Orissa

Cuttak

CC/343/2023

Sudhir Kumar Ranasingh - Complainant(s)

Versus

United India Insurance Company Limited - Opp.Party(s)

S Parida & associates

09 Jul 2024

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C No.343/2023

Sudhir Kumar Ranasingh,

S/o: Mahendra Ranasingh,

AT:Chhotrapur,P.O:Patrapada,

PS:Khandagiri,Dist:Khordha,Pin-751019.                       ... Complainant.

 

          Vrs.

 

1.       United India Insurance Company Limited,

Regional Office Bhubaneswar,

                 Block-A,5th Floor,OCHC Building,

Unit-3, Kharavela Nagar,

                  Bhubaneswar,Odisha-751001.

 

2.       Insurance Regulatory and Development Authority,

Parisharam Bhavan,3^rd Floor,

Basheer Bagh,Hyderabad-500004.

 

3.        Inspector In Charge,UPD,Cuttack,

PS:Sadar,NH-5,near Bhanapur UP School,

                  Odisha-753011

 

4.        Anita Sahoo,Inspector Rank 1,                                                                                                                                                                    UPD,Cuttack,PS:Sadar,NH-5,

near Bhanapur UP School,

                   Odisha -753011

 

5.        Station Officer,

Barang Fire Station-754005,

Naranpur,Orissa.

 

6.       Mukunda Chandra Jena,

Plot No.693,Behera Sahi,

PS/PO:Nayapalli,Bhubaneswar-751012.                          … Opp. Parties.

 

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    10.10.2023

Date of Order:  09.07.2024

 

 

For the complainant:           Mr. R.K.S.Parida,Adv. & Associates.

For the O.P no.1       :           Mr. S.K.Rupal,Adv. & Associates. 

For the O.P no.2       :           Mr. R.Kumar(DGM).

For the OPs no.3 & 6:            None.

       

 

Sri Debasish Nayak,President          

Case of the complainant as made out from the complaint petition in short is that he owns a Hywa-Tata Motor bearing Registration Number OD-02U-8804 which was insured with O.P no.1.  The said vehicle while plying on the way near Sankhataras a motor-cyclist suddenly approached and obstructed the vehicle but it lost it’s balance for which it came under the wheels of the vehicle and sustained injuries.  The local people gathered and attacked the driver of the vehicle.  They also set fire to the vehicle of the complainant.  FIR was lodged at the Sadar Police Station of Cuttack and the said burnt vehicle of the complainant was seized.  The articles those which were also seized were given on Zima to the complainant who then had lodged insurance claim before the O.P no.1 but his claim was rejected by O.P no.1.  The complainant then had tried to settle the insurance claim through the agent of the O.P no.1 through backdoor method, but could not succeed.  At the time of the alleged incident the said vehicle of the complainant was loaded with 14 CUM of sand weighing 29,160 Kg.  O.P no.1 has contended that since because the vehicle of the complainant was over-loaded at the time of the accident, the claim was rejected.  Having no other way out, the complainant has approached before this Commission by filing his petition seeking direction to the O.Ps for  settling his claim and to refund the sum of Rs.57,114/- that which he had paid to O.P no.1 on 14.7.2021 alongwith interest thereon @ 20% per annum.  The complainant has further claimed a sum of Rs.5,00,000/- towards the harassment as caused to him alongwith another sum of Rs.2,00,000/- towards his mental agony and injuries as caused to him.  He has also claimed Rs.10,00,000/- towards the damages as sustained by him.  The complainant has also claimed for the cost of the proceeding and further for any other relief as deemed fit and proper.

          Together with his complaint petition, the complainant has filed copies of several documents in order to prove his case.

2.       Out of the six O.Ps as arrayed in this case, O.P no.3 has been set exparte vide order dated 6.12.2023 and O.P. no.6 has been set exparte vide order dated 30.11.2023.  As per the petition of complainant, O.P no.4 was deleted as per order on 30.11.2023.  Rest of the O.Ps have contested this case by filing their separate written versions. 

