Order-24.
Date-26/08/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant is the owner of the private car being No.WB-06H-2802 made by Hyundai is in the name of complainant for the purpose of use of the said car for the family members of the Director of the complainant company as well as for the purpose of use of the directors and the said private car is under the insurance policy with the OPs and OPs took the Private Car Package insurance policy from the OPs on making payment of premium of Rs.26,440/- and the Private Car package policy being No.oG-14-2401-1801-00038407 and the period of insurance is covered on and from 11-11-2013 to 10-11-2014.
On 13-10-2014 at about 6 a.m. in the early morning Ms. Chandni Rawat, one of the Director of the complainant company was going towards the railway station to board a train while the said car was driven by the driver and at the crossing at Harish Mukherjee Road and A.J.C. Road suddenly a Taxi coming very fast knocked the front portion of the private car and due to the huge impact went and knocked another two vehicles and this massive collusion involving four vehicles induced a creation of mob at the site for which Ms. Chandni rawat asked the driver to leave the spot immediately. On 13-10-2014 as per the instruction of the OPs the car was sent to the Saini Hyundai workshop at Mominpore for repairing job since the front portion of the car was badly damaged and after acceptance of the car the service centre issued a repaired order which indicated the damages and the repair cost was estimated to be Rs.45,000/- which included the damaged on the intercooler which is supposed to be set well in the carand the intercooler was badly damaged which itself proves that the collusion was a massive one and the claim form was duly submitted on the same date to the OPs and on 27-10-2014 the matter was also intimated to the Hastings Police Station.
Thereafter, the complainant contacted the OPs since the work was not started by the service centre due to the non-availability of the work order of the insurance company but no response was received from the OPs for a long time and lastly on 14-11-2014 the intimation received from the service centre that the service of the car was completed in 14-11-2014 and the total bill was raised for the amount of Rs.51,825/- against which the insurance company only settled the claim of Rs.28,461/- and accordingly the complainant demanded the papers to the OPs and raised the objection stating the dissatisfaction for the settlement of the claim made by the OPs. By e-mail dated 18-11-2014 OPs intimated the complainant that on 17-11-2014 the OPs settled the insurance claim of the car of the complainant for the amount of Rs.28,461/- only which is the much lesser than the actual amount which the service centre quoted for repairing job of the car of the complainant and OPs settled the insurance claim of the complainant at their will and the calculation was imaginary and without any basis at all and final bill after repair made by the service centre is not properly considered so, complainant reported the matter to the higher authority on 18-11-2014, the necessary papers were mailed to the Higher Authority of the OPs but said call was not properly attended.
Subsequently, OPs issued a letter on 28-11-20124 to the complainant stating that the surveyor rightly assessed the loss of the amount of Rs.28,461/- and they quoted the policy condition no.3 such as “the company may at its own option repair reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the company shall not exceed, for partial losses i.e. losses other than total loss/constructive total loss of the vehicle – actual and reasonable cost of repair and/or replacement of parts lost or damaged subject to depreciation as per limits specified”. Further it was reported by the OPs that the company would like to inform the complainant that the policy opted by the complainant does not cover any consequential loss/damage i.e. parking charges, cost of estimates and value of missing parts thereafter.
Moreover, service centre already completed the repairing work of the car since 14-11-2014 and again and again the service centre asking the complainant to get back the repaired car from their workshop on making payment of the cost of the repair of the amount of Rs.58,141/- and lastly the service centre issued a letter to the complainant on 01-12-2014 stating therein that if the car is not taken back by the complainant on making payment of the billed amount of Rs.58,141/- on that event the service centre shall charge extra amount of Rs.300/- per day for parking charges and as such the complainant was having no other alternative paid the entire amount of Rs.58,141/- to the service centre and take the delivery of the repaired car by paying money from his own pocket on 02-12-2014.
For non-settlement of the claim in proper manner and also for releasing such smaller amount than that of actual repairing cost complainant has alleged that it is no doubt a negligence and deficiency on the part of the OP for which the complainant has filed this complaint praying for payment of entire repairing cost of Rs.58,141/- and interest and compensation etc.
On the other hand, the insurance company by filing written statement submitted that as per letter dated 28-11-2014 and 18-12-2014 it is specifically intimated the complainant to get the vehicle repaired as per Surveyor’s assessment and submit the Final Repairer Tax Invoice and Payment Receipt but complainant has not submitted required documents to process the claim as per terms and conditions of the policy and there is no formal repudiation or rejection of claim by OP. Thereafter, complainant is pre-matured one, same is deserved to be dismissed on this sole ground as stated above. Moreover, complainant did not file any application along with necessary documents prescribed in law as such application is liable to be dismissed.
OPs in their written version has admitted that the said vehicle of the complainant was insured by the by a valid policy of insurance issued by this OP as stated in the compliant petition but the same is subject to terms and conditions incorporated in the said policy of insurance. No doubt the said vehicle faced an accident but the claim of the complainant is not as per terms and condition of the policy for which it is decided accordingly as per terms and condition.
