Dated: 09.05.2024

Miss Gita Verma (Judicial Member)

Order

1. The District Consumer Disputes Redressal Forum, Gaya passed final order in complaint case no. 43 of 2015 whereby its order ordered the opposite party in the complaint petition to pay Rs. 1,17,337/- to the complainant with 8% p.a interest with effect from 25.10.2014, Rs. 15,000/- for mental and physical harassment and Rs. 5,000/- as litigation cost within two months of the date of order failing which to pay the entire amount with 8% further interest thereon till realization.
2. The opposite party which is a private general insurance company came up with appeal against the aforesaid order with the plea that there was no deficiency in service on its part and for that reason it was not liable to pay the aforesaid amount to the complainant. On this ground the opposite party made prayer in the appeal to set aside the impugned order. Its appeal was registered as appeal no. 125 of 2018.
3. The complainant was also not satisfied with the impugned order. He came up in appeal stating therein that the District Forum had not ordered the O.P to pay the entire repairing cost of his vehicle as prayed for by him. So, it made prayer in appeal to enhance the amount payable to him according to the impugned order. His appeal was registered as Appeal no. 09 of 2018.
4. Since, the aforesaid appeal and cross appeal have arisen out of one and the same order they were heard together and are being disposed of by this common order.
5. The case of complainant was that he owned a truck bearing registration number CG-07CA-8790 which was insured to cover all risk by opposite party vide insurance policy number 379/01021165/000/00 for the period 29.03.2014 to 28.03.2015. Since, he was an unemployed person, the said truck was his source of earning livelihood. On 24.10.2014 while the truck was returning from Dehri it met with an accident at about 5:00 PM on GT road near village- Navgraha within the jurisdiction of Amas police station of Gaya District. The local police immediately arrived at the site of accident and deputed a chaukidar to provide safety as rice was loaded on the said truck. Information was given to the complainant about the accident but he reached site of accident on 25.10.2014 because he was out of station. He gave information about the accident to Amas police station on basis of it Sanha entry number 484 of 2014 dated 25.10.2014 was registered in that case with respect to the accident.
6. It is the further case of the complainant that the front portion of the truck was badly damaged, chasis was bent, battery, back portion of gear box, body of the vehicle and many other parts were badly damaged in the said accident. He gave information about the accident to the opposite party who appointed a surveyor to make inspection of the vehicle and assessment of actual cost of damage caused to the vehicle. The surveyor came to the spot inspected the vehicle and told that the cost of repair might go above Rs. 4,00,000/- under the order of surveyor the truck was taken to a garage for repair. After 4 days surveyor came to garage and demanded from him 20% of the aforesaid amount 10% for himself and 10% for managing the office of insurance company. The complainant refused to oblige him. Then the surveyor threatened him that he will give such report that he will not get a single paisa against his claim. It is the further case of complainant that the truck was repaired under the instruction and supervision of the surveyor and he submitted all the papers concerning the repair, purchase of part, cost of hiring crane etc. to the O.P but his claim was not settled. Since the truck remain in the garage for a long time. His earning from the truck remained stopped during that period. But, he was paying installments with interest to the financer-Bank in whose favour the truck was hypothecated. Then the claim was not settled, he gave a legal notice to O.P on 16.04.2015 but the O.P. did not reply to it.
7. On the aforesaid ground the complainant had claimed Rs. 4,00,000/- towards the cost of repair of the truck and Rs. 50,000/- as compensation for physical and mental harassment and financial loss and had prayed that the O.P. may be ordered to pay to him to aforesaid amount. But lastly his claim was repudiated by the O.P.
8. The O.P appeared on notice, filed a written statement and contested the claim. It has admitted in the written statement that the said truck was insured with it, it has further taken the plea that according to the complaint petition that the accident took place on 24.10.2014 at about 5:00 PM but Sanha entry was made regarding it in the local PS on 25.10.2014. In the claim filed before the O.P. the date of accident was mentioned as 27.10.2014. due to these discrepancies it repudiated the claim on the basis of some decisions of the Hon’ble National Commission mentioned in the para 7 of written statement. The O.P. has further stated that the surveyor had found that only the front portion of truck was damaged in the accident which was not a major damage. According to the terms and conditions of the policy, the complainant was required to give information of the accident to the insurance company within 24 hours. By not doing so, the complainant had violated the terms and conditions of the policy so it had rightly repudiated the claim and there was no deficiency in service on the part of insurance company.
9. At the time of hearing of both appeals, the leaned counsel for the complainant did not appear, a written notes of argument filed on behalf of the complainant in the appeal filed by him. The Ld. Counsel for the insurance company appeared in both the appeals and we heard.
10. So, far the plea of insurance company that the claim was repudiated because the date of accident written in the claim petition was 27.10.2014 is concerned we find and hold that it might be a simply clerical error, the actual date of accident is already written in the surveyor’s report filed by the insurance company. So, the insurance company could not repudiate the claim on this ground.
11. The report of surveyor is annexure-3 of the documents filed by the insurance company. According to the report of surveyor the net liability of the insurance company was Rs. 50,000/- only and the gross liability was Rs. 64,472.80/- out of which Rs. 12,972.80/- was salvage value.
12. The District Forum has stated in para-8 of the impugned order that the surveyor report is not admissible in evidence because it was not supported with the affidavit of surveyor. On this ground it has not considered the surveyor report and has assessed the loss itself by perusing the papers filed by the complainant including the bill given by the garage where the truck was repaired. It has been argued on behalf of insurance company that the surveyor is not his employee, he is an independent person having techinjcal knowledge of automobiles. So, he is an expert. His repport is admissible in evidence without his affidavit. So, the District Forum as committed illegality in not considering the surveyor’s report for assessing the damage and loss. The Ld. Counsel for the insurance company has further argued that assessment of loss by District Forum ignoring the report of surveyor is not legally sustainable. So, the reliefs granted to the complainant by District Forum  deserved to be set aside.
13. Having consider the aforesaid argument which appears to be just and reasonable. We allowed in part on contest the appeal filed by the O.P.- Insurance company and we modify the impugned order as mentioned below:-

The insurance company is ordered to pay Rs. 50,000/- only to the complainant against his claim as reported by its surveyor, Rs. 12,972.80/- as salvage value making a total of Rs. 62,972.80/- with 8% interest thereon with effect from the date of accident mentioned herein before. Rs. 15,000/- as compensation for mental and physical harassment and Rs. 10,000/- as cost of litigation.

14. So, far the cross appeal of the complainant is concerned we not found any merit in it. So, it is dismissed on contest.
15. On the basis of foregoing discussions and in terms of modified order passed by us in the appeal filed by the insurance company (O.P.). Both the appeal stands disposed of.

Md. Shamim Akhtar                                                                               Gita Verma

(Judicial Member)                                                                            (Judicial Member)

Md. Fariduzzama