IN THE COURT OF THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO-27/2021
Present-Sri Dipak Kumar Mahapatra, President, Smt. Arati Das, Member (W).
Ashok Nayak. Aged about 40 years
S/o Late Surendra Kumar Nayak
R/o Amripada, Badbazar,
P.O./ PS- Khetrajpur City/Dist- Sambalpur.
Odisha-768003 .........Complainant
Versus
Sr. Divisioanl Manager,
Divisional Office Oriental Insurance Company Ltd
Sarlakani, City/Dist-Sambalpur,Odisha-768006 .......Opposite Party
Counsels:-
- For the Complainant:- Sri P.P.Panigrahi, Advocate.
- For the O.P :- Sri B.K Purohit, Advocate & Associated.
DATE OF HEARING : 16.11.2021, DATE OF ORDER : 13.12.2021
SRI DIPAK KUMAR MAHAPATRA, PRESIDENT:-Brief facts of the case is that the Complainant being a poor person and in support of his livelihood and his self employment he was having a Mahindra- Bolero Plus motor cab bearing Regd. No. OR-15M-6171. He has insured the vehicle with the O.P for a assured sum of Rs. 7 lakhs vide policy no. 345600/31/202012856. He paid premium for Rs.31,796/- with validity from 07.03.2020 to 06.03.2021. The said vehicle was completely damaged by fire (total loss) in the night falling between and 14th and 15th Nov 2020 noticed at about 2 AM when the insured vehicle was at rest at night being parked on the road side near Ramji Temple by driver. The said vehicle was engaged in duty of Covid-19 pandemic medical emergency service rendered to Odisha state government engaged through RTO Sambalpur. The 14th Nov 2020 was Diwali .The cause of the fire was unknown.The Complainant was intimated by the public. The fire call was given to the Sambalpur Fire Station for extinguishing the fire. The fact of loss by fire was intimated to the OP-insurance company who in turn engaged the Surveyor and Loss Assessor Er. MonojHota who in turn submitted his report dt. 23.11.2020 recommending therein as payable loss for Rs. 6,94,500/- treating the same to be constructive total loss since the aggregate cost of repair would be Rs. 10 lakhs which is more than the insured value of Rs. 7 lakhs. The OP denied for indemnification in the pretext that "no permit has been issued for this vehicle" and sent a repudiation letter dt. 08.03.2021. But the fact remains that permit of a vehicle is not germane when the loss of vehicle is by fire more so when the vehicle was not on its move or plying and was at rest several hours before the loss occurred by fire. The issue of permit raised by insurance company is inconsequential but also irrelevant for the purpose indemnification. Even the Surveyor and Loss Assessor of Insurance Company not found it relevant and therefore recommended for indemnification of Rs. 6,94,500/-. A protest letter was sent by the Complainant to the O.P on dt. 12.03.2021 explaining there in the facts, circumstance and reason stating therein that his vehicle has not met with any accident while plying on the road, but the same was at ablaze while at rest being parked by the side of the road. So that there is no nexus between the cause of loss and permit as the loss is due to fire which has no nexus with the repudiation ground of permit or lack of it. The denial of legitimate claim of policy holder in the pretext of permit by the insurance company is fallacious, arbitrary and non application of mind thereby deficiency in service and unfair trade practice. The conduct of the OP is in gross violation of Sec.-I, Condition-1 of the policy. The permit or lack of it has in no way contributed or in any manner responsible for the fire which is the cause of the loss of the vehicle.