          As per the written version of O.P no.1, the case of the complainant is not maintainable which is liable to be dismissed as it is misconceived, vexatious, misleading, misrepresented, unsustainable, false and frivolous.  O.P no.1 has urged that the complainant has not approached before this Commission with clean hands rather, had suppressed the material facts with oblique motive and malafide intention.  He admits about the complainant obtaining Motor- Goods Carrying Vehicle-Package Policy bearing policy number 2602833121P103455252 for his Hywa vehicle bearing registration number OD-02U-8804 which was valid from 18.7.2021 till 17.8.2022.  At the relevant point of time, the said vehicle of the complainant was loaded with sand of 14 CM and was plying from Deokali Balighat towards Bhubaneswar.  Near Sankhataras Bazar of Cuttack a motor-cyclist while trying to overtake the vehicle from the left side, had lost his control and had fallen down as a result of which, the rear side wheel of the said Hywa vehicle of the complainant run over the said motor-cyclist who thereby had died at the spot. The local people gathered there and had set fire to the Hywa vehicle causing damage to it.  The matter was reported by one Mamata Lenka at Sadar Police Station of Cuttack on 19.11.2021 vide P.S. case No.650 against the driver of the said Hywa vehicle.  On 8.12.2021 after getting intimation from the complainant, O.P no.1 had appointed Surveyor-cum-Loss Assessor to inspect the damaged vehicle of the complainant and as per the report, it was noticed that the vehicle was at that time loaded with 14 CM of sand which is beyond the capacity of the said vehicle of the complainant as per it’s R.C, fitness and permit.  The vehicle was issued transit pass bearing number 855 on 19.11.2021 by the Tahsildar Sadar, Cuttack.  The actual capacity as per the permit of the said vehicle was of 10 CM i.e. of 14875 Kg of sand but it was then carrying14 CM of sand which is 20,160 Kg of sand.  Thus, it was noticed that the vehicle of the complainant at the time of accident was over-loaded by 4 CM of sand which is 21.14 of GVW.  As per the IRDAI circular number IRDAI/NL/CIRC/MISC/095/05/2016 dated 13.5.2016, if over-loading is beyond 15% GVW of the vehicle, the claim is to be repudiated.  Accordingly, the claim of the complainant was repudiated on the said ground.  The O.P no.1 has relied upon the case of Ravneet Singh Bagga V. KLM Roya Dutch Airlines [(2000) 1 SCC 66] where the Hon’ble Supreme Court has laid down that the test of deficiency in service by stating that “The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.  The burden of proving the deficiency in service is upon the person who alleges it.  The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.  The deficiency in service has to be distinguished from the tortuous acts of the respondent.  In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of Forum and omission attributable to the respondent which otherwise do not amount to deficiency in service.  In case of bonafide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic.).  If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service.  If the action of the respondent be said that there had been any deficiency in service.  If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act.  The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down Inefficiency, lack of due care, absence of bonafides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service”. 

Thus, according to O.P no.1 there was no deficiency in service as alleged by the complainant since because the repudiation was in consonance with and was as per the provisions of law.  It is for the said reason, the O.P no.1 has prayed to dismiss the complaint petition as filed by the complainant.

          Alongwith the written version, the O.P no.1 has also filed copies of several documents in order to support it’s stand.

          O.P no.2 has also stated that the complainant is the owner of the vehicle in question which is Hywa-Tata Motors bearing Registration Number OD-02U-8804 which was insured with O.P no.1.  It is admitted that the vehicle of the complainant was set on fire as because the vehicle had hit some person.  The burnt vehicle of the complainant was also seized by the Sadar Police Station of Cuttack.  The claim of the complainant was rejected since because the vehicle was carrying excess weight than the permissible limit.  It is urged by O.P no.2 that there is no specific allegation made by the complainant against O.Pno.2.  That apart, O.P no.2 has also  relied upon a decision of the Hon’ble Apex Court in the case of Canara Bank Vs. M/s. United India Insurance Company Ltd. and Others in (Civil Appeal) No.1042 of 2020 @ SLP(Civil) No.20393 of 2018 wherein it is held that “It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws.  It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on the definition given in other enactment.”  Thus, to sum up, the O.P no.2 has also relied upon certain other decisions of Hon’ble Higher Forums and has thus prayed to dismiss the complaint petition as filed by the complainant against O.P no.2.

