OFFICE OF THE PRESIDENT DISTRICT CONSUMER DISPUTE REDRESSAL FORUM: KEONJHAR.
C.D.Case No. 45/2008
Hasina Khatun aged 45 years
W/o Mahamad Kazim
At- Azad Basti, Po- Barbil
Dist- Keonjhar ………. Complainant
VERSUS
1. Branch Manager,
Oriental Insurance Co.Ltd
Main Road Barbil
At/Po/P.S- Barbil
Dist- Keonjhar(Orissa)
2. Divisional Manager
Oriental Insurance Co.Ltd.
At/Po- Udit nagar, Rourkela
Sundargarh ………. Opp. Parties
Advocate for the Complainant- P.K.Sahoo & Associates
Advocate for the O.P.S- A.K.Pattnaik & Associates
Date of Hearing Dt-22.05.2009 Date of Order Dt.17.11.2009
AMT RASESWARI MOHANTY I/C PRESIDENT – The brief facts of the case are that
The complainant is the owner of Mahendra Marshal Vehicle bearing Regd.No.OR-09D-0261 and the vehicle was insured through Oriental Insurance Co. Ltd. At it’s Barbil Branch and the Policy bearing No. 345506/31/2005/863 was valid from 13.07.2004 to 12.07.2005 for an IDV Rs. 3, 96,530/- under Private Car Package. The vehicle was hypothecated to Allahabad Bank at Barbil Branch as the complainant incurred loan from this Bank purchase the vehicle. That unfortunately while on 11-09-2004 the son of the complainant was going from Ranchi to Barbil at Nalighana some miscreants showing gun to the son of the complainant tied him in a nearby tree and taken away the vehicle and subsequently the son of the complainant had been recovered and the police drawn F.I.R when the son of the complainant was unconscious and after investigation police submitted final form. That thereafter with all the supporting documents and papers the complainant submitted claim form to the Insurance Company who appointed one S.P. Singh as surveyor for investigation and assessment of loss who assessed the loss of Rs. 3,35,530/-. But the Insurance Co. repudiated the claim on 26.02.2006 and so the complainant approached the local official of the Insurance Company (OP1) and on their advice the complainant lodged appeal/claim before Ombudsman, Bhubaneswar, which was also rejected on 10.04.2008. Being aggrieved by the actions of the Insurance Company the complainant filed this complaint for compensation of Rs. 4,96,450/- from the Insurance Co.(OPS) As they failed to render adequate services which is an example of malafide ,unfair trade practice and by that suffers from mental agony, physical stress and financial loss.
On receipt of the notice the Ops (Oriental Insurance Co.Ltd.) filed written version. In version the Ops’ challenged the petition on the ground of maintainability and also bad for misjoiner and non-joinder of necessary parties and further lack of cause of actions against the Ops and refuted the allegations of deficiency in service causing mental agony and financial suffering and justified the repudiation of the claim of the complainant basing upon justifiable grounds. That the vehicle in question was used for hire and reward purpose which was violation of terms and condition of the policy, Then it was insured as private vehicle/ Car and the hirers were responsible for looting the vehicle on gunpoint, This fact was known from the investigation report of the surveyor deputed by the Insurance Co. and from the police report.Though the surveyor assessed the loss of Rs. 3,35,530/- the claim was repudiated on the reasons of violation of policy condition. Further the matter was appealed before the Insurance Ombudsman who rejected the claim of the complainant.So this petition not maintainable as hit by “Resjudicata” but the basic facts of case such as ownership of the vehicle and validity of Insurance Policy and accident and damage of the vehicle and loss assured by the surveyor as Rs. 3,35,350/- etc. area admitted by the Ops.
Heard the learned counsel of the respective parties, perused the documents filed on behalf and the materials available on records.
The points for consideration are (1) whether the petition is maintainable. (2) whether the petition suffers from lack of cause of action and misjoinder and non-joinder of necessary parties. (3) Whether the petition is hit by Rejudicata. (4) Whether the Ops are deficiency in service and (5) If, so whether the complainant is entitled for compensation and to what extent.
