with perfect conditio0n  to the complainant and direct the Ops ;to pay  monetary compensation with litigation charges.   Hence, this complaint.

                        On receipt of notice the O.Ps appeared through their Counsel Sri D.R.Bohidar and  files written version denying the petition allegations on all its material particulars.  It is submitted by the Ops that  the Policy bearing No.OG-17-2403-1803-00000568 was issued to Mr.Mahapatra Kandha  by  the OP Insurance Company for a period from 28.10.16 to 27.10.17 under the commercial vehicle package policy.  The insurance company has not appointed any agent  and the version of the complainant is not admissible  as he has not submitted any documents  to the Ops   and the complainant has also not visited the office of the Ops at any time. The Ops have never assured the complainant for lifting of his damage vehicle  from the spot. The complainant has lifted the damage vehicle at his own wish  and the complainant has not given any opportunity  to  inspect the vehicle at the spot to decide the admissibility of claim. It is fact that the Ops have issued  letter n 24.06.17  to the complainant to submit the required documents for processing of  claim .     

                        It is further submitted by the Ops that  on 29.06.2017 the Ops have appointed  one investigator namely Intrepid Claims Pvt. Ltd., Bhubaneswar and the Investigator Mr.S.K.Satpathy for Intrepid Claims Pvt. Ltd. after thorough investigation submitted a report to the  opposite Party where the Investigator has mentioned  that as per policy  the seating capacity of insured vehicle is two  including the driver but at the time of accident three passengers including  the driver were sitting inside the vehicle which is confirmed by the insured and driver in their written statement  and the policy contract has been violated.  In this regard the OP issued letter to the complainant  and requested him  to send his response within seven days  as to why his claim should not be repudiated but the complainant did not respond to the letters as such in absence of any reply the OP was bound to repudiate the claim. Further without prejudice the OP has appointed a Surveyor Mr.E.Dharanidhar Das  and the surveyor has inspected the vehicle ad made an assessment of loss to the tune of Rs.5,41,853/-  . From the above facts  it is clear that the OPs have not committed  any deficiency in service or unfair trade practice  and hence the present complaint  is liable to be dismissed.   

                                                              FINDINGS

                        On perusal of the complaint petition, written version, documents filed by both the parties including affidavits and the argument placed , the only point of consideration is the complainant is entitle for compensation for the damage of the vehicle  or if so to what extent.

                        There is absolutely no dispute that the vehicle i.e. Bolero Pick Up bearing Regd. No.OD 08 F6939 is insured  with Bajaj Allianz General Insurance Company Ltd. vide Policy No. OG 172403 1803 1803 0000568 valid from 28.10.2016 to 27.10.2017. There is also no dispute  that the vehicle met with an accident on 12.05.17 near Daringbadi  for which FIR had been lodge on 12.05.17 vide FIR No.56 at Daringbadi PS. It is also admitted case of both the parties that  claim for the damage of the vehicle was intimated to the OP  who had appointed a Surveyor and had inspected the vehicle had submitted a final report regarding the total  loss of the vehicle caused due to the accident. The surveyor had submitted an affidavit  in this respect.  As per the complainant  he submitted all relevant documents like copies of FIR, insurance  policy, RC Book  and fitness, copy of DL, photograph taken at the spot of accident and cost estimated given by Aditya Motors, Bhubaneswar.

                        The OP even after goring through the documents and survey report had repudiated the claim  on the ground that though the sitting capacity of the vehicle had been two, three person were travelling  in vehicle during the time of accident. For the repudiation on the above ground the complainant had approached  this Forum.  Whether the ground of repudiation is  to pay the damage amount is genuine  is to be seen.

                        In our opinion the OP had to prove that the accident had occurred solely due to over capacity   which they have failed to prove . The complainant had relied on the decision of  the Hon’ble Supreme Court reported in  Civil Appeal Nos. 49-50 of 2016 Lakhmi Chand Versus Reliance General Insurance  wherein the learned Apex Court has held that “ mere factum  of carrying more passengers than permitted seating capacity in goods  carrying vehicle by insured does not amount to fundamental breach of terms and conditions of policy so as to allow insurer to eschew its  liability towards damage caused to vehicle.”

                        So in view of the same the ground of repudiation by the OP is not sustainable in the eye of law and we are of the opinion that the OP must compensate the damaged  caused to the vehicle in the accident.   In the instant case the Surveyor has calculated the total loss  of  the damage of the vehicle to the tune of Rs.5,41,853/- . The complainant had prayed  to this forum to direct the OP to repair the vehicle  without any payment from the side of the complainant. According to the complainant the vehicle is laying in  the garage  of the OP  and not got repaired. The complainant  also alleged  in Para 13 of the petition that the vehicle was financed by IOB, Mukhiguda branch though the petition is not clear regarding the loan position. So for the ends  of natural justice we feel that the repair of the vehicle will be delayed  if the OP are directed to do the same which will lead to multiple litigation. Hence  let the complainant repair the vehicle from his own. The Ops are directed to pay the insurance amount derived by the Surveyor in the report i.e.Rs.5,41,853/- to the complainant. Hence, it is ordered.

ORDER

                         In view of the above discussion,  the Ops are directed to pay the insurance amount derived by the Surveyor in the report i.e.Rs.5,41,853/- to the complainant  within 45 days of receipt of this order  along with litigation expenses of Rs.2,000/- failing which the Ops are liable to pay 9% interest on the above awarded amount till its  realization.

                        Pronounced in open forum today on this  15^th  day of September,2018 under the seal and signature of this forum.

]      Member                                                                                   President

Documents relied upon:

            By the complainant:

1. Copy of FIR No.56 dt.12.05.2017
2. Copy of Insurance Policy
3. Copy of Registration Certificate
4. Copy of fitness certificate
5. Photographs
6. Copy of letter dt.24.06.2017
7. Copy of repudiation letter dt.21.09.2017

By the Opp.Parties: 

1. Copy of letter dt.24.06.17 issued to the complainant.
2. Copy of statement of driver
3. Copy of policy of Mahapatra Kandha
4. Copy of letter  dt.17.09.17 and 4.09.17
5. Copy of the investigation report dt.29.06.17
6. Copy of letter dt.21.09.17
7. Copy ;of ;R.C. of vehicle
8. Copy of Survey Report dt.7.10.2017

President