Orissa

Cuttak

CC/25/2021

Satyajit Sahoo - Complainant(s)

Versus

Managing Director,ICICI Lombard General Insurance Company Ltd - Opp.Party(s)

N C Mohanty

01 Aug 2022

ORDER

IN THE COURT OF THE DIST. COINSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                C.C.No.25/2021

                        Satyajit Sahoo,

S/O:Sri Bhabagrahi Sahoo,

Resident of Plot No.743/5F,

Block-1,Sector-9,CDA,Cuttack-753014.                                    ... Complainant.

 

                                    Vrs.

1.       ICICI Lombard General Insurance Company Ltd.,

Regd. Office at ICICI Lombard House,414,Veer Savarkar Marg,

Near Siddhi Vinayak Temple,Pravhadevi,

                   Mumbai

Represented by its Managing Director.

 

 

2.      ICICI Lombard General Insurance Company Ltd.,

Branch office at Plot No.29,Third Floor,

Anuj Building,Satya Nagar,

Bhubaneswar,Dist-Khurda-751007

                  Represented by its Branch Manager.... Opp. Parties.

 

.

Present:           Sri Debasish Nayak,President.

                        Sri Sibananda Mohanty,Member.

 

Date of filing:   09.02.2021

Date of Order:  01.08.2022

 

For the complainant:          Mr. N.C.Mohanty,Adv. & Associates.

For the O.Ps.               :      Mr. R.Pati,Adv. & Associates.     

 

Sri Sibananda Mohanty,Member.                          

            Case of the complainant in short is that he is the registered owner of a vehicle namely Maruti Dezire LDI car bearing Regd. No.OD-05AE-1814 having valid insurance policy no.3001/MI/08257582 for the period from 15.11.19 to 14.11.20 issued by the O.Ps.  The name of the driver of the car was Suryasekhar Behera who had valid D.L. No.OD-05-20130310369 issued by R.T.O,Cuttack.  While the said driver was driving the car, due to slip of the wheels, the car capsized down from the Ring road at Masani Gada,Bidanasi and thereby there was a substantial damage to the vehicle.  After the accident, the petitioner reported the matter to the Bidanasi P.S vide Station Diary Entry no.011 dt.27.10.20.  After the accident the police personnel enquired into the matter. The vehicle was taken to the authorised Maruti dealer i.e. M/s. Sky Automobiles for repair. The complainant was told there that repair cost of the vehicle would be more than Rs.1,00,000/-.  The complainant made a claim before the O.P No.2 alongwith all relevant documents but the O.Ps had rejected his claim on 22.1.21 on the ground of misrepresentation of facts and that the driver details were misrepresented.  As the O.Ps did not settle the claim of the complainant, the vehicle is still lying in the workshop of the M/s. Sky Automobiles.  The complainant has thus, filed the present case for deficiency in service on the part of O.Ps claiming cost of repair of the vehicle along with compensation to the tune of Rs.2,00,000/- towards his mental agony  and a sum of  Rs.20,000/- towards his litigation expenses.

            The complainant in order to prove his case has filed xerox copy of certain documents.

2.         The O.Ps appeared and had filed their written version jointly. It is stated by them that the complaint petition is liable to be dismissed for non-joinder of necessary party in view of the fact that the vehicle was under hypothecation with ICICI Bank,Bhubaneswar Branch and  ICICI Bank has not been impleaded as a party in this case. As per the agreement for insurance policy,   if any claim is raised during subsistence of the insurance policy, the same shall be paid to the financier.  Hence, the bank is a necessary party in the present case but the complainant has not impleaded the said bank as a party.  The O.Ps admit to have issued a valid insurance policy which was valid from 15.11.19 to 14.11.20.  The complainant had given claim intimation on 29.10.20.  On receipt of information as regards to the accident, the O.Ps had deputed a surveyor-cum-loss assessor namely, Er. Sri Dharanidhar Das in order to examine the vehicle and to submit his report.  It is stated by the O.Ps that the surveyor after careful observation of all damages and repair done over the vehicle had submitted his final report on 18.1.20 with an assessment of Rs.88,364/-. But no such assessment is available in the surveyor’s report filed before this Commission.  The said surveyor while submitting the survey report had also opined for repudiation of the claim on the ground of misrepresentation of name of the driver to get the claim amount.  It is also stated that the O.Ps had engaged another Investigator, Mr. Mihir Kumar Bisoi for investigation to ascertain the genuineness of the claim. The said investigator after due investigation had submitted report on 9.11.20 to the O.Ps wherein he has mentioned that the vehicle was being driven by the complainant but not the driver, Surya Sekhar Behera.  Thus, the averment of O.Ps in this context is contrary to report of Investigator.  The O.Ps have mentioned that the vehicle was being driven by the complainant who had no driving license but he had taken plea that another person (driver Surya Sekhar Behera) was driving the vehicle.  The O.Ps after careful observation of all the materials available before them, had repudiated the claim of the complainant vide their letter dt.22.1.21 on the ground of misrepresentation of facts that driver details were misrepresented at the time of intimation and submission of the claim form.  It is further mentioned by the O.Ps that the complainant in connivance with the police had prepared enquiry report.  Hence it is prayed for dismissal of the complaint case. 

