HON’BLE  MR. ASHIS KUMAR BASU,  MEMBER

Order No. 06.

Date :  27.01.2021

The record is put up for judgment.

1. This appeal emanates from the judgment dated  05.12.2019 ,delivered by the Ld. District Consumer Disputes Redressal Forum ( in short ,District Forum ), Burdwan, in  Complaint case No.  CC/158/2018 .  

2. The dispute in the present case arises out of complaint filed by the Appellant-Complainant for deficiency in service and unfair trade practice on  the part of Respondents- Opposite Parties in relation to repudiation of insurance claim for a road accident of a private car. 

3. In filing appeal under section 15 of Consumer Protection Act’ 86 ( hereinafter, the Act ),the Appellate  alleged that the impugned order passed by Ld. District Forum,Burdwan, was incorrect in fact as well as in law and acted illegally with material irregularities.  

4.  The Appellant is aggrieved as the Ld. District Forum  without going through the records and written submissions filed by  both the parties arrived at a wrong conclusion and rejected the complaint  without giving any relief .  

5. The appellant is also aggrieved as the Ld. Forum  below has not given any importance to the report of the surveyor resulting adverse effect in taking decision for the instant case.  It is stated  that though  the Respondent-Insurance Co.  accepted the road accident of insured car ‘ FIGO ASPIRE’ and admitted the assessment  of said damaged  car made by the surveyor appointed by them , but they repudiated the insurance claim  which is  incorrect. Hence the impugned order dated 05/12/2019 passed by the Ld. Forum below in CC No.158 of 2018 is bad in law and liable to be set aside and/ or quashed.

6. Appellant prays for admission of the appeal and pass an order directing the Respondent- Opposite Parties to pay Rs.560973.75 for full  amount of cost for repairing the  insured damaged car along with  payment of Rs.100000/- for causing mental pain , agony and granting Rs.30000/- as litigation cost.  

BRIEF  FACTS

7.  Mrs. Tamalika Mukhopadhyay, W/O Mrinmoy Mukhopadhyay, Appellant- Complainant purchased a four wheeler, branded as FIGO ASPIRE , bearing Registration No.42 AG 7488  on 17.06.2016 for Rs. 649004/- from Banerjee Ford, Burdwan, taking loan from State Bank of India, Burdwan Branch. The appellant purchased a Private Car Package policy on 20.06.2017 for the said car from The New India Assurance Co. Ltd. Bardhaman, W.B. bearing policy no. 512502311701000002306  covering the period from 20.08.2017 to 19.08.2018  and paid premium for Rs.12956/- ( as per Policy Schedule  cum  Certificate of Insurance ; Annexure C1 ) accordingly. On 13.11.2017, while Tanmoy Mukherjee, brother-in-law of the Complainant was driving the said car, having valid  driving license , met a head-on collision with a tractor.  Tanmoy Mukherjee was severely injured and the car was damaged. The colliding tractor fled away and   MR. Mukherjee could not note its number due to severe injury. After consultation with seller of the car it was brought  to the workshop of Banerjee Ford, Durgapur with the help of breakdown services for repairment  and incurred expenditure to the tune of Rs 5500/- for this service.   Appellant was busy for the treatment of  injured Tanmoy Mukherjee and  thereafter informed  the incident of car accident to the OP 1- Insurance Co.  on 15.11.2017 through a letter where she requested him to take necessary action ( Annexure- C ). The service manager of the Ford Show Room estimated the repairing cost of the damaged vehicle to the tune of Rs. 4,80,000/- which may go up  for another one lakh. Respondent- Insurance Co. appointed an IRDA  approved surveyor who approved  the repairing work  under Banerjee Ford Service Centre, Durgapur ( vide WORK APPROVAL, Annexure –D ). Appellant disclosed that  the Banerjee Ford Service Centre repaired the said damaged car without  any consent from the Appellant- Complainant and  raised a bill amounted to Rs.560975.73 in the name of the Appellant (  Vide running page no.39 to 43 ; Bill date 27/03/2018 ). The surveyor inspected the repaired  vehicle and assessed the damage to the tune of Rs. 325000/-.  As per statement of the  Appellant the  Responent No.1 verbally  informed that they might settle the claim at 325747/-.  On the other hand, Appellant informed  Insurance Co. that   when the depreciated value of the car was 519204/-  and cost of repair was above 75%  of the total value of the car, it should be assessed on total loss basis as per IRDA guide line. Moreover, as the settlement of the claim is getting delayed and the repaired car is not released , Banerjee Ford is charging perking fee @ 250/- per day without complainant’s fault. The Respondent- Insurer gave no reply for the rest amount of compensation which is amounted to Rs.220000/- to 235000/-.

