State Consumer Disputes Redressal Commission
Icici Lombard General Insurance ... vs Bholanath Rana on 17 November, 2023
./
I
S' T/\'I]] CONS UMER DISPUTES RE,DRES S AL C OVIMI S SION,
ODISHA. CUT'TACK
First Appeal No.14712017
(lrr.or.p an order dated 28.10.2016 passecl by the District
Consumer Disputes Redressal Forum, Kandhamal,Phulbani in
Consumer ComPlaint No. 4912015)
l('l(ll I-onrbrlcl Mot()r Insltrattce
(iener al Insurance Co.Ltd.
IClCll Lombarcl Flouse,41, Veer Savarkar
|larg, Near Siddhi Vinayal< Ternple,
l'i'i,t,h acievi, Mr.rtnbai-400025.
Appellant
Versus-
l- Ilholantrth Ittlna, aged about 38 years,
S/o.Latc Petdtnanav I{ana, At- Ribilada,
l'. O- Ili amu nc1 a, I'}S -Phri r-r gia,Dist-Khandl"rarnal.
:-- Vlanats Ar.rtotnobiles,
i\utlrorised SSP ot'Flero Motocorp Ltd',
Circurlar Road, Near R.T.O' Office, Phulbani
l'O/ l'}S-l ) [t lban i'[bu'n, Di st-Kandhamal.
r-r
ResPoncle Irts
(lour-rsel fur the Appellant- M/s.G.P. Dutta & Associates.
Counsel lbr the Respondent No.1 - Sri S. Mohanty & Associates'
lritllt,liN'l' :- - Sri t)illip Kumar IVlohapatra, Metnbtrt'.
I)r. Pramocle Kunlar Prusfy, Mcrnber'
I)AfIi otr HIIAIUNG- 07 .08 .2023
pcillrgr{ulu]ul- 17.1r.2023
u.
I
2
Dr. P.K. Prusty, Member
ORDER
1. This appeal arises out of an order dt.28.10.20r6 passed by District Consumer Disputes Redressal Forum, Kandhamal, Phulbani in Consumer Complaint No.49 l20l 5.
2. The case of the complainant is that the complainant purchased a Motor cycle bearing registration No.OD-12-6012 on 10.11.2014 from Opp.Party No.1. The said vehicle was insured under Opp.Party No.2- ICICI Lornbard Motor Insurance . On 18.01 .2015, the said vehicle met with an accident, as a result of which the vehicle got damaged. The complainant informed the rnatter to the police and inter alia alleges to have informed the Opp.Party, Insurance Company who deputed their surveyor and the surveyor after spot verifiction informed the complainant to repair the vehicle. It is further the case of the complainant that the complainant repaired the vehicle by spending Rs.24,3381- and subsequently intimated the Insurance Company for settlement of clairn. But the Opp.Party, Insurance companay did not settle the clairn. Therefore, tlie cotttplainant findirrg no other way out, filed cotnplaint petition before the learned Forum below claiming cost of repair clrarges of Rs.24,3381- alongwith compensation of Rs.20,000/- ,Rs.5,000/- towards transport charges and Rs.10,000/- towards litigation cost.
3. The Opp.Party No.1- Authorised dealer in its written verslon has stated that the accident vehicle has been repaired in its service centre and \d.
d.l 3repairing charges of Rs.24,338/- was payable by the complainant. In addition to repairing charges the complainant is required to pay Rs.50/- per day as per Job Card since the date of repair. Since the Opp.Party No.1 has no deficiency in service, prayed for dismissal of the complaint as the case is not maintainable against the Opp.Parly No.1.
4. The Opp.Party No.2 - the insurance company in its written velsion has denied the allegations of the complainant and has stated that the cornplaint is not maintainable as the complainant is not a consumer and the Fonrm has no jurisdiction to adjudicate the case. It is further stated that as the complainant has not informed the insurance company regarding the accident, as such no surveyor was engaged to survey the loss. No claim has bccn llled in prescribed form of the Insurance oompany by the cornplainant for which the settlement of claim does not arise. Since there is no cause of action or deficiency in service on the parl of the Opp.Party No.2, the case is liable to be dismissed.
5. After hearing the case, the learned Forum below passed the irrrpugned order directing Opp.Party No.2 to pay Rs.24,338/- to the cornplainant towards the repair charges of his damaged vehicle alongwith Rs.5,000/- towards compensation and cost of litigation within 30 days of the order. The Opp.Party No.1 was also directed not to claim the retaining charge from the complainant and release the vehicle after getting his repair charge if l"ie has not received the repair cost from the complainant. 4
