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Thread: Oriental Insurance

  1. #31
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    Default Oriental Insurance

    COMPLAINT NO: 425 OF 2009 T. Gopalkrishna S/o. Late Thimmaiah 3/1, EAT Street, @@@@hibazar Bangalore 560 004 Complainant

    V/S

    The Oriental Insurance Co. Ltd. By its Senior Branch Manager DBO 14, 19/1, I Floor, 3rd Cross Chikkannagarden, Shankarmutt Road Bangalore 560 004 Opposite Party

    ORDER By the President Sri. S.S. Nagarale

    This is a complaint filed under section 12 of the Consumer Protection Act. The facts of the case are that complainant is the owner of vehicle TVS Super XL model bearing No. KA 05 EM 6878 purchased on 11.04.2003 for Rs. 19,538/-. Vehicle was insured with the opposite party. It is the case of the complainant that on 22.04.2008 he had parked his vehicle in front of his house duly locked at 5.30 p.m. He came out of the house around 7.00 p.m. to go to his work place and noticed that vehicle was missing. Complainant made efforts to search the vehicle, but in vein. Thereafter he lodged police complaint with Basavanagudi police. FIR was filed. Police subsequently filed ‘C’ Report. Complainant made claim with the opposite party and claimed Rs. 10,000/-. Opposite party rejected the claim on the ground that he has not locked the vehicle, which is not correct.

    Thereafter, complainant got issued legal notice through advocate. In respect of notice once again the opposite party rejected the claim. Vehicle was insured with opposite party and insurance policy was inforce during the relevant period. It is the duty of the opposite party to make good loss suffered by the complainant as per the terms of the policy. Hence, the complaint.


    2. Notice issued to opposite party through RPAD. The notice duly served. When the case was set for appearance of opposite party on 18.03.2009 the opposite party did not appear before this forum. Therefore, the opposite party was placed exparte. Opposite party even has not sent defence version by post.



    3. The complainant has filed affidavit evidence and arguments of the learned advocate for the complainant heard. I have gone through the complaint and documents.


    4. The complainant has produced copy of policy. The declared value of the vehicle is Rs. 10,000/-. The complainant has produced motor claim form. He has produced copy of complaint given to the police. The said police complaint has been registered in crime No. 73/08 under section 379 of Indian Penal Code. The complainant has produced first information report. The police after investigation submitted ‘C’ Report to the court.
    Copy of ‘C’ Report of police is also produced.
    The complainant has produced letter of the opposite party dated 05.12.2008. It is stated in the letter that vehicle was not locked at the time of the theft. Therefore, there was negligence on the part of complainant which is not covered under policy and claim intimation is also given to the office after one month. Therefore, the claim was repudiated. The complainant has produced copy of legal notice served to the opposite party. Complainant has produced another letter of opposite party dated 13.01.2009. In the said letter again opposite party stated that vehicle was not locked at the relevant point of time and therefore, claim was repudiated.
    The complainant in his affidavit has clearly stated that vehicle was duly locked and the theft occurred and the vehicle was parked outside of his house. The complainant clearly stated in the affidavit that the vehicle was locked. The sentence written in the complaint that ‘vehicle not locked’ was tampered and later on it was inserted. By looking to the copy of the complaint, it is clearly visible that ‘vehicle was not locked’ appears to be inserted later on. Therefore, the submission of the learned advocate for the complainant that there was manipulation or tampering of the complaint requires to be accepted. The only defence taken by the opposite party is that vehicle was not locked.
    Therefore, the opposite party liable to pay the claim amount. But in order to prove or establish the fact that the vehicle was not locked there is absolutely no evidence or any proof on behalf of the opposite party. Admittedly, opposite party has no evidence to prove that the vehicle was not locked by the complainant when the theft took place. Therefore, the affidavit evidence given by the complainant has not been challenged shall have to be accepted. There is no defence version on behalf of opposite party.

    The case made out by the complainant and affidavit filed by the complainant has gone unchallenged. There is nothing to disbelieve the case put up by the complainant. The opposite party even though served with notice by this forum has failed to appear and contest the matter for the best reasons known to them. It appears that opposite party has no defence to make. That is why it had chosen to remain absent.
    The facts and evidence stated by the complainant shall have to be accepted as true and correct since there is no contrary affidavit or defence version on behalf of the opposite party. Admittedly, the complainant had taken policy from the opposite party by paying premium amount and the declared value of the vehicle is Rs. 10,000/- under the policy. The opposite party is bound to pay the IDV amount of Rs. 10,000/-.
    The complainant has to surrender the original documents i.e. RC book of the vehicle to the opposite party after receipt of the claim amount from the opposite party. Taking into consideration all the facts and circumstances of the case, the documents and argument of the learned advocate for the complainant I am of the opinion that repudiation of the claim by the opposite party is unjustified and not proper.
    The Consumer Protection Act is a social and benevolent legislation intended to protect better interests of the consumers. The opposite party shall be directed to pay the IDV to the complainant. In the result I proceed to pass the following:



    ORDER


    5. The Complaint is allowed. The opposite party is directed to pay Rs. 10,000/- Insured’s Declared Value (IDV) to the complainant within 30 days from the date of this order. In the event of non-compliance of the order within 30 days, the above amount carries interest at 12% p.a. from the date of this order till payment / realization. 6. The opposite party is also directed to pay Rs 1,000/- as costs of the present proceedings to the complainant.

  2. #32
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    Default Oriental Insurance

    Complainant:


    Rajeshwarai,
    D/o.Nanjunda Reddy,
    Residing at Dommasandra village,
    Basaveshwaranagar, Sarjapur Hobli.,
    Anekal Taluk, Bangalore.


    /vs/

    Opposite parties:

    1.Oriental Insurance company.,
    Divisional Office, No: 10,
    No:79, Dwaraka, 2nd floor,
    Uttamar @@@@hi salai,
    Chennai, Tamilnadu.


    2.The Manager,
    Oriental Insurance company,
    No:1/1, Connaught Road,
    Queens road cross,
    Bangalore – 560 052

    Represented by its Divisional manager.

    O R D E R

    SRI.G.SIDDANAGOUD., PRESIDENT.,


    This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite parties ( in short the Ops) for the payment of Rs.3,42,000-00 with interest, Rs.20,000/- towards mental agony and costs of Rs.5000/- and for such other reliefs.

    The brief facts of the case are that the complainant had availed insurance policy in respect of the vehicle bearing No:KA 05 D 1338 under policy schedule GCCV- Public carriers other than three wheelers package policy zone C , from the Op vide policy bearing No: 412000/31/2007/3553 dated 29.05.2006 covering the insurance from 00.00 on 27.05.2006 to midnight of 28.05.2007 and the required premium had been paid as demanded by the Op. On 24.08.2006 the lorry bearing No: KA -05-D-1338 met with an accident on Surjapura road within the limits of Adugodi traffic Police station and the police registered a case in crime. Due to the accident, the said lorry got damaged and the complainant had spent huge amount towards the repair of the same. After the accident, the complainant had made a claim in this regard to the Op and had furnished necessary details and documents in support of his claim over the damaged vehicle.

    Thereafter, the surveyor of the Ops inspected the vehicle, prepared a report and sent the same to the Op and the same has been received by the Op. But, inspite of receipt of the survey report the Op failed to indemnify the complainant and release the amount. The complainant is entitled for the same as per the survey report as the said vehicle was insured with the OP. The complainant had also furnished all relevant particular to the Op to enable it to release the amount in favour of the complainant. Due to the accident the vehicle was standstill at garage for long time for repair without any earnings and hence there is huge loss to the complainant.

    The complainant got issued a legal notice to the Op on 25.10.2008 through RPAD and UCP, calling upon it to settle the claim of the complainant. But in spite of having received the notice, the; Op has failed to settle the valid claim of the complainant. Hence the complainant approached this forum.

    Notices were sent to the Ops under RPAD, Notices were served on OP 2, OP 1 acknowledgement of RPAD cover sent to the addressee not returned inspite of completion of 52 days from the date of its dispatch. Hence it is treated as served on OP 1. Both remained absent and no one represented. Hence Ops placed exparte. Complainant gave his evidence by way of affidavit. Heard the argument of the complainant.

    When we peruse the policy, it was in force when the accident took place. The complainant submitted his claim form with necessary documents with the Ops for reimbursement of the amount. The surveyor also inspected the vehicle and prepared the report and inspite of submission of the claim form with documents and surveyor report, the Ops never bothered to reimburse the amount as claimed by the complainant and on the basis of the survey report. As per the observation of the Hon’ble National Commission within three months from the date of submission of the claim, it is to be disposed off but inspite of completion of several months the Ops never bothered to settle the claim of the complainant. This sort of an act on the part of the Ops definitely amounts to deficiency in service.

    These facts have not been specifically denied by the Ops, inspite of sufficient opportunities given to them, neither they appeared nor submitted their statement of objections to rebut the evidence of the complainant. In the absence of specific denial by the Ops, the evidences given by the complainant is un-challenged.

    In view of the discussions made above we are of the opinion that the complainant has proved the deficiency in service on the part of the Ops. Accordingly we pass the following order.

    O R D E R

    Complaint is allowed. Opposite parties 1 and 2 are jointly and severally liable. The Ops 1and 2 are directed to reimburse an amount of Rs.3,42,000-00 ( Rs.Three lakhs forty two thousand only) to the complainant with interest @ of 8% per annum from the date of submission of claim form to the Ops to till the date of realization

    The Opposite parties 1 and 2 are further directed to pay an amount of Rs.5000/- ( Rs.five thousand only ) to the complainant towards this litigation.

    All these amounts are to be paid to the complainant within 60 days from the date of this order

  3. #33
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    Default Oriental Insurance

    Mrs.Nirmal Thakur W/o Sh.Krishan Chand Thakur R/o Hotel Himani Premium, Talbot House, The Mall, Shimla(H.P.) ..Complainant.



    Versus



    1. The Oriental Insurance Company Ltd. through Branch Manager, Near Anup Service Station, Kaithu, Shimla-3.



    2. The Oriental Insurance Company Ltd. through its Divisional Manager, Near Pine View Hotel, Tarahall Shimla.



    ..Opposite Parties.



    ORDER:

    Per, Karuna Machhan, Member (Female):-


    1. This complaint under section 12 of Consumer Protection Act, 1986 has been filed by the complainant with the allegation that she is owner of Jeep Mahindra Scorpio (Maxi Cab) bearing registration No. HP-51 T 5450, which was duly insured with the OP-Company during the period 07.06.2006 to 06.06.2007 vide Policy bearing No. 726705 for a sum of Rs. 7,85,000/-. That on the intervening night of 7th/8th .July, 2006 when the Scorpio was parked at Pinjaure garden at Haryana Tourism Hotel, it was stolen from the place and FIR to this effect was lodged with the police at P.S Pinjaure, and intimation to this effect was given to the OP-Company. That the Police on conclusion of investigation prepared final untraced report. That thereafter she lodged the claim with the OP-Company, but OP-Company did not settle it on one pretext or other. So, the complainant perforce filed this complaint against OP-Company.



    2. The OP-Company contested the complaint and took preliminary objections that the complainant or her agent/driver did not observe reasonable care and caution to park the vehicle in safer place. Hence, as per policy the claim of the complainant was approved by the OP-Company on non-standard basis. But complainant did not give her consent to amount offered. Hence there being no deficiency in service, the complaint is sought to be dismissed. Thereafter complainant only led evidence and evidence of OP-Company was closed by order of Forum on 09.03.09.



    3. We have heard the learned counsel for the complainant and have also gone through the record of the case file.



    4. It may be stated that Annexure OP-1-C-II, is insurance cover of the vehicle Mahindra Scorpio bearing registration No. HP-51T-5450. As per the insurance cover, vehicle in question was insured for a sum of Rs.,7,85,000/- for the period 07.06.2006 to 06.06.2007. The document Annexure C-IV is the copy of FIR No.131/2006 dated 09.07.2006 Under Section 379 IPC lodged at police station Pinjaure and Annexure C-XI is final untraced report and Annexure -C-VII is final order passed by learned CJM Panchkula on untraced report. The Annexure C-VI is claim form filled in and submitted by complainant to OP-Company.



    5. From aforesaid documents, it stands established that the vehicle in question duly insured with OP-Company was stolen on 7th/8th July, 2006 and it is still untraced and untraced report has been accepted by court. But, the OP Company settled the claim of the complainant on non standard basis on ground that the agent/driver of the complainant did not observe reasonable care and caution while parking the vehicle in question. But the complainant did not give her consent for settling her claim on non- standard basis.



    6. Needless to state that no cogent and reliable evidence has been led on record by OP-Company in support of their plea that the driver of vehicle did not take proper precautions at the time of parking the vehicle in question. Thus, this plea taken by OP-Company to settle the claim of complainant on non- standard basis does not appear legally justified and sustainable. Hence, this approach of OP-Company would certainly tantamount to deficiency in service on their part.



    7. As regard the quantum of compensation, it may be stated that the vehicle in question was insured for Rs. 7,85,000/- on 7.06.2006 up to 06.06.2007 and it was stolen with in one month on 07.07.2006. Hence, we hold that the complainant is entitled to be indemnified by insurer for insured sum of Rs.7,85,000/-.



    8. As a sequel of the above, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.7,85,000/- along with interest @ 9% from the date of filing of this complaint i.e. 06.08.2007 till making full payment of the afroresaid amount. The litigation cost is assessed at Rs.. 2000/- payable by the OP-Company to the complainant. This order shall be complied with by the OP-Company within a period of forty five days after the date of receipt of copy of this order.

  4. #34
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    Default Oriental Insurance Company Limited

    Shri Paras Ram S/O of Shri Jagar Nath, Resident of Village Kashlog, Tehsil and District Solan, H.P.





    … Complainant.

    Versus



    Oriental Insurance Company Limited

    Chunia Rani Building, Kasauli Road Sector-2,

    Parwanoo-173220.



    …Opposite Party.


    O R D E R:


    Pritam Singh (District Judge) President: - This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The case of the complainant in brief is that he is owner of truck bearing registration No.HP-64-5321, which was duly insured with the OP-Company w.e.f. 07.11.2002 to 06.11.2003 for Rs.6,89,000/-. That the aforesaid truck met with fatal accident on 27th July, 2003 when it was on its way to Swarghat via Bilaspur and sustained extensive damages. That the factum of accident was immediately brought to the notice of the OP-Company and FIR in this behalf was also lodged with the Police. Thereafter, he preferred the insurance claim with the OP-Company. But, the OP-Company repudiated his insurance claim on the ground that he driver of the truck in question was not having valid and effective driving licence to drive vehicle at the time of accident. Hence, feeling dissatisfied and aggrieved by the act of the OP-Company the complainant perforce filed this complaint against the OP-Company.



    2. The complaint is resisted by OP-Company who took some preliminary objections regarding maintainability of complaint, status of the complainant as a consumer etc and breach of terms and conditions of the insurance policy. On merits, they alleged that the driver Kuldeep Kumar who was driving the truck at the time of the accident was not having valid and effective driving licence. As such, there being breach of terms and conditions of the insurance policy, the OP-Company was well within its right to repudiate the insurance claim of the complainant. It is however alleged by OP-Company that Dee Kay Consultants, Surveyor & Loss Assessor was appointed by them to conduct survey of spot and assess the loss who vide survey report dated 17.11.2003 assessed the net liability of the OP-Company to the tune of Rs.1,16,351/- as full and final settlement subject to approval by Competent Authority. Hence, there being no deficiency in service, the complaint is sought to be dismissed. Thereafter, the parties led oral and documentary evidence in support of their claim/counter claim.



    3. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the complaint.



    4. It may be stated that the truck bearing registration No.HP-64-5321, owned by the complainant was duly insured with the OP-Company w.e.f. 07.11.2002 to 06.11.2003 for Rs.6,89,000/-on I.E.V. as is evident from the copy of insurance cover note Annexure A-5. It is case of the complainant that on 27.07.2003 the truck in question met with fatal accident when it was on its way to Swaraghat via Bilaspur and it sustained extensive damage. That the FIR to this effect was lodged with the Police and insurance claim was also preferred with the OP-Company. But, the OP-Company repudiated his genuine insurance claim on the ground that the driver of the truck was not having valid and effective driving licence to drive it at relevant time.


    5. In this connection, it may be stated that the complainant has placed on record the photo copy of the driving licence of driver Kuldip Singh. As per the contents of the aforesaid driving licence, it was issued for heavy goods transport as the endorsement to this effect was made for the first time on 01.01.1998 valid up to 31.12.2000. Thereafter it was renewed for heavy goods transport w.e.f. 24.08.2001 to 23.08.2004 it means that the driving licence of driver Kuldip Singh was valid on the date of accident, i.e. 23.07.2003.



    6. As per the OP-Company, Shri Dilbagh Singh Dhindsa, Surveyor and Loss Assessor was appointed investigator to ascertain the validity of the aforesaid driving licence who reported vide report dated 24.03.2003 that the driver was not having valid and effective driving licence to drive the vehicle in question at the time of accident. But no copy of this report dated 24.03.2003 is placed on record by OP-Company. No affidavit of this investigator is filed by OP-Company in support of their this plea. Whereas, as per the photo copy of the aforesaid driving licence, the driver Kuldip Singh was having valid and effective driving licence duly endorsed for heavy goods vehicle. Therefore, in these circumstances, this sole ground taken by the OP-Company for repudiating the insurance claim of the complainant is not legally tenable and justified.



