State Consumer Disputes Redressal Commission
The Senior Branch Manager vs Manoj Kumar Satapathy on 20 February, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK C.D. APPEAL NO.05 OF 2004 From an order dated 28.11.2003 passed by the District Consumer Disputes Redressal Forum, Kendrapara in C.D. Case No.142 of 2002 The Senior Branch Manager, National Insurance Company Ltd., 96-A, Cuttack Road, Bhubaneswar-6, Dist- Khurda. Appellant. -Versus- Manoj Kumar Satapathy, S/o. Nityananda Satapathy, Village- Mahipal, P.O/Dist- Kendrapara. Respondent. For the Appellant : M/s. B.N. Udgata & Assoc. For the Respondent : M/s. Y. Mohanty & Assoc. PRESENT : THE HONBLE SMT. BASANTI DEVI, MEMBER A N D SHRI SUBASH MAHTAB, PRESIDENT IN-CHARGE. O R D E R
DATE: -
20TH FEBRUARY, 2008 This appeal has been directed against the orders dated 28.11.2003 of the District Forum, Kendrapara in C.D. Case no.142 of 2002 directing opposite party / appellant to pay to the complainant / respondent rupees 62,000/- as claim amount within one month of communication of the order, failing which said amount would carry 9% interest per annum.
2. We have heard the learned counsels appearing from both sides and perused their pleadings and xerox copies of letters filed by both side as well as surveyors report and other documents available in the record.
3. It has been contended on behalf of the appellant that the C.D. case is not maintainable at all as the District Forum, Kendrapara has no territorial jurisdiction to entertain the C.D. case and the C.D. case has been filed after the prescribed period of limitation viz. within twelve months from the disclaim of liability by the appellants in view of insurance policy condition No.7. It has also been contended on behalf of the appellant that when complainant had prayed to direct Insurance Company to settle the claim and there is assessment of loss of rupees 22,113.27 paise by the surveyor who is a qualified person to assess the loss, the District Forum has arbitrarily awarded an imaginary amount of rupees 62,000/- as claim.
4. The facts of the case out of which this appeal arises in brief is that alleging deficiency in service in withholding settlement of claim against the Senior Branch Manager, National Insurance Company Limited, Bhubaneswar Branch Office, 96A, Cuttack road, filed the C.D. case to direct appellant to settle claim at rupees 50,000/- and to pay interest and to pay him compensation of rupees 50,000/- towards mental agony, loss of profession and litigation expenses. Undisputedly, complainant insured his ambassador car bearing registration No.OR-04-5099 with National Insurance Company Limited, in short, NIC (opposite party) for rupees 2,25,000/- for the period from 07.08.1992 to 06.08.1993 midnight bearing policy No.153205/6300940/92-93. During the validity of policy, said car met with an accident on N.H. No.42 at Charbatia under Rairakhol police station on 25.05.1993.
Rairakhol P.S. Case No.33 dated 26.05.1993 was registered. Police seized said vehicle and released the same on zima of the complainant.
Complainant also removed the car from the spot. According to the complainant, he removed the car to a shop of mechanic for repair of the damaged car and to avoid further loss apprehending theft of machines etc. from the car. Complainant lodged accident claim before the opposite party / appellant and opposite party / appellant had deputed a surveyor Sri S.S. Rout who had assessed loss / damage of 32 items and incidental expenses. Complainant had provided documents and necessary information required by opposite party. Still then, opposite party did not settle the claim.
Therefore, complainant approached several time opposite party to settle the claim and lastly sent notice dated 21.01.2002 through advocate by certificate of posting (receipt to that effect with copy of the notice is Ext-C-VI) to the opposite party calling upon him to settle the insurance claim within seven days from the receipt of the notice, failing which he will take shelter in proper court of law. As opposite party remained silent, he filed the C.D. case on 24.12.2002.
5. The opposite party has not only challenged the maintainability of the C.D. case but also denied his liability of settlement of claim in favour of the complainant for the circumstance created by him. According to opposite party, the case has been filed beyond the period of limitation and complainant is not entitled to any relief from him as he is not a consumer.