  Being  seriously ill and finding  no other way to recover the full repairing cost of Rs.519204/- from insurer as per  IRDA  guideline,  complainant filed a complaint at Ld District Forum, Burdwan on 27.09.2018, being case no. CC/158/2018 for deficiency in service and unfair trade practice on the part of Opposite Parties. The ld. Forum below dismissed the complaint on contest against OP 1& 2 and dismissed exparte against OP 3&4  without any cost.  Ld. Forum below observed that complainant had not submitted the claim -form , hence she is not entitled to have insurance claim at this premature stage and there is ‘no cause of action to file this complaint.’ Being aggrieved , this appeal has been preferred before this Commission against the impugned judgment .

Key findings

8.  If we relook into the matter, it is found that the complainant’s insured car whose value as per invoice is Rs.649004/-   was damaged in the accident  and corresponding repairing  cost stood  at Rs. 560975.73  and Tanmoy Mukherjee, the driver was severely injured and could not note the number of the collided tractor. It is clear that the cost of repairing is much higher than the IDV  which appeared that it was a severe car accident.  Surprisingly, complainant did not inform the police about this incident  and did not lodge any GD which was  her first and foremost  legal obligation. In such circumstances to lodge a GD is quite essential and logical. But Complainant remained silent over this matter.   Complainant could not show any reason why  she has been abstained from informing police about this incident. Complainant could not produce any documents on treatment of Tanmoy Mukherjee for his injury. In fact, what was happened actually is not clear in absence of police report. This is nothing but a lapse on the part of the complainant. 

9.  In the brief notes of argument, complainant claimed that she had filed the insurance claim after informing OP 1- insurance Co about the accident.  Regarding claim , complainant stated that she has submitted relevant Tax token, RC Book along with claim petition.  She also submitted repairing bill in original amounting to Rs.560975.73 issued by Banerjee Ford in the name of complainant where the repairing work has been done. Complainant filed  the photo copy of the same   ( running page no. 41 to 43 ) which do not bear any signature for BANERJEE FORD  and that of Customer.  The said bill does not have any bill/invoice no and there was no impression of seal of the OP- insurance Co. so that it could be proved that the bill was paid and submitted  by the complainant in the office OP-1.  In course of trial, from the very beginning , the complainant could not produce any receipted copy of claim petition bearing  the seal and signature of OP1 & 2.   For insurance claim , submission of claim petition  in prescribed form is mandatory which the complainant could not produce though she stated that claim petition has been submitted. Complainant utterly failed to mention the date on which the claim form has been filed  in the office of the  OP1 &2.  In fact, except the intimation letter dated 15.11.2017 regarding information of car accident  none of the documents bear any seal and signature of OP 1 &2  which could prove that the  related documents  submitted for insurance claim.  Complainant also disclosed that she had met several times with OP 1&2  to pursue  her claim, but she could not produce a single document / or letter  in support of her claim.                                                                                                    10.  In this connection , the Ld. Forum below observed that  “ there is  nothing on the record to show that the complainant  submitted the paid bill for reimbursement  and completed the necessary  formalities and submitted any claim as per the policy to the  OP-Insurance Co…… As the complainant did not place her claim following due procedure as per terms and conditions of the policy, OP is yet to settle the claim as assessed by the surveyor & loss assessor. So we find  the allegation of deficiency in service and unfair trade practice on the part of the OPs does not arise. Rather complainant filed the case at a premature stage alleging that OP did not settle her claim and alleges deficiency in service and unfair trade practice against OP in this case .”  Ld. District Forum also made the observation that “ we are not at all inclined to allow any relief to the complainant at this premature stage. With this observation , we are of the opinion that the complainant has no cause of action to file this complaint against OP-Insurance Company with any prayer of reliefs as prayed for”. Ld. District Forum ultimately  dismissed  the complainant case on contest against the OPs No. 1&2 and dismissed  ex-parte against OPs No.3&4  without any cost.  

