JUDGMENT

 Shri A.K.Patra,President

1. The  facts of the case in brief is that  the complainant has insured his JCB OD-08-B-0888 with the Opposite Parties vide Policy No.2605013116P101483848 for the period 03.05.2016 to 02.05.2017  and during its validity of insurance the above vehicle was burnt  on 25.08.2016  at Tentulipada under Kasipur PS . The complainant submitted the claim form promptly for settlement of the damage caused to him to the Opp.Party No.2  and the  Opp.Party No.2 appointed surveyor to assess the loss . After lapse of more than two years  the Opp.Party No.2 repudiated the  claim vide letter No.260501/2018/104 dt.21.08.2018  on the ground of  no fitness of the vehicle on the date of loss. The Opposite Parties failed to appreciate  the fact that said vehicle was parked in the camp of the petitioner and the incident occurred in the dead  night when the vehicle was not playing .The op/insurer are well versed with MV Act failed to understand the facts that  fitness certificate is required for plying of a vehicle .The arbitrary action of the opposite parties in repudiating the claim of the complainant  is  deficiency in service .  The vehicle was insured for Rs.12,00,000/-  and the vehicle was completely burnt as such  the  petitioner is entitle for  his claim with interest. The averments of the complaint is   supported by an affidavit of the complainant  and with these contention the complainant prayed for an order directing the Ops to pay RS.12,00,000/-with interest @ 12% p.a from the date of submission of survey report  and to pay Rs 50,000/- as compensation with cost of litigation Rs.10,000/-.. The complainant filed the following documents to substantiate his claim i.e attested true copy   I) Certificate of registration  ,(ii) Insurance policy of the vehicle valid from 03.05.2016 to 02.05.2017 ,(iii) FIR VIide No 54 dt. 28.05.2016, of Kasipur PS of Rayagada district, (iv) Goods Carriage permit valid from 13-05-2014 to 12-05-2019 (v)Money Receipt towards certificate of fitness dt. 18.04.2016.(vi) Letter of Repudiation dt. 21.08.2018 .
2. On being notice the O.Ps appeared through their Counsel Sri S.K. Panda and filed written version denying the petition allegations on all its material particulars. However ,the OPS have admitted the facts that ,complainant has insured his JCB OD-08-B-0888 with the Opposite Parties vide Policy No.2605013116P101483848 for the period 03.05.2016 to 02.05.2017.It  is contended that , the date of loss is 28.05.2016 and not 25.08.2016 . The surveyor assessed the loss on Net Salvage loss basis for Rs.9,94,050/-  vide its report  dt.29.03.2017. It further contended that while  processing the claim it is found that the vehicle being a transport vehicle had no fitness on the date of loss i.e. 28.05.2016 as the same was expired on 02.05.2016 and as such the vehicle of the complainant had no fitness on the date of loss i.e on 28.05.2016 and as per Sec.59 of the MV Act a transport vehicle shall not be deemed to be validly registered for purpose of Sec.39  of the Act unless it  carries a certificate of fitness. As per Sec.39  no person shall drive motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter IV of the MV Act. The use of transport vehicle without fitness is contravention of policy conditions and the competent authority of the Op No.1 has rightly repudiated the claim of the complainant. It further contended that the alleged vehicle was insured for Rs. 11, 90,000/-and not for Rs, 12,00,000/-. With these contentions the OPS averred that the complainant is not entitle for his claim as such this consumer complaint is not maintainable liable to be dismissed with cost.
3. On perusal of the complaint petition, written version and all the documents filed by both the parties the only point for consideration before this Commission is whether the Opposite Party Insurance Company is justified in repudiating the insurance claim of the complainant in want of fitness certificate of the alleged vehicle on the date of occurrence and whether there is deficiency in service & Unfair trade practice on the part of O.P/Insurance company?.
4. Both the parties admitted the fact that, the vehicle in question was insured by the O.P/insurance Company for the period from 03.05.2016 to 02.05.2017. It is also not disputed that loss caused to the vehicle on account of fire accident while parked inside the insured project side yard which was covering under the insurance policy.
