Samaresh Kumar Mitra,  Member:

              The case of the complainant is that he is the owner and possessor of one TATA LPT1109 truck having regn No.WB/15A-2789 which he runs for the purpose of earning his livelihood and on 10.06.2009 the vehicle met with an accident at Durgapur Expressway near the workshop of the OP No.1 and thereafter the complainant brought the said  vehicle to the workshop /service centre of the OP No.1 for necessary repairs of the said vehicle. Accordingly the OP No.1 prepared a repairing estimate dated 28.09.2009 and the complainant also preferred an insurance claim on the basis of the said repairing estimate before the insurer the OP No.2 and as per rules he deputed a surveyor namely Ramesh Kumar Jalan to survey and assess the loss of vehicle of the complainant in presence of the OP No.1. The OP No.1 also entered into an agreement with the said surveyor for Rs.274866/- including labour charges to the tune of Rs.40000/-. During the course of repairing the complainant compelled to pay a sum of Rs.210000/- on different dates but the OP No.1 did not issue proper money receipts inspite of several requests of the complainant and lastly handed over a payment acknowledgement of Rs.210000/- The OP No.1 made the vehicle ready after a lapse of 7 months and after getting the vehicle he saw that the repairing work was not done properly as a result the complainant had to repair the vehicle again and incurred a huge amount. That on 06.05.2010 the complainant sent an advocate notice to the OP No.1 asking him to finalize the accounts of the complainant and to remit actual bills for spare parts and labour for repairing job at workshop of the OP as well as outside and also handover the salvage items in favour of the complainant within fortnight. The OP No.1 replied by his advocate and denying the allegations of the complainant and stating that a sum of Rs.1,50,395/- fell due from the complainant to collect the cash invoice after making payment of the rest amount. The acts and conduct of the OP No.1 is making incomplete repairing work of the vehicle, withholding proper and actual bills and salvage items and demanding more money without providing any bill is a deficiency of service on the part of the OP No.1 as a result the complainant has been suffering a lot due to mental agony, anxiety and harassment besides the huge monetary loss due to non settlement of his insurance claim and for that the complainant is entitled to get exemplary compensation from the OP No.1. The complainant made no allegation against the OP No.2 but he appointed the Surveyor who played an important role in ascertaining the loss and damage of the complainants vehicle and there is a chance of delay in submitting the original bills/ cash memos to the OP No.2 after disposal of this litigation which may result in problem in settlement of the final insurance claim of the complainant with the OP No.2 so the adjudication is required to be in presence of the OP No.2. The complainant prayed  for a direction upon the OP No.1 not to claim from the complainant amounting to Rs.150395/- on the strength of the alleged cash invoice No.001197 dated 25.01.2010 for Rs. 360395/-, to prepare a fresh bill in accordance with the assessment agreement signed in between the OP No.1and the Surveyor to handover the salvage items, a compensation amounting to Rs.50,000/- for willful harassment, mental agony and anxiety of the complainant, a litigation cost amounting to Rs.10000/- and also a direction upon the OP No.2 not to close and/or take any adverse decision regarding the fate of the claim due to non submission of the original bill/ cash memo by the complainant till finalization of the present dispute by this Forum and any other reliefs as this Forum deems fit and proper.

       The OP No.1 files written version denied the allegations as leveled against him and averred that the answering OP No.1 received an amount of Rs.210000/- from the complainant as advance money but he denies that he did not finalize the account and did not raise the final bill to the complainant. He assailed that he handed over the vehicle of the complainant on receiving the part payment amounting to Rs.2,10,000/- from the complainant and remaining has to be paid after the preparation of invoice and later on cash invoice prepared being No.001197 dated 25.1.2010 amounting to Rs.360395/- and the complainant was requested to make payment of the balance amount of Rs.150395/- to get the invoice as balance amount is the precondition for handing over the cash invoice. The complainant after being satisfied took the delivery of the vehicle and never put any reservation relating to the repairing works conducted at this OP. He has adopted no unfair trade practice and not deficient in providing service towards the complainant.

    The OP No.2 filed written version denying the allegations as leveled against him and averred that the complainant has no claim against the OP No.2 and no complains of deficiency in service against the OP No.2 so his name is to be expunged from the present claim case. 

        The complainant files evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

 The OP No.1 filed written version and evidence on affidavit which is nothing but replica of his written version and written notes of argument.

The OP No.2 filed written version and evidence on affidavit.

              Both sides filed written notes of argument which are taken into consideration for passing final order.

              Argument as advanced by the agents of the complainant & Ops heard in full.

              From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

    1. Whether the Complainant Amit Kumar Saha ‘Consumer’ of the opposite party?

    2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

    3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him? 

DECISION WITH REASONS

          In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Amit Kumar Saha ‘Consumer’ of the opposite party?