    7. Undisputedly, the OP-Company deputed Dee Kay Consultant Surveyor to conduct survey and to assess the loss caused to vehicle in question in this accident who after visiting the spot, conducted the survey and assessed net loss to the tune of Rs.1,16,351/- which was recommended to be paid by OP-Company to the complainant. No doubt, the copy of the report of the surveyor is not placed on record by the OP-Company, but the OP-Company has alleged so in Para No.1 (preliminary) of reply. Therefore, making this report dated 17.11.2003 as basis to determine the loss caused to the vehicle in this accident, we are of the considered opinion that the complainant is entitled to be indemnified by the OP-Company to the extent of Rs.1,16,351/-.



    8. For the foregoing reason, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.1,16,351/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 23.12.2004 till making full payment of the aforesaid amount. The litigation cost is quantified at Rs.2000/- payable by the OP-Company to the complainant. The OP-Company shall make the payment of the aforesaid amount to the complainant within a period of forty five days after the date of receipt of copy of this order.

  5. #35
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    Default Oriental Insurance Company

    Hazara Begum D/O Shri Khwati Deen

    Resident of Village and P.O. Gumma,

    Tehsil Kotkhai, District Shimla, H.P.

    Versus

    1. The Oriental Insurance Company, Ltd.

    Pine View, Kaithu, Shimla-171003

    Through its Divisional Manager.



    2. The Oriental Insurance Company Ltd.,

    Branch, The mall, Solan,

    Through its Branch manager.

    Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Truck bearing registration No. HP-09A-0699, which was duly registered with the Registering & Licensing Authority, vide Annexure C-1. The complainant further proceeded to aver that the aforesaid truck was insured with the OP-Company for a period of one year commencing from 05.03.2003 to 04.03.2004, vide insurance policy, Annexure C-2. It is also asserted that the insured truck met with an accident on 26.05.2003 at place Stanri near Kotkhai, District Shimla resulting in extensive damage. The factum of accident was reported to the Police upon which FIR No.44/2003 was lodged with Police Station, Kotkhai on 27.05.2003, vide Annexure C-3.

    The complainant avers that he brought the fact of accident to the knowledge of the OP-Company who immediately appointed surveyor, who inspected the spot and thereafter, he spent a total sum of Rs.3,50,000/- towards tow-chain, transportation, repairs, denting and painting of the vehicle. The complainant further proceeded to aver that the OP-Company, instead of indemnifying the claim, firstly dilly-dallied, and finally repudiated the same on the ground that the driving licence possessed by the driver, has not been issued by the competent Registering and Licensing Authority and, also, that there was a gratuitous passenger traveling in the truck at the time when it met with the accident. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company filed a detailed reply to the complaint. In the preliminary objections it was contended that the complaint, is, not maintainable, as the complainant has violated the policy conditions by engaging a driver who was not competent to drive the same. Also, it was contended that the driver of the vehicle was not having a valid and effective driving licence to drive the vehicle, in as much, as, the driving licence was fake and one unauthorized person was permitted to travel in the truck at the time of accident contrary to the terms and conditions of the insurance policy, On merits, it is admitted that the insurance policy was issued in the name of the complainant and truck met with the accident during the currency of the insurance policy.

    It is denied that the driver of the truck namely Sadiq Mohd was having a valid and effective driving licence to drive the truck at the time when it met with the accident. It is averred that one unauthorized person was traveling in the truck at the time of the accident, who was traveling in the vehicle as a gratuitous person. It is also denied that the complainant spent the amount as averred in the complaint on repairs of the vehicle to make it road worthy. Hence, there being violation of the policy conditions, the OP-Company was competent and legally justified in repudiating or denying the claim of the complainant.

    3. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

    4. The registration certificate of the vehicle which met with the accident, is, annexed as Annexure C-1. So also the fact of the vehicle being insured with the OP-Company, is, borne out by Annexure C-2. Its perusal also divulges the fact of the currency of the insurance at the time when the vehicle owned by the complainant met with an accident. Annexure C-3 is the FIR lodged in relation to the accident. Annexure C-4 is the detail of the estimate reflecting the amount of expenses incurred by the complainant in repairing the damage which afflicted the vehicle, in, the accident which it suffered.

    5. The parties do not contest the factum of the accident having occurred. Also, the perusal of the affidavit of the authorized functionary of the OP-Company divulges the fact of surveyor of OP-Company having assessed a sum of Rs.1,97,000/- in making the vehicle road worthy.

    6. The contest between the parties is limited qua compliance by the complainant of the driver of his vehicle being possessed with a valid and effective driving licence at the relevant time. Since, the onus for proving the lack of possession of the driving licence of the driver of the vehicle with a valid and effective driving licence was to be discharged by OP-Company. In that endeavour, an Investigator appointed under the directions of this Forum, has filed an affidavit Ex. OP-1 whose perusal divulges the fact of licence No.3703/LA/Hoshiarpur having not come to be issued in the name of the driver who was driving the vehicle at the relevant time. On its strength, it is contended that since the driver namely Sadiq Mohd did not possess a valid and effective driving licence at the time when the vehicle met with an accident, there, is, an obvious breach of the terms and conditions of the insurance policy and therefore, in the OP-Company having repudiated the claim of the complainant for expenses incurred on repairing the vehicle and making it road worthy, it, has not acted unlawfully. The counsel for the complainant while refuting the contention of the OP-Company has filed an affidavit of the complainant whose perusal divulges the fact that this Forum ought not, to, place reliance on Annexure OP-1, as, the contents of paragraph 2 of the said affidavit do not reflect the entire details as contained in the driving licence of Sadiq Mohd. Hence, when the Investigator of the OP-Company who proceeded to verify licence No.3703/LA/Hoshiarpur, and with his not having the entire details of the driving licence of the driver.

    Therefore, in case he proceeded as he has done to verify the driving licence of Sadiq Mohd. without, its, complete details, the result of his enquiry qua, its, lack of authenticity cannot be related to the licence of Sadiq Mohd. As such, it is contended that the affidavit Ex. OP-1 is not of worthy reliance. Considering the fact that the Investigator of OP-Company has not detailed in it the entire details of the driving licence of Sadiq Mohd, hence, it can be inferred that on the strength of incomplete details of the driving licence of Sadiq Mohd, as reflected in Ex. OP-1, he, could not have come to make a clinching conclusion, as, he has done, that, the driving licence of Sadiq Mohd as placed on record is to be construed to be bereft of its authenticity. Besides, when the insurance company has, also, not placed on record the further details existing, in, the register of the relevant Motor Licensing Authority.

    As also when there is lack of endorsement by any officer of the relevant Motor Licensing Authority corroborating the fact of any request having come to have made by the Investigator, for an inquiry into the driving licence of Sadiq Mohd., and his having acceded to his request and having permitted him to make a detailed scrutiny of the relevant record with the complete details as existing on the driving licence of Sadiq Mohd., as placed on record, as a sequel, obviously it, cannot be said that the Investigator proceeded to swear, it, only after, he, had as a matter of fact made the inquiry from the competent Motor Licensing Authority which issued the driving licence of Sadiq Mohd as placed on file and which was to be subjected to an inquiry.

    For lack of such material on record, we are of the view that the onus as was laid upon the insurance company for proving the fact that the driving licence of Sadiq Mohd was fake, has, not been discharged. For lack of discharge of such onus, it is to be held that Sadiq Mohd did possess a valid and effective driving licence. Hence, with his possessing a valid and effective driving licence, their was no breach of the terms and conditions of the insurance policy by the complainant who was the owner of the vehicle. On this point we are draw support from an authority of Hon’ble HP State Consumer Disputes Redressal Commission, Shimla as reported in Latest HLJ 2009(HP) 239 in case United India Insurance Company Limited v/s Durga Dass. Resultantly, the OP-Company in repudiating the claim of the complainant has caused illegal injury to him, as also, it, constitutes a deficiency in service.

    7. No evidence has been adduced by the OP-Company in support of the contention that any gratuitous passenger was traveling in the truck at the time when it met with accident. Therefore, the said ground as urged on behalf of the OP-Company for repudiating the claim of the complainant, is, not liable to be countenanced.

    8. Since, the OP-Company did not deny the fact of the accident, as, also the fact of expenses being incurred, on the repair of the vehicle. Though, the complainant has claimed a sum of Rs.3,50,000/- the amount spent on repair of the vehicle, yet, there is, no, cogent and convincing evidence adduced on record by the complainant to prove the fact that he actually spent a sum of Rs.3,50,000/- on the repairs of the vehicle to make it road worthy. For lack of cash memo and affidavits of the person from whom the complainant has averred to have carried out the repairs, we are not inclined to accept his version that he did spent a sum of Rs.3,50,000/- on the repairs of the vehicle.

    On the contrary, it is averred on behalf of the OP-Company that a surveyor was appointed to assess the loss caused to the vehicle, who assessed the loss to the extent of Rs.1,97,000/-. The surveyor being expert in his field and being an impartisan person and with his report having remained un-assailed and un-controverted on record, is, liable to be accepted to assess the loss caused to the insured vehicle. Hence, taking into consideration the circumstances and facts of the present case, and giving regard to the loss as assessed by an independent and expert surveyor, we are of the considered opinion that the OP-Company is liable to indemnify the complainant to the extent of Rs.1,97,000/- along with interest. The OP-Company, by not reimbursing the just and legal claim of the complainant, has, certainly committed deficiency in service.

    9. As a sequel of the above, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.1,97,000/- alongwith interest at the rate of 9% per annum from the date of filing of the complaint, i.e. 03.04.2006 till actual payment is made. The litigation cost is quantified at Rs.3,000/- payable by the OP-Company to the complainant. The ordered amount shall be defrayed by the OP-Company to the complainant within a period of forty five days after the date of receipt of copy of this order. The learned counsel for the parties undertook to collect the certified copy of this order from the office

  6. #36
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    Default Oriental Insurance

    Balwant Singh S/o Sh. Kak Singh R/o Near Water Works, Baja Khana Road, Village Jeeda, District Bathinda.

    Versus

    1. The Oriental Insurance Co. Ltd., Bank Bazar, Bathinda through its Divisional Manager.

    2. Indusind Bank Ltd., 2679/C, 1/A, Guru Kashi Marg, Bathinda through its Branch Manager.


    1.

    Instant complaint has been filed by Sh. Balwant Singh complainant under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the 'Act') seeking direction from this Forum to opposite party No. 1 to pay him the claim amount of Rs.2,00,000/- alongwith interest @ 18% P.A and Rs. 25,000/- on account of mental agony and pains. He has also claimed Rs. 250/- per day for delaying the partly information under the RTI Act, besides Rs.10,000/- as litigation expenses.
    2.

    In nutshell, the case of the complainant is that he is owner of truck bearing registration No. HR-55-B-0869 which has been purchased by him after obtaining loan from opposite party No.2. The truck is hypothecated with opposite party No.2. Complainant got the said truck comprehensively insured with opposite party No. 1 vide cover note No. 145800 dated 1.6.2007 for the period from 18.6.2007 to 17.6.2008. Opposite party No. 1 did not issue the policy.

    On 8.8.2008, Sh. Gurmail Singh driver was driving this vehicle and he was coming from village Gumti to Jeeda. When he reached near village Jeeda, all of a sudden, the tyre of the truck got punctured. He parked the vehicle on the side of the road on Jacks and its indicators were on. He took the punctured tyre to village Jeeda at the house of the complainant for repairs. After its repairs, he alongwith the complainant came back at the site at about 5 A.M and they saw that the truck was in damaged condition and hit by some unknown vehicle in the intervening night of 8th/9th August, 2007 in the revenue limits of Police Station Nahianwala and the truck was totally damaged. In this regard, DDR No. 6 dated 9.8.2007 was got registered at Police Station Zeera. Intimation regarding the accident was given immediately to opposite party No. 1 and they deputed spot surveyor Mr. Vikas Chander Jain, Bathinda who did the spot survey on 9.8.2007. After that, opposite party No. 1 deputed final Surveyor S.L Passi & Co. from Jalandhar. After the spot survey, vehicle was firstly shifted at Bathinda (Vishavkarma Market) and then to Rampura Phul under the instructions of S.L Passi & Co., Surveyor for repair. Under the instructions of the final surveyor, the vehicle was got repaired by spending more than Rs. 2,00,000/- and the original bills were duly submitted to opposite party No.1 through final Surveyor S.L Passi & Co. After repair, the vehicle was re-inspected by Mr. Rakesh Gupta Surveyor of opposite party No. 1 in October, 2007.

    This was the third Surveyor of the opposite party No.1. S.L Passi & Co., Surveyor of opposite party No. 1 at the time of survey obtained signatures of the complainant on duly filled in claim form, different five/six blank papers, blank vouchers, blank consent form and blank full and final voucher on the assurance that the full claim amount would be paid to him immediately after receiving the bills. The complainant asserts that the Surveyors are under the thumb of Insurance Company and they are to disoblige their master i.e. opposite party No.1 from where they obtain business. Complainant avers that neither the Surveyor nor opposite party No. 1 ever sent to him spot survey report, final survey report and re-inspection survey report.

    He applied with opposite party No. 1 under RTI Act on 6.5.2008 for supplying him spot survey report, final survey report, re-inspection report, bills and estimates, claim form and consent letter etc. and thereafter sent reminder on 18.7.2008 after expiry of 30 days. Opposite party No. 1 after expiry of stipulated period sent some documents through letter dated 30.7.2008, but did not supply him the bills and estimates and the blank consent letter etc. till today and the same are in their possession. Complainant approached opposite party No. 1 and requested to make payment of claim amount of Rs.2,00,000/-, but to no effect. Complainant asserts that opposite party No. 1 is a service oriented company and they are supposed to settle his claim within two/three months from the date of accident. The non settlement of the claim even after lapse of more than one year has caused mental agony and pains to the complainant. In these circumstances, he alleges deficiency in service on the part of opposite party No.1.
    3.

    Both the opposite parties filed separate replies. Opposite party No. 1 in its reply has taken legal objections that present complaint is not maintainable in its present form; complainant has no cause of action to file the present complaint; this Forum has got no jurisdiction to entertain and try the present complaint; complaint is false and frivolous; complainant is not a consumer as defined under the Act; complainant is estopped by his own act and conduct from filing the present complaint; there is no deficiency in service on their part; complaint is pre-mature and as such, deserves dismissal and complainant has not approached this Forum with clean hands. As per the report of the Surveyor and the Investigator appointed by the answering opposite party, the alleged accident is surrounded by suspicious circumstances since as per the report of spot surveyor which was done immediately after the alleged accident, the damages did not seem to be fresh. Thereafter, the Investigator while giving his report has mentioned that as per the enquiries made by him, it revealed that the said truck had infact met with an accident some months back and the complainant did not lodge the claim at that time as he did not have the valid fitness certificate of the vehicle which is one of the requirements of the policy.

    Complainant has now manipulated the story and shown the accident to have taken place on 9.8.2008. On merits, it has been admitted that complainant is owner of the truck and he obtained comprehensive insurance policy for the period 18.6.2007 to 17.6.2008. It has been pleaded that the D.D.R is not true and has been got recorded on the manipulated facts. It has been denied that surveyors obtain signatures of any party on blank documents. It is submitted that copies of the documents which were in their possession were provided to the complainant and no blank document is in their possession. It is further submitted that the alleged accident is surrounded by suspicious circumstances and the complainant was asked time and again to provide the proof of the accident which he failed to do so. Thus, the claim has been found to be not payable. The remaining averments in the complaint have been denied and a prayer has been made for its dismissal with special costs.
    4.

    Opposite party No. 2 in its reply has pleaded that complainant has purchased the vehicle in question after obtaining loan from it and the same is hypothecated with the bank. It is submitted that as on 31.10.2008, an amount of Rs. 1,48,902/- is recoverable from the complainant. In case, complaint is accepted, the said amount alongwith upto date interest and costs may be ordered to be paid to the replying opposite party as the vehicle is still under hypothecation. The remaining averments in the complaint have been denied and a prayer has been made for its dismissal.
    5.

    Both the parties to prove their respective assertions, led respective evidence. Complainant filed his affidavit Ex.C.1, photocopy of cover note Ex.C.2, photocopy of registration certificate Ex.C.3, photocopy of DDR Ex.C.4, photocopy of driving licence of Sh. Gurmail Singh Ex.C.5, photocopy of spot survey report Ex.C.6, photocopy of DDR dated 9.8.2007 Ex.C.7, photocopy of Weighment slip Ex.C.8, photocopy of report dated 1.11.2007 Ex.C.9, photocopy of claim form Ex.C.10, photocopies of letters dated 13.9.2007 & 4.10.2007 Ex.C.11 & Ex.C.12, photocopy of survey report Ex.C.13, photocopy of payment receipt Ex.C.14, photocopies of estimates Ex.C.15 to Ex.C.19, photocopy of inspection report Ex.C.20, photocopy of Investigation report Ex.C.21, photocopies of statements Ex.C.22 to Ex.C.24, affidavit of complainant dated 20.1.2009 Ex.C.25, photocopy of letter dated 22.9.2008 Ex.C.26, photocopy of registered envelope Ex.C.27, photocopy of statement of account Ex.C.28, photocopy of statement Ex.C.29, photocopy of loan agreement Ex.C.30 and photocopy of registration certificate Ex.C.31.
    6.