The O.Ps have filed xerox copies of some documents to support their case.  The O.Ps have also filed evidence affidavit of the Investigator.

3.         Keeping in mind the averments as made in the complaint petition as well as in the written version, this Commission feels it proper to settle the following issues in order to arrive at a proper conclusion in the case.

            i.          Whether the case of the complainant is maintainable?

            ii.         Whether the complainant has cause of action to file this case?

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

            iv.        Whether the complainant is entitled to the reliefs as claimed?

Issue no.(iii)

            It is an admitted fact that at the time of accident of the vehicle, the complainant had a valid insurance policy.  In support of his case, the complainant has filed xerox copy of the enquiry report wherein the IIC,Bidanasi P.S,Cuttack had given a report to the effect that at the material time of accident, the driver, Suryasekhar Behera was driving the said vehicle of the complainant.  The said report reveals that as per the direction of the IIC,Bidanasi P.S,Cuttack Sri D.K.Dalai alongwith other police staffs had reached at the spot, they had  physically  verified the accident spot, the vehicle and the driver.  The said report further reveals that the vehicle was driven by Suryasekhar Behera who was going to Kali temple and on the way he met with the accident.  The said driver namely, Suryasekhar Behera had a valid driving license issued by the RTO,Cuttack.    The O.Ps have repudiated the claim on the basis of the surveyor’s report and also basing on the report of the Investigator who were appointed by them.  But they have neither served the copy of surveyor’s report nor the report of Investigator to the complainant.  The O.Ps have filed their written version without swearing the affidavit.   The O.Ps have taken stand in their written version that there is discrepancy in station diary as regards to the name of the driver. Be that as it may, the IIC,Bidanasi P.S,Cuttack enquired the matter in details and had given a report to the effect that at the material point of time, the vehicle in question was being driven by the driver Suryasekhar Behera.   The report of IIC,Bidanasi P.S:Cuttack is a valuable piece of evidence.  This report cannot be disbelieved; which has been prepared by the said IIC in due course of his investigation.  The O.Ps initially appointed a Surveyor and Loss Assessor namely Er. Sri Dharanidhar Das.  The said Surveyor had submitted his report after assessing the loss which, according to him was amounting to Rs.1,62,802.50/-.  But strangely, it is noticed that the said Surveyor had given report on 18.1.20, whereas the accident took place on 25.10.2020.  However, the O.Ps had again engaged another Mr. Mihir Kumar Bisoi to investigate into the matter.  The said investigator has also stated that he had obtained information from the Bidanasi P.S to the effect that in the Station Diary Entry, the complainant’s name was there in the column of driver.   The said investigator submitted his report to the effect that at the material point of time, the driver Suryasekhar Behera was not driving the vehicle in qustion but the owner Mr. Satyajit Sahoo was driving it.  The O.P in their version at Para-11 have mentioned that as per the report of the Investigator, the driver, Surya Sekhar Behera was driving the car.  Hence, there is doubt about genuineness of the report of the said Investigator as filed by the O.Ps which is Annexure-D.  Be that as it may, the report of the IIC,Bidanasi P.S being an important piece of evidence as held earlier cannot be cast aside.  Hence, the allegation of the O.Ps to the effect that the complainant was driving the car at the material point of time is not sustainable.  Thus, the O.Ps have committed deficiency in their service by repudiating the claim of the complainant on the ground of misrepresentation by the complainant.  This issue is answered against the O.Ps of the case.

 

 

Issues No.(i) & (ii)

            The complainant had a valid insurance policy.  The O.Ps had not settled the claim. In view of the discussions made above, the complainant has a definite cause of action to file this case when his claim was not settled and the case is maintainable.  These two issues are thus answered in favour of the complainant.

Issue No.(iv).

            The O.Ps had appointed Surveyor namely Er. Dharanidhar Das who had given his report where total insurance liability was shown as Rs.1,62,802/-.  The complainant has filed invoice of “Sky Automobiles”, which reveals that  total expenditure of repairing the vehicle is Rs.1,33,478/-.  The O.Ps are to indemnify the loss i.e., repairing cost of Rs.1,33,478/- to the complainant.  Hence it is so ordered;

                                                            ORDER

            The case is allowed on contest against the O.Ps.  The O.Ps who are jointly and severally liable in this case are directed to pay to the complainant a sum of  Rs.1,33,478/- with interest @  9%  per annum from the date of filing of this case i.e., 9.2.2021 till the payment is made.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 1^st day of August,2022 under the seal and signature of this Commission.                                                                                                                                                   

                                                                                                Sri Sibananda Mohanty

                                                                                                           Member.

                                                                       

                                                                                                

 

               Sri Debasish Nayak

                                                                                                             President