1. This dispute arises out of the complaint filed by the complainant alleging deficiency in service against the O.Ps.
2. The back ground facts disclosed in the complaint are to the effect that the Complainant is that she is the registered owner of an Indigo Car bearing Regn.No.OR-01-T-8555 which was purchased under financial assistance of Mahindra & Mahindra Finance Ltd.. However, the Complainant has already cleared up the total dues of the Financier Mahindra & Mahindra Finance Ltd. The said vehicle of the Complainant was insured with O.P.No.1 vide Policy No.VPC0497229000100 valid from 23.11.2012 to 22.11.2013. Unfortunately, on 11.06.2013 at about 2.00 AM to 2.30 AM while the said car was returning from Sambalpur towards Jaleswar on the way near Rantalal under Anugul P.S. met with an accident and dashed with a tree causing damage to the car. Thereafter, the fact of accident was intimated to the representative of O.P.No.1 at Balasore namely Mr. Monoj Senapati, who advised to make S.D. Entry before the local Police and to shift the car to workshop at Balasore. Accordingly,  the Police of Anugul P.S. made S.D. Entry No.418 dt.13.06.2013 and after verification of spot, Police of Anugul PS allowed to shift the damaged car to Company’s show room namely Shree Bharat Motors at Balasore for repairing.  But Shree Bharat Motors, Balasore advised to shift the car either to Cuttack or Bhubaneswar as it would be convenient on the part of O.P.No.1 for inspection of damage and assessment of loss.After consultation with Mr. Monoj Senapati, the care was again shifted to ACE Autocar Pvt. Ltd., Cuttack(O.P.No.2) on 14.06.2013. On 18.06.2013 over telephone it was intimated by the Company Official that Mr.Tapan Sundar Mohanty will visit ACE Autocar Pvt. Ltd., Cuttack for assessment of loss. On 19.06.2013 the representative of the Complainant handed over all the required documents including estimate copy and release order of the vehicle by Anugul PS to the Surveyor. O.P.No.2 prepared estimate of Rs.4,16,005/- on 17.06.2013 vide Estimate No.54/13-14 for repairing the damaged car and it was submitted to the Surveyor in original. The Surveyor also instructed the O.P.No.2 start repairing only after hearing from him. Thereafter, no information was received wither from the Company or from the said Surveyor regarding process of the assessment of loss as well as the repairing. On 15.07.2013 the Complainant contacted the authorized officials of O.P.No.1 at Bhubaneswar Office namely Mr.Binit Pattnaik and Mr.Kishore Kumar, who also assured to expedite the matter for an early settlement of the claim. On 19.07.2013 intimation was received the Surveyor Mr.Tapan Sundar Mohanty for compliance of certain documents to process the claim and the same was duly complied by the Complainant. Thereafter, during discussion at Bhubaneswar Office of O.P.No.1 on 26.07.2013 with Mr.Kishore Kumar, it was agreed by him for settlement of the claim on full damage basis. Unfortunately, no communication was received in this regard from the competent authority of O.P.No.1. All of a sudden on 26.08.2013 a letter was received from O.P.No.1, wherein Mr.Debajit Chakrabarty was appointed as Investigator in the matter. As the said Investigator delayed the matter, he was contacted over phone and ultimately Mr.Debajit Chakrabarty came to Jaleswar and recorded the statements and all required document from the Complainant. As no development in the matter took place in giving instruction to O.P.N o.2 for repairing the damaged vehicle by the Surveyor, the Complainant lodged complaint to the Customer Care Service of O.P.No.1, who on reply assured that the claim will be settled within 8 days and subsequently a letter dt.19.10.2013 was received from Mr.Debajit Chakrabarty as final and last reminder. In the meanwhile O.P.No.2 issued a notice dt.28.10.2013 demanding parking charges @ Rs.250/- per day due to delay in repairing job in absence of any instruction from the Surveyor. After several requests and approach on 09.11.2013 Mr.Debajit Chakrabarty again visited the concerned Police Station and assured the Complainant for early settlement of the claim. Subsequently, a letter dt.22.11.2013 was received by the Complainant from O.P.No.1 wherein it was advised to contact Mr.R.Ramesh for necessary clarification in the matter. Complainant contacted Mr.R.Ramesh at Bhubaneswar on 11.12.2013 who advised to give a representation in the matter once again in detail which the Complainant made on 26.12.2013. But the O.P.No.1 very cunningly written a letter dt.03.01.2014 denying liability on the ground of misrepresentation of the facts with regard to the spot of accident which according to Complainant is quite illegal and unjustified and the same amounts to gross deficiency in service on the part of O.P.No.1. Hence, the Complainant  filed this case on 11.02.2014 praying for a direction to O.P.No.1 to make payment of  Rs.4,16,005/- with interest @ 12% per annum till payment  as per estimated  submitted by O.P.No.2 along with payment of compensation of Rs.50,000/- towards mental agony and  harassment suffered by her besides Rs.5,000/- toward litigation cost. The Complainant has also prayed for a direction to O.P.No.2 not to demand parking charges as per notice dt.28.10.2013 for delay in repairing the car and if chargeable by the O.P.No.2, the same should be borne by O.P.No.1.
