Sri Shyamal Gupta, Member

Appeal Nos. A/954/2018 and A/350/2018 borne out of Complaint Case No. CC/335/2011 which has been allowed by the Ld. District Commission Kolkata—I (North) vide its order dated 12.03.2018. The facts and circumstances of both these appeal since been identical the same are disposed of through this common order.

1. The case of the complainant in brief is that the complainant purchased a Tata Sumo Car from O.P No. 4. In order to indemnify of loss the complainant obtained insurance policy from O.P Nos. 1 and 2 on payment of premium bearing policy no. 04-09-2401-1812-00000502 and the policy period was from 06.12.2008 to 05.12.2009. The complainant paid an amount of Rs. 12,304/- towards the premium. During the subsistence of the said policy the said vehicle met with an accident and due to such accident some passengers sustained severe injuries and they were hospitalized at Barasat hospital. On the basis of the said fact FIR was lodged and case was started at Amdanga P.S. The vehicle was seized by the police and after release of the damaged vehicle from the court, the complainant approached the O.P No. 4 for repair and estimate cost of such repair. The O.P No. 4 for inspection of the damaged vehicle and estimate the repairing of the vehicle took an advance of Rs. 10,000/- and the estimate was submitted subsequently of Rs. 4,03,599/-. The complainant informed the said fact to O.P insurance company for their inspection and appointment of surveyor.
2. The O.P Nos. 1, 2 and 4 contested this case by filing w/v and denied all the material allegations of the complaint.
3. The complainant claimed a sum of Rs. 4,03,599/- towards the repairing charges of the said vehicle, but the licensed independent surveyor appointed by O.P Nos. 1 and 2 assessed the loss only to the tune of Rs. 2,39,782.92. The complainant against the decision of insurance company went to Ld. Ombudsmen, but he also dismissed the case of the complainant and therefore, O.P Nos. 1 and 2 stated that there was no deficiency in service on their part and as they prayed for dismissal of the case.
4. In their w/v O.P No. 4 stated that O.P No. 4 is the authorized service centre of the manufacturer of the said vehicle.
5. The complainant thereafter did not keep any contact with O.P No. 4 and ultimately after the lapse of several years O.P No. 4 on 23.03.2010 sold the vehicle as scrap by Rs. 45,000/- and the said amount was adjusted with the carriage rent as the complainant agreed to bear at the time of giving instruction to O.P No. 4 for execution of the damaged repairing work. In view of the said fact O.P No. 4 stated that O.P No. 4 cannot be held responsible for the payment of the amount as claimed by the complainant.

After hearing both sides Ld. District Commission passed the following order on 13.03.2018.

That the CC No. 335/2011 is allowed on contest with cost against the O.P Nos. 1 and 2 and dismissed ex parte without cost against the O.P No. 3 and dismissed on contest without cost against the O.P No. 4. The O.P Nos. 1 and 2 are jointly and/or severally directed to pay the claim amount of Rs. 4,03,599/- (Rupees four lakhs three thousand five hundred ninety nine) only to the complainant along with compensation of Rs. 50,000/- (Rupees fifty thousand) only for harassment and mental agony and litigation cost of Rs. 10,000/- (Rupees ten thousand) only.

Being aggrieved with that order, the Complainant filed Appeal A/350/2018 with a prayer of direction upon the O.P No. 4 to pay the bond amount of Rs. 4 lakh. On the other hand, O.P Nos. 1 and 2 (Bajaj Allianz General Insurance Co. Ltd) filed Appeal No. A/954/2018 with a prayer to set aside the impugned order dated 18.03.2018.

Parties were heard at length and documents on record are gone through rigorously.

The core issue to be decided whether O.P No. 4 is liable to pay any amount/compensation or not.

Before I dwell on the issue, let me first put in place same of the relevant facts hereunder:-

1. Ld. District Commission mentioned in order dated 18.03.2018-

It is relevant to mention here that Lexus Motor being a reputed repairer of the authorized manufacturer of Tata Motors and thereby after the accident it is hardly possible for them to take this plea that they were never informed regarding the release of the vehicle by Ld. CJM on furnishing a bond of Rs. 8 lakhs. Since O.P No. 4 also committed illegality in disposing of the vehicle without obtaining permission from Ld. CJM and it is found from the materials on record that the complainant sustained financial loss due to the damage of the vehicle.

2. At this stage, there is no dispute that the driver had the licence at the relevant point of time (Mukund Dwangan Case)
3. The Hon’ble Apex Court in United India Insurance Company Ltd—Vs—Kantika Colour Lab & Ors. (Civil Appeal No. 6337 of 2001) observed as follows:-

     The happening of the event against which insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy. It is only upon proof of the actual loss, that the assured can claim reimbursement of the loss to the extent it is established, not exceeding the amount stipulated in the contract of Insurance which signifies the outer limit of the insurance company’s liability.

4. Observation of District Commission in page 5 paragraph 2 of the order speaks as follows:-

Ld. lawyer for the complainant in support of his contention to establish the claim against O.P Nos. 1 and 2 relied on a decision as reported in AIR 1982 SC 899 wherein it was held that as per Sec 148 and 151 of Contract Act whereby the duty of bailee was clarified.

But AIR 1982 SC 899 has no bearing with it.

5. The claim amount Rs. 4,03,599/- is nothing but an estimate to repair the vehicle. No bills have been filed regarding repairing cost. Hence, question of reimbursement does not call for.
6. Loss assessed by independent surveyor approached by O.P Nos. 1 and 2 is Rs. 2,39,789.92.
7. Claiming of bond amount of Rs. 8 lakh directly from O.P No. 4 through this Appeal A/350/2018 has no foundation at all as the same is not agitated in the original complaint petition dated 22.09.2011.
8. The Hon’ble Apex Court in “New India Assurance Company Ltd—Vs—Luxra Enterprises Pvt. Ltd. & Anr. (2019) 6 SCC 36 observed as follows:-

“Rejection of report of its own surveyor by the Insurance Company in the absence of any valid reason or proof that the report was arbitrary or excessive cannot be sustained.”

So at this state O.P Nos. 1 and 2 cannot deny the loss assessed by surveyor.

9. Responsibility of bailee/Reasonable case/Strict Liability/Sec 151 & 152 of Indian Contract Act 1872 are not properly explained herein.
10. Perused the observation of Hon’ble Apex Court in “Taj Mahal Hotel—Vs—United India Insurance Company Ltd & Ors” [2020 (1) CPR 4 (SC)].

Considering the entire panorama, I am of the view that Appeal A/350/2018 is not sustainable as it is drafted and framed. Acordingly the same is dismissed.

Regarding the Appeal A/954/2018, the same is allowed in part. OP Nos. 1 and 2 are jointly and/or severally directed to pay Rs. 2,39,789.92 only to the complainant instead of Rs. 4,03,599/-.

The rest part of the order dated 13.03.2018 be remain in tact.

In such premises A/954/2018 and A/350/2018 stand allowed in part and dismissed respectively.

Let the original copy of this order be kept in the case record of A/954/2018 and a photocopy there of in A/350/2018.