                                                                                                                                                                                                                              ‘Consumer’ of the opposite party?

                  From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein being the customer of the OP No.1 servicing centre and OP No.2 is the insurance company in which he insured his vehicle in question so being a consumer he is entitled to get service from the OPs .

          (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

                 Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly.        The complainant prayed for a direction upon the OP No.1 not to claim from the complainant amounting to Rs.150395/- on the strength of the alleged cash invoice No.001197 dated 25.01.2010 for Rs. 360395/-, to prepare a fresh bill in accordance with the assessment agreement signed in between the OP No.1 and the Surveyor to handover the salvage items, a compensation amounting to Rs.50,000/- for willful harassment, mental agony and anxiety of the complainant, a litigation cost amounting to Rs.10000/- and also a direction upon the OP No.2 not to close and/or take any adverse decision regarding the fate of the claim due to non submission of the original bills ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

              (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service    

                  towards the Complainant?    

                The case of the complainant is that he being the owner and possessor of one TATA LPT1109 truck having regn No.WB/15A-2789 which he runs for the purpose of earning his livelihood met with an accident on 10.06.2009 as a result the vehicle in question damaged badly at Durgapur Expressway near the workshop of the OP No.1 and thereafter the complainant brought the said vehicle to the workshop /service centre of the OP No.1 for necessary repairing of the said vehicle. Accordingly the OP No.1 prepared a repairing estimate dated 28.09.2009 and the complainant also preferred an insurance claim on the basis of the said repairing estimate before the insurer the OP No.2 and as per rules he deputed a surveyor namely Ramesh Kumar Jalan to survey and assess the loss of vehicle of the complainant in presence of the OP No.1. The OP No.1 also entered into an agreement with the said surveyor for Rs.274866/- including labour charges to the tune of Rs.40000/-. During the course of repairing the complainant paid a sum of Rs.210000/- on different dates but the OP No.1 did not issue proper money receipts inspite of several requests of the complainant and lastly handed over a payment acknowledgement of Rs.210000/-.The OP No.1 made the vehicle ready after a lapse of 7 months and after getting the vehicle he saw that the repairing work was not done properly as a result the complainant had to repair the vehicle again and incurred a huge amount. So the complainant sent an advocate letter stating every thing regarding  that and asked to complete the remaining work. But the OP No.1 acted not in pursuance of his letter as well as his request. So being aggrieved and getting no alternative filed the instant complaint before this Forum for Redressal. The OP No.2 by filing written version averred that the complainant has no relief before him so he is not the necessary party so his name is to be expunged..

          It appears from the case record that the Estimate of repairing the damaged vehicle fixed by the OP No.1 was Rs.317365/- the complainant deposited a sum of Rs.210000/- to the OP No.1. the Summary Assessment & Agreement Sheet in between the surveyor Ramesh Kumar Jalan and representative of the OP No.2 speaks that the expenditure assessed Rs.234266/- & labour charges including cost of  body materials after deduction and depreciation & salvage value is Rs.40000/-. But the OP No.1 demanded a sum of Rs.360395/- in total from this complainant after a lapse of considerable time elapsed for repairing the said vehicle.

   After perusing the documents and going through versions of the parties  it appears that the OP No.1 repaired the said vehicle after elapsing 7 months and demanded a sum of Rs.360395/- from the complainant but the complainant paid a sum of Rs.210000/- and took delivery the impugned vehicle and disputed that the OP No.1 did not issue proper money receipts and failed to repair the vehicle properly  and informed the matter to the OP No.1 several times but of no result then he getting no alternative  sought the Redressal of this Forum prayer for direction of the OP. 

        It is not disputed that the vehicle was insured before the OP No.2 and the damaged vehicle was repaired before the OP No1 through an agreement in between the Surveyor of OP No.2 and the OP No.1 and after paying a sum of Rs.210000/- to the OP No.1 the complainant received back the repaired vehicle.  But after getting the demand from the OP No.1 the complainant should approach before the OP No.2 for getting the claim as the vehicle was insured before the OP No.2 insurance company. The complainant failed to proof the deficiency of the service of OP No.1 as alleged by producing sufficient documents. The complainant prayed no relief against the OP No.2.

                       Going by the foregoing discussion hence it is ordered that the complainant has failed to prove his case by adducing cogent document/evidence and therefore, the complainant fails on contest. However considering the facts and circumstances there is no order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

  4). Whether the complainant proved his case against the opposite party, as alleged and whether the           opposite party is liable for compensation to him?

     The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant could not prove his case so the Opposite Party is not liable to pay any compensation and damages for suffering of this complainant.

ORDER

                 Hence, it is ordered that the complaint case being No.71/2010 be and the same is dismissed on contest

          against the opposite party with no order as to cost.

                   Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record    by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.

            Dictated and corrected by me.