3. O.P.No.1 in their written version  challenged the maintainability of the present complaint on the ground that the Complainant is not a consumer within the meaning of the C.P.Act  as he was running a commercial fleet business  and  that the case is barred by jurisdiction. They also denied payment of consequential losses suffered by the Complainant due to non-availability of the vehicle for business purpose. According to O.P.No.1 Motor Insurance Policy bearing No.VPC0497229000100 was issued against the vehicle of the Complainant bearing Regn.No.OR01T8555 commencing for the period from 23.11.2012 to 22.11.2013 for an insured sum of Rs.4,50,000/- on payment of Rs.10,501/- towards insurance premium. Complainant made a claim on 11.05.2013 that her vehicle met with an accident near Rantalei around 12.00 AM as the vehcle was steered on left side for saving an animal which had suddenly appeared before the vehicle as a result the vehicle lost control and hit a road side tree. IRDA licensed Surveyor Mr.Tapan Sundar Mohanty was appointed to investigate into the claim and ascertain the damages. The said Surveyor stated that the net liability for repairing the damages sustained by the vehicle  of the Complainant would be Rs.2,25,000/-.  The Police report stated that the vehicle actually met with accident on 10/11.06.2013 around 2.00 AM while the vehicle was returning from Sambalpur towards Jaleswar. In view of contradictory statement given by the Complainant, the O.P.No.1 opted for getting the matter investigated through an independent investigator Mr.Debajit Chakraborty. However, the Complainant neither co-operated nor produced the documents required by the   investigator. The independent investigator made an on-hand investigation into the alleged accident and the investigation made by the independent investigator Mr.Debajit Chakraborty proved that complaint was not genuine as the Complainant miserably failed to prove the correct details on the accident date and place. It was alleged that the vehicle met with an accident while returning towards Balasore near Rantalei on NH-55 road under jurisdiction of Anugul Police Station, however, the people residing near by the alleged accident spot denied that any accident happened at that spot and the same also proved that the accident did not occur at the place as alleged by the Complainant. Further, the Police report states that the vehicle actually met with accident on 10/11.06.2013 around 2.00 AM while the vehicle was returning from Sambalpur towards Jaleswar which was contrary to the statement given by the Complainant in the Claim Form that the vehicle met with accident on 11.05.2013.  So there was grave inconsistency on the facts related to the accident place and timing. As such, the claim of the Complainant was repudiated on 29.11.2013 and communicated to Complainant by Regd.Post. As there is no negligence in service by O.P.No.1, the case deserves to be dismissed.
4. The O.P.No.2 in their written version submitted that one pre-estimated copy of Rs.4,16,005/- dt.17.06.2013  was handed over to the Complainant. Further, on 28.10.2013 one notice was issued to the Complainant claiming the parking charges @ Rs.250/- per day for her damaged car which is lying in their garage since last six month. Hence, the O.P.No.2 is legally entitled for parking charges of the damaged vehicle. As there is no fault, latches and negligence in service on the part of O.P.No.2, they may be deleted from the case.
5. We have heard the Ld.Counsel appearing on both sides and perused the documents available on record.
6. While going through the record, it is found that the insured vehicle while returning from Sambalpur towards Jaleswar met accident near Rantalai under Anugul P.S. in the night in between 2.00 AM to 2.30 AM on 11.06.2013. The fact of accident was intimated to the O.P.No.1-Insurance Company and SDE was made in Anugul Police Station. Police after verification of the spot issued release order and the vehicle was shifted to garage for repairing. Claim Form was filed before the O.P.No.1 on 19.06.2013.  Mr.T.S.Mohanty was appointed by O.P.No.1 to investigate  into the claim and to ascertain the damages who stated that net liability for repairing the damaged vehicle would be Rs.2,25,000/-. As the Police report stated that accident took place on 10/11/06.2013 around 2.00 AM  and  the Complainant in the  Claim Form stated that the vehicle met with accident on 11.05.2013, investigator Mr.Debajit Chakraborty was deputed by O.P.No.1 to investigate into the matter. On the basis of report of the investigator dt. Nil , received by O.P.No.1 on  07.11.2913, the claim of the Complainant was repudiated  on 29.11.2013 on the ground of misrepresentation of facts as regards to spot of accident.
7. Before adverting to the merits of the case it is to be decided whether this Forum has jurisdiction to entertain the present complaint and the Complainant is a consumer within the meaning of the C.P.Act. On perusal of cover note  No.CNL 3835671 issued by O.P.No.1 Company and filed by Complainant goes to show that the same was issued on  21.11.2012 by Balasore Branch vide Agent Code No.BA261000 covering the risk from 23.11.2013 to 22.11.2013 on receipt of Rs.10,890/- from the Complainant. Admittedly, the Registered Office of the O.P.No.1 is at Chennai and the O.P.No.1 carries on business at Balasore as is revealed from the Xerox copy of   Motor Vehicle cover note filed by the Complainant. Section -11(2)of the C.P.Act provides that ;

