OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.38/09
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Sri Upendra Nath Deka - Member
Sri Pradip Mazumder -Complainant
S/o.Late Utpalendu Mazumder,
Capital Watch Co.S.S.Road,
Lakhtokia,Guwahati-01.
-vs-
Bajaj Allianz Insurance Co.Ltd. -Opp. party
Represented by the Branch Manager,
Bajaj Allianz Insurance Co.Ltd.
Guwahati Branch,2B,2nd Floor,Centre Point,
G.S.Road,Ulubari,Guwahati-7
Appearance-
Learned advocate Mr.Sidartha Barua for the complainant
Learned advocates Mr.Raju Goswami and Mr.I.Barooah for the opp.parties.
Date of argument- 20.4.2016
Date of judgment- 6.5.2016
Judgment
1) This is a proceeding u/s 12 of Consumer Protection Act,1986.
2) The complaint was admitted on 13.4.09 and the notices were served on the opp.party and opp.party also filed written statement. The complainant filed his affidavit on 25th Feb/2010 and he was also cross examined by the opp.party. Thereafter the opp.party side filed affidavit of one Yunush Ahmed as their evidence and he was also cross examined by the complainant side. Both sides filed their respective written argument. Thereafter, on 26.4.16 we have heard oral argument of Mr.Raju Goswami and Mr.Indrajeet Baruah for the opp.parties and of Ld advocate Mr.Siddhartha Baruah for the complainant and today we delivered judgment which is as below-
3) The gist of the complaint is that the complainant, Sri Pradeep Majumdar , who is a businessman of repute, insured his motor car, Hyundai Accent GLS for Rs.3,50,000/- with the opp.party (Bajaj Allianz General Insurance Co.Ltd.), G.S.Road, Ulubari vide policy No.0G-08-2405-1801-00004734 dtd. 19.11.07. His vehicle met with an accident on the way of Shillong at Quinine(Nongpoh), N.H.40 on 26.8.08 with one Night super bus within the jurisdiction of Nongpoh Police station and thereafter he immediately lodged a claim before the opp.party vide claim No.OC-09-2405-1801-000079 on 26.8.08.The M.V.I.of Ri-Bhoi District, Meghalaya submitted a report as to said accident. The vehicle was towed by hiring a towing vehicle at the expenses of the complainant to M/S Ojha Hyundai Workshop at Beltola, Guwahati on 28.8.08. The surveyor of the opp.party inspected the vehicle and opined that the vehicle was totally damaged and the complainant is entitled to receive total sum insured. The complainant after completing all the duties and formalities with the opp.party legitimately expected to receive the benefit from the opp.party, but opp.party vide letter dtd. 8.9.08 asked him to submit his repair estimate and to add to the woes of the complainant, the opp.party communicated to him by another letter dtd. 18.12.08 where their intention is clear and thereby they committed deficiency of service towards him according to Sec.2 (g) of Consumer Protection Act,1986. Thereafter, the complainant personally went to the office of the opp.party on several occasions with a hope to come to terms with the opposite party, but they did not come to know and then he served a legal notice on 8.1.09 asked them to release the insured amount of Rs.3,50,000/- expeditiously and on 7.3.09, they sent a letter to the complainant and also wrote another letter on 16.3.09 to the complainant asking him to get the vehicle repaired and submitted the bills for reimbursement or settle for an amount of Rs.1,63,201’00 as full and final settlement to which he never agreed. The complainant again on 28.3.09 served another legal notice on the opp.party asking to release the total sum insured within seven days, but they remained silent. Being compelled, the complainant filed this complaint before this forum for issuing direction to the opp.party to pay him total sum insured of Rs.3,50,000/-, and Rs.1,50,000/- as compensation along with the cost of the proceeding.
4) The gist of the pleading of the opp.party is that there is no cause of action for filing the complaint ; the complaint is not maintainable in law or in facts. The policy taken by the complainant for his vehicle is a private car package policy which is subject to various terms , conditions, endorsement and exclusion stated in the said policy. The policy is subject to a scale of depreciation or parts replaced during repair ; it is also subjected to compulsory excess of Rs.500.00 as per the Own Damage Section of the policy. Clause 2 of Section 1 of the policy excludes payment of consequential losses and Exception No.2 stipulated that the company shall not be liable for any claim arising out of any contractual liability. They got the vehicle surveyed after the accident through their surveyor, Sri Surajit Choudhury and he assessed the loss on repairing basis at Rs.2,17,874’54/- and submitted the report to them on 3.12.08 and then they by letter dtd. 18.12.08 advised the complainant to repair the vehicle to enable settlement of the claim, but he instead of repairing the vehicle sent a reply on 8.1.09 stating that his vehicle has suffered total loss and hence he is not prepared to accept any other modes settlement of the claim other than total loss. But complainant has failed to give good reason for considering the damage to the vehicle as a total loss except false allegation with the surveyor as opined that it has sustained total loss. The complainant did not submitted any bill of repairs and then they sent final reminder to him on 7.3.09 for submission of repairing bills within seven days and also extended the limits of seven days vide letter dtd. 16.3.09 wherein he was given options to settle the claim on non-standard basis, but he instead of making any honest effort to find out the solution to the difference between them, sent a legal notice to them on 28.3.09 and he also served another legal notice dtd.28.3.09. The complainant had never completed all the duties and formalities required under the policy before becoming entitled to the claim, as the complainant did not submit the bill of repairing the vehicle inspite of asking him to submit the bill of repairment, they are unable to settle the claim. Although they are kind in settling the claim and being compelled, they asked the complainant either to repair the vehicle and got it indemnify by submitting the bills and vouchers or accept a settlement on non-standard basis at Rs.1,63,401/-, but the complainant has not met the requirement nor accepted the settlement on non-standard basis . In such situation, they are unable to settle the claim of the complainant and therefore, they cannot said to have committed deficiency of service towards the complainant and in result the complainant is not entitled to any relief prayed.