          O.P no.5 has stated in his written version letter dated 15.11.2023 that a fire incident had occurred on 19.11.2021 at Baranga Fire Station area where the fire was extinguished as per the request of IIC,Sadar Police Station,Cuttack and the fire was due to setting ablaze to the Hywa by the mob at the spot.  Fire Incident Certificate was issued accordingly.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written versions of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.ii.

Out of the three issues, issue no.ii being the pertinent issue is taken up first to be considered here in this case.

After perusing the complaint petition, the written versions, the written notes of submission as filed by O.P no.1 as well as the documents available in the case record, it is noticed that admittedly, the complainant of this case owns a Hywa vehicle bearing Registration Number OD-02U-8804 which he was using for commercial purposes.  It is not in dispute that the said Hywa of the complainant had met with an accident at Sankhataras Bazar area on 19.11.2021 by running over the motor-cyclist.  At that time the said vehicle of the complainant was carrying sand of 14 CM which is of 20,160 kgs.  It is also admitted that the said Hywa in question belonging to the complainant was insured with O.P no.1.  The case has been filed by the complainant when his claim for insurance was repudiated by O.P no.1.  In this context while scanning the evidence as available in the case record as well as copies of documents filed from either sides, it is noticed that as per Annexure-D the vehicle in question was carrying 14 CM of sand from Deokali Balighat to Bhubaneswar on 19.11.2021.  As per copy of the Transport Department of Odisha regarding permit in respect of goods, it is noticed that the vehicle of the complainant bearing Registration Number OD-02U-8804 was allowed to carry only 14,875 kgs load but the complainant has admitted that his said vehicle at the relevant time to be carrying sand of 14 CM which is 20,160 kgs in weight.  As per Annexure-E, copy of the guideline relating to over-loading of the Goods Carrying vehicle it is noticed that if the vehicle carries over-load beyond 15% GVW (Gross Vehicle Weight) of the vehicle then the claim is to be repudiated. But the complainant has urged that though he was carrying 14 CM of sand weighing 20,160kgs, the same was not over-loaded.  Such contention of the complainant is not supported by any scrap of document so as to substantiate the same in any manner.  Thus, considering the facts and circumstances of this case and keeping in mind the valuable decisions of the Hon’ble Apex Court as relied upon and cited, this Commission notices that infact the vehicle of the complainant was over-loaded with sand at the time of the incident which was beyond it’s capacity thereby exceeding 15% of GVW.  The insurance is a contract in between the insurer and the insured and the complainant had availed through O.P no.1 Motor-Goods Vehicle Package Policy in respect of his Hywa vehicle bearing Registration Number OD-02U-8804 which was valid from 18.7.2021 to 17.8.2022.  The said policy undoubtedly specifies certain terms and conditions to be obeyed by either party to it.  Thus, when the complainant has executed the insurance policy in favour of his Hywa vehicle in question, he is to abide by the terms and conditions thereof as per the policy contract.  By carrying excess amount of sand, he has definitely breached the IRDAI guidelines and when it is noticed that the over-loading of the vehicle of the complainant was more than 15% of GVW, the O.P no.1 has rightly repudiated the insurance claim of the complainant as per the said IRDAI guidelines.  Accordingly, this Commission finds no deficiency in service on the part of the O.Ps as alleged against them by the complainant here in this case.  Thus, this issue goes against the complainant of this case.

Issues no.i &  iii.

From the discussions as made above, the case of the complainant cannot be said to be maintainable and the complainant is thus not entitled to any relief as claimed by him.  Hence it is so ordered;

                                              ORDER

Case is dismissed on contest against the O.Ps no.1,2 & 5 and exparte against O.Ps no.3 & 6 and as regards to the facts and circumstances of the case without any cost.

          Order pronounced in the open court on the 9^th day of July,2024 under the seal and signature of this Commission. 

                                                                                                                                                                                            

                                                                                  Sri Debasish Nayak

                                                                                              President

                                                                                        Sri Sibananda Mohanty

                                                                                                     Member