11(2) (b)     any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

1.      the cause of action, wholly or in part, arises. 

As stated above, the O.P.No.1 carries on business at Balasore and transaction was made at Balasore which cannot be denied at all. Accordingly, the present complaint is maintainable before this Forum and the cause of action has arisen partly at Balasore within the territorial jurisdiction of this Forum.

                        As regards  allegation of O.P.No.1 that the Complainant is running commercial fleet business for commercial purpose with profit as motive and while doing so one of his vehicles No.OR01T8555 met with an accident and that the transaction with profit motive does not come with definition of “service” as defined under the Consumer Protection Act. In this connection, we rely on a decision of the Hon’ble National Commission   reported in 2013(1)CPR 221(NC)  in the case of  M/s. R.R.International Vs. M/s.New India Assurance Co. wherein it has been held that;

A person who takes insurance policy is to cover envisaged risk and does not take policy for commercial purpose. Policy is only for indemnification for actual loss. It is not intended to generate profit..Availing service of insurance company does not amount  to taking services for commercial purposes. Complainant is a consumer.

Even if assuming for the sake of argument that the Complainant is running a fleet business with profit motive he is a consumer within meaning of the C.P.Act in the light of the aforesaid decision of the Hon’ble National Commission and the O.P.No.1 has nothing to say unless it is proved that vehicle bearing No.OR01T8555 insured as private Car pa

8.         Now coming to the merits of the case it is found that the O.P.No.1 repudiated the claim of Complainant on 29.11.2013 solely on the ground of misrepresentation of facts as to actual date and place of accident basing on the reports dt.nil (received by O.P.No.1 on 07 November,2013) and  letter No.035 dt.19.11.2013 of Mr.Debajit Chakraborty, Investigator. It is undoubtedly true that on receipt of intimation on 19.06.2013 about accident of the Complainant’s vehicle from Bhubaneswar Office of O.P.No.1, Mr.T.S.Mohanty, Surveyor   investigated into the claim to ascertain the damages. The said Surveyor in his Survey Report No.153 dt.15.07.2013 stated that the net liability for repairing the damaged vehicle would be Rs.2,25,000/-(approximate) which was inspected in the  authorized workshop of O.P.No.2 at Cuttack. The Surveyor in his preliminary report has also stated that during discussion, the insured is interested to settle the claim on total loss basis. It is also found from the Remarks column of the Assessment Sheet of the Surveyor that  he has not received any reply from the insurer side on his assessment for approval as a result of which the vehicle has not been dismantled and lying at the said workshop. After dismantle of the subject vehicle, the assessed loss may go higher. As it appears, the O.P.No.1 before receipt of preliminary assessment report from the engaged Surveyor Mr.T.S.Mohanty dt.15.07.2013, side by side appointed investigator Mr.Debajit Chakraborty on 12.08.2013 for the purpose best known to them as a result of which the vehicle could not be dismantled in the workshop of O.P.No.1. It is no doubt true that one takes insurance policy to cover envisaged risk only for indemnification of actual loss and not to generate profit. Prime focus of Surveyor or Investigator is to look after economic interest of Company, rather than to make their report on reality of situation. This has been done in this case by the O.P.No.1 basing on the report of the investigator to repudiate the genuine claim of the Complainant. On perusal of Xerox copy of Motor Insurance-Claim Form (Ext.