(Passed this on 29^th April,  2017)

Shri. S.P. Muley, President –

1.   This is a complaint of deficiency in service against an insurance company in not settling the claim.

2.   The complainant is a transport corporation and the complaint is filed through its partner against O.P.1 Universal Sompo Gen Ins Co, Nagpur. The O.P.2 is its registered office in Mumbai. The complainant got its Trailer bearing No. MH-40-Y-1144 with the O.P.1 for the period 14/6/2012 to 13/6/2013. a cover note was issued without policy certificate and terms and conditions. During subsistence of the policy on 28/2/2013 the said Trailer met with an accident and got extensively damaged. The incident was immediately reported to O.P.1, who deputed a surveyor. After survey, it was allowed to be towed to a garage for repairs and assessment of loss. The incident was also reported to police. But no panchnama was conducted as there was no third party loss. At the authorised service station he was given an estimate of Rs. 5,38,000/- for spare parts and Rs.21,600/- for labour charges which was submitted to the O.P.1 with necessary documents for making insurance claim. But after receipt of the claim form no surveyor was deputed for final survey. The complainant was incurring loss of Rs.15,000/- per day as the vehicle was lying idle in damaged condition. The garage is demanding Rs. 4,500/- per day charges. Since the O.P.1 did not respond nor did give consent for repairs for long, the complainant got the vehicle repaired and incurred the expenses Rs. 5,40,000/- for spare and Rs. 15,000/- for towing. He paid Rs. 4,72,529/- to the service station for repair bills and got the vehicle. Alleging deficiency in service, it is prayed to direct the OPs to pay him Rs. 4,72,529/- with 20% interest from date of incident. Besides Rs. 19,500/- per day is also claimed for loss of income, Rs. 1Lakh compensation for harassment and Rs. 25,000/- cost.

3.   The OPs filed reply and denied the complaint. Admitting the policy of the vehicle, it is stated that the policy document with terms and conditions were supplied to the complainant. Accident of the vehicle is also admitted, but extensive damage is denied. It is also denied that the incident was immediately reported to OP1 or to police. It is denied that the surveyor asked to tow the vehicle for repairs. Rest of the averments regarding estimate of expenses, repair of the vehicle and payment of charges, etc are all denied. It is stated that the claim was repudiated and it was intimated to the complainant on 20/5/2013. The surveyor conducted final survey and submitted his estimate of Rs. 4,84,514/-, but also submitted that since no external means were involved in the accident no claim was payable. Hence the claim was repudiated. It is therefore prayed to dismiss the complaint.

4.   Heard Ld counsel for the complainant. No oral argument was advanced from the OPs. Perused documents, notes of argument, affidavit. Thereupon we record our findings and reasons as under.

FINDINGS  AND  REASONS

5.   The complainant has alleged two main grounds in the complaint. First, the O.P. failed to depute a surveyor for survey after the vehicle was brought to service station for repairs and claim form was submitted, and, till date nothing has been intimated about decision on the claim. Secondly, no terms and conditions of the policy were supplied to the complainant. So far as second ground is concerned, there is no copy of the terms and conditions on record. The OPs denying this allegation, said that terms and conditions were supplied to the complainant. As held in Oriental Insurance Co. Ltd. v/s Satpal Singh Revision Petition No. 3165-3166 of 2013 (NC) decided on 1/4/2014 onus  of proof lies on the OPs to prove that policy along with terms and conditions, was supplied to the complainant. The OPs have not produced any cogent evidence in this regard. Therefore the OPs cannot take shelter of the terms and conditions of the policy to defeat genuine claim.

6.   According to the complainant he waited for the direction from the OPs for cashless repair, but there was no communication from the OPs. The OPs denied it and stated that the claim was repudiated and it was intimated to the complainant by letter dt/ 20/5/2013. However, no copy of the said letter is produced by the OPs. Therefore we could not verify whether or not the claim was really repudiated and on what ground. On mere statement we are unable to accept the version of the OPs in this respect. The OPs, in fact, have not produced a single document with the reply and wanted the forum to rely merely on their written reply. It cannot be disputed that the vehicle had sustained damage, since the surveyor estimated the loss to the tune of Rs.4,84,514/-. According to the OPs the report of the surveyor was not recommended because no external factor was responsible for the damage. No survey report or decision taken on the survey report is produced.

7.   Whether or not insurance claim is payable for own damage is a question of fact which can be decided only after perusing the terms and conditions of the policy. But the OPs have failed to produce the same, nor the same were supplied to the complainant. So, in absence of the terms and conditions the OPs now cannot take shelter of the terms and conditions to avoid its liability to reimburse the expenses. The complainant has said since there was no response from the OPs for repairs and he was incurring garage charges on daily basis and also losing income, he got it repaired and paid expenses of Rs. 4,72,520/- from his pocket. He is claiming this amount from the OPs. But he has not filed any bills of spare parts and labour charges. In absence of proof of payment his claim cannot be accepted. Nevertheless, it is also a fact that the vehicle was damaged in the accident and the surveyor assessed the loss to the tune of Rs. 4,84,514/-, which has not been paid. The complainant has claimed less than surveyorś assessment. The OPs could not satisfactorily explained the reason for not complying with the surveyorś assessment. The complainant has also claimed garage charges Rs. 4,500/- per day and loss of income Rs. 19,500/- per day. But no evidence in this regard is forthcoming. Therefore we are unable to allow the claim on these two counts.

8.   The OPs have alleged that the complaint is not tenable for various reasons. But nothing has been brought ot our notice to explain how the complaint is untenable.

9.   Considering all these facts, we are of the opinion that the claim of the complainant deserves to be allowed. Hence, we pass the following order.

ORDER

1. The complaint is partly allowed.
2. The OPs are directed to pay a sum of Rs. 4,72,520/- , jointly and severally, to the complainant towards repair charges with 9% p.a. interest from the 28/2/2013.
3. The OPs are further directed to pay compensation of Rs. 10,000/- for mental and physical harassment and litigation cost Rs. 5000/- to the complainant.
4. The order shall be complied within 30 days from receipt of the copy of order.
5. Copy of the Judgement shall be given to the both the parties, free of cost.