IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum,
Sonitpur, Tezpur
Sri P.Das
Member
District Consumer Disputes
Redressal Forum, Sonitpur
CONSUMER COMPLAINT NO.07/2018
1.Md Moinuddin Ansari : Complainant
S/o Late Hafiz Md. Zahur
R/o of Vill: Garuwanpatty
P.O & P.S: Tezpur
Dist:Sonitpur (Assam)-784001
Vs.
1.The Branch Manager : Opp. party
Akash Hyundai,Central Jail Road
Lakhara, Guwahati-34
2.The Branch Manager
The Oriental Insurance Co. Ltd.
P.O & P.S Tezpur, Dist: Sonitpur, Assam-784001
Appearance:
Mr.Salim.Khan, Adv : For the Complainant
None : For the Opp. party No.1
Mr Subroto Kr. Acharya,Adv. : For Opp. party No.2
Date of argument : 09-05-2019
Date of Judgment : 26-06-2019
J U D G M E N T
- The case in brief is that- the Hyundai make “i10” car of the complainant bearing registration No.AS-12-J-2420 suffered damage in a collision with a truck on 17-04-2016 at a place 14th mile, Bornihat, in the State of Meghalaya. The incident was immediately informed to the Police administration and the insurer opp. party No.2. The Opp. party No.1 brought the vehicle from Bornihat Police Station to its workshop viz., ‘Akash Hyundai’, at Guwahati for repair. The repairing cost was estimated by the workshop at Rs.2,14,999/- and post repair, an amount of Rs.1,49,800/- was demanded by the workshop from the complainant on ground that insurer,opposite party No.2 has agreed to pay Rs.65,800/- only. An amount of Rs.1500/- was reduced out of Rs.1,49,800/- by the workshop and the complainant on 27-6-2017 had to pay an amount of Rs.1,47,699/- to take delivery of the repaired vehicle.
- Averring that the opp. party No.2, Insurance Company, contrary to the contracted liability under the Policy to bear the repairing cost in the event of any damage and further the liability to compensate to the extent of Rs.3,19,500/- as the IDV of the vehicle, in the instant case, by paying Rs.65,800/- only against Rs.2,14,999/- as the cost of repair, had indulged in unfair trade practice, the complainant is therefore before the Forum praying a total relief of Rs.4,19,500/- which includes the IDV of the vehicle with @18% p.a interest for mental tension agony and loss of business.
- Opp. party No.2 contested the case by filing written version. It has been contended thereunder that it had been on the request of the complainant to the workshop to settle the claim on cashless basis and on onward request of the workshop to the opp. party No.2 by e-mail on 24-06-16, that the case of the complainant was favourably considered and approved by opp. party No.2. Further contended that the vehicle did not sustain full damage as claimed by complainant and the claim was rightly settled at Rs.65,800/- per lawful assessment of the Surveyor as the full and final settlement, to which the complainant had put his hands in the Agreement-cum-Satisfaction Note along with the signature of the repairer and that of the Surveyor. Denying any deficiency in its service the opp. party No.2 has prayed for dismissal of the complaint with cost.
- Complainant tendered his evidence-in-chief on affidavit exhibiting few documents thereunder. Opposite party No.1 failed to contest the case and therefore, order dated 18-04-18 was drawn to proceed exparte against it. Opp. party No.2 examined its Branch Manager. Witnesses on either side were cross-examined.
- We have carefully gone through the materials available on record, including written argument filed by the parties and drawn up the following points for determination of the dispute.
POINTS FOR DETERMINATION
- Whether there was deficiency in service ?
- Whether there was unfair trade practice adopted by the Insurance Company in not giving the sum of IDV to the Complainant ?
- Whether the Complainant is entitled to get relief/reliefs as prayed for ?
DISCUSSION WITH REASONS & DECISION
5.Point No.i):- On a careful scrutiny of materials available on record, we have found the following points undisputed.
(1)That the vehicle in question was insured with the opposite party No.2;
(2)That during the period of Insurance coverage the vehicle met with an accident and sustained severe damage;
(3)That the opposite party Insurance Company was duly informed and the vehicle was repaired at the workshop of the opposite party No.1;
(4) That the bill for repair was Rs.2,14,999/- and out of which the Insurance Company paid only Rs.65,800/- directly to the opposite party No.1;
(5) That the Complainant took delivery of the vehicle by paying an amount of Rs.1,47,699/-.
6. Now, the Complainant has approached this Forum by claiming Insured Declared Value of Rs.3,19,500/- along with compensation of Rs.1,00,000/- for mental tension, agony and loss of business etc.
7. The opposite party Insurance Company, vide para 9 of the written version stated that- as per Agreement sheet cum Satisfation Note signed by the Complainant, repairer and the Surveyor, the liability of the Insurer was fixed at Rs.65,800/-. The Surveyor assessed the damage lawfully and calculated the amount due to the Complainant under the terms and conditions of the Policy which was known to the Complainant.
8. The Complainant in his cross-examination stated “I requested Akash Hyundai to settle the matter on cashless basis. On 24-06-16, insurance company sent a mail to Akash Hyundai to settle the matter on cashless basis. AS-12-J-2420 was the registration number of my vehicle which in the meantime had been sold out. Opposite party No.1 released the vehicle by obtaining my signature and that of the insurance company along with signature of the Surveyor of insurance company, Sri Jayanta Kumar Bhuyan. It is a fact that Oriental Insurance Co. Ltd. directly paid an amount of Rs.65,800/- to Akash Hyundai and thereafter on 27-06-16, I paid an amount of Rs.147,699/- to Akash Hyundai as per its cash memos. It is not a fact that I have received the due amount from the insurance company and if any amount remains due to be received then it is to be received from Akash Hyundai”.