Further no supporting documents have been submitted by the complainant to prove such contention. So, the contention of the complainant is completely denied and moreover surveyor was appointed to assess the loss. Accordingly, surveyor submitted survey report by virtue of which the total loss was assessed to the tune of Rs.28,461/-. Therefore, the liability of the OPs under no circumstances can be more than that but even then complainant asked to submit tax invoice as well as payment receipt for final settlement of the case but complainant did not provide it so, that was not also considered. Therefore, there is no absolute deficiency on the part of the OP and fact remains the matter was settled and Rs.21,345/- was fixed but complainant did not accept it so, there is no deficiency or negligence on the part of the OP. However, it is submitted that the complainant did not submit the final bill along with the vouchers etc. as per requirement made by the OP as on 18-12-2014 so that the matter no doubt further considered. So, the entire case is concocted for which the case should be dismissed and truth is that complainant as per surveyor’s report released Rs.28,461/- but complainant did not receive it for which there was no negligence or deficiency on the part of the OP and they prayed for dismissal of this case.
Decision with Reasons
On proper consideration of the complaint including materials on record and the arguments as advanced by the Ld. Lawyers of both the parties and further reading upon the survey report dated 20-04-2015 it is clear that OP appointed surveyor who reached at the place of accident and also inspected the vehicle at the said service centre and assess the loss and prepared the report and submitted it on 13-10-2014 and on the basis of the said survey report OPs released a sum of Rs.28,461/- but complainant did not accept it. So, apparently there is no deficiency or negligence on the part of the OP in settling the claim. Further from the document dated 18-12-2014 it is found that the OPs informed the complainant to receive Rs.21,345/- without waiting for repairs and also directed and advised to proceed with the repaired vehicle as per loss assessment done by the surveyor and submitted the documents that is final report, tax invoice payment report but as per said letter complainant did not file any such further documents but claimed balance amount. But after considering the conditions of the private car package policy it is found that in respect of loss of all rubber, nylon, plastic parts, tyre, battery and air bags 50 percent shall be deducted out of the total cost incurred for repairing and for fibre glass components 30 percent shall be deducted. From the surveyor’s report it is found surveyor pointed out the loss of rubber or plastic that is LH Head Lamp, painting material charges, fender liner and regarding metal matters Horn Assy, Condenser, Intercooler and accordingly assessed loss to the extent of Rs.28,461/- after deducting the percentage as enumerated in the policy. So, regarding the assessment of loss as made by the surveyor is found not illegal. Moreover, complainant did not submit the final bill along with all papers in respect of purchase of materials etc. and also did not submit payment receipt, final bill, tax invoice etc. So, there is no scope on the part of the OP to decide further claim.
Another factor is the as per policy condition surveyors in their report gave in details all factors on the basis of which he reached at the decision and in fact, on the basis of the report OP settled the claim of the complainant. Moreover, surveyor’s report is a very vital document and this Forum cannot ignore the important document that is the surveyor’s report and if it is disregarded it shall cause serious miscarriage of justice and for which we have gone through the surveyor’s report and also considered the other factors but we have found that there is no negligence or deficiency on the part of the OPs and in this regard we have also considered the judgment passed in AIR 1999 Supreme Court 3251 and 2000 (10) Supreme Court Case 19 and also the present material facts and further terms and conditions of the private car package policy and we have gathered that surveyor’s report does not suffer from any irregularities and no doubt there is another clause that the age of the car is a factor, i.e.in case of exceeding 3 years but not exceeding 4 years to 25 percent shall be calculated and it shall be deducted from the entire assessment and in this case the surveyor also adopted that conditions. Considering all the above facts and circumstances and the materials on record we are convinced that the repairing cost as paid by the OP was assessed forthwith. It was reported to the complainant and complainant was asked to complete the repairing and thereafter, to submit the final bill including other papers but ultimately complainant did not submit it but just appeared before this Forum and after considering the material papers as produced by the complainant it is found that the complainant has failed to prove that he submitted all the papers to the OP after repairing the final bills in respect of purchasing the materials.
In the light of the above observations we are convinced to hold that complainant has failed to prove any sort of deficiency or negligence on the part of the OP or any sort of unfair trade practice on the part of the OP and in the above circumstances complainant no doubt got such relief as prayed for but no doubt as per version of the OPs we have gathered that OPs are willing to consider his further claim if complainant files all the papers to them as per their requirement and in fact, OPs asked the complainant to file it vide letter dated 18-12-2014. So, complainant shall have to act accordingly as per OP’s letter dated 18-12-2014 and OP shall have to reconsider the claim of the complainant.
Accordingly, the complaint is disposed of finally by passing such final order.
Hence,
Ordered
That the case be and the same is allowed in part without any cost against the OPs.
Complainant is directed to comply the requirements of the OPs as per letter dated 181-12-2014 and on receipt of the said documents from the complainant OPs shall have to decide the entire claim of the complainant in this regard and after proper assessment OPs shall realize the final settlement amount against the claim of the complainant within 60 days from the date of this order and that settled amount as would be assessed by the OPs shall be the final in form and further complainant shall not get any further chance to raise any objection before any Forum in that regard.
Accordingly, parties are directed to comply the order and if OP does not comply the order within that time in that case OP shall have to release a total sum of Rs.30,000/- finally as settled amount to the complainant invariably within that period of 60 days if first part of the order is not complied by the OP and even if it is found that OP is reluctant to comply the order in that case OP shall have to pay penal damages of Rs.20,000/- to this Forum and even for non-compliance of the Forum’s order they may be prosecuted and further penalty and fine shall be imposed u/s.25 read with Section 27 of the C.P. Act.