On the above facts and circumstances, the admitted facts are that the complainant was the owner of vehicle OR-09D-0261 and the vehicle was insured with the Insurance Co. of the Ops and during the period of validity, the vehicle was stolen and thereafter the concerned Police and Insurance Co. were informed. The matter was investigated by both and submitted reports.Surveyor assessed the loss to be of Rs. 3,35,530/- and then the complainant submitted claim form with supporting documents to the Insurance Co., the claim was rejected by the Insurance Co. of the Ops and also Insurance Ombudsman on the reasons of violation of policy condition.
The learned counsel for the complainant relied on the decision reported in (2008) 40 OCR (SC) 642 (National Insurance Co. Vrs. Nitin Khandelwal) and that facts and circumstances of the decision is almost similar to the fact and circumstances of the present case and the Hon’ble Apex Court in the decision held that “ In case of theft of vehicle, nature of use of the vehicle can’t be looked into and the Insurance Co. can’t repudiate the claim on that basis” and further it was held that “claim ought to be settled on non-standard basis and thus entitled for 75% of the sum assured. We find no reason to differ with the view taken by the Hon’ble Apex Court. In view of the above decision the point of maintainability of the petition/complaint and the cause of action against the Insurance Co. are answered in favour of the complainant as the petition filed on 15.07.2008 within time. i.e within the same year of the rejection of appeal to the Insurance Ombudsman on dt. 10.04.2008. So we hold that the complaint petition is maintainable and there is cause of action against the Ops( Insurance Company). Though the Ops, averred in written version that the petition is bad for misjoinder and non-joinder of parties that did not explain who are the parties to be joined or unnecessarily misjoined, hence it was not required to be considered.
Further about the petition as hit by “Resjudicata” as the matter was finally decided by the Insurance ombudsman by the Ops. In this regards the complainant relied on a decision (Kamaleshwari Prasad Singh – V- National Insurance Co.Ltd) reported in 2005 CTJ (NCDRC) at page 747 in which it is held that “Role of Ombudsman is to investigate individual’s complaints against the mal-administration especially that of public Authorities. He does not discharge any judicial or quasi-judicial, function. Complainant may not accept his decision. He can take the rejection of his claim by the Insurer before a consumer forum, if he so like.” In view of the decision and agreed with the views taken we are of the opinion that the complaint is maintainable even if the claim decided by the ombudsman as the complainant is not satisfy with the decision and prayed for adjudication in the forum and as such not hit by “Resjudicata”.
On the above facts and circumstances the complaint is maintainable and repudiation of the claim of the complainant is unfair trade practice and deficiency in service by the ops (Insurance Co.) and the complainant is entitled for compensation from the Ops who are liable for the same to the complainant.
Though the complainant has claimed a sum of Rs. 4,96,430/- with onterest @ 12% per annum but there is no materials on records nor the complainant adduced any evidence to assess the exact quantum for compensation for mental agony and financial loss and other inconvenience caused but other facts and circumstances suggest that the complainant obviously have suffered from inconvenience and financial loss.
On the above, we are not inclined to accept the amount of compensation prayed by the complainant but we are of the opinion that the complainant is only entitled to get the 75% of Rs. 3,36,350/- i.e. amount insured by the Insurance Co. which come to Rs. 2,52,260=50 p. and a consolidated sum of Rs. 20,000/- on other counts for mental agony, financial loss and costs of litigation as obviously the repudiation of the claim would have caused inconvenience and financial loss to the complainant and in total the OP- Insurance Co. has to pay a sum of Rs. 2,72,262=50 p to the complainant.
Hence it is ordered and the OP – Insurance Co. is directed to pay a sum of Rs.2,72,262=50p to the complainant within one month of receipt of the order failing the entire amount will carry interest @ 8% per annum till final payment.
Accordingly the case is disposal off.
Order pronounced in the open court today i.e. on 17th day of Nov’ 2009 under my hand and seal of this forum.
I agree
Member I/C President
DCDRF, Keonjhar DCDRF, Keonjhar
Dictated and Corrected
By me
I/C President, DCDRF
Keonjhar
Tags: Oriental Insurance Co.