5. Learned counsel for the complainant submitted that since the vehicle was registered and parked in the camp of the complainant and the incident occurred in the dead of night when the vehicle was not plying , the necessary of fitness certificate is redundant . He further submitted that absence of fitness certificate cannot be nexus to the fire accident caused to the vehicle. According to him when policy is in force absence of fitness certificate of a detained vehicle in the camp should not be a ground to reject the claim , particularly when the surveyor has already deputed to make survey of damaged of the alleged vehicle. He placed reliance   on the surveyor report available on the record where the surveyor has ascertain the cause of loss that , equipment besides the vehicle in question were set to fire by group of mischief makers suspected to be maoist while parked inside insured project site yard located at Village Tentulipada ,Ps-Kashipur,Dist-Raygada and to support this submission the , learned counsel for the complainant have drawn our attention on the self attested copy of FIR vide No.54 dt.28.05.2016 of PS Kasipur Dist-Raygada and further submitted that there is a clearical error apparent of the complaint petition which is wrongly mentioned as vehicle was burned on 25.08.2016 by some miscreants rather the date need to be read as 28.05.2016 and pray to condoned the said clerical/typical error is allowed by the Commission earlier.
6. It is found from the record that the insured vehicle was duly registered vide Regd No.OD 08 B 0888 and goods carriage permit of the vehicle was granted from 13.05.2014 to 12.05.2019 . it is further found that fee for fitness has been paid to the concerned authority vide money receipt No.AB 9526912 dt.18.04.2016 i.e. prior to the alleged accident.  There is no iota of evidence available on record that O.P/Insurance Company had ever asked the complainant/insured requiring him to furnished the fitness certificate of the vehicle at any point of time even after the receiving of surveyor loss assessment report  or before repudiation of the claim . On through perusal of the surveyor report available on record we found nothing contended or whisper about non availability of valid fitness certificate of the vehicle as on date of occurrence as such in absence of cogent evidence as to that vehicle in question had no valid fitness certificate at the time of occurrence we are unable to conclude that the insurer has rightly repudiate insurance claim rather it is proved that the claim has been repudiate simply on presumption and surmises that the vehicle had no valid fitness certificate at the time of accident is not acceptable .
7. At the cost of repetition, in the instance case , the insured/complainant has deposited the required fee for fitness certificate vide money receipt No.AB9526912 dt.18.04.2016 i.e. prior to the accident . The O.P/insurance company have place nothing on the record to proof that the complainant has ever allowed  the vehicle to play on the road without valid fitness certificate rather it is proved that vehicle in question was parked not allowed to play in the public road at the time of loss clearly established that the complainant is a law abiding citizen thus the principle settled by the Hon’ble Court in Narindra Singh Vrs New India Assurance company Ltd. and the principle settled by the Hon’ble National Commission in Oriental Insurance Company Ltd. Vrs. Vidvadi as cited by the learned counsel for the O.P/Insurance company is not applicable in the present facts and circumstances of the case
8.  Evidently, absence of fitness certificate is not the cause of the loss of insured vehicle  and absence of fitness certificate has no nexus to the accident .
9.  Be that as it may, the ground of the repudiation of the claim due to absence of the fitness certificate of the vehicle in question in this case is indefensible and as such cannot be a valid ground to reject the claim.  Thus the complainant has proved deficiency in service & unfair trade practice on the part of O.P/Insurance Company.
10.  Law is well settle that onus is on insurance company to established if there is any specific breach of contract. Since insurance company has failed to prove & establish any breach of term of the policy cannot deny its liability.