11.  In Para 13 of BNA, filed by the complainant, it is alleged that as the OP- Insurance Co. has delayed   the settlement, she has to pay perking-fee @ 250/- per day  to Ford Showroom as the said car has been lying there after repairment. But  the complainant could not produce any document for charging perking fee  by Ford Show Room in support of her claim. 

12.  At the stage of arguments , Ld. Advocate  for the OPs 1 &2  raised the point that the complainant  not yet  submitted the insurance claim in statutory Prescribed Form along with other relevant documents but the  ld. Advocate for the complainant is unable to answer on that point properly and  specifically   which is the cardinal point  in the instant case. 

13.  The complainant cited the judgement  passed by the Hon’ble NCDRC in case of  Shiv Villas Resort Pvt. Ltd   Vs  United  India Insurance Co. Ltd  on 13 Nov,2017 to support his arguments,  where the complainant  accepted a part of the insurance claim under duress.  Hence regarding fact  and circumstances  of the cited  case ,is not similar to the instant case.  The complainant also cited  the judgment passed  by the Hon’ble   Supreme Court of India in the case of  KAMALESH  VS  SHRIRAM GENERAL INSURANCE  COMPANY LTD, Civil Appeal No.8796 of 2019, where the information  to the police given by Complainant,  was delayed and  the Hon’ble Apex Court  observed , “ Though, it is true that it is not a case of theft where immediate intimation  to the police is required   yet the role of FIR in such a case cannot be minimized.” The above cases have no similarity with the present case  as all the complainants in the above cases filed insurance claims in statutory claim- form which is mandatory.

14.  We have considered the arguments of both the learned  Advocates and have examined the record. We are of the view that submission of insurance  claim in the statutory prescribed form  is must  which should be taken into consideration while  deciding  the  insurance claim. Non-submission of the same  tantamounts to violation of  basic principles of insurance policy.  Appellant –complainant  could not show  any evidence that she filed claim form  officially. Even the amount of insurance claim was  officially unknown to OPs 1&2 as there was no formal submission  any form/application/ petition for the same.  Appellant could not produce any written evidence for persuasion of claim for loss recovery . It is quite natural that without  processing of the documents and  subsequent steps for granting insurance claim on the part of OPs No 1 & 2 does not arise. Hence it is a logical conclusion that  Respondent- OPs 1 & 2  got  no scope  to grant the insurance claim . The  cause of action  does not arise as the settlement of  claim could not be done in absence of submission of claim form for which  OPs 1 & 2 have no fault. We approve the view taken by Ld. Forum below  that there is no cause of action as the complainant filed the complaint at premature stage. Going through all pros and cons of the case , it is our considered view that the Respondent- OPs 1 &2 are not liable  for deficiency in service and unfair trade practice as the  appellant did not submitted essential required  documents violating norms of insurance claim.   From record it is found that there is no involvement  of OPs 3&4  regarding insurance claim in the instant case.

15.   On consideration of totality of the facts and circumstances, the view taken by the Ld. District Forum  in the impugned order cannot be said to be erroneous and unsustainable in law. Hence the impugned order passed by the Ld. Forum below needs no interference. Consequently, this appeal being devoid of any merit is accordingly dismissed.

                                                                                 ORDERED

The Appeal being A/5/2020 be and the same is dismissed on contest.

We make no order as to cost.

 Let the copy of this order be supplied to the parties free of cost.