    Opposite parties to controvert the evidence of the complainant also brought in evidence affidavit of Sh. K.S Rajan, Branch Manager of opposite party No.2, photocopy of account statement Ex.R.2, photocopy of loan agreement Ex.R.3, affidavit of Dr. J.L Ahuja, Senior Divisional Manager Ex.R.4, photocopy of survey report Ex.R.5, affidavit of Sh. Vikas Chander Jain Ex.R.6 and photocopies of letters dated 26.9.2007, 28.8.2008 and 20.11.2007 Ex.R.7 to Ex.R.9 respectively.
    7.

    We have heard the learned counsel for the complainant and opposite party No. 1 and gone through the record of the entire case very carefully.
    8.

    The learned counsel appearing on behalf of complainant has strongly urged that the accident of the vehicle took place on 8.8.2007, the vehicle was under proper insurance with opposite party No. 1, the vehicle was examined by Spot Surveyor Sh. Vikas Chander Jain on 9.8.2007 and thereafter, opposite party No. 1 also deputed final survey S.L Passi & Co. from Jalandhar. The vehicle was got repaired under the instructions and supervision of Surveyor of opposite party No.1 and after the repairs, the vehicle was again inspected by Sh. Rakesh Gupta Surveyor in October, 2007, but no report was served upon the complainant. He further urged that since the claim of the complainant was not honoured by opposite party No.1, therefore, complainant had to apply under RTI Act for documents i.e. spot survey report, final survey report, re-inspection report, bills and estimates, claim form, consent letter etc.

    Some of the documents were supplied by opposite party No.1 to the complainant, but opposite party No. 1 has not finally settled the claim of the complainant and therefore, complainant is entitled for an amount of Rs. 2,00,000/- on the basis of original bills already submitted to opposite party No. 1 for repair etc. and also an amount of Rs.25,000/- on account of interest, loss as well as on account of his pains and sufferings for causing delay in settlement of his genuine claim alongwith an amount of Rs. 10,000/- as costs of the litigation. He has also claimed an amount of Rs. 250/- per day for delay caused in delivering the documents he sought from opposite party No.1 under RTI Act.
    9.

    The learned counsel appearing on behalf of opposite party No. 2 urged that since the vehicle is hypothecated with opposite party No. 2 and a sum of Rs.1,48,902/- is recoverable from the complainant against the loan of the vehicle as on 31.10.2008. In case, any amount is paid to the complainant, opposite party No. 2 has first charge on such amount.
    10.

    The learned counsel appearing on behalf of opposite party No. 1 has vehementally opposed the arguments of the learned counsel for the complainant and he strongly urged that the claim of the complainant is full of suspicion from the very first day, the report was lodged and the vehicle was examined on the spot by Surveyor Sh. Vikas Chander Jain, who gave his report Ex.C.6. He has also urged that the next report submitted by S.L Passi & Co., Government approved Surveyors & Loss Assessors vide his report Ex.C.13 also reveals that the cause and nature of the accident explained is very doubtful as the story put forward about the accident on the spot does not appear to be fresh. The findings and observations of the spot surveyor may be kept in view and also the findings of Investigator may be kept in view before settling the claim.

    The learned counsel has also urged that since both the surveyors in their reports after examining the vehicle recorded their doubts about the accident, therefore, an independent Investigator Sh. Kiranjir Singh Romana was entrusted with the investigation to find out as to whether the story put forward by the complainant about the accident/loss/damage caused to the vehicle was infact occurred due to accident caused on 8.8.2007 and he urged that as per the detailed report Ex.C.21 submitted by Sh. Kiranjit Singh Romana, the details of the accident could not be fully ascertained. The learned counsel thus urged that on the basis of the report Ex.C.6 submitted Sh. Vikas Chander Jain Surveyor and also S.L Passi & Co., Surveyors, opposite party No.1 vide letter Ex.C.26 finally settled the claim as no claim because loss caused to the vehicle of the complainant as per his version was found not correct. The learned cocunsel thus urged that the claim put forward by the complainant involves intricate questions of fact to find out as to whether the claim is genuine or not and therefore, this question cannot be determined by this Forum in summary proceedings. The learned counsel thus urged that the complaint is without any merit and the same should be dismissed.
    11.

    We have considered the rival contentions of the parties. Taking into consideration the entire record of the case carefully, the main question which is involved in this complaint for decision is whether the vehicle of the complainant involved in an accident on 8.8.2007 when the vehicle was coming from village Gumti to Jeeda or the vehicle was met with an accident somewhere in Rajasthan about 2/3 months prior to August, 2007 and complainant did not report the matter to opposite party No. 1 because it was not carrying a valid fitness certificate and after getting fitness certificate from Haryana, the complainant planted the accident as on 8.8.2007 and reported the matter to the police and got the spot survey of the vehicle done on 9.8.2007 from Sh.Vikas Chander Jain in order to cheat opposite party No. 1 with an amount dof the loss complainant suffered due to an accident occurred on some other place. The perusal of the sport survey report Ex.C.6 of Er. Vikas Chander Jain reveals that the surveyor has specifically mentioned in his report that while making inspection of loss to the vehicle No. HR 55B -0869 A/c of the complainant, he observed:-

    “Then I noted the external visible damages to the insured vehicle. Cause of accident as explained by the insured did not coincide with the cause of loss and did not justify the loss. Moreover, it seems that the place of loss is not there, where the damaged truck lying/parked. The damages seem not fresh. When enquired from the insured about this accident, as per his verbal information, he informed that the vehicle met with an accident in Rajasthan about one month ago. He could not lodge the claim due to expired fitness certificate. So it is recommended to investigate the loss before settlement of claim.”
    12.

    His report Ex.C.6 is duly corroborated by his affidavit Ex.R.6 wherein he has reproduced t he facts as he has mentioned in his report Ex.C.6. The second report Ex.C.13 which is submitted by S.L Passi & Co., Government approved Surveyors & Loss Assessors also corroborates the version given by Sh. Vikas Chander Jain in his report Ex.C.6 and affidavit Ex.R.6 as S.L Passi & Co. in their report on page No. 3 has observed:-

    “The cause and nature of accident explained to us is very doubtful. There is no reason to believe that at 03 A.M driver has taken the tyres for repair when there is no shop is open and moreover the accident does not appears to be fresh. Findings and observations of spot surveyor may please be kept in view and also the findings of Investigator may please be kept in view before settling the claim.”
    13.

    The facts as are emerging from the documents as well as affidavits of the parties brought on the record definitely there appears to be an intricate question of fact, as to whether, accident infact took place as claimed by the complainant so as to make his claim as genuine against opposite party No. 1, as against his policy of insurance. There is nothing available on the record to conclude that either the report of Sh. Vikas Chander Jain Ex.C.6 or his affidavit Ex.R.6 contain wrong or unbelievable facts because the facts given by him also find corroboration from the report Ex.C.13 given by S.L Passi & Co. as referred to here-in-above. Moreover, the version of Sh. Vikas Chander Jain that when he enquired from the insured about this accident, as per his verbal information, the vehicle met with an accident in Rajasthan about a month ago. He could not lodge the claim due to expired fitness certificate, remains uncontroverted from the evidence brought on the record by the complainant. Under these circumstances, taking into consideration the totality of the record, documents and other aspects of the case, the action taken by opposite party No. 1 in issuing letter of repudiation by complainant's claim Ex.C.26 dated 22.9.2008 appears to be quite genuine and does not call for any inference.
    14.

    Taking into consideration the findings as has been concluded here-in-above, we are of the considered view that the complaint of the complainant is without any merit and it deserves dismissal. Accordingly, it it dismissed.

  7. #37
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    Default The Oriental Insurance

    T.Ashok Reddy S/o T.Laxma Reddy, aged about 50 years, Occ: Business, R/o H.No.11-1-1787, Maruthi Nagar, Behind Laxmi Kalyanamandapam, Nizamabad.

    AND

    The Branch Manager, The Oriental Insurance Co., Ltd., Branch Office: Godown Road, Nizamabad.


    This Consumer Case coming on 16-06-2009 for final hearing before us in the presence of Sri M/s I.Gopal Sharma and Bajrang Singh, Advocates for the Complainant and that of M/s Hari Har Rao and Ganesh Deshpande, Advocate for Opposite party, upon hearing the arguments of both sides and the matter having stood over for consideration, till this day, this Forum made the following:


    1. This is a complaint filed claiming damages of Rs.1,10,000/- and compensation of Rs.50,000/- for the mental agony, and expenses and other reliefs on the following averments:



    The Complainant is the owner of Car bearing No.AP-25K-555 (CRDi-Accent) and it was insured with the Opposite party. On 1-1-2007 the car met with an accident and it was completely damaged and FIR No.1/2007 was also issued and subsequently police filed charge sheet. Complainant immediately informed the opposite party who sent its surveyor, who estimated the damages and in pursuance of the surveyor’s report, the complainant made a claim but the Opposite party rejected the claim stating that one Pavan was driving the vehicle and not Abhishek and that immediately after the accident, the driver of the Car destroyed the number plate of the Car, the driver of the car drove the vehicle in intoxication condition and Mr.Pavan and Abhishek are two different persons. The complainant alleged that rejecting the claim on the above grounds is illegal and in spite of explaining the facts, the Opposite party did not pay the claim amount. Hence the complaint.



    2. Opposite party filed its counter admitting the ownership of the vehicle and also the vehicle was insured with it and the policy was in force on the date of the accident. It also admitted that on intimation given by the complainant a surveyor was appointed and estimation was done and it also appointed another investigator to investigate the matter and according to the said report, the accident was caused when it was driven by Pavan in intoxicating condition and without driving licence. Hence, they rightly rejected the claim of the Complainant. They also disputed the allegation that Pavan and Abhishek are one and the same person. It also alleged that the material facts were suppressed by the Complainant as such, the Opposite party rightly rejected the claim. The opposite party prays to dismiss the complaint as there are no merits in it.



    3. The following points will arise for consideration :

    a) Whether Abhishek and Pavan are one and the same person or different persons ?

    b) Whether the person who drove the car on the date of accident is in intoxicating condition ?

    c) Whether the Complainant is entitled for damages of Rs.10,000/- ?

    d) To what relief.



    4. To prove their respective cases, the Complainant filed his affidavit in lieu of evidence and got marked Exs.A1 to A5 and the Opposite party got filed the affidavit of its Officer and got marked the Exs.B1 to B13.



    5. Points 1 and 2 can be conveniently answered together as there is no dispute about the ownership of the car involved in the accident and also that it was insured with the Opposite party and the policy was in force on the date of accident. As contended by both the parties, the claim was rejected mainly on two grounds i.e., one Pavan drove the vehicle in intoxicating condition and Pavan and Abhishek are different persons. To substantiate their claims, both the parties filed police records i.e., Ex.A1, A2 and Ex.B8 and B9 which are one and the same i.e., First Information Report and the charge sheet filed in the case. Perusal of the First Information Report will reveal that one S.Sridhar had given a complaint to police immediately after the accident and he did not mention the name of the driver of the Car who drove it at the time of accident.

    He mentioned that one Abhishek is the Car driver and after completion of the investigation, they filed case against said Abhishek only. So, according to the investigation done by the police, it is Abhishek who drove the car at the time of accident and he was having driving licence. Perusal of Ex.B8 and B9 also reveal the same but in Ex.B10 a letter alleged to have been given by Sridhar to the Opposite party on 09-01-2007 it was mentioned that one Pavan was the driver of the car at the time of the accident but now the police are showing the name of Abhishek and it was also mentioned in Ex.B10 that Pavan and Abhishek and others have consumed liquor.



    6. The Opposite party has not filed the affidavit of said Sridhar who has given Ex.B10 letter to it. Ex.B11 is another letter alleged to have been given to the Opposite party by one K.Banith Reddy whose affidavit is also not filed before this forum. No credence can be given to Ex.B10 and Ex.B11 as the persons who were allegedly written the letters were not examined nor their affidavits are filed in this forum. Further, Ex.B10 document must have been brought into existence as an after though because in the first information report, marked as Ex.A1 and Ex.B8, there is no mention of either Abhishek or Pavan but it is simply mentioned that the ‘driver of the car’. Therefore, after nine days, the person who alleged to have given first information report states that he had mentioned in the complaint the name of the driver as Pavan Kumar.

    In the absence of filing affidavit from said Sridhar, his earlier complaint given to police Ex.A1 and Ex.B8 has to be believed in which admittedly the name of the car driver is not mentioned. To further precipitate the matters, the opposite party filed a Photostat copy of the paper clipping to show that the police are trying to involve an innocent person in the place of the real person who drove the vehicle at the time of the accident. Had really the complainant Sridhar has mentioned the name of the vehicle driver as Pavan in Ex.A1 or Ex.B8, then there would have been some force in the subsequent letter given by him to the Opposite party. When in the first information report he has not mentioned the name of either Pavan or Abhishek it is futile to believe his version subsequently stating that Pavan and Abhishek are not one and the same person. The burden is very much heavy on the opposite party to establish that it is Pavan who drove the vehicle at the time of accident but not Abhishek which is contrary to the entire police records.

    The Opposite party did not even summon the Investigation Officers nor cross-examined them to show that in connivance with complainant, the name of the accused is changed as Abhishek instead of Pavan. It is the contention of the complainant that Abhishek is the name in the records and they will call him as Pavan which is his pet name in the house. Therefore, when a categorical statement is given by the complainant explaining that Pavan and Abhishek is one and the same person and in the absence of any record, contrary to complaint, it is very difficult to believe the contention of the opposite party that Pavan and Abhishek are not one and the same person. The learned counsel for the Opposite party relied on the report given by its investigator by name Ramchander Rao and it is marked as Ex.B7. Said Ramchander Rao has not filed any affidavit in this Forum and there is no evidence how he came to conclusion that Pavan and Abhishek are different persons and whom he has examined and what is the record collected by him to establish that Pavan and Abhishek are different persons.

    Therefore, non examination of the Investigator and not filing any record to show the basis how the Investigator came to the conclusion that Pavan and Abhishek are not one and the same person and it is very difficult to believe the report of the Investigator which is totally contrary to the police record and this police record is filed by both the complainant and the opposite party and at no point of time, the Opposite party raised the contention that the first information report and charge sheet filed by the police are false and concocted one. In the absence of such plea, credence must be given to the police record rather the investigation report submitted by the Investigator, who is more interested in the welfare of the Opposite party rather in the correctness of the case.



    7. The second contention is that the driver of the Car at the time of accident, i.e., either Pavan or Abhishek and others who were present in the car were in intoxicating condition. In the earlier report, it was observed by him that it was Abhishek who drove the car and that is substantiated by the police record. Now it has to be seen whether Abhishek was in intoxicating condition at the time of driving the vehicle or not. Again, we have to refer the first information report given to police which is Ex.A1 and B8 and in which, there is no whisper that the person who drove the car at that time was in intoxicating condition. It is also pertinent to note here that the names of the inmates of the car were not mentioned by Sridhar in the first information report. Contrary to this, in Ex.B9 and B10 are marked by the opposite party which are at the later date in which the names of the inmates of the car were given and also it was stated that they were in intoxicating condition.

    If really we have to give some credence to the subsequent letters written by Sridhar to the Manager of the opposite party, then the opposite party must have summoned them or must have called for the statements given by those persons before the police during the course of investigation done by the police. Therefore, whatever may be the reason, it can be said that these letters were obtained by the opposite party only to reject the claim on one ground or the other because if really the persons who were present in the car and the person who drove the car were in intoxicating condition, then definitely the injured or Sridhar who gave first information report to the police would not have failed to mention these important facts. Therefore, when at the earliest point of time when these facts were not mentioned by Sridhar either in Ex.A1 or Ex.B8, his subsequent statement in Ex.B9 must be held only as an after thought and the same cannot be believed. Therefore, the contention of the opposite party counsel that the driver is under intoxicating condition at the time of driving the vehicle with which the accident was met cannot be accepted.

    8. There was no evidence who broke the number plate but it was a fact that both in Ex.B1 and B8 it was mentioned that the driver broke the number plate immediately after getting down from the car after the accident. Now it has to be seen whether this fact is correct and whether it is sufficient to reject the claim of the complainant. The Complainant’s contention is proved that his car was damaged because of the impact with the vehicle and the number plate was damaged as it was immediately seized by the police. Therefore, there is no other evidence except Ex.A1 in which there is a categorical mention that the number plate is broken. Even if we assume that the person had broken the number plate, it is itself not sufficient for the opposite party to reject the claim. Therefore, the opposite party rejected the claim of the complainant without any valid reasons. In all, the reasons stated by the opposite party are only flimsy and invented to reject the claim of the complainant. Therefore, we answer both the issues in favour of the complainant and against the Opposite party.