6. Challenging the impugned order the present appeal has been filed by the appellant.
7. During the course of hearing, the counsel for the appellant submitted that neither any intimation of the accident was made nor any claim has been submitted in the prescribed form by the complainant regarding damage of the vehicle. It is funher stated that the complainant has failed to substantiate his claim and has not produced any cogent evidence regarding submission of claim application before the Opp.Party No.2, although the initial burden lies on the complainant to substantiate his claim that he has intimated to appellant after the accident. But the leamed Forum below has erred in law by not considering the written version in proper perspective and wrongly came to a conclusion that the appellant failed to adduce any suitable evidence in order to ascertain that it had not received any intimation from the complainant regarding the accident. Further at alater stage, forum below had observed that since the damaged vehicle was purchased by the complainant from O.P No.1, the dealer, it is probable that on the instance of O.P No.1, the vehicle was insured with the O.P No.2/appellant soon after the purchase and held thar the O.P No.1 should have inlbuned the O.P No.2/appellant rcgarding the claim of the complainant towards his repair charge. As such the order of the learned Forum below directing the appellant to pay Rs.24 ,3681- towards repair charges of damaged vehicle alongwith compensation of Rs.5,000/-, is illegal, arbitrary and not sustainable in the eyes of law. Therefore he prayed to \4 I I I I ,,! 5 set aside the impugned order by allowing the appeal' We l-rave heard learned counsel appearing on behalf of parties'
8. Perused the DFR including the impugned order'
9. tt is adrnittecl fact that the complainant has purchased the vehicle l,rom OP No. 1 - dealer. Fufiher it is not in dispute that the vehicle was to 09-11- insured by the oP No. 2 - insurer for a period liom 10-11-2014 2015. It is also not in dispute that during subsistence of the policy, the vehicle ruret rvith an accident. It is further admitted fact that the complainant has loclgecl FIII before tl-re concerned police station' Now the only perlinent question to be decided here that whether the complainant has filed claim belbrc Op No. 2 insurer & whether the OP No. 2 after receipt of claim form have acted upon or not. We find the complainant has not disclosed in accident of the cornplaint petition the date on which he intimated regarding has been filed velricle to the Opp.Party No.1 and2. The cornplaint petition r,vithout any verification or affidavit. We further find that the complainant intimating has lodgecl tl-re Ir.I.R before Phiringia Police Station on 18.01.2015 at11rt the aocic.lelt btrt the O.P No.l has lllecl the countcl in shape of atfidavit :;tating Lhat the rttotor cryt:lc \,vas rggcived by the O'P No'l olr 12'03'?'015 copies ot' thc rvl-rich is after abor-rt 54 days of the accident. The xerox been attestecl' the clootrment so filed alongwith complaint petition has not The original copy of retail invoice has not been filed by the complainant' petition the date of cornplainant has not w hispered any where in complaint u I I I I I t,t) 6 ir-rtirnation regarding accident of the vehicle to the Opp.Parlies and has not stated the reason as to why after 54 days of accident he took the vehicle to the Opp.Party No.1 for repairing. The O.P No.2 has filed the counter specifically stating that no claim form has been submitted by the complainant after the accidcrnt.
10. We flncl learnecl District Forum/Comrnission has wrongly observed that the O.P No.2 failed to adduce any suitable evidence in order to ascertain that lic has not receivecl ruly intimation liom the complainant regarding the aocidcnt. But it is settled position of law that the complainant has to prove its case ancl it is the complainant who is to prove that he has intimated regarding i:ccri.lcnr of rhe vehicle to Opp.Parlies and he has submitted the clairn lbrm along witl-r all requisite documents. We find the insured though lodgecl FIR btrt l-ras neither intimatecl the insurer about the acoident nor has submitted the clairn lb11n lor settlement of claim. The complainant has not been able to bring ar-ry eviclence to show that the claim form has been slrbmitted. Thlrs in :rhscnrr. o1' srrl-rnril;sion of claim fortn rvith detail enclosures by the cornplair-rant to the insurer, we hold that there is no deficieny on the part of the OP insr,rrer.
1 1. In the present case, there is nothing on record to show that the cornplainant has intimated the OP insurer regarding the accident. Further there is llso pot an iola of evidence on record to show that the conlplainant has llleci olaim f,orm. Furlher the complainant failed to disclose the reason of /' 1 tal<ing the clantaged vehicle to the workshop for repair after 54 days of lrcident. Thus the complainant has miserably failed to prove any deficiency in service on the part of OP-insurance company. Mere pleadings rvithout any corrolrorating evience can not take shape of evidence. Here hling of omplaint rvithoirt any cogent evidence does not entitle the cotnplainant to any relieL The District Forum has failed to take into atccount the lacts and cvicletrc of tl"ris cuse in its true perspectives, but has passcd the irnptrgnecl ot'cicr rvithout atny sLtpport of settled principle of law allowing thc colnplaint pctilion which is not only illegal but also arbitrary & not sustainable in the (,\,cs o[' law. Ilence, in view of the discussions rnade here in above, the irrpugned ot'der is liable to be set aside.
Thercl'ore, the impugned orer is set aside and the complaint is c,isn risscd.
12. [n tl"re result the appeal is allowed.
i 3. No cost.
14. Send back the DFR.
15. Supply free copy of tl-ris order to the respective parlies or' the col))I of this order be downloded from confonet or website ot' t his Comnrission to treat the same as copy supplied by this Commission.
,n.k#fl- roxfu.,r
Member Membcr