It is submitted by the O.P that, the Oriental Insurance Company Limited was the insurer of one Bolero Plus MUV vehicle bearing Registration No.OD-15-M-6171 and one Passenger Carrying Commercial Vehicle Package Policy of Insurance bearing No.345600/31/2020/12856 was issued in favour of the insured Ashok Nayak to that effect covering the period of insurance from 07.03.2020 to 06.03.2021. The Insured's Declared Value (IDV) was Rs.7,00,000/-. This Policy of Insurance contained certain conditions and limitations as per the Standard Form of Contract of Insurance and are mentioned and attached to the Policy of Insurance itself and those conditions formed Contract of Insurance between the insured and the insurer. As per the "Limitations as to Use" clause of the Policy, it has been clearly mentioned that the Policy covers use only under a permit within the meaning of the Motor Vehicle Act 1988 or such a carriage falling under Sub-section 3 of Section 66 of the Motor Vehicles Act 1988. During the currency of the Policy, the insured intimated the Insurance Company on 17.11.2020 about the fire caused to the vehicle on 15.11.2020 at Ramji Temple, Sambalpur and thereafter a IRDA approved Surveyor & Loss Assessor was engaged by the Insurance Company and thereafter the vehicle was shifted to M/s.O.S.L Auto Care Pvt.Ltd. and thereafter IRDA approved final Surveyor Er. Manoj Hota was engaged to assess the loss as per the IRDA guidelines and to intimate the same to the insurer. Mean while on 20.11.2020, the insured was intimated to submit the RC copy, Fitness copy. Permit copy, Tax copy of the vehicle, so also the certified copy of the GR case record, Fire Certificate and NOC from financier. The final Surveyor also submitted his report dated 23.12.2020 to the Insurance Company assessing the loss at Rs.6,94,500/-, after deduction the wreck value (salvage) of Rs.5,000/- and Policy excess of Rs.500/-, which are all standard deductions as per the Policy, in case of total loss; and in case of repairing basis, the assessment would be Rs.6,79,500/- with the same deductions of Rs.5,500/-. The officials of the Insurance Company found that there was no Permit of the insured vehicle as on the date of accident and intimated the insured vide Registered Post with AD Letter dated 08.03.2021.The Investigator, who verified from the RTO, Sambalpur that no Permit was issued to the insured for the insured vehicle. As per the provisions of law, “whenever the vehicle is kept for use in a public place, whether actually it is being used for carrying passengers or goods, a permit is required”. Admittedly, as per the complaint petitionthe vehicle was being kept in a public place in the night of the alleged date of occurrence and it was never kept in any personal place like garage of the complainant. So, as per the provisions of law, having a permit of the vehicle is a mandatory requirement according to Motor Vehicles Act, provides as under:"66. Necessity for permits.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
- Whether the O.Ps has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has availed an Insurance policy from the O.P on payment of premium. It is seen that the Vehicle was properly insured with the O.P. The said Vehicle was Idle/static at the time when it caught fire.Here is a judgment of the Hon'ble Supreme Court which is directly on the point and settles the issue beyond dispute. In National Insurance Co. Ltd vs NitinKhandelwal, (2008 (11) SCC 256) the Apex Court held in para 11 as follows: "The instant case relates to the theft of the car. It is not a case of third party risk. In the instant case, the vehicle has not been recovered. It is also incorporated in the counter affidavit that it is not disputed that the vehicle was comprehensively insured. Since the vehicle in question had been stolen, therefore, in the case of theft of vehicle, the breach of condition is not germane."On an even larger plane, it must be recalled that the Insurance Claim arose from the ablaze of the vehicle and not from any accident or third party risk. The question therefore arises whether the breach of a policy condition such as the holding of a valid permit has any relevance to or nexus with the claim, so as to enable the Insurance Co. to repudiate it. In our view, the answer is clearly in the negative. The breach of any policy condition cannot absolve an Insurer from avoiding his liability towards the insured unless the said breach is as fundamental as is found to have contributed to the incident giving rise to the insurance claim. In this case the vehicle caught fire was solely a result of some other unforeseen or intervening cause having no nexus with the Complainant not possessing a permit for his vehicle and, therefore, the insurer will not be allowed to avoid its liability merely for technical breach of the condition concerning the necessity of a valid permit. A hyper technical plea cannot succeed in supporting repudiation when there is no real connection between the exclusion clause in an Insurance Policy that is relied upon and the actual cause of loss. There must be a logical nexus, a cause and effect, between them. In the case of United India Insurance Company Ltd. Vs. Diwan Chand, decided on 16.07.2014 (NC) wherein this Commission has allowed the claim on non-standard basis in absence of a route permit on the basis of the judgment of the Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Company Limited. Thus, it is clear that non-existence of a permit is not fundamental breach of the policy condition and the claim can be allowed on non-standard basis. Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Company Limited, (2010) 4 SCC 536 has observed that if certain conditions of the Motor Vehicles Act and consequently of the policy are violated, the claim can be settled on non-standard basis as per the following table:-
Sl No. Description Percentage of Settlement
1 Under Declaration of Deduct three years Difference in
Description under Declaration premium from the amount of claim or deduct 25% of claim amount,whichever is higher.
2. Overloading of Vehicles Pay claims not exceeding 74% of beyondLicensing admissible Claim
carrying capacity.
3. Any other breach of warranty/ Pay up to 75% of the Claim
Condition of policy including
Limitation as to use.
Hence we order as under:-
ORDER
The complaint petition is allowed. The OP is directed to consider and settle the claim of the Complainant amounting to Rs.6,95,500/- assessed by the Surveyor and Loss Assessor for indemnification with interest @ 9 % per annum from the date of filling the claim petition till its realization. The O.P is further directed to pay Rs.1,00,000/-as compensation towards metal pain, agony and harassment and Rs. 20,000/- towards the litigation costs. All the above orders are to be carried out within 30 (Thirty) days of receiving of this order, failing which, the complainant is at liberty to proceed in due process of law.
Order pronounced in the open Court today i.e, on 13thday of December 2021 under my hand and seal of this Commission.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
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MEMBER(W) PRESIDENT
Dictated and Corrected
by me.
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PRESIDENT