    9. Issue No.3 and 4 : As seen from the record, claim was made by the complainant in time and the opposite party sent its Investigator to assess the damages and he submitted the report and in pursuance of the said report, the complainant is entitled to claim Rs.1,10,000/- as assessed by its own assessor.



    10. IN THE RESULT, the complaint of the Complainant is allowed directing the opposite party to pay Rs.1,10,000/- towards the damages of the Car, with interest @ 9% per annum from the date of complaint until realization; and further to pay costs of Rs.2,000/- to the Complainant, within a period of one month from this order.

  8. #38
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    Default Oriental Insurance

    V. Venkata Subba Reddy, S/o Gangi Reddy,

    aged about 41 years, R/o D.No. 51/68-1, Kothapeta,

    Rayachoty, Kadapa District. ….. Complainant.

    Vs.

    The Oriental Insurance Co. Ltd., Rep. by its

    Branch Manager, Branch Office, Opp. District Court,

    Kadapa – 516 001 (AP). ….. Respondent.


    O R D E R

    2. The brief facts of the complaint is as follows:- The complainant was the owner of one TATA Hitachi (Excavator) model Ex-100 bearing No. 1001-0007 of 2002 model. It was insured to the respondent company under the policy No. 432706/31/2007/1156 under coverage of all packages including vehicle damages under miscellaneous type of vehicle policy. The validity period was from 18-8-2006 to 17-8-2007. The complainant was a contractor working at Mopalakunta, Rayahcoty Mandal, Kadapa district. He engaged one lorry bearing No. AP 26 C : 8168 to transport his vehicle. On 4-5-2007 during evening hours the insured vehicle was transported through the lorry. Due to rain the entire road was wet. The lorry was sunk into the mud and the driver lost his control over the lorry, resulting the insured vehicle fell down from the lorry and it was badly damaged. The Rayahcoty police station registered a case as FIR No. 78/2007.

    The accident was informed to the respondent immediately, who deputed a surveyor and survey was conducted. On the assurance of the respondent the complainant spent Rs. 3,99,422/-towards repairs of the insured vehicle. The complainant spent other miscellaneous expenditure towards transportation and personal attendance upto Rs. 10,000/-. The expenditure was by way of bills also. There was no discrepancy about the damaged vehicle and insured vehicle. The conditions were not violated. Thus the complaint was filed for Rs. 3,99,422/- towards repairing charges of the vehicle and Rs. 10,000/- towards transportation and personal attendance and Rs. 50,000/- towards mental agony and Rs. 2,000/- towards costs because there was negligence and deficiency of service on the part of the respondent.

    3. The respondent filed a counter that the liability was only for machine identification No. and it was insured under the policy. There was no liability to pay insurance amount if any damage caused to any other machine identification No. than the insured under the policy. In the present case the insured machine identification No. of the vehicle was 1001007, whereas the machine identification No. damaged in the accident was 10012089. It was not covered under the policy and there was no damage to the machine identification No. insured under the policy.

    The respondent on receiving the intimation of accident deputed a surveyor by name B.A. Samad Khan, who surveyed and gave the report mentioning the damage machine identification No. as 10012089. In the final survey the surveyor by name A.C. Rami Reddy, mentioned the same identification No. 10012089 and reported that it was not the machine identification No. damaged in the accident under the policy. The surveyor A.C. Rami Reddy, assessed the damage as Rs. 14,497/- considering the applicable depreciation to the iron and rubber parts. The claim of Rs. 3,99,422/- was only an imagination which was not supported by any documentary proof. The bills submitted were fabricated and created. There was no deficiency of service or negligence on the part of the respondent. Thus the complaint may be dismissed with costs.

    4. On the basis of the above pleadings the following points are settled for determination.

    i. Whether there is any negligence and deficiency of service on the part of the respondent?

    ii. Whether the complainant is entitled to the relief as prayed for?

    iii. To what relief?

    5. On behalf of the complainant Ex. A1 to A9 were marked and on behalf of the respondent Ex. B1 to B5 were marked. No written arguments were filed by both parties.


    6. Point No. 1 & 2 The complainant was a contractor working at Mopalakunta, Rayachoty Mandal, Kadapa District. He had one Tata Hitachi (Excavator) model Ex-100 bearing No. 1001-0007. It was insured with the respondent under policy No. 432706/31/2007/1156 with validity period from 18-8-2006 to 17-8-2007. The policy was package policy for Zone – C miscellaneous type of vehicles. The complainant filed Ex. A2 policy issued by the respondent bearing policy No. 1156/07 to the engine No. and chasis No. as 10010007. He filed Ex. A1 a Xerox copy of sales invoice of the insured vehicle. The complainant engaged one lorry bearing No. AP 26 C : 8168 to transport the (Excavator) vehicle to the work spot. On 4-5-2007 during evening hours while the alleged insured vehicle was transporting through the lorry, the lorry was sunk into the mud on account of rain and the driver lost his control over the lorry, resulting the Excavator vehicle fell down from the lorry and was badly damaged. The Rayachoty urban police station registered a case as Cr. No. 78/2007 dt. 5-5-2007. The Xerox copy of FIR was Ex. A3. After the accident the complainant informed the same to the respondent, who deputed a surveyor by name B.A. Samad Khan to conduct spot survey.

    He surveyed and filed the report mentioned the damaged machine identification No. was 10012089. The respondent company deputed one A.C. Rami Reddy, surveyor to conduct survey and assess the damage to the damaged vehicle who filed a final survey report on 23-8-2007 mentioning Sl.No. of the (Excavator) damaged was 10012089 whereas the Sl.No. of Excavator insured was 10010007. The said surveyor mentioned that the Excavator insured was not the excavator damaged. Ex. B2 was Xerox coy of final survey report dt. 23-8-2007. Under Ex. B2 the surveyor assessed the damage as Rs. 14,497/-. The respondent also filed a Xerox copy of policy with machine No. and chasis No. as 10010007. It was Ex. B5. Ex. B5 and Ex. A2 were one and same. The complainant filed Ex. A4, A5, A6, A7 and A8 Xerox copies of cash bills regarding repairs conducted to the damaged vehicle. The respondent filed a Xerox copy of motor claim scrutiny sheet under Ex. B3. Under Ex. B3 a net liability was only Rs. 12,600/-. After the accident the complainant made a claim for Rs. 3,99,422 towards expenditure for conducting repairs to the damaged Excavator vehicle. The respondent repudiated the claim on the ground that the damaged machine identification was not tallied with machine identification No. mentioned in the policy. The repudiation letter was Ex. A9. The Xerox copy of the same was filed by the respondent under Ex. B4.


    7. On perusal of Ex. A2 insurance policy of the insured vehicle the machine identification No. was 10010007. But as per Ex. B1 Xerox copy of the spot survey report conducted by the surveyor the machine identification No. was 1001-2089. So there was no insurance policy on the vehicle with machine No. 10012089 which was damaged in the accident on which a claim was preferred. The policy was to another vehicle with different machine No. So the complainant claimed the damage or compensation on the vehicle which was not insured. Therefore, there are no merits in the case and there is no negligence or deficiency of service on the part of the respondent.

    8. Point No. 3 In the result, the complaint is dismissed without costs.

  9. #39
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    Default Oriental Insurance Company Limited

    Between


    V. Chittibabu Naidu, S/o V. Siddaiah Naidu,

    Aged 39 years, Hindu, Business & cultivation,

    residing at Thumbakuppam Village & Post,

    Bangarupalyam Mandal, Chittoor District.
    … Complainant


    1. The Oriental Insurance Company Limited

    Rep., by its Divisional Manager, having

    its office at No.7, Uthamar @@@@hi Salai,

    II Floor, Rosy Towers, Nungambakkam,

    Chennai.



    2. The Oriental Insurance Company Limited,

    Rep., by its Branch Manager, having its

    Branch Office at Prakasam High Road,

    Opp: Court Buildings, Chittoor Town & Dist.,

    … Opposite Parties.

    ORDER

    This is a complaint filed by the complainant U/S 12 of C.P.Act, for claiming an amount of Rs. 1,79,081/- under the Insurance Policy towards the damages of the vehicle and also damages of Rs. 1,00,000/- with interest at 18% p.a.

    1) The material averments in the complaint in brief are as follows:- The complainant is the owner of the vehicle 407 LPT Van bearing No. AP-03-U-5420 and insured the same with the 1st opposite party under the comprehensive policy bearing No. 411300/31/2007/11748 for Rs. 2,70,000/-. The policy is in force from 23.10.2006 to 22.10.2007. The said vehicle has hired to the Tirumala Milk Dairy under hire for transporting the milk to the diary from the nearby villagers.


    On 21.08.2007 at about 12.30 a.m the vehicle met with an accident on Palamaner – Chittoor, N.H-4 Road near Balijapalle Village. In that accident the vehicle was badly damaged. After the accident the complainant immediately informed to the opposite parties and the Opposite parties appointed a spot surveyor and the spot surveyor visited the vehicle at the scene of offence and noted down the damages of the vehicle and took photographs of the damaged van. The complainant spent a sum of Rs. 1,79,081/- towards repairs and replacement of the damaged parts.

    The final surveyor appointed by the opposite parties visited the van after making repairs and assessed the damages of the vehicle in his report dt. 25.10.2007. Immediately after repairing the vehicle the complainant submitted claim form along with bills to the 1st opposite party for settlement of the claim. But the opposite parties have not settled the claim of the complainant inspite of several requests of the complainant. On 09.11.2008 the complainant got issued legal notice to the 1st opposite party. The 1st opposite party received legal notice and did not give any reply. Hence the complainant approached this Forum for redressal of his grievances. In the above said circumstances the complainant prayed this Forum to :

    a) direct the opposite parties to pay a sum of Rs. 1,79,081/- towards repairs of the vehicle to the complainant; and

    b) direct the opposite parties to pay a sum of Rs. 1,00,000/- to the complainant towards the damages for the mental harassment and agony caused to the complainant with interest at 18% p.a from the date of submission of the claim form.


    2) The 1st opposite party filed his Written Version on 26.05.2009. The 2nd opposite party filed a Memo adopting the Written Version of the 1st opposite party in all material aspects.


    The 1st opposite party in his Written Version stated that after making various observations on the basis of the reports of the surveyor and investigator and as per the office note the opposite parties have settled the claim of the complainant to a tune of Rs. 75% of the loss assessed by the surveyors i.e for Rs.44,000/- and sent discharged voucher to the complainant, but the complainant has not discharged the voucher and did not communicate the same to the opposite parties and hence there is no deficiency of service on the part of opposite parties in settling the claim.


    The 1st opposite party further stated in his Written Version that this Forum has no jurisdiction to entertain the complaint, since the quantum of loss is only in dispute and the remedy is available only referring it to the arbitration as per policy conditions. Hence the complaint may be dismissed.


    3) On behalf of the complainant the complainant filed his Chief Affidavit in support of the pleas raised in the complaint and the same is marked as deposition of PW-1 and he also relied upon 5 documents and marked as Ex.A1 to A5.

    Ex.A1 is the Xerox copy of the Insurance policy of the vehicle. Ex.A2 is the office copy of legal notice dt. 09.11.2008 issued by the complainant to the 1st opposite party. Ex.A3 is the Xerox copy of certificate dt. 23.08.2007 issued by the S.I. Police, Bangarupalyam Police Station with regard to the accident of the vehicle. Ex.A4 is the Xerox copy of claim form. Ex.A5 is the Xerox copy of bunch of cash bills numbering 19 for Rs. 1,78,991/-.

    On behalf of opposite party one Sri K. Thana Mohan, Senior Divisional Manager, Oriental Insurance Company Limited, Tirupathi filed his Affidavit in support of pleas raised in Written Version and same is marked as the deposition of RW-1 and the opposite parties also relied upon 6 documents and same are marked as Ex.B1 to B6.

    Ex.B1 is the Xerox copy of Insurance Policy (Ex.A1 and B1 are one and same document). Ex.B2 is the Xerox copy of spot survey report dt. 29.08.2007. Ex.B3 is the Xerox copy of final survey report dt. 25.10.2007. Ex.B4 is the Xerox copy of SIMAX SURVEYORS Report dt. 01.03.2008. Ex.B5 is the office note dt. 05.11.2008 of the opposite parties for settlement of the claim of the complainant. Ex.B6 is the policy terms and conditions.

    4) On the pleadings and on the consideration of the material available and upon hearing the parties, the points that arise for consideration are:

    1) Whether this Forum has got jurisdiction to entertain the complaint in view of the Arbitration clause in the Insurance Policy ?


    2) Whether the complainant is entitled to claim the damages of the vehicle for a sum of Rs. 1,79,081/- under the Insurance Policy ?


    3) Whether there is any deficiency of service on the part of opposite parties in settling the Insurance claim of the complainant ?


    4) whether the complainant is entitled for Rs. 1,00,000/- with interest at 18% p.a from the date of submission of the claim form as the damages for the mental agony suffered by the complainant ? and


    5) To what result?

    5) Both sides filed their respective Written Arguments.


    6) Point No. 1 :-

    The learned counsel for the opposite parties argued that this Forum has no jurisdiction to entertain the complaint, since the quantum of loss is only dispute in this case and the remedy is only referring it to the arbitration as per policy condition No. 7 in general exception. However this issue is no longer res-integra in view of the judgment of the Hon’ble Supreme Court in Sky Park Couriers Limited Vs TATA Chemicals Limited – reported in 2000- CTJ – 321 (SC) (C.P) = 2000-5-SCC – 294 – wherein their lordships held as follows :-

    “Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force”.


    As per the judgment of the Hon’ble Supreme Court cited supra this Forum has got jurisdiction to entertain the complaint.

    The point is answered accordingly.


    7) Point No. 2:-

    In the case on hand the complainant is claiming an amount of Rs.1,79,081/- towards repair charges and for replacement of the damaged parts of the vehicle, which met in an accident on 21.08.2007. After the repairs of the vehicle, the complainant submitted the claim form in Ex.A4 along with bills in Ex.A5 to the 1st opposite party for settlement of the claim.

    The 1st opposite party on intimation of the accident of the vehicle a spot surveyor was appointed to inspect the vehicle. The spot surveyor inspected the vehicle at the scene of offence and submitted his spot survey report dt. 29.08.2007 in Ex.B2 to the opposite parties. After repairs of the vehicle, the opposite parties sent final surveyor and loss assessor to assess the damages and loss of the vehicle. The final surveyor inspected the vehicle and found that the repairs were carried out and submitted his report dt. 25.10.2007 in Ex.B3 assessing the loss for a sum of Rs. 83,425/- after deducting the depreciation value as per rules and he certified that the opposite parties are liable to pay an amount of Rs. 83,425/- to the complainant towards the damages of the vehicle.

    On receipt of the final survey report Ex.B3, the opposite parties have not satisfied and sent the same along with connected records to the SIMAX SURVEYORS, at Chennai for their opinion on Ex.B3. The SIMAX SURVEYORS verified the final surveyor report in Ex.B3 and other connected records and gave their opinion dt. 01.03.2008 in Ex.B4 to the opposite parties assessing the loss of the vehicle at Rs. 61,000/- after deducting the salvage amount, which is nearly coincided with the report of the final surveyor in Ex.B3. On receipt of the SIMAX SURVEYORS opinion report in Ex.B4, the opposite parties once again appointed investigator for investigation with regard to accident of the vehicle. The appointment of investigator in this case is borne out from the office notice dt. 05.11.2008 i.e Ex.B5 of the opposite parties, but the opposite parties have not filed the investigator reports in this case, but in the office notice dt. 05.11.2008 Ex.B5 the opposite parties, mentioned in the last Para as follows :-


    “Though there are discrepancies in relevant to the cause of accident with the nature of damages sustained by the vehicle, we shall consider to settle the loss to the tune of 75% of only assessed amount of labour and spare parts as given in the II opinion, as there is a police certificate from Bangarupalyam Police Station for the accident occurred on the date of loss as well the investigator also confirms the genunity of the loss vide his report dated 01.09.2008.



    The working is as below :-



    75% of Rs. 70,690/- = Rs. 53,000/-

    Less Salvage = Rs. 10,000/- as assessed by

    Final surveyor

    Less Excess = Rs. 500/-(GVW 5600 KGS)

    Add: Towing = Rs. 1,500/-

    ------------------

    NET PAYABLE = Rs. 44,000/-

    ------------------“


    As per the office notice of the opposite parties dt. 05.11.2008 the opposite parties settled the loss of the vehicle to the tune of 75% on only assessed amount of labour and spare parts after deducting the salvage value.


    8) The learned counsel for the complainant argued that the occurrence of the accident of the vehicle is certified by the S.I of Police, Bangarupalyam P.S in his certificate dt. 23.08.2007 i.e Ex.A3 and hence there is no necessity to appoint investigator for investigation with regard to the accident of the vehicle. Further he argued that the final surveyor submitted his report in Ex.B3 to the opposite parties. But the opposite parties instead of accepting the same they sent the same to the SIMAX SURVEYORS for their opinion. But the SIMAX SURVEYORS also confirmed the assessment of the loss of the damaged vehicle as per the final surveyor report. Hence the opposite parties are in deficiency of service in settling the claim of the complainant.


    Further he argued that final surveyor in his report Ex.B3, certified to the effect that after repairs he inspected the vehicle and found that the repairs were carried out as recommended by him and that the complainant is entitled for a sum of Rs. 1,79,081/- towards damage of the vehicle.