11. It is admitted case of both the parties that the vehicle of the complainant was insured and the vehicle was burnt within the  period of insurance. The matter was reported before the Kasipur PS ,Dist-Raygada vide FIR No.54 dt.28.05.2016 so all so to the OP /insurance Company who engaged Surveyor on 27.06.2016 to assess the loss .The surveyor in his report dt 29.03.2017 opined that the IDV of the vehicle fixed at  Rs.11,90,000/- is reasonable and adequate. He  has assessed the loss at Rs 11,84,050/- with  an opinion that as per the terms & condition it would be considered to be a case of total loss /constructive total loss as the aggregate cost of repairs will be  Rs  Rs.9,94,050/- is worked out to be 99.50% of the of IDV .The  surveyor report dt 29.03.2017 is placed  in the record by the insurer is not disputed by the either parties in this case .It is found that though the final  surveyor report dt 29.03.2017 is not disputed  by the  insurer. Law is well settled that the surveyor is an expert and its report stand on the footing of expert evidence. Relying  on the judgment of the Hon’ble Supreme Court passed in Sri Vankatesware Syndicate Vrs. Oriental Insurance Company Ltd.(2009)8 SCC 507 and Khatema Fibres Ltd. Vrs. New India Insurance Company Ltd.(2021) SCC  818 ,we are of the opinion that, the assessment report of loss submitted by the surveyor dt 29.03.2017 is to be given due importance.
12. We may quote here the CLAIM PROCEDURE IN RESPECT OF A GENERAL INSURANCE POLICY under rule 15(8) of Insurance Regulatory and Development Authority of India (Protection of Policyholders’ Interests) Regulations, 2017:-  “ On receipt of the final survey report or the additional survey report, as the case may be, and on receipt of all required information/documents that are relevant and necessary for the claim, an insurer shall, with in a period of 30 days offer a settlement of the claim to the insured/claimant. If the insurer, for any reasons to be recorded in writing and communicated to the insured/claimant, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the final survey report and/or additional information/documents or the additional survey report, as the case may be.”
13. Evidently, the Opp. Party No.2 has repudiated the claim vide letter No.260501/2018/104 dt.21.08.2018 on the ground of  no fitness of the vehicle on the date of loss is too an unexplained delay is clear negligence and deficient service on the part of OP/insurer no doubt cause financial hardship and mental agony to the complainant need to be indemnified adequately by the O.Ps.   . 
14. Loss caused to the complainant due to accident of his insured vehicle but insurance benefit is not yet released by the Ops even after submission of surveyor report 29.03.2017 as such there is sufficient cause of action continuing to bring this complaint, hence, complaint is found to be in time & well maintainable under Consumer Protection Act 1986 as well as under new C.P. Act 2019.
15. .Based on the  above said discussion and settled principle of law we are of the considered view  that the complainant is entitled for insurance benefit on  total loss /constructive total loss basis and the Opposite Parties have neglected for settlement of claim as such we are of the opinion that , the Ops are deficient in service. The  complainant in this case  is entitle for total loss /constructive total loss basis    i. e IDV of the alleged vehicle Rs 11,90,000/- only and further he is entitle for the interest @ 9% per annum over the said amount since i.e 29.03.2017 i.e the date of assessment of loss along with litigation expenses of Rs.10,000/-. The OP/Insurer is at liberty to lift the salvage if any from the insured /complainants premises on its’ own  cost .Accordingly ,the Ops are directed to pay the said amount to the complainant within four weeks from the date of received of this order failing which the Ops are liable to pay 18% interest per annum over the awarded amount till its realization.
16. The consumer complaint is party allowed in the above terms, pending application if any is also stands disposed of accordingly.
17. The complaint could not be decided within the prescribed period of time due to COVID-19 situation & in want of quorum of the Commission.

Pronounced in open Commission today on this 3rd day of September 2022 under the seal and signature of this Commission.

Copy of this judgment be provided to the parties free of cost and be uploaded on the website of this Commission of the parties.

Order accordingly.

Dictated and corrected by me.

                           Sd/-

President

        I agree

                              Sd/-                                                        Sd/-

        Member                                      President