-3) filed by the O.P.No.1, it is found that at Sl.No.4(a) the Complainant has mentioned date and time of accident  as “11.06.2013 at 2 AM(Night)near Rantlei,Anugul (07 km towards Sambalpur)” whereas in  2^nd page of the said Claim Form at Sl.No.9(a) she has stated date and time of theft as  “11.05.13 at Night, Rantlei, Anugul,Odisha”. It is no doubt true that the Claim Form was filed by the Complainant before the O.P.No.1-Insurance Company on 19.06.2013 and prior to this intimation about accident of the vehicle was given to the representative of O.P.No.1 namely Maroj Senapati who advised to make Station Diary Entry before the local Police. Accordingly, SDE No.418 dt.13.06.2013 was made by S.I. of Police, Anugul PS that in the night of 10/11.06.13 at about 2.00 AM while the vehicle was returning from Sambalpur towards Jaleswar, on the way on NH-55 at Rantalei under Anugual PS jurisdiction, suddenly one dog came in front of his vehicle. To save the life of the dog, the driver applied break, but unfortunately due to sudden break application his vehicle dashed with a tree for which engine, radiator, body, mirror, front wheel, left side door, front show and other parts of the car was damaged. After verification of spot, the Police of Anugul PS released the vehicle which was first shifted to Shree Bharat Motors, Balasore and subsequently to the showroom of O.P.No.2 on 14.06.2013 on the advice of Monoj Senapati. Under such circumstances, suspicion would not have arisen in the mind of O.P.1-Insurance Company that the Complainant has misrepresented the fact as regards to date and spot of accident. To err is human being. In the first page of the Claim Form the Complainant has stated date of accident as 11.06.2013 and in the 2^nd page of the said Form she has stated it as 11.05.2013. Police report reveals that the accident took place on 10/11.06.2013 at about 2.00 AM which the Complainant has stated in the first page of Claim Form as 11.06.2013 and may be by mistake mentioned 11.05.2013 in the 2^nd page. This does not mean that the accident took place one month before the actual date of accident otherwise.  Further, the Investigator in his report dt.nil (received by O.P.No.1 on 07.11.2013) in his concluding paragraph has stated that the I.C of Anugul  directly denied showing any Station Diary in this regard and told that the issued letter is apparently doubtful but he will not make it in writing. If the SDE No.418 dt.13.06.13 was not issued by Anugul P.S to the Complainant what prevented the Investigator to get the certified copy of the SDE No.418 from the concerned Police Station to prove that it relates to case other than Complainant.  Apart from the above, it is found from the letter dt.19.11.2013 of the Investigator addressed to O.P.No.1-Insurance Company that over telephone he has asked the I.O. Mrs.S.Jena to confirm the genuinity of the issued certificate and accordingly made RTI against the said SDE number verification. As it appears the O.P.No.1 without receipt of certified copy of SDE No.418 under RTI repudiated the claim of the Complainant on 29.11.2013. In the meantime more than one year has been passed since the letter dt.19.11.2013 but the O.P.No.1 has not been able to prove that the SDE No.418 dt.13.06.13 is false to disallow the claim of the Complainant. So when the certificate issued by the Public Servant in due discharge of her official duty has not been proved to be a false one, repudiation of genuine claim of the Complainant on the investigation report of investigator  without proper application of mind amounts to deficiency in service and negligence in duty on the part of O.P.No.1.