    9) The learned counsel for the opposite parties argued that the final surveyor in his report Ex.B3 given detailed explanation for assessment of the loss of the vehicle as per rules and that the opposite parties have mentioned in their office notice dt. 05.11.2008 i.e Ex.B5, the reasons for their settlement of the claim at 75% of the final surveyors report i.e for Rs. 44,000/- only and sent the discharge voucher to the complainant, but the complainant has not discharged the voucher and did not communicate the reasons for the same. Hence there is no deficiency in service on the part of the opposite parties in settling the claim.


    In this case as per the final surveyor’s report i.e in Ex.B3 the opposite parties are liable to pay an amount of Rs. 83,425/-. The said amount was also confirmed by the SIMAX SURVEYORS in their opinion report Ex.B4 and the opposite parties have also accepted the accident of the vehicle in their office note dt. 05.11.2008 i.e in Ex.B5 and in such a case the opposite parties have to pay the amount as per the final surveyor’s report, but the opposite parties have settled the claim of the complainant to a tune of Rs.75% loss assessed by the final surveyor (i.e for Rs. 44,000/-), which is not justifiable. The final surveyor’s report Ex.B3 assessed the loss of the vehicle after depreciation value for Rs. 83,425/-. The complainant claimed an amount of Rs. 1,70,981/- towards damage of the vehicle. But the complainant has not challenged the final surveyor’s report by way of filing any counter affidavit or re-joinder. In this regard I rely on the decision reported in I-(2007) – C.P.J – 278 (N.C) – in case Between Suryacham Industries Vs Oriental Insurance Company Limited – Wherein their lordships held as follows :-

    “C.P.Act -1986 – Sec.2(1)(g) – Insurance – damaged to insured property by cyclone – /assessment of loss - surveyor’s report – reliability – said report being an important document has to be given due reliance and importance unless it is rebutted by some cogent evidence – no such evidence lead before this Commission – State Commission awarded Rs. 31,200/- - Accordingly – Order upheld.”

    Taking into consideration of the Final Surveyor’s Report Ex.B3 relying upon decision of the Hon’ble National Commission cited supra, I am of the view that the opposite parties are liable to pay an amount of Rs. 83,425/- to the complainant towards damages of the vehicle under the policy with interest at 9% p.a from the date of accident i.e 21.08.2007 till the date of realization.

    This point is answered accordingly.

    10) Points No. 3 & 4 :-

    In this case the complainant claimed a sum of Rs. 1,00,000/- with interest at 18% from the date of submission of the claim form to the opposite parties for the mental torture suffered by him, due to the deficiency of service on the part of opposite party in settling the claim. In this case the opposite parties have to settle the claim of the complainant as per Final Surveyor’s Report Ex.B3. But the opposite parties instead of settling the claim the Final Surveyor’s Report sent to the SIMAX SURVEYORS at Chennai for their opinion. The SIMAX SURVEYORS confirmed the final survey report and gave their opinion dt. 01.03.2008 in Ex.B4 and on receipt of Ex.B4 the opposite parties once again appointed investigator to investigate the accident of the vehicle, though the accident of the vehicle was certified by the S.I of Police, Bangarupalyam P.S in his Certificate dt. 23.08.2007 in Ex.A3.


    In view of the above discussion I am of the view that there is deficiency of service on the part of opposite parties in settling the claim of the complainant and due to deficiency of service, the complainant might have been suffered mentally and physically. Taking into consideration of the deficiency of service on the part of opposite parties in settling the claim of the complainant, I am of the view that awarding a sum of Rs.5,000/- as compensation in favour of the complainant to meet the ends of justice. Hence the opposite parties are directed to pay an amount of Rs. 5,000/- to the complainant towards the compensation.


    In the circumstances of the case the complainant is entitled for a sum of Rs. 2,000/- towards cost of litigation. Hence the opposite parties are directed to pay a sum of Rs. 2,000/- to the complainant towards cost of the litigation.

    Points 3 & 4 are answered accordingly.

    11) Point No. 5:-

    In the result the complaint is partly allowed directing the opposite parties 1 & 2 jointly and severally liable to pay an amount of Rs. 83,425/- (Rupees eighty three thousand, four hundred and twenty five only) with interest at 9% p.a from the date of accident i.e from 21.08.2007 till the date of realization. The opposite parties are further directed to pay an amount of Rs. 5,000/- (Rupees five thousands only) towards compensation to the complainant and Rs. 2,000/- (Rupees two thousands only) towards litigation expenses. The opposite parties are directed to pay the said amount within 6 weeks from the date of this order.

  10. #40
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    Default Oriental Insurance

    D.Chinnabba Naidu,

    S/o. D.narasaiah Naidu,

    D.No.13-6-600-44-71, P.K.Street,

    Tirupati. … Complainant

    1. M/s. The Oriental Insurance Co. Ltd.,

    Rep. by its Divisional Manager,

    Rosy Towers,

    II Floor, No.7, Nungambakkam High Road,

    Chennai – 600 034.

    2. M/s. Oriental Insurance Co. Ltd.,

    Rep. by its Divisional Manager,

    N.T.Road,

    Tirupati. … Opposite parties.

    ORDER

    This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing opposite parties to pay Rs.4,11,567/- together with future interest till payment and to pay the costs of the complaint to the complainant.

    2. The averments of the complaint in brief are :- The complainant, who is the owner of transport vehicle Swaraj Mazda bearing registration No.AP-03-V-5288, insured the same with opposite party No.1, vide policy No.946/06 from 15.04.2005 to 14.04.2006 and the said policy was renewed from time to time by the opposite party No.1 up-to 25.05.2008, vide policy No.411300/31/2008/2851. On 22.03.2006 at about 1 p.m. the said vehicle was sent to Cholapur of Karnataka State to import grapes load from there, with two drivers by name Lokanadham and Thyagaraj. At about 10.30 p.m. when the said vehicle reached near P.K.Halli, Sanduru Cross, Hospet Taluk, Bellary District, within the jurisdiction of Gadiganuru P.S. it met with accident and was badly damaged. The accident was informed to Gadiganuru P.S. and the police registered a case in Crime No.62 of 2006. Immediately after the accident, the complainant informed the said fact to opposite party – company, and the opposite party assessed the damage sustained by the vehicle. The complainant was assured that the opposite party No.2 would pay the damages to the complainant. The complainant made a claim to opposite party – company, claiming damages of Rs.2,04,426/- and a sum of Rs.7,500/- for transporting the damaged vehicle from the scene of offence to Sri.Venkateswara Motors, the authorized dealer of Swaraj Mazda Motors, Tirupati. Inspite of several requests, demands and approaches personally or by way of correspondence the opposite party – company, has been postponing to pay the same on some pretext or the other.

    The complainant spent the amount by borrowing the same from third parties on usurious rates of interest for the repair of the vehicle. The opposite party – company, made the complainant to run pillar to post since the date of accident for payment of claim made by him. It is nothing but gross negligence and deficiency in service on the part of opposite party – company, towards the complainant. The complainant sustained monetary loss and suffered a lot mental agony. The complainant is entitled to claim interest at 24% per annum on the claim made by him. On 20.12.2008 the complainant caused a legal notice to the opposite parties calling upon them to pay the damages of Rs.2,l1,926/- together with interest at 24% per annum from the date of claim and also a sum of Rs.50,000/- towards mental agony suffered by him. The opposite parties, having acknowledged the notice, neither complied nor replied. Hence the complaint.

    3. The opposite parties resisted the complaint. In the written version filed on behalf of opposite party No.2, adopted by opposite party No.1, while denying the material allegations made in the complaint, it is stated that the opposite party No.2 has no knowledge about the alleged accident as it was not informed to them either through fax or e-mail or by way of written complaint immediately after the accident. The alleged accident was informed to the opposite party No.2 by way of registered legal notice dt:20.12.2008 got issued by the complainant. The complainant clearly violated condition No.1 of the policy.

    Except the registered legal notice dt:20.12.2008 got issued by the complainant 32 months after the alleged accident no written intimation and claim forms with relevant papers in support of the claim were submitted to the opposite party No.2 to take appropriate action. Hence, the question of deficiency of service by the opposite party No.2 does not arise. The complainant cannot undertake any repairs without informing to the insurer. The opposite party No.2 deprived of assessing the damages as alleged by the complainant. Immediately after receipt of legal notice, the opposite party No.2 contacted opposite party No.1 and requested to furnish the status of the alleged claim of the complainant to avoid unwarranted litigation by way of written correspondence dt:26.12.2008. The opposite party No.1 after verifying the records informed opposite party No.2 that they have not received any intimation for the claim of the alleged accident and they have not received any claim and not appointed any surveyor. Since the insurance is based on contract of uberemaid (principles of utmost good faith), the complainant ought to have come under the four corners of contract of insurance. The complainant has violated the policy conditions and, therefore, the opposite party No.2 is not liable to pay any compensation to the complainant. The complaint is liable to be dismissed with costs.

    4. In support of the averments made in the complaint, the complainant filed his affidavit and got marked Exs. A1 to A8. Ex.A1 is Certificate-cum-Policy-Schedule original bond bearing No.946 of 2006 dt:15.04.2005 issued by opposite party No.1 in the name of the complainant. Ex.A2 is Motor Insurance Certificate cum Policy Schedule bearing No.411300/31/2008/2851 dt:26.05.2007 issued by opposite party No.1 in the name of the complainant. Ex.A3 is bunch of xerox copies of bills issued by Sri.Venkateswara Motors, Madhavi Transport, in the name of the complainant. Ex.A4 is xerox copy of F.I.R in Crime No.62/2006 of Gadiganuru P.S. Ex.A5 is xerox copy of Certificate of Registration of vehicle bearing No.AP-03-V-5288 issued by the Additional Registering Authority, Tirupati. Ex.A6 is xerox copy of permit dt:08.05.2007 issued by the Additional Secretary, Regional Transport Authority, Tirupati, for the complainant’s vehicle AP-03-V-5288. Ex.A7 is office copy of legal notice dt:20.12.2008 got issued by the complainant to opposite parties 1 and 2 with postal receipts. Ex.A8 are the postal acknowledgements of opposite parties 1 and 2 for Ex.A7 notice.

    5. In support of the version in the written version, the Senior Divisional Manager of opposite party – bank, Tirupati, filed his affidavit. The opposite parties also got marked Exs.B1 to B3. Ex.B1 is printed copy of Commercial Vehicles Package Policy Except Traders Policies of opposite party – Insurance Company. Ex.B2 is office copy of letter dt:26.12.2008 addressed by opposite party No.2 to opposite party No.1. Ex.B3 is reply dt:20.03.2009 of opposite party No.1 to opposite party No.2.

    6. On behalf of the complainant and opposite parties written arguments were filed and we have heard the oral arguments of counsel of both sides.

    7. On the basis of pleadings of both sides, the points that arise for consideration are:-

    1. Whether there is any deficiency in service on the part of opposite parties towards the complainant?

    2. Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?

    3. To what result?

    8. Point No.1:- The brief facts of the case are:- The complainant is the owner of Swaraj Mazda transport vehicle bearing registration No.AP-03-V-5288. The complainant got the vehicle insured with opposite party No.1 for the period from 15.04.2005 to 14.04.2006 under Ex.A1 Certificate-cum-Policy-Schedule. The policy was renewed from time to time and Ex.A2 is the renewed policy for the period from 26.05.2007 to 25.05.2008. The vehicle met with accident near P.K.Halli, Sanduru cross, Hospet Taluk, Bellary District, Karnataka State on 22.03.2006 at about 10.30 p.m. and on the complaint of Lokanadham, one of the drivers of the vehicle, a case in Crime No.62/2006 under Sections-279 and 337 IPC R/W Section-187 of M.V.Act of P.S. Gadiganuru was registered against the other driver of the vehicle Thyagaraj. The complainant got issued the original of Ex.A7 legal notice dt:20.12.2008 to both the opposite parties calling upon them to pay damages of Rs.2,04,426/- which he incurred for getting the vehicle repaired by Sri.Venkateswara Motors together with interest at 24% per annum and also to pay Rs.50,000/- towards the mental agony suffered by him. The opposite parties 1 and 2 received the notice. As there was no response from opposite parties, the complainant filed the complaint on 19.02.2009.

    9. Admittedly, the complainant insured his transport vehicle AP-03-V-5288 with opposite party No.1 and Ex.A2 policy was in force as on 22.03.2006. The complainant’s case is that the vehicle was badly damaged in the accident, that immediately after the accident he informed the said fact to opposite party – company, and that the opposite party assessed the damage sustained by the vehicle. His further case is that he made claim to the opposite party – company for Rs.2,11,926/- towards damage caused to the vehicle and Rs.7,500/- for transporting the damaged vehicle from the scene of offence to Sri.Venkateswara Motors, authorized dealer for Swaraj Mazda Motors at Tirupati, and that inspite of several requests, demands and approaches personally or by way of correspondence the opposite party – company, failed to settle the claim and thus committed deficiency in service towards him.

    The case of opposite parties is that they have no knowledge about the alleged accident as it was not informed to them either through fax or by e-mail or by way of written complaint, that the alleged accident was informed to them by way of legal notice dt:20.12.2008 and that no claim forms with relevant papers in support of the claim of the complainant was submitted to them to take appropriate action. Their further case is that the complainant cannot undertake any repairs without informing them i.e. the insurer, that they are deprived of assessing the damages as alleged by the complainant and that after receipt of legal notice they verified the records and found that no intimation was received from the complainant immediately after the accident and no claim was submitted to them. It is also their case that as there was no intimation and no claim made by the complainant, the question of deficiency of service does not arise and that as the complainant violated policy condition No.1, they are not liable to pay any compensation.

    10. In paragraph.5 of the complaint it is vaguely stated that immediately after the accident the complainant informed the said fact to opposite party – company, and the opposite party also assessed the damage sustained by the vehicle. The date on which the complainant informed the accident to the opposite party – company, is not mentioned. It is not specifically stated to which opposite party the complainant informed about the accident. There is absolutely no evidence adduced by the complainant that immediately after the accident he intimated the opposite parties about the accident. As per condition No.1 of Ex.B1 policy conditions notice shall be given in writing to the company immediately upon the occurrence of the accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. The counsel for the opposite parties submitted that the complainant cannot undertake any repairs without informing the opposite parties – the insurers, and the opposite parties are deprived of assessing the damages.

    In the written arguments filed on behalf of the complainant it is stated that opposite party assessed the damage sustained by the vehicle through one of its assessors by name Sridhar. No scrap of paper is filed before this Forum to show that Sridhar, the assessor deputed by the opposite parties assessed the damage sustained by the vehicle. In paragraph.6 of the complaint it is stated that the complainant made a claim to the opposite party – company, claiming an amount of Rs.2,04,426/- towards damages caused to the vehicle and Rs.7,500/- for transporting the damaged vehicle from the scene of offence to the Sri.Venkateswara Motors, the authorized dealer for Swaraj Mazda Motors at Tirupati. There is absolutely no evidence adduced by the complainant to show that he submitted claim to the opposite parties. The date on which the claim forms were sent is not mentioned in the complaint. It is also not clearly stated to which opposite party the complainant submitted claim. After the complainant got issued legal notice, the opposite party No.2 addressed Ex.B2 letter to opposite party No.1 to inform them about the status of the claim of complainant. The opposite party No.1 sent Ex.B3 letter informing that they have not received any intimation of the claim for the vehicle bearing No.AP-03-V-5288. Since the complainant failed to prove that he intimated the opposite parties about the accident and submitted claim, he cannot complain that there is negligence and deficiency in service on the part of opposite parties 1 and 2 towards him.

    11. For the above reasons, we find that there is no deficiency in service on the part of opposite parties towards the complainant. This point is accordingly answered against the complainant.

    12. Point No.2:- In view of our finding on point No.1, the complainant is not entitled to any relief. This point is accordingly answered.

    13. Point No.3:- In the result, the complaint is dismissed, but without costs.

  11. #41
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    Default Oriental Insurance

    The complainant is the owner of Motor vehicle bearing Reg. No.KL-01-U 1001. He has insured the vehicle with the opposite party's company and the insurance policy No. issued to the complainant by the opposite party is 6728. The policy covers all risks and damage to the vehicle insured. The vehicle while it was in transit by road from Madurai to Kanyakumari, the front wind screen of the vehicle broke. Complainant states that there was no negligence or rashness on the part of the driver, who is an experienced driver and the damage was caused to the vehicle not due to any reason attributable to the driver. Soon after the incident the complainant preferred a claim on 24/11/2001 before the opposite party. But the claim of the complainant was rejected by the opposite party on flimsy and intenable grounds and denying their liability to pay compensation. Aggrieved by the illegal stand taken by the opposite party, the complainant issued a lawyer's notice to the opposite party claiming a compensation amounting to Rs.25,800/-. The opposite party received the notice, but not turned up to settle the claim. Hence this complaint.

    2. The Opposite party – Oriental Insurance Company Limited filed version contending the claim of the complainant. The opposite party has no objection regarding the existence of policy and the opposite party stated that the policy has been issued subject to the terms, conditions and endorsement as made out in the same.