He denied to have caused any fault or negligence in settlement of the claim in spite of fact admitted by him that the surveyor Sri S.S. Rayat has assessed the loss and damage. The specific stand of opposite party in closing the claim case of the complainant is that in spite of letters written to the complainant in time interval viz. vide letters No.213 dated 03.05.1994 / 06.05.1994 Ext.C-X, No.38 dated 6/8.4.95 Ext.-C-X1 and No.847 dated 9/10.01.1996 Ext-C-XII, as the complainant failed to produce the documents viz. R.C. Book, Driving licence etc. in respect to said car and bills and cash memos and to explain as to why he lodged claim in late and removed the car from the spot before the car is examined by the surveyor, the complainant remained silent. As per aforesaid letter, Ext.C-XIII, opposite party had noticed complainant to close the claim case as No Claim unless he produces aforesaid documents and explain as aforesaid. According to opposite party, when complainant still remained silent, the claim case has been closed treating that complainant is not interested to the claim amount. But, complainant has stated that as per letter dated 02.01.1996, he sent all such documents with M.V. report in the P.S. case and cash vouchers of different shops to opposite party under certificate of posing (Ext.C-XIV). He has also stated that as per letter dated 12.03.1996 sent to the Branch In-Charge, N.I.C., Bhubaneswar Branch through certificate of posting (Ext.C-XIII) he has assigned reason of lodging claim in late due to his illness and about removal of the car from the spot apprehending further loss as there was every chance of removal of parts from the car at the spot which is a loanly area. At the same time, he had intimated as per said letter that he has already submitted the documents called for from him as per aforesaid letter dated 02.01.1996 (Ext.C-XIII). Complainant has also filed xerox copies of cash memos dated 28.07.1993 Ext.C-XV to Ext.C-XVIII in respect to purchase of parts for the damaged car from C.R. Motors, Kendrapara, Ext.C-XIX, xerox copy of receipt dated 26.05.1993 granted by Pramod Kumar Naik acknowledging towing charges of car rupees 3000 from the complainant and Ext.C-XX the xerox copy of repairing expense rupees 12,280/- of the car dated 29.07.1993 granted by Premier Automobiles to the complainant.
6. The District Forum believed complainant to have send the documents required by the opposite party and complainant has explained to opposite party, the delay caused in lodging claim and the reason of removal of the car from the spot as per aforesaid letters dated 02.01.1996 and 12.03.1996 respectively as the same have been despatched through certificate of posting. Certificate of posting receipts granted by postal department cannot be suspected unless its genuineness is proved as doubtful. Therefore, we have no reason to disagree with the findings of the District Forum that as per aforesaid letters dated 02.01.1996 and 12.03.1996 though complainant has satisfied opposite party in respect to production of required documents and in respect to delay in lodging claim and about removal of car from the spot, opposite party has not taken the same into consideration in settling the claim when damage to said car during accident is not disputed by opposite party. Moreover, no correspondence has been made by the opposite party with complainant in respect to negligence default or non-cooperation of the complainant in respect to settlement of claim after receipt of letters dated 02.01.1996 and 12.03.1996 except opposite partys last letter dated 09/10.01.1996 (Ext.C-XII) to the complainant thereby again asking the complainant to produce the documents and to assign reason as per his earlier letters Ext.C-X and Ext.C-XI issued in the year 1994 and 1995 within seven days of receipt of this letter finding which the N.I.C. would close the case as No Claim and subsequent thereof has closed the claim case. These letters in original have been filed by the complainant. The complainant has also filed copies of letters dated 09.09.1996, 22.09.1997, 12.01.1998, 20.01.1999, 03.03.2000 sent through certificate of posting to Branch Manager, Divisional Manager, Chief Manager and Senior Branch Manager (opposite party No.1) respectively along with postal receipts of certificate of postings Exts.C-1 to Ext.C-V respectively requesting them to settle his claim as he has submitted all the documents required by them and complied as per their direction since long. Still then, as opposite party sent over the matter he sent notice dated 21.01.2002 through lawyer by registered post with A/D Ext.C-VI has been filed by the complainant. In view of the appeal of the complainant to N.I.C. time and again through aforesaid letters in no stretch of imagination, complainant cannot be disbelieved that in spite of his regular pursuance opposite party No.1 did not settle the claim and finding fault with the complainant has closed the claim case whimsically. In this end of the view, the District Forum is justified in coming to the conclusion that due to fault and negligence of the opposite party, claim in respect to the complainant could not be settled.