5) We have perused the pleading of the parties as well as their evidence and found that it is both sides admitted fact that the complainant’s vehicle, a Hyundai Accent G.L.S.Car bearing registration number As 06 C 5041 was insured with Bajaj Allians General Insurance Company Ltd., Guwahati Branch, G.S.Road (Ulubari) vide policy No. 0G-08-2405-1801-00004734 dated 19th Nov,2007 which was effective from 19.11.2007 to 18.11.2008 with sum assured of Rs.3,56,000/- and during coverage of said policy, the said vehicle had met with an road accident on 26.8.08 at Quinine, Nongpoh, NH-40 with one night super while he was going to Shillong and it was damaged.
The second admitted fact is that about the accident , the M.V.I.of Raibhoi District of Meghalaya investigated the case and submitted the report and the complainant informed opp.party about the accident and the opp.party also got the vehicle inspected through their surveyor, and after the accident the vehicle was towed to M/S Ojha Hyundai Workshop, Beltola.
6) The opp.party side admits that they declined to allow the claim of the complainant as per demand of the complainant. Their plea is that the vehicle was partially damaged, and as per terms and conditions of the policy the complainant is to get the vehicle repaired in a authorized garage and submit the bill to them for reimbursement, but the complainant neither repaired the damaged vehicle nor submitted the bill of repairing, nor the estimate of repairing in spite of their direction to him. But the complainant’s plea is that the vehicle got totally damaged and the surveyor of the opp.parties himself found that the vehicle was totally damaged, and therefore, no scope left for repairing and hence, he claims the entire insured value of the vehicle which is Rs.3,50,000/- with an amount of Rs.1,50,000/- as compensation, and for complete damage of the vehicle the offer of settlement of claim on non-standard basis at Rs.1,63,401/- is not acceptable to him.
In evidence, CW (the complainant ) states that in the said accident his vehicle was completely damaged. After perusing the report of the M.V.I. of Nongpo,Raibhoi (Medhalaya), after inspecting the vehicle just after the accident, found all the parts of the engine and body of vehicle except break, steering, Light, and wheels have been got damaged in the said accident. Secondly, after perusing the surveyor report (Ex B) of the surveyor engaged by the opp.party, it is found that the surveyor inspected the vehicle on 13.9.2008 and he found that the engine of the vehicle was badly damaged and the estimated amount of repairing is Rs.2,20,000/-, but he opines that the wreck value of the vehicle is Rs.55,000/- . He also opines that the repairing of the vehicle is not economical. This version of the surveyor infers that the vehicle was fully damaged in the said accident. Thus, it is established that in the said accident, the vehicle of the complainant( AS-06 C 5041, Hyundai Accent GLS Car) was completely damaged leaving no scope repairing. Therefore, we are of the opinion that the complainant is entitled to insured value of the vehicle after deduction of value of salvaged parts of the vehicle, and therefore,the demand of the complainant for payment of the insured value of vehicle i.e. Rs.3,50,000/- is a just demand and refusal of the opp.party to pay the said amount to the complainant, for that count, is an act of deficiency of service . Therefore we hold that the opp.party is liable to pay Rs.3,50,000/- (the insured value of the damaged) to complainant with interest at the rate of 12% per annum from the date of filing of this complaint (13.4.09) but they are entitled to the value of salvaged parts of the said vehicle.
7) We have also found the complainant had filed the claim before the opp.party on 28.8.08 and did so many correspondence with them including issuance of legal notice on 28.3.09, but the opp.party refused to comply with his damand, rather offered Rs.1,63,401/-on non-standard basis, which is not acceptable to the complainant having he is entitled to total insured value i.e. Rs.3,50,000/-. Therefore, it is crystal clear that the opp.party has caused harassment to the complainant by their act of constant refusing to pay the insured value of the vehicle to complainant. Therefore, we are of opinion that the opp.party is liable to pay the complainant atleast RS.10,000/- as compensation. Secondly, it is also found that for no-fault of the complainant, he has to prosecute the opp.party before this forum, paying the fees to his counsels, and bearing other costs of attending before this forum. Hence, the opp.party side is liable to pay atleast Rs.10,000/- as cost of the proceeding.
8) Because of what has been discussed as above, the complaint against the opp.party Bajaj Allianz Insurance Co.Ltd. represented by the Branch Manager, Guwahati Branch (G.S.Road) is allowed on contest and the opp.party is accordingly directed to pay Rs.3,50,000/- (Rupees three lakhs fifty thousand) only (the insured value of the vehicle ) to the complainant with interest at the rate of 12% p.a. from 13.4.2009 provided they are entitled to the value of salvaged parts of vehicle which they may realize after selling the parts of the said vehicle and also to pay him Rs.10,000/- as compensation and Rs.10,000/- as cost of proceeding. The opp.party is direcited to make such payment to the complainant within three months,in default of which, other two amounts shall also carry interest at the rate 12% per annum.
Given under our hands and seal of this forum on this day 6th May,2016.
Free copies of judgment be delivered to the parties.
(Md.S.Hussain)
President
(Mr.U.N.Deka)
Member