9.                     The next question that needs for consideration is what should be compensation amount for such deliberate deficiency in service and negligence in duty on the part of O.P.No.1? Admittedly, the damaged vehicle of the Complainant could not be dismantled due to non-approval of the assessment made by the Surveyor Er.T.S.Mohanty by O.P.No.1 which is apparently clear from the remarks of his assessment sheet. The vehicle of the Complainant is lying in the workshop of O.P.No.1 since 14.06.2013 i.e. more than 1 ½ years without dismantled. For such lapses on the part of O.P.No.1 the Complainant is entitled to get compensation on the ground of consequential loss as she was deprived of the use of the vehicle for such a long period. In this connection, we rely on a decision of the Hon’ble National Commission 2013(2) CPR-482(NC)- Murari Lal Agrawal Vs. The Divisional Manager of New India Assurance Company Limited and Anr. wherein it has been  held that;

 Delay in settlement of insurance claim amounts to deficiency in service. In that case  Petitioner suffered irreparable loss for number of years as he was deprived of the use of the vehicle - The mere fact that stolen vehicle has been recovered will not mean that, respondents can escape from its liability for the period for which the petitioner was deprived of the use of his insured vehicle. Thus, it manifestly clear that the loss suffered by the petitioner due to non-availability of the vehicle for use, was in the nature of a direct consequential loss resulting from the theft of the vehicle. Thus, deficiency on the part of the respondents is writ large.

Further, the said Surveyor has stated that the repair cost of the vehicle would be Rs.2,25,000/- and after dismantling the same may increase. The O.P.No.2 has also claimed Rs.250/- per day towards parking fees. Under such circumstances, it would meet ends of justice if the O.P.No.1 be directed to settle the claim of the Complainant on total loss basis. As such, the O.P.No.1 is liable to pay certain amount towards the parking fees to O.P.No.2. Accordingly, it is ordered:

                                                       O R D E R

                        The complaint be and the same is allowed on contest against the O.P.No.1 and dismissed against the O.P.No.2. The O.P.No.1 is directed to pay Rs.4,50,000/- to the Complainant with interest @ 9% per annum from the date of accident of the vehicle i.e. from11.06.2013  within 30 days of receipt of this order along with litigation cost of Rs.2,000/-. Further, the O.P.No.1 is directed to pay a consolidated amount of Rs.5,000/- to O.P.No.2 towards parking fee of the Complainant’s vehicle which we think it would be just and proper in this case.   

                        This order is pronounced in the open Forum on this day, the 12^th of December,2014 under my hand and seal of the Forum.