    The complainant had on 23/11/2001 submitted a claim form intimating that on 22/11/2001 near at Thirunelveli while on running, the front glass of the bus was broken and no third party was responsible for the alleged damage along with the claim form, the complainant submitted an estimate prepared by his repairers. The opposite party on receipt of the aforesaid claim form had immediately deputed an independent surveyor to note and report as to the extent of loss and the cause for the same. The surveyor, after conducting a detailed assessment of the damage and on a discussion with the driver as well as the repairers of the vehicle, it was revealed that the alleged damage was occurred not due to any external means which fact is corroborated by the written statement given by the driver of the vehicle to the surveyor.

    The opposite party on perusing the survey report along with the connected records it was revealed that the cause of the alleged damage sustained to the front glass of the vehicle was not due to any external accidental means and had occurred while on running, which loss is outside the purview of the policy and therefore the opposite party after due application of mind and in good faith considering all the facts and circumstances had on 28/3/2002 issued a registered notice to the complainant informing their inability to consider the complainant's claim and repudiated the same with due reasons mentioned therein. The opposite party stated that they have repudiated the claim legally and there has been no negligence or deficiency in service on the part of the opposite party in any manner.

    3.In this case, the complainant has filed proof affidavit and produced 5 documents. The documents were marked as Exts.P1 to P5. The opposite party has also filed affidavit and produced 12 documents. The documents were marked as Exts. D1 to D12. Nobody has been cross examined and no witness was examined.

    4. Points that would arise for consideration are:

    1.

    Whether the repudiation made by the opposite party is legal and valid?
    2.

    Whether there is deficiency in service or negligence from the side of opposite party?
    3.

    Whether the complainant is entitled to get the reliefs sought for?

    5. Points (i) to (iii) : To support his claim the complainant has produced 5 documents. The document marked as Ext.P1 is the copy of policy certificate. From this document it is evident that at the time of the alleged incident the complainant's vehicle has a valid policy. We cannot see the terms and conditions of the policy. Ext.P2 is the copy of lawyer's notice issued to the opposite party on 27/4/2002 demanding Rs.25,800/- as compensation. Ext.P3 is the postal receipt of notice. Ext.P4 is the acknowledgment card signed by the opposite party.

    6. To contend the claim of the complainant the opposite party produced 12 documents. The document marked as Ext.D1 is the copy of driving license and other details of the vehicle. In this case the opposite party has no objection regarding these details. Ext.D2 is the copy of Certificate of Registration etc.of the vehicle. Ext.D3 is the copy of the statement written by the driver of the complainant stating that the alleged damage was occurred not due to any external means and that was happened due to the air pressure inside the glass. Ext.D4 is the copy of application form for permit. Ext.D5 is the copy of statement for repairing of broken front glass of the vehicle of complainant issued by Jaitech Motor Works for Rs.26,800/- dated 23/11/2001. Ext.D6 is the copy of Surveyor's report dated 30/11/2001. As per the Surveyor's report the assessed damage is Rs. 16,692.50.

    In this document the Surveyor stated that he had obtained a statement from the insured vehicle's driver and in that letter the driver mentioned that the glass is broken not due to hitting by other external object. Hence the incident cannot be treated as an accidental damage. Ext.D7 is the copy of repudiation letter issued by the opposite party to the complainant on 28/3/2002. In this letter the opposite party stated the reason for repudiating the claim. The Surveyor stated that the glass is broken not due to hitting by any other external object, ie., it is not an accidental damage. As the glass broken by itself while on the move, hence they have no liability to entertain the claim. Ext.D8 is the copy of letter of the complainant to the opposite party requesting to return the bills submitted by him before the opposite party dated 4/4/2002. Ext.D9 is the copy of Advocate's notice issued by the complainant. Ext.D10 is the copy of reply notice issued by the opposite party to the complainant dated 29/5/2002. Ext.D11 is the copy of claim form submitted by the complainant before the opposite party on 23/11/2001. Ext.D12 is the copy of policy certificate.

    7. From the documents and evidences produced by the complainant and opposite party in this case there is no dispute regarding the existence of policy and the occurance of the incident. But nobody has produced the terms and conditions of the policy both parties produced only the policy certificate. From that document we can seen that the policy is comprehensive policy. As per the policy certificate the complainant has paid an amount of Rs.7,340/- for own damage basis to the opposite party. We cannot see any exclusion clause in the policy certificate that any damage caused not due to any external accidental means, the insurance is not liable for that damage. The opposite party has not stated the reason as per which clause of the terms and conditions of the policy they denied the claim. Hence we are of the opinion that it is reasonable to allow the amount assessed by the surveyor for the damage. Hence in the interest of natural justice and also considering the purpose of the Consumer Protection Act we allow this complaint

    In the result, the opposite party is directed to pay Rs.16,192.50 with 9% annual interest from 28/3/2002 till the date of realization and the opposite party also shall pay Rs.1,500/- as costs.

  12. #42
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    Default Oriental Insurance

    Sri.Divakar,

    S/o. Sheshappa Gurikara,

    Aged about 36 years,

    R/A. Bandikottya Road,

    Hoige Gudde, Post Ullal,

    Mangalore. …….. COMPLAINANT





    (Advocate: Sri. S.K. Ullal).



    VERSUS



    The Oriental Insurance Co. Ltd.,

    Balmatta Road,

    Hampankatta,

    Mangalore,

    Rep. by its Divisional Manager. ..…. OPPOSITE PARTY


    1. The facts of the complaint in brief are as follows:

    This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.

    The Complainant is the absolute and registered owner of a Mechanized Fishing Boat ‘MFB DURGA GANESH’ bearing registration No.F-MNG 1063. The said boat was insured with the Opposite Party for a sum of Rs.6.00 lakhs under the policy No.422200/505/1291/ MH/2008/181, the said policy was valid from 9.8.2007 to 8.11.2007.

    It is submitted that, on 2.11.2007 at about 3.00 to 4.00 a.m. the Complainant’s boat had started its journey for fishing and was proceeding from Malpe Fishing Harbour through Malpe sea bar to Arabian sea, at that time boat was drifted towards the sand bund due to the rough waves and suffered damage to the bottom part of the Hull. Consequently the sea water gushed into the boat and the boat was sunk in the Malpe sea bar and thereafter the crews of the boat were rescued and wreck of the damaged boat was brought to Bapu Thota, Malpe. It is contended that due to the said accident the said boat become total loss and the repairer had estimated the cost of Rs.9,00,000/- to make it sea worthy which is more than the value of the boat.

    It is submitted that after the accident the Complainant submitted the claim form along with all the documents to the Opposite Party but the Opposite Party not honoured the claim and the claim is delayed by giving one or the other reasons and it is contended that the service rendered by the Opposite Party amounts to deficiency and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay Rs.6.00 lakhs along with interest at 18% p.a. and also to pay Rs.50,000/- as damages and costs of the proceedings.

    2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted the policy but denied the entire accident alleged in the complaint and also the damages of the boat estimated by the repairer.

    The Opposite Party states that the Complainant has not complied the requirements to be fulfilled by him inspite of several letters and reminders to assess the damages and hence the survey of the alleged damages could not be completed yet and the complaint is prematured, the claim of the Complainant is still at the processing stage for want of weather report and submitted that there is no deficiency whatsoever and prayed for dismissal of the complaint.

    3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

    (i) Whether the Complainant proves that the Opposite Party has committed deficiency in service?

    (ii) If so, whether the Complainant is entitled for the reliefs claimed?

    (iii) What order

    4. In support of the complaint, Sri.Divakar (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C11 were marked for the Complainant as listed in the annexure. One Mr.Sudhakar (RW1), Senior Divisional Manager of the Opposite Party and one Mr.Janardhan Heble (RW2) – working as General Insurance Surveyor, Loss Assessor and Valuer filed counter affidavits and answered the interrogatories served on them. Ex R1 to R14 were marked for the Opposite Party as listed in the annexure. Both parties filed notes of arguments along with citations.

    We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.

    Point No.(ii) & (iii): As per the final order.
    Reasons

    5. Point No. (i) to (iii):

    The averments of the Complainant is that the Complainant is the registered owner of a mechanized fishing boat ‘MFB Durga Ganesh’ met with an accident on 2.11.2007 at about 3 to 4 a.m., the said boat had started its journey for fishing and was proceeding from Malpe Fishing Harbour through Malpe Sea Bar to Arabian Sea. At that time the boat was drifted towards the sand bund due to the rough waves and suffered damage to the bottom part of the hull. Consequently, sea water gushed into the boat and the boat was sunk in the Malpe Sea Bar. The crews of the boat were rescued and the wreck of the damaged boat was brought to Malpe and due to the said accident suffered total loss. And further submitted that to repair the said boat and make it sea-worthy it requires Rs.9,00,000/- which is more than the value of the boat and it is submitted that the scarp of the vessel including the engine are totally unusable for any purpose.

    The contention of the Opposite Party is that the Complainant has not complied the requirements to be filled by him inspite of several letters and reminders and contended that the complaint is prematured as the claim of the Complainant is still at the processing stage for want of weather report from the Metrological Department Chennai which is required to be produced by the Complainant and also denied the alleged accident and damages to the boat and the estimation made by the repairer.

    In the present case, we have noticed that the loss was assessed by the surveyor and produced the report during the pendency of this proceedings i.e., 6.10.2008. It is pertinent to note that the alleged accident allegedly took place on 2.11.2007 but the report was produced on 6.10.2008.

    As according to the Opposite Party the reason for delay in submitting the report they have raised a contention that the Complainant not complied the requirements to be fulfilled by him inspite of several letters and reminders issued by the Opposite Party as well as the surveyor deputed and also denied the alleged accident to the boat and the estimation made by the repairer.

    The only defence which the Opposite Party Company would raise is that in the close proximity they have raised a suspicious with regard to the accident. However, we have perused the survey report as well as the correspondences made by the surveyor. As we stated herein above the surveyor submitted the report on 16.10.2008, the alleged accident took place on 2.11.2007. The report of the surveyor makes it clear that the surveyor visited the spot on 5.11.2007 and inspected the boat and reported that insured boat was beached during his visit and he has inspected all its hull members, engine and accessories and noted down the damage. And further noted that on 20.11.2007 again inspected the lower part of the insured boat hull and the machine was dismantled in his presence and noted the extent of damage suffered by the engine.

    From the above survey report, we have observed that admittedly the surveyor visited the spot on 5.11.2007 and the insured boat being beached and thereafter he was visited on 20.11.2007 inspected the lower part of the insured boat’s hull.

    However, again around 13 days from 20.11.2007 surveyor again arrived on the scene and dismantled the engine in his presence and noted down the extent of damage suffered by the engine. But we do not understand why he has not submitted the report immediately. No doubt, his survey report in page No.3 noted that he had written two letters to the insured i.e., 17.12.2007 and 7.6.2008 we have gone through the correspondences reflected in the survey report i.e., 17.12.2007 as well as 7.6.2008 issued by the surveyor. The 17.12.2007 letter reflects that the surveyor sought for weather report, claim form and detailed estimate. And the another letter dated 7.6.2008 the surveyor again asked for weather report and the claim form. We are very surprise to note the contents of the letter because in a normal practice that at the time of entrustment of the survey, the insurer i.e., the Insurance Company would hand over all the documents including claim form, estimate and other relevant papers. However, this fact is admitted by the surveyor (i.e., RW2) while answering the interrogatories in question No.27.

    When such being the case, there is no point in insisting the claim form and estimate once again by the surveyor or the Opposite Party from the Complainant. It is very significant to note that the surveyor did not insist the Complainant to produce the estimation of repair, claim form or weather report either during his alleged visit to the spot or in his earlier correspondences dated 4.12.2007, 22.11.2007 and 16.11.2007. If at all, the surveyor in need of those documents then what prevented the surveyor to sought at the earliest we can say that in the 1st letter i.e., Ex R2. Nothing has been sought by the surveyor in the above correspondences except stating that the steps were not taken up to haul up the insured vessel.

    Now let us go with the weather report insisted by the surveyor. In the survey report the surveyor not commented anything about the weather but on the other hand he has stated that the Malpe Sea Bar is specifically known for being calm and trouble free in all the seasons of the year. However, the department of port at Mangalore, Malpe, Kundapur maintains every days weather particular and the same being a public document could have been verified by the surveyor to know the weather conditions instead of demanding from the Complainant and delaying in submitting the report. We have observed that in the present case, there was no hindrance to get the weather report from the concerned department or he could have verified the weather conditions on the particular date of accident if at all it is so much necessary to determine the alleged accident. No such attempt was made by the surveyor. Just for the sake of weather report one cannot delay the submission of survey report according to their whims and fancies. On overall looking into the survey report the weather report is not at all the material document to delay the survey report.

    Apart from the above, the surveyor suspected the accident and the damage to the boat and stated that if the insured boat really crashed on the sand mound while crossing the sea bar, its lower part - the keel, to be exact – must have borne atleast some of the burnt but the said holes have formed at so high a place from the keel that the statements provided in the claim form by the insured and his crew look quite absurd. And further opined that the damage to the boat was never caused by any accident the holes were forcibly formed on the inside astern. In the operation demolition that ensued, the cabin and hull members were deliberately broken and the insured proceeded to prefer a claim in the name of an accident that never occurred.

    In the present case, appears to be somewhat typical because the report of the surveyor submitted after a year we can say that during the pendancy of the case by stating that the alleged accident is not an accident the hole was forcibly made. Suppose if at all the accident is such what prevented the surveyor to submit the report at the earliest point of time. The question of considering the weather report or other documents does not arise at all. It is manifest from above that the issue herein is whether the accident is an accident or not. If at all it is not accident it will not take time to submit the report. Now once that is so it logically follows that the insured must be indemnified and compensated for the insured loss expeditiously. Can it possibly be said that the insured who seeks to protect himself against an apprehended loss is fully indemnified if his claim is to be settled years thereafter? Delay in such a context as in many other fields would defeat the very purpose of the insurance.

    It appears to us that to settle the claim nowadays certainly no difficulty because once the principal is clear and established it is not difficult to quantify it into a figure. In the present technological advances which are now freely available to the large insurance corporations, it would not be difficult for them to either settle or repudiate an insurer’s claim within a reasonable period of three months. This is not to say that there may be minor claims which may be decided even earlier. But unless it is established otherwise for cogent reasons, a delay beyond three months to either settle or repudiate would in essence be a deficiency in insurance services undertaken to be rendered by the Corporations atleast within the consumer jurisdiction. It must therefore be held that the reasonable time frame within which the nationalized insurance companies must either settle or repudiate the insured consumers claim would normally be a period of three months.

    Any delay beyond that would per-se attract the odium of deficiency in service unless the same is cogently explained by the insurers and the burden thereof must necessarily rest on them. Applying the aforesaid rationale to the present case, it is somewhat manifest that the Complainant must succeed because in a normal course at the time of entrustment of the survey the claim form, estimate and other documents would be delivered to the surveyor by the Company and there is no question of putting a blame on the Complainant that he has not submitted the claim form, repairer’s estimate etc. etc. We have noticed in the present case that there was no whisper about the weather report in the survey report or by the surveyor in his correspondences. And also we have noted that the statements of the crew members were taken in the office of the surveyor on 8.2.2008 i.e., after much delay.

    The accident was occurred on 2.11.2007, the surveyor ought to have examined the crew members right at the time of his alleged date of 1st visit in order to have first hand information regarding the accident and the nature of damage. Apart from the above, he did not examine any independent witness nor made any attempt to examine independent witnesses nor prepared any mahazar at the time of his visit. In fact in the present case the accidental boat crews who tried to evacuate/retrieve the vessel from the sand bund immediately after the accident are the best persons to be examined or to be interrogated then definitely the truth would have been revealed and the imagination/suspicion made by the surveyor would have been ruled out. Apart from the above, we also view the angle that he could have examined or taken statement of the local fisherman who actually went for fishing on the day of incident in other boats.

    No such attempts were made by the surveyor and we do not have any material evidence which would go to indicate that there was no accident. It is very difficult for us to give full proof judgment in the absence of papers by looking into the reluctance of the report submitted by the surveyor before the FORA. We also opine that no insured will come forward to damage his own boat by making forcible hole in order to get a claim. As we know it is not easy to make a false claim before the Company because to process the claim there are many steps to come across. For example submitting documents, repairer’s estimation, surveyor’s assessment etc. etc.

    The comment of the surveyor in this regard is not acceptable without there being any material evidence. The surveyor cannot submit his report as per his imagination there should be a full proof document to show that there was no accident at all. Apart from the above discussion, we have gone though the photographs as well as the C.D. produced by the surveyor, wherein the damage caused to the boat is extensive and not repairable. And further we have noted that the surveyor not submitted the report within reasonable time frame and basing on the surveyor report the Opposite Party is also not settled the claim, the repudiation of the claim came on record only by way of version there is no repudiation/settlement before filing of the complaint. In other words, the claim neither settled nor repudiated by the Opposite Party in the present case amounts to deficiency in service.

