DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D. Case No.11 of 2013
Sujyani Panigrahi, W/o. Pradeep Kumar Tripathy, aged about years, R/o. Spinning Mill Colony, P.O./P.S. Sonepur, District – Subarnapur.
………….. Complainant
Vrs.
A.B. Kishor Kumar, Branch Manager, Royal Sundaram Alliance Insurance Company Ltd., Radhika Complex, II Floor, Cuttack Road, Bhubaneswar – 756 001
………….. Opp. Party
Advocate for Complainant ………. Sri R.Agrawal
Advocate for the O.P. ………. Sri P.K.Purohit
Present
Sri S.C.Nayak, President
Smt.S.Mishra, Lady Member
Sri H.Padhan, Male Member
Date of Judgment Dt.19.08.2016
J U D G M E N T
By Sri S.C.Nayak, P.
This is complainant’s case alleging deficiency of service on the part of the O.P.
The case of the complainant is that she is owner of Maximo Mini Van baring Regd. No.OR-31-6199. She being unemployed youth purchased the Van for earning her livelihood for self employment.
This vehicle was validly insured with the O.P. from 21.4.2012 to 21.4.2013 and the complainant has also paid premium amount for the same. On 16.11.2012 the vehicle met an accident near Ang Bridge at Mahadevpali, as a result of which major parts of the vehicle was damaged. The accident was reported to the police and S.D.E. has been done by the police.
The complainant reported the matter to the O.P. and surveyor of company was deputed, who inspected and took photographs of the damaged vehicle. It is alleged by the complainant he wrongly assessed the damage and submitted false report to the police.
The complainant repaired the damaged vehicle by spending Rs.94,359/- on said vehicle and it became fit for running. The complainant has submitted claim application alongwith valid bills and documents to the O.P. and the O.P. registered the claim vide No.VV00015062. But to her utter surprise complainant found that O.P. has settled Rs.38,652/- arbitrarily on the basis of false report of Surveyor. The O.P. is liable to pay Rs.94,359/- the repair charge for the damaged vehicle as she has submitted valid bill in proof of said expenditure. It is alleged by the complainant that the O.P. reduced the claim amount illegally which is deficiency in service and unfair trade practice on his part.
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Hence, the complainant has claimed that the O.P. be directed to pay Rs.94,359/- with interest towards the damage claim of the complainant. The O.P. be directed to pay Rs.5000/- towards cost of litigation.
The O.P. has given a very exhaustive and detailed version. The gist of his version is that :-
1. There is arbitration clause in the policy and as per clause 13 of the policy dispute is to be resolved through arbitrator as per the Arbitration and Conciliation Act, 1996.
2. That, the policy had been taken from the Bhubaneswar Office and claim was vividly settled by the Bhubaneswar office and therefore since no cause of action has arisen within the district of Subarnapur, this Forum lacks jurisdiction to decide the lis.
3. It is also alleged that the Surveyor has calculated the repairing charges after making necessary deductions as per the terms of the policy. Surveyor report is to be given due weightage and cannot be lightly brushed aside by the Forum.
4. It is further alleged that quantum of compensation cannot be decided by the Forum as the matter requires detailed investigation.
5. It is averred by the O.P. that the O.P. has already settled the claim in consonance with the report prepared by the Surveyor and there has not been any deficiency of service by the O.P. Hence the O.P. prays that the complainant case be dismissed with exemplary cost.
We have heard Mr.R.Agrawal and Mr.P.K.Purohit learned counsels for the complainant and O.P. respectively. We have also perused the materials on record. From the pleadings of the parties submissions of learned counsels during hearing the following points fall for determination by the Forum :-
a). Does the Forum have jurisdiction to decide the complaint ?
b). Is the rejection of the repair bill submitted by the complainant and acceptance of the Surveyor report justified ?
c). To what relief the complainant is entitled ?
It is averred by the O.P. that since there is an arbitration clause in the policy the matter is to be referred to the arbitrator for adjudication. We are unable to accept this contention. It is profitable to quote Section 3 of the Consumer Protection Act 1986, Section 3 :- “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force ”
It has been held by the Hon’ble Supreme Court in the case of Skypak Couriers Ltd. Vrs. Tata Chemicals Ltd. A.I.R. 2000 S.C. 2008 that even if there exists an arbitration clause in an agreement and a complaint is made by the consumer under the consumer protection Act in relation
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to deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the redressal agency constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.