9. The opposite party, Insurance Company, proved the Agreement Sheet cum Satisfaction Note. Ext-A is the said Satisfaction Note.
10. D.W.1, Sri Subrata kumar Das, for the opposite party Insurance Company stated that- “Cashless facility means that the repairing cost will be borne by us and the depreciation wil be borne by the insured”. He also stated that only depreciation will be deducted in the instant case and the Surveyor had calculated the depreciation in the instant case. The Surveyor had taken stock of the expenditure made.
11. We have carefully scrutinized the Cash Invoices and Estimate of Repair. Ext-1(i) to 1(v) are the Invoices and Ext-D is the Estimate of repair issued by Akash Hyundai. Item in Sl. No.13 of Ext-D is “Mirror Assy, Outside R.R View RH” and item in Sl No.21 is “Mirror Assy. outside RR view LH”. In the report of the Surveyor (Ext-C), the Surveyor has assessed the bill for only item No.13. Both the item No.13 and 21 appear to be similar. Only difference is direction of article to be viewed. Similarly, items in Sl.Nos. 17, 18, 19 and 20 also appear to be similar. But vide Ext-“C”, assessment was made for item Nos.18 and 20 only.
12. As per Section 1, Ext-2 (Standard Form For Private Car Package Policy) insured is not entitled to glass parts only. Relevant portion of Section-1 is quoted below:-
“Subject to a deduction for depreciation at the rates mentioned below in respect of parts replaced:
1.For all rubber/nylon/ plastic parts,tyres and tubes,batteries and air bags- 50%
2.For fibre glass components 30%
3.For all parts made of glass Nil”
13. In view of the above provision enumerated in Section 1, we fail to understand why the Surveyor had not included some of the items which are well within the purview of Section-1, reproduced above. For this reason alone, we have no hesitation to hold that there was deficiency in service on the part of the opposite party Insurance Company; because the Insurance Company failed to make scrutiny of the report in the light of Section -1, while making payment to the repairer on the basis of report submitted by the Surveyor.
The Point No.(i) is decided accordingly in favour of the Complainant.
14.Point No.(ii):- Complainant alleged that by not making payment of Insured ‘s declared Value of Rs.3,19,500/- and making payment of Rs.65,800/- only the opposite party Insurance Company adopted unfair tade practice. As per terms and conditions of the Policy, in case of total loss/ constructive total loss of the vehicle only, insured is entitled to IDV of the vehicle. Here, in the instant case, it is neither a case of total loss nor constructive total loss. The Complainant has suppressed the material fact that the vehicle had been sold out in the meantime. By cross-examining him only the Insurance Company brought on record such very material facts.
Taking into view the discussion made in its entirety, the Point No.(ii) is decided in the negative.
15.Point No.(iii):- In view of decision of Point No.(i) decided in favour of the Complainant, he is entitled to get compensation for deficiency in service as discussed in para-13 hereinabove.
16. Complainant has prayed IDV of the damaged vehicle of Rs.3,19,500/- , compensation of Rs.1,00,000/- for mental tension,agony and loss of business, i.e, total Rs.4,19,500/- with 18% interest from the date of complaint.
17. Complainant has however, nowhere stated how he suffered business/ financial loss. The case in hand as observed earlier, is neither a case of total loss nor a case of constructive total loss. As such, the Complainant is not entitled to get IDV of the vehicle.
18. The basis of insurer liability is Ext-A. Ext-A is Agreement Sheet cum Satisfaction Note. A perusal of Ext-“A” reveals that while fixing the amount of liability of the Insurer at Rs.65,800/- no reason has been assigned. Ext-“A” was admittedly signed by the Complainant. It is not the case of the Complainant that he was forced to put his signature on Ext-“A”. Complainant failed to disclose the date of receiving his vehicle from the repairer. However, from the Ext-“B” (Discharge Voucher) issued by the repairer, it can safely be presumed that the vehicle post repair, was received on 26-12-2016. Nothing is found available on record that since 26-12-16, Complainant has raised any opbjection against the payment of Rs.65,800/- before any authority till institution of this case on 21-02-2018. Such conduct of the Complainant shows that at the time of execution of Ext”A”, he had extended full consent of fixing insurer’s liability at Rs.65,800/-. Thus, we are of the opinion that Complainant is now not entitled to get the total cost of repair.
19. Taking into view the facts discussed above, we are of the opinion that the Complainant is only entitled to compensation for deficiency in service. The Complainant has already sold out his vehicle and nothing about sale has been disclosed before the Forum, except simple admission in cross-examination that he had sold out his vehicle in the meantime. Considering the totality of the facts and conduct of the Complainant, we deem it just and proper to fix the amount of compensation for deficiency in service at Rs.70,000/- (Rupees Seventy thousand)only. The Complainant, in our opinion is also entitled to get cost of litigation and the same is fixed at Rs.7,000/- (Rupees Seven thousand) only.
O R D E R
In the result, the complaint is partly allowed. Opp. party is directed to pay Rs.70,000/-to the Complainant for deficiency in service and Rs.7,000/- as cost of litigation, total being Rs.77,000/-. Opp. party is directed to comply with the award within 30(thirty) days from the date of receipt of copy of the judgment and order. In default, to pay interest @9% per annum from the date of judgment and order till realization of the award in full.
Given under our hands and seal of this Forum this 26th day of June, 2019.
Dictated and corrected by:
(A.DEVEE) (A. DEVEE)
President President
Dist.Consumer D. R Forum District Consumer Disputes Redressal Forum
Sonitpur,Tezpur Sonitpur,Tezpur
We agree:- (Sri P.Das)
Member