    In the present case, there is inordinate delay and there is no justification whatsoever, the damage to the hull is proved and the estimate for repair reveals that the sum insured under the policy is of Rs.6,00,000/- (as per Ex C1) but the valuation for repair it came up to Rs.9,00,000/- (as per Ex R13) which is more than the sum insured. Hence basing on the evidence on record and also the repair/ estimate issued by the concerned, we are of the considered opinion that the damage to the hull is coming under total loss. By considering the overall above view we hereby direct the Opposite Party to pay Rs.6,00,000/- (Rupees six lakhs only) along with interest at 9% p.a. from the date of accident till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

    6. In the result, we pass the following:
    ORDER

    The complaint is allowed. Opposite Party i.e., Oriental Insurance Company Limited is hereby directed to pay to the Complainant a sum of Rs.6,00,000/- (Rupees six lakhs only) along with interest at 9% p.a. from the date of accident till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

  13. #43
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    Default Oriental Insurance Company Limited

    Sri Biswajit Banik,

    Son of Late Ashok Kumar Banik,

    Milanpara, Raiganj, Uttar Dinajpur. Complainant.



    versus



    The Oriental Insurance Company Limited,

    Represented by its Branch Manager,

    Raiganj Branch, Bidhannagar,

    Raiganj, Uttar Dinajpur. Opposite Party.


    Judgment

    Date: 24.07.2009.

    The Complainant Biswajit Banik has filed his complaint Under Section 12 of The Consumer Protection Act, 1986 praying for a direction to The Oriental Insurance Company Limited, Raiganj Branch i.e. Opposite Party/ Insurer to pay the sum of Rs.5,66,468.00 (rupees five lac sixty six thousand four hundred sixty eight) only for the damage of his vehicle, which he has purchased in the year 2006, bearing No. WB-59/7957 – a six wheeler truck. On 20.05.2007 there was a head-on collision between his vehicle with the vehicle No. AP-05V/6199 at Chepani Choupathi on NH-31 in Samuktala, P.S. Jalpaiguri. The vehicle of the Complainant was fully damaged and he put a claim for the discharge of the amount, which is required for the repairing of the damaged vehicle. It has been alleged that the Complainant sent one letter along with a list of the parts required for the repairing of the vehicle to the Opposite Party/ Insurer on 06.06.2007. Opposite Party/ Insurance Company appointed a surveyor for assessing the loss and the surveyor surveyed the condition of the vehicle on 28.06.2007 at the repairing workshop named and style as ‘The Siliguri Motor Body Builders’, Siliguri.

    It is alleged that in course of investigation of the damaged vehicle the surveyor separated parts by parts of the vehicle and thereby caused further damaged to the vehicle. In spite of the survey of the damaged vehicle, the Opposite Party/ Insurer did not come to any settlement. Thereafter, the Complainant met several representations stating of its inability to repair his vehicle at his own cost and requested for the disbursement of the bill prepared by the Garage Authority. Opposite Party/ Insurer, on the other hand, asked for final bill along with money receipt etc., which the Complainant failed to provide, as he has no money ready to release his vehicle from the garage.


    The Complainant purchased the vehicle in question in Higher Purchase Scheme and he has to pay a huge amount per month as installment to the Finance Provider. As the settlement of the claim has not been reached between the parties; the present Complaint has been filed.


    Opposite Party/ Insurance Company has contested the complaint by filing one Written Version. It has admitted that a surveyor appointed by it, who has visited the workshop, where the damaged vehicle in question was given for repairing. The Opposite Party/ Insurer has alleged that the surveyor wanted to make final assessment of the damage, the vehicle has suffered, but that could not be done on the request of the Complainant. The further contention of Opposite Party/ Insurer is that Complainant is entitled to the compensation only after furnishing the proper money receipt, voucher, etc. The Opposite Party/ Insurer is not bound to make any advance payment as per law. As such the present complaint is according to the Opposite Party/ Insurer, is immature and liable to be dismissed.


    Decisions with reasons:

    It is admitted position that the Complainant is the owner of the vehicle in question. It is also not disputed that the vehicle faced an accident and thereby got damaged. It is also an admitted fact that the vehicle in question was insured with the Company of Opposite Party at the period of accident. It is also admitted fact that the Opposite Party/ Insurer appointed a surveyor to assess the damage, the vehicle has suffered and that surveyor upon visiting the garage, where the vehicle in question was kept for repairing, made assessment. So, the only disputed point is whether the Complainant is entitled to get the repairing cost of his vehicle from the Company or the Company is duty bound to disburse the bill of repairing cost.


    In support of his case the Complainant has submitted a bunch of documents, which are described below: -


    1) Original Certificate of Registration of vehicle No. WB-59/7957 [10 sheets].

    2) Original Insurance Policy Certificate issued by Oriental Insurance Company Limited along with policy terms and conditions. [04 sheets].

    3) Original Route Permit issued by R.T.R. Raiganj [1 sheet].

    4) Original Authorization letter in the name of Sam Mahammad issued by Biswajit Banik [1 sheet].

    5) Xerox money depositing receipt dated 21.03.2007 and 26.03.2007 in the name of Magma Leasing Ltd. [1 sheet].

    6) Original cash receipt issued by Magma Leasing Limited for Rs.25,000/-, Rs.32,000/-, Rs.5,000/-, Rs.10,000/- dated 11.01.07, 12.03.07, 15.05.07, 23.12.07 respectively [04 sheets].

    7) Original lorry challan dated 19.05.2007 and carbon copy of the same [02 sheets].

    8) Original Tax receipt invoice dated 19.05.2007 along with carbon copy.

    9) Xerox copy of Draft for Rs.19,200/- dated 27.11.2007 in the name of Magma Leasing Ltd. [01 sheet].

    10)Xerox copy of Bank receipt dated 29.11.2006 [1 sheet].

    11)Xerox received copy of letter dated 09.08.2007, 06.06.2007 [02 sheets].

    12)Quotation (Xerox) received dated 06.06.2007 [4 sheets].

    13)Xerox received copy of Quotation dated 12.06.2007 [4 sheets].

    14)Original letter issued by aloke Chandra dated 01.09.2007 [2 sheets].

    15)Xerox receipt copy letter dated 14.09.2007.



    16)Original letter dated 15.11.2007, 15.05.2008 issued by Magma Leasing Ltd.

    17)Original letter dated 18.01.2008 issued by Oriental Insurance Co. Ltd. and letter dated 05.03.2008 issued by Same [2 sheets].

    18)Xerox copy of letter dated 27.04.2008 along with original postal receipt No. 1693 [02 sheets].

    19)Carbon Copy of letter 04.06.2008 issued by Advocate Dilip Paul along with original Postal receipt No. 1931.

    20)Original Courier receipt dated 26.10.2007, 06.09.2007, 09.08.2007, 09.08.2007, 09.08.2007, 09.08.2007, 09.08.2007 [07 sheets].

    21)Certified copy of seizer list [02 sheets].

    22)Original Bank receipt dated 29.11.2006 and 27.03.2007 and 27.03.2007 [03 sheets].

    23)Original Pollution Certificate.

    24)Original Road Tax Receipt.

    25)Original Bank Receipt, dated 15.05.2007.

    26)Xerox Copy of Order of Samuktala PS Case No. 34/2007.

    27)Xerox Copy of Dead Body Challan I/C/W UD Case No. 273/2007.

    28)Xerox Copy of order dated 30.05.2007 of GR Case No. 403/2007.

    29)Xerox Copy of Formal FIR.


    The first document, which to our mind, is so important is the survey and assessment report prepared by the appointed person of the Company. From the assessment sheet, we do find that the surveyor assessed the value of damage of certain parts to extent of 95 percent to the maximum and 50 percent to the lowest. However, it also assessed the value of the damage of certain parts to the extent of 100 percent.

    Now the Complainant’s case is, he is not satisfied with the report of the surveyor and claimed full disbursement of the cost of repairing. The Opposite Party/ Insurer has made a plea that the Complainant requested to postpone the assessment but it is such a plea that does not hold good in view of the circumstances appearing from the documents and other circumstances of the case. Complainant has submitted here the bill charged by the Garage Authority for repairing of the vehicle in question and demanded the same from the Complainant. We do find from the documents and the versions of both sides that a process was initiated towards the settlement of the claim. It is however postponed subsequently. But it is not fair for the Insurer to keep the settlement of claim pending. The correspondences between the Complainant and the Opposite Party/ Insurer support our above observation. Opposite Party/ Insurer too did not specifically oppose the claim of the Complainant.

    It has however taken plea that bill/ money receipt/ voucher of the repairing cost of the damaged vehicle were not produced before it. But fact remains that the vehicle, which was validly insured with the Opposite Party/ Insurance Company, was sent to garage after facing an accident and the extent of damage, that the vehicle suffered, was assessed by the surveyor of the Company. In the mean time the Garage owner has also prepared a bill in the name of the Complainant. So, nothing was done behind the knowledge of the Opposite Party/ Insurer. All the facts narrated by the Complainant in his complaint are known to the Opposite Party/ Insurer. The Garage owner has prepared two bills one for the required parts and another for the charges of laborer. So, taking both bills, the total amount charged by the Garage owner is Rs.5,66,468.00 (rupees five lacs sixty six thousand four hundred sixty eight) only, which is the claim of the Complainant here.



    Now, from the Insurance Certificate, we do find the vehicle was insured for a sum of Rs.7,25,000.00 (rupees seven lacs twenty five thousand) only. According to the terms of the policy of Commercial Vehicle Packages; the Insurance Company is entitled to deduct depreciation value to a certain percentage according to the year of its make. The policy itself shows the vehicle in question is of the year 2006, so when it faced the accident on 20.05.2007 it was six months but not exceeding one year old. So, if we deduct to the extent of 5 percent of the principal amount, we get the sum of Rs.5,38,144.60 (rupees five lacs thirty eight thousand one hundred forty four and paisa sixty) only. In the opinion of this Forum the Complainant is entitled to claim above sum from the Opposite Party/ Insurer.



    The vehicle in question is used for commercial purpose, it is laying on in the garage with badly damaged condition and the Complainant has no opportunity to ply the vehicle on road; obviously he is suffering the loss due to the stop his business. In addition he is also, to deposit the E.M.I. against his loan, taken for purchasing the vehicle. So, in our view the Complainant is also entitled to claim compensation against the Opposite Party/ Insurer.



    So, upon taking all the materials placed before us in to account, we do find that the Complainant has been able to prove his case and as such he is entitled to claim the disbursement of the amount already cited above. The Opposite Party/ Insurer can not avoid its responsibility to discharge the claim on the ground of non-submission of voucher/ money receipt etc. We have already discussed above that there is no ambiguity in the case of the Complainant. So this Forum do allow his prayer.

    Fees paid are correct.

    Hence, it is ordered,


    That the complaint is allowed on contest against the Opposite Party, Oriental Insurance Company Limited.


    That the Complainant is entitled to get an award of Rs.5,38,144.60 (rupees five lacs thirty eight thousand one hundred forty four and paisa sixty) only against the Opposite Party/ Insurer with litigation cost of Rs.1,000.00 (rupees one thousand) only and compensation of Rs.10,000.00 (rupees ten thousand) only.



    The Opposite Party/ Insurer is directed to liquidate the entire amount of Rs.5,49,144.60 [rupees five lacs forty nine thousand one hundred forty four and sixty paisa (award plus litigation cost plus compensation)]only, within one month from today failing which the entire amount shall carry an interest at the rate of 6.5 (six and half) percent per annum till full satisfaction.

  14. #44
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    Default Oriental India Insurance Company Limited

    Kanika Ghosh,

    Wife of Sri Soumik Ghosh,

    Madhya Mohanbati, Raiganj.

    Uttar Dinajpur, West Bengal. Complainant.



    versus



    1) The Branch Manager,

    Oriental India Insurance Company Limited,

    Raiganj Branch, Bidhannagar,

    Raiganj, Uttar Dinajpur, West Bangal.



    2) The Divisional Manager,

    Oriental India Insurance Company Limited,

    Malda Division, 94, B. G. Road,

    Post & District – Malda, West Bengal. Opposite Parties.

    Judgment

    Date: 13.07.2009.

    The application Under Section 12 of Consumer Protection Act, 1986 has been filed by the Complainant Konika Ghosh, praying for award of Rs.3,21,000.00 (rupees three lacs twenty only thousand) only plus compensation of Rs.1,00,000.00 (rupees one lac) only and litigation cost of Rs.5,000.00 (rupees five thousand) only against the Opposite Party, Oriental Insurance Company Limited. Brief fact is that the Complainant is the registered owner of the car Ambassador brand bearing No. WB-59/6566.

    The said vehicle was insured with the Opposite Party/ Insurer at the material point of time. The vehicle met with an accident on 01.10.2005 at Royal Pack Hotel on NH34 under English Bazar Police Station, Malda. A FIR was registered with the Officer-in-charge, English Bazar Police Station. The Branch Manager as well as Divisional Manager of the Opposite Party/ Insurer was informed of the said accident and estimate of Rs.3,22,200.00 (rupees three lacs twenty two thousand two hundred) only towards the repairing of vehicle was placed before the Opposite Party/ Insurer for reimbursement. But Opposite Party did not take any action. Correspondents was made with the Opposite Party/ Insurer to accept the claim but no answer was received; so, this complaint.


    Opposite Party/ Insurer has contested the complaint by filing a Written Version; stating therein that the Complainant is not entitled to getting reimbursement of the repairing cost/ damage of the vehicle, because the necessary papers requiring for settlement of the claim was not received by the Opposite Party/ Insurer on time. So the Opposite Party/ Insurer vehemently resisted to the present complaint and the relief sought by the Complainant.

    In the above background, the case of the Complainant is to be looked into. Complainant has filed so many documents, whereas the Opposite Party/ Insurer has filed the Terms and Conditions of Commercial Vehicle Package Policy.
    Decisions with reasons:

    The vehicle in question is an ‘Ambassador’ diesel car of 2004 make. Policy period was from 16:00 hrs on 14.12.2004 to midnight on 13.12.2005 assured sum was Rs.3,21,000.00 (rupees three lacs twenty one thousand) only. The date of accident was 01.10.2005 which occurred at Royal Pack Hotel, P.S. English Bazar, Malda. Police was informed of the accident. Complainant too informed Divisional Manager, Siliguri about the incident of accident. Opposite Party/ Insurer engaged a surveyor to assess the extent of damage. Out of the documents filed on behalf of the Complainant we may at first look at letter, dated 04.12.2006 addressed to Divisional Manager of Opposite Party’s, Siliguri Branch.

    It explicitly makes it clear that one survey about the damage of the vehicle was ordered by the Opposite Party/ Insurer and estimate of repairing cost assessed by M/s B. B. Automobiles was handed over to the said surveyor. But in course of hearing the report of surveyor was not produced before us. This letter further discloses that a meeting was held at the office of Divisional Manager of the Opposite Party in Siliguri, where the husband of the Complainant, Divisional Manager, Raiganj Branch of Opposite Party and surveyor were present. And in the meeting a report on damage of the vehicle on net loss basis was asked for the surveyor but the surveyor, it is alleged, did not prepare any report. In the said letter it has been communicated by the Complainant to the Opposite Party/ Insurer that she was not ready to received payment on assessment on net loss basis.

    The subsequent development after the said meeting is that the Opposite Party/ Insurer asked for necessary papers of the vehicle by a letter, dated 29.01.2007. The Complainant submitted those documents on 08.03.2007 in the office of Opposite Party, Raiganj Branch. A plea has been taken by the Opposite Party/ Insurer that required papers were not sent to the office in time. The complaint has filed one letter dated 05.02.2007, which is said to have been written from Goa and had the reference to the letter, dated 29.01.2007 in this letter, Complainant gave her expected date of her arrival from Goa to Raiganj was 22.02.2007. Another letter dated 05.03.2007 shows that necessary papers were received by Opposite Party on 08.03.2007 with official endorsement. The Opposite Party/ Insurer should have considered the explanation given by the Complainant for not complying with the direction made by the Opposite Party/ Insurer in his letter dated 29.01.2007.

    There is no practically any question of delay in filing the papers, as alleged by the Opposite Party. Opposite Party’s only plea, while resisting the claim of the Complainant before the Forum is that necessary papers were not submitted in due time as such claim could not be discharged. We have already explained beforehand as to the circumstances compelling the Complainant to submit the papers at a delayed stage. So, this argument of the Opposite Party is based on flimsy ground and at last found to be without any basis in view of our above discussion on the correspondence made by the Complainant with the Opposite Party/ Insurer.

    Now, the question arises about the payment of the claim made by the Complainant in her complaint. As per terms and conditions of the policy of the Insurance Company, the damage of the insured vehicle caused by an accident will be met by the company.

    There is a schedule incorporated in the commercial package policy of the Opposite Party/ Insurer. Here we do find that amount to be paid to a damaged vehicle after deducting the depreciation value at different rate and that will be assessed according to the age of the vehicle. Here in our case we do find that vehicle in question is of 2004 make, when it faced the accident on 01.10.2005, it was one year not exceeding two years old. As per schedule we get 10% depreciation value is to be deducted from the sum assured. Here we do find the bill submitted is of Rs.2,71,600.00 (rupees two lacs seventy one thousand six hundred) only, but the Complainant claims that entire assured sum is to be awarded because the Opposite Party/ Insurer has been remaining silent for a period of 5 years without taking any action about her claim. Opposite Party/ Insurer has only used one word in W.V. that claim was closed, but Complainant does not admit that she has received any letter from the Opposite Party/ Insurer repudiating her claim. Opposite Party too does not claim that it has intimated the Complainant in writing that her claim is repudiated. We find on records sufficient documents filed by the Complainant, which are enough to meet discharge her claim. By taking no action on its part the Opposite Party/ Insurer caused certainly financial loss mental pain or agony for nonpayment of the amount in question. Its action with any doubt amounts to deficiency in service.