7. Further, complainant has claimed rupees 62,000/- as total loss due to damage of the car with 12% interest per annum and compensation of rupees 50,000/- as stated earlier whereas the District Forum has awarded rupees 62,000/- as claim amount without awarding any amount towards compensation taking a liberal view towards N.I.C. Even though, the surveyor has assessed loss at rupees 22,113.27, yet N.I.C. (opposite party) has not accepted the same because, had opposite party accepted as correct, he would have offered this amount to complain in an admitted case of car accident instead of closing the claim case. But, opposite party has not offered this amount to the complainant.
It is seen from the above mentioned cash memos and bill for transportation and bill of repairing expenditure of damaged car that complainant has spent rupees 65,327/-. Therefore, when opposite party has failed to settle the claim, for no reason District Forum is justified in awarding rupees 62,000/- towards claim in favour of the complainant, which is less than the amount actually spent in respect to repair of the car. As due to negligence of the opposite party, claim in favour of the complainant could not be settled within a reasonable period and much time has been passed until the complainant was compelled to file the C.D. case and got relief of claim, the District Forum should have awarded interest over the amount settled as claim and litigation expenses.
8. Coming to other aspect with which the appellant has challenged the impugned orders of the District Forum, the opposite party has made correspondence with complainant in his Mahipal village address at Kendrapara, damaged vehicle has been repaired at Kendrapara and in spite of this, correspondence by complainant from Mahipal, Kendrapara have been made with the opposite party and when opposite party did not respond, cause of action arose in part to file the C.D. case at Kendrapara.
Therefore, the District Forum, Kendrapara has territorial jurisdiction to entertain the case. Moreover, it has been contended on behalf of the opposite party / appellant that in view of policy condition No.7, as complainant has not filed the C.D. case within twelve (12) calendar months from the date of disclaim of the claim, the case is not maintainable. But, it should not be ignored in the present case that complainant was going on representing for settlement of the claim by opposite party as is evident from the aforesaid letters and notice through advocate to the opposite party / appellant.
Therefore, there was continuation of cause of action till last representation and demand of settlement of claim through Pleaders notice dated 21.01.2002. There is nothing to show as to when the claim of the complainant has been cleared and when complainant has been intimated about closer of claim by opposite party. The C.D. case therefore has been filed within the period of limitation viz. on 24.12.2002.
Thus, complainant has not violated aforesaid condition No.7 of the insurance policy. In these end of the view, the C.D. case is maintainable.
Thus we find there is no force in the argument advanced on behalf of the appellant challenging the impugned orders of the District Forum.
9. In the result, the appeal is dismissed on contest without cost in favour of the appellant.
The impugned orders dated 28.11.2003 of the District Forum is confirmed with modification of the said orders in respect to interest over awarded amount of claim and cost of litigation in the following manner that the opposite party / appellant Insurance Company will pay rupees 62,000/- to the complainant as claim amount with interest @9% per annum from the date of compliance viz. from 02.01.1996 of the requirement of the opposite party within a period of thirty days of receipt of the copy of this order, failing which the rate of interest will be charged @12% per annum and Insurance Company is to pay to the complainant cost of litigation rupees 5,000/- within aforesaid period of thirty days.
Records received from the District Forum may be sent back forthwith.
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(BASANTI DEVI) MEMBER .......
(SUBASH MAHTAB) Date:- 20.02.2008 PRESIDENT IN-CHARGE Samal