On a careful scrutiny of the provisions of law and decisions cited Supra it is limpid that existence of an arbitration clause is no bar for entertainment of a complaint pertaining to deficiency of service. Further more the O.P. avers that the complainant has taken the policy from the Bhubaneswar office of the O.P. and the claim was validly settled by the Bhubaneswar Office of the .P. No cause of action has arisen within the jurisdiction of the District Forum, Subarnapur, hence this Forum lacks jurisdiction to decide the lis. This contention is noted to be rejected in as much as the vehicle in question met an accident at village Mahadevpali situated within the District of Subarnapur. As part of cause of action has arisen within the jurisdiction of the District Forum Subarnapur, this Forum has jurisdiction to decide the lis as per provisions of Section 11 of the Consumer Protection Act. So point No.1 is answered accordingly.
Point No.2 and 3 are taken together as they are interrelated. It is averred by the O.P. that Surveyor’s report is a substantive piece of evidence and it cannot be lightly brushed aside. This contention is partially true. No doubt Surveyor’s report is an important piece of evidence. But it is also settled law that the report must be a speaking report based as reasons. It has been held by the Hon’ble National Commission in the case of Veena Devi Vrs. National Insurance Co. Ltd. 2012(3) C.P. 219 (NC) that perfunctory report of Surveyor cannot be accepted.
As far as legal position in regard to Surveyor report is concerned say of the Hon’ble Supreme Court can be found in this regard in the case of New India Assurance Co. Ltd. Vrs. Pradeep Kumar , Wherein it has been held that although assessment of approved Surveyor is prerequisite for settlement of claim of Rs.20,000/- or more but the Surveyor report is not the last and final word. It is not sacrosanct that cannot be departed from.
We have perused the Surveyor’s report in this case. Although in original estimate total labour charges was Rs.75,505.92 paise, it has been assessed by the Surveyor at Rs.18,202.32 paise without assigning any reason. The Surveyor report is also not supported by affidavit. It has been held by the Hon’ble National Commission in the case of National Insurance Co. Ltd. Vrs. Mohd. Ishaq 2012(I) C.P.R. 386 (N.C.) that report of Surveyor which is not based an affidavit cannot be accepted. The cumulative effect of our discussion made supra leads us to the conclusion that surveyor’s report cannot be given due weightage in this case.
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Learned counsel Mr.P.K.Purohit for the O.P. referring on a decision of the Hon’ble National Commission vehemently argued before us that as the quantum is disputed, it cannot be adjudicated by this Forum in its summery procedure. As copy of the decision is not supplied to us we are unable to appreciate the same.
We have perused the repair bill filed by the complainant in this case. The net Bill amount is Rs.94,359.00. The depreciation on metal parts, rubber parts and compulsory excess salvage value of Rs.1253.50, Rs.728.49, Rs.8167.40, Rs.500.00, Rs.516.93 (as per surveyor’s report) comes to Rs.11,166.32 paise in total which is rounded of by us to Rs.11,167/-. This depreciation can be made as per policy conditions. So we are inclined to deduct this from the net repair bill filed by the complainant. After deducting this amount from the net repair bill of Rs.94,359/-, the net repair bill comes to Rs.83,192/-. We direct the O.P. to pay this amount to the complainant. The complainant is also entitled to Rs.5000/- as compensation for deficiency of service and Rs.2000/- for cost of litigation. We direct the O.P. to pay this amount to the complainant. We order accordingly.
ORDER
The O.P. is directed to pay to the complainant Rs.90,192/- within one month from the date of receipt/production of this order.
Complaint is allowed in part.
Dated the 19th August 2016
Typed to my dictation
I agree. I agree. and corrected by me.
Sri H.Pradhan, Smt.S.Mishra, Sri S.C.Nayak
Male Member Lady Member President
Dt.19.08.2016 Dt.19.08.2016 Dt.19.08.2016