    In conclusion this Forum is of the opinion that the Complainant has been able to establish her case as such she is entitled to get an award after deducting the depreciation value at the rate of 10 percent of the assured sum. So, if we deduct the 10 percent of depreciation value, we find the amount. to which the Complainant is entitled to get is Rs.2,88,900.00 (rupees two lacs eighty eight thousand nine hundred) only in addition, the Complainant shall get Rs.10,000.00 (rupees ten thousand) only for her mental agony, harassment and anxiety and financial loss by keeping the car in the garage idly for a period of 5 years without any income from the car, which was supposed to use for commercial purpose. Apart from this, the Complainant is also entitled to get Rs.2,000.00 (rupees two thousand) only as litigation cost.

    Fees paid are correct.

    Hence, ordered,

    That the complaint is allowed on contest against the Opposite Party/ Insurer with litigation cost of Rs.2,000.00 (rupees two thousand) only.

    The Complainant do get an award of Rs.2,88,900.00 (rupees two lacs eighty eight thousand nine hundred) only. Apart from this the Complainant also do get compensation of Rs.10,000.00 (rupees ten thousand) only.

    The Opposite Party/ Insurer is directed to pay Rs.3,00,900.00 (rupees three lacs nine hundred) only to the Complainant within one month from the date of this order; in case of default the Complainant will be entitled to claim interest at the rate of 6.5 percent on the entire amount.

  15. #45
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    Default Oriental Insurance

    B.Nagabhooshanam S/o B.Shankaraiah, aged 50 years, Occ: Fancy Cloth business Shop, Proprietor M/s B.Saroja Textiles (Bombay Dyeing) situated near Police Station, Banswada. District: Nizamabad.

    Complainant


    The Manager, The Oriental Insurance Company Limited, D.No.7-10-910/2/1, 1st Floor, Godown Road, Nizamabad.

    Opposite Party


    ORDER

    1. The Complainant is running the Bombay Dyeing Fancy Cloth Shop since more than 15 years in mulgi bearing G.P.No.1-1-9/2 situated at proper Banswada in the name and style B.Saroja Textiles (Bombay Dyeing) Fancy Cloth Shop. On the intervening night of 2/3-5-2006, the fire accident occurred and the entire stocks, furniture in the shop was completely burnt. The Complainant received information through the messenger living in the vicinity of the cloth shop and then he went and reported the matter to concerned police and fire brigade.

    The complainant estimated that he sustained loss of Rs.15,00,000/- and he obtained certificates from Police and Electricity. He insured the stock and the shop with the Opposite party and the policy was in force on the date of the accident. He made necessary claim with the Opposite party but the Opposite party did not settle the claim nor paid the amount, hence, he filed this complaint claiming Rs.15,00,000/- towards damages together with interest @ 18% p.a. from the date of accident till payment and together with costs of Rs.10,000/-.


    2. The Opposite party filed counter admitting that the complainant insured the shop and stock in his shop with it and there was a fire accident. Soon after the claim is made by the complainant, a surveyor was sent and the surveyor by name Seetharamaiah contacted the complainant and surveyed and as per his report, he visited the shop on 5-5-2006 and took physical inventory of damaged stocks in presence of complainant.

    The said Surveyor also gave a requirement of documents or record to be produced by complainant on 5-5-2006. On 6-5-2006 the complainant gave a letter to the surveyor stating that books of accounts, trading accounts and IT returns were burnt in fire accident and on the same day, he agreed to take a Inventory of damaged stock in presence of surveyor. Instead, the complainant addressed a letter dated 24-1-2007 to the above surveyor requesting to settle the claim. Immediately, the surveyor addressed a letter to complainant directing him to produce required documents and if he fails to produce within 15 days, he will release the report stating that complainant is not interested in claim.

    Meanwhile, complainant sent copies of Fire Brigade report, FIR and panchanama, duly filled claim form, trading accounts and balance sheets of three years on 28-2-2007 after gap of 8 months 25 days to the surveyor. In the earlier statement given to surveyor, the complainant stated that his books of accounts were burnt in the fire accident. Subsequently complainant sent a trading account and the balance sheet which is contrary to his earlier statement. Surveyor addressed another letter to give necessary information but complainant got issued a legal notice through his counsel by sending documents.

    The Opposite party also addressed a letter to the complainant to send the original documents but the complainant submitted a letter stating that he is accepting the figure arrived by the surveyor at Rs.1,50,000/- on the basis as he is unable to produce but the complainant’s counsel issued again a notice on 3-10-2007, on 31-1-2008 opposite party addressed a letter to the complainant that it is ready to settle the claim at the earliest provided the complainant produce certain documents i.e., report from the electricity and counterfoils of challans paid to CTO and IT returns, etc. But the complainant did not furnish any proof. Therefore, the claim could not be processed and settled because of the laches on the part of the complainant himself. Therefore, prayed to dismiss the complaint.


    3. Complainant filed his chief affidavit in lieu of his evidence and got marked the documents Ex.A1 to A17. The Opposite party also got filed affidavit of its Officer and got marked Exs.B1 to B23.

    4. The following points will arise for consideration:

    1) Whether the Complainant sustained loss of Rs.15,00,000/- as prayed by him ?

    2) Whether he is entitled for any relief ?



    3) To what relief?


    5. Points 1 and 2 : The admitted facts are the shop of the complainant was insured with the opposite party for a sum of Rs.15,00,000/- including stock, furniture, etc., as seen from Ex.A1, B1 and B2. There is also no dispute that there was a fire accident in the shop and it was immediately reported to the police and other officials and also submitted the claim form by the complainant to the opposite party claiming damages of Rs.15,00,000/-. It is also admitted fact that the policy was in force on the date of fire accident. The disputed facts are according to the complainant, he was having stocks worth Rs.15,00,000/- including furniture, etc., and he insured the same, as such, he is entitled to the said amount and as the opposite party did not settle the claim, it amounts to deficiency of service and he is entitled for costs also.



    6. On the other hand, the Opposite party’s counsel contended that in spite of repeated letters addressed to the complainant by it and also its surveyor, the complainant did not furnish any proof in respect of the actual damage or loss occurred due to the fire accident and the complainant was giving evasive replies and in spite of surveyor taking inventory in the presence of the complainant, the complainant did not come forward to accept the assessed loss or to settle the claim. Therefore, they could not settle the claim only in view of the conduct of the complainant in not complying the requirements or not submitting the relevant documents to process and finalise the claim.



    7. Ex.A8 and Ex.A9 are the Photostat copies of FIR in Cr.No.57/2006 and Ex.A11 is Photostat copy of fire accident and Ex.A12 is the copy of rough sketch of scene of offence and there are other letters written to the Assistant Engineer, Operations, electricity, Banswada and final report submitted by Sub-Inspector of Police, P.S. Banswada which is marked as Ex.A15. And there are two paper clippings mentioning about the fire accident occurred in the shop of the complainant. These documents were also got filed by the Opposite party and the Opposite party also got addressed letters through its surveyor to the complainant and also the report of the surveyor.



    8. The affidavit filed by the complainant is nothing but the replica of the complaint itself. In spite of the fact that in the counter, the opposite party specifically stated that the surveyor conducted inventory in the presence of the complainant and the complainant did not produce the relevant accounts books, the complainant has not whispered about those allegations in the affidavit nor he contradicted them stating that the allegations made in the counter are false in his affidavit. Therefore, it can be safely inferred that after submitting the claim papers by the complainant, the opposite party sent its surveyor to assess the loss or damage that occurred in the fire accident.



    9. One important admission made by the complainant is he has given a letter to the opposite party is marked as Ex.B6 and Ex.B5 is the letter given to the Manager of the opposite party informing about the fire accident and also making a claim. The cause of the fire accident is also not disputed because the relevant authority mentioned that it is only short circuit.



    10. The contention of the learned counsel for the complainant is that as he has insured the stock for Rs.15,00,000/- the opposite party is liable to pay that amount as per the terms and conditions of the policy. On the other hand, the learned counsel for the Opposite party contends that though the policy is issued for Rs.15,00,000/- covering various items of stocks, furniture, etc., the company is liable to pay actual damage or loss sustained by the insured in the fire accident but not the sum assured under the policy.

    The learned counsel for the complainant did not show any authority in support of his contention that even without proving the actual damage or loss he is entitled for the sum assured under the policy. There is force in the contention of the learned counsel for the opposite party that insurance company is liable to pay only damage or loss occurred by the insured under the policy but not the total assured sum like in case of the deaths occurred in the Life insurance policy.



    11. Therefore, it is necessary for the complainant to establish what is the actual loss sustained by him furnishing the details of stock, furniture, etc. Except his self serving statement that there was a stock worth Rs.11,00,000/- and yet he has not filed any record to show what was the stock available in the shop and in fact he himself admitted that all the account books relating to previous four years were burnt in the accident itself as they were kept in the shop because there were some disputes between himself and his brothers in respect of partition of the property.

    If this forum has to accept and believe the version given by complainant in Ex.B6, then the subsequent letters addressed and sending the account statements that he is having stocks worth Rs.11,00,000/- etc., must be a created one or concocted one which was brought into existence to suit is claim. Had he actually filed the sale tax returns for the four previous years and income tax returns for previous four years, there would not have been any difficulty for the complainant to procure the copies and submit the same to the opposite party for its scrutiny.

    Admittedly, except sending the statement Ex.A6 and Ex.A7 i.e., return saral and computation of total income statement, he has not filed any record. Even in respect of Ex.A6 and Ex.A7 though they are Photostat copies, the complainant has not filed whether that return is accepted and orders were passed in respect of the income shown by him. Ex.A6 and Ex.A7 are for the financial year ending 31-03-2005. Even if this forum believes it, the stocks in the shop one only as on 31-03-2005. Admittedly the accident occurred on the intervening night of 2/3/5-2006 i.e., one year more than after this return is filed.

    The complainant has not filed any return filed by him for the financial year ending with 31-03-2006 atleast to know approximately what was the stock in the shop by 31-03-2006. Therefore, Ex.A6 and Ex.A7 do not help the contention of the complainant that he was having stock about Rs.11,00,000/- in the shop on the date of accident because it relates to the previous year i.e., year ending 31-03-2005 only. As admitted by him, all the account books were kept in the shop because of the disputes in between himself and his brothers, they were also burnt. Hence, it is on the part of the complainant to establish that what was the actual stock in the shop on the date of fire accident. Atleast, he could have procured the duplicate bills from the wholesalers or companies from whom he purchased the stock just prior to the accident or in the previous year preceding to the accident. In that case, there would have been some help for the assessor or the surveyor to assess the loss.

    Complainant himself admitted that the surveyor Seetharamaiah visited the shop and he has taken personal inventory in his presence. The most important letter given by the complainant to surveyor is Ex.B7 in which the complainant admits that the books of accounts were burnt and except inventory of stock, there is no other way to assess the damage and he has also agreed that he is ready to take the inventory of the stock in the presence of the surveyor and he will cooperate the surveyor in respect of taking inventory of the stock.

    This letter is dated 6-5-2006 and as seen from the letters addressed by the surveyor to the complainant i.e., Ex.B9 and Ex.B10, the surveyor requested the complainant to present at the time of taking inventory and also to cooperate with him and also requested to furnish certain documents. Complainant admitted receiving of these letters from the Opposite Party but the complainant has failed to prove that either he has cooperated with the surveyor in taking physical inventory or submitted the documents sought for by the surveyor. Therefore, the surveyor kept quiet and ultimately after receipt of notice from the counsel for the complainant, the surveyor submitted his report to the company.



    12. The above attitude of the complainant in not responding to the letters written by the surveyor and also having promised and agreed to cooperate with the surveyor to take physical inventory in assessing the loss and damage occurred in the shop, he failed to cooperate with him. Therefore, the surveyor has sent his report dated 25-06-2007 to the complainant and said if he agrees, the claim will be settled in the above manner. In fact a letter is given by complainant agreeing to the assessment made by the surveyor and to receive the amount of compensation as estimated by him.

    Therefore, having agreed and also when the complainant himself was present when the surveyor has took inventory and stock that was burnt and instead of providing necessary information and proof to estimate the loss or damage, the complainant kept quiet without furnishing relevant details and then got issued notice through his counsel claiming compensation of Rs.15,00,000/-.



    13. It was contended by the learned counsel for the complainant that the police and the fire officials have estimated the loss at Rs.15,00,000/- and the same can be seen from the panchanamas marked as Ex.A10. We have carefully perused panchanamas both Ex.A11 and A12 and there was a mention that the complainant told them that he sustained loss of Rs.15,00,000/- in the fire accident but the panchas have not estimated what is the exact loss that was sustained by the complainant.

    Therefore, these two documents will no way help the contention of the complainant’s counsel. The learned counsel for the complainant further contended that the neighbouring people have broke open the doors and carried away the stock even before the police and fire brigade reached the spot. Absolutely there is no evidence on this aspect.

    Neither in the panchanama nor in the final report filed by the police, this aspect was mentioned. The investigation done by the police did not reveal that the neighbouring persons broke open the doors and carried away the stock even before the police and fire brigade reached the spot. The complainant could not prove the fact that some of the stocks were committed theft after fire accident and before his arrival by the neighbouring persons. Therefore, in the absence of any proof, it is very difficult to believe that the neighbours are someone have taken away the stocks by break opening the doors of the shop. This fact was above not mentioned either in the FIR or in the final report.

    Therefore, only to gain sympathy as an after thought this allegation was made by the complainant. Therefore, it is very difficult to assess the actual loss or damage occurred to the complainant. As rightly admitted by the complainant himself, the only way left was to take physical inventory or stock and admittedly either physical inventory of the stock was done by the surveyor Seetharamaiah in the presence of the complainant and the complainant expressed his inability to submit the books of accounts because according to him, they were also burnt in the accident itself. Therefore, there was no other alternative to the surveyor to estimate the damages and submit the report and that report is marked as Ex.B13.



    14. In view of the above facts, we are of the considered opinion that as there was no tenable objections to the surveyor report, we have to accept the estimated damage as made by the surveyor himself. The learned counsel for the complainant relied on many number of decisions rendered by various State Commissions and particularly I (2008) CPJ 487 (NC) though the decision laid down in the said decision is complainant constrained to sign discharge voucher due to financial crisis – but the same will not apply to the facts of this case. What happened in that case was there was a fire accident and the insurance company obtained a letter from the complainant by coercive methods as the insured lost all his means of earnings and having no choice, he accepted for the initial amount and then approached the forum for the balance.


    The National Commission held that having obtained voucher by coercive methods from the insured, the insurance company is barred in contending that the complainant received the amount in full and final settlement of the claim. The principle is if the insurance company obtained a voucher by coercive methods stating that it obtained full and final settlement of the claim, the same is not binding on the complainant and it does not prevent the insured in moving the necessary forum or court to claim the damages. In the instant case, though the complainant was present at the time of inventory taken by the surveyor, he did not accept for the said proposal nor he gave any letter to the opposite party to the effect that he is accepting the said figure in full and final settlement of the claim.

    The other decision is 1986-2006 Consumer 11356 (NS) wherein the claim was repudiated on the ground that the surveyor was not informed when the burnt unit was opened. It was held that the repudiation of claim on such a ground is not correct. Here, the question of re-opening the shop is not there nor there is any evidence in respect of the actual loss sustained by the complainant. In the other decisions 1986-2006 Consumer 10160 (NS) the National Commission held if there is a delay in settling the claim even after the surveyor’s report, then the insurance company is liable to compensate the insured.

    In the instant case, the record itself shows that the surveyor visited the premises on 6th itself and took inventory in the presence of the complainant and he sought certain further information from the complainant to finalise the figure but it is the complainant who did not respond nor cooperated with the surveyor. Therefore, this decision also does not help the contention of the learned counsel for the complainant. There, there was a material before the surveyor and the forum in assessing the damage and loss occurred to the insured. In the instant case, absolutely there is no evidence to evaluate what is the exact loss occurred to the insured except the self-serving statement.

    Therefore, for all the above reasons, we hold that the complainant is entitled for a sum of Rs.1,10,000/- + Rs.82,500/- + Rs.1,902,500/-. The surveyor has deducted about 25% from the above amount of Rs.1,10,000/- and also profit @ 25% p.a. from the stock. It was held by National Commission that when there is total loss, deducting as a depreciation or profit is not correct. Therefore, keeping the said principle in mind, we are awarding total amount of Rs.1,10,000/- and Rs.82,500/- as actual loss sustained by the complainant. The points is answered accordingly.



    15. IN THE RESULT, the complaint is allowed partly directing the opposite party to pay Rs.1,92,500/- together with interest @ 9% per annum from the date of accident till the payment. The opposite party is also directed to pay a sum of Rs.10,000/- towards costs of this petition.

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