The case of the complainant, in brief, is that the complainant purchased one Motor Bike (Hero Glamour, red colour) from O.P No.3 bearing Chasis No. MBLJA 06ADDGF01526 and Engine No.JA06EJDGF11112 on 19/07/14 being attracted with the lucrative advertisement of O.Ps. He insured his Motor Bike under Policy No. 156017311410000831 with O.P No.2/National Insurance Company in which the insurance policy was effected from 21/07/14 to 20/07/15 (Mid night). On 19/07/14 the O.Ps handed over the policy deed to the complainant after paying premium of Rs.1017/-. It was settled in the said policy that they will discharge proper service towards the complainant.
On 16/07/15 the complainant met with a road accident at Sathirgali of Ward No. 6 of Alipurduar Municipality. The complainant’s bike dashed a road side concrete pillar. The complainant informed the matter to the Office of O.Ps by attending the workshop of Proforma- O.P No.3 and after preliminary examining the accidental bike the Pro-O.P issued one Estimate receipt vide Sl. No. 441 dated 16/07/15 of Rs. 6215/- and on that day the complainant submitted his claim form along with Photocopy of driving license, Policy deed, Blue Book, one original cancelled cheque before the O.P along with other relevant documents. Thereafter, on 17/07/15 one Bibak Bhaduri , the Surveyor of O.P visited the workshop of Pro- O.P and on examining the accidental Bike, the Pro-O.P issued another supplementary Estimate receipt Vide Sl.No.442 dated 17/07/15 of Rs,4,445/-. The said Surveyor Bibak Bhaduri approved the Estimate receipt dated 16/07/15 amounting to Rs.6215/- along with supplementary estimate receipt Vide Sl.No.442 dated 17/07/15 of Rs.4445/- i.e. totalling Rs.10,660/-.
Thereafter, the complainant on 01/09/15 came to aware that the O.Ps deposited a sum of Rs.3812/- to the bank account of complainant vide A/C No. 913010034501724 Axis Bank, Alipurduar Branch. After that the complainant visited the Office of O.P for the purpose of quarry of the rest claim amount except the payment of Rs.3, 812/-. The non-payment of claim of complainant tantamount to deficiency in service on the part of the O.Ps.
Hence, the complainant claims for cost of Rs.10, 000/-, for mental agony and suffering Rs.20,000/- and an allowance of Rs. 6848/- i.e. rest of claim amount with interest at the rate of 18% per annum till the realization of the same.
The O.P No.1, 2 and 3 appeared through their Ld. Agents and filed two separate W/V (One on behalf of O.P No.1 and 2 and another on behalf of O.P.No.3) to contest the instant case denying the material allegations contained in the complaint.
The case of the O.P. No.1 and 2 on denying the allegation averred that the instant case is not maintainable in law as there is no cause of action. The claim of the complainant is baseless and vexatious and the complainant is not entitled to get any further claim as per terms and conditions of Insurance Policy. The complainant cannot be regarded as consumer according to definition of C. P. Act.
It is the case of the O.P. No.1 and 2 that as soon as after the incident, they were informed about the accident and O.Ps have appointed an IRDA approved independent surveyor for assessing the exact cause and extent of loss. It has been further alleged that without prejudice and without admitting liability as claimed by the complainant, the said surveyor made an assessment. The Surveyor Mr. Bibekananda Bhaduri (Surveyor/loss assessor) observed and assessed the insured at best the claim may be Rs.3, 812/- and recommended the said amount to be approved full and final settlement of claim. Accordingly, Rs.3, 812/- has duly been paid to the complainant as full and final settlement in the bank account of the complainant.
According to this O.P, there is no deficiency in service on the part of them and as such, the complainant is not entitled to get any relief as claimed. In the circumstances, the O.Ps claim that this case has no merit and it is liable to be dismissed with exemplary cost.
The case of the Pro-O.P i.e O.P.No.3 that the case is not maintainable against him. He is the authorized dealer of Hero Motors Corp. Ssp, Madhabmore, Newtown, Alipurduar. One approved Surveyor of O.P.No.1 and 2 inspected the two wheeler at the workshop of Pro-O.P and as per assessment they have paid the claim amount to the complainant. This O.P has nothing to say about the dispute/dis-satisfaction of the complainant with other O.Ps.
According to O.P the complainant is not entitled to get any relief or compensation from this O.P. As such, this O.P claims for discharge from the instant case.
The complainant and O.P. No.1 and 2 (Jointly) and O.P.No.3 file evidence on affidavit which appears to be the reiterated version of complaint as well as W/V. The complainant and O.P No.1 and 2 (jointly) and O.P.No.3 have also filed written argument in support of their respective cases.
Heard argument of Ld. Agent of complainant and Ld. Agent of the O.Ps.
In this context, the following points were necessarily come up for consideration to reach a just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(ii) of Consumer Protection Act ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Point No.1 and 2:-
It appears from the complaint that admittedly the complainant had purchased a Motor Bike from O.P.No.3/Dutta Auto Emporium, Authorized Hero Motors Corp. Ssp, Madhabmore, Newtown, Alipurduar on 19/07/14 and subsequently it was insured with O.P.No.2/National Insurance Co. Ltd. The specification of Bike is Hero Glamour (red colour) being WB 70-D-1536. The O.P.No.2 and 3 are running their business within the jurisdiction of District Alipurduar.
The total claim of this case amounting to Rs.10, 660/- is far less than the pecuniary limit of this Forum.
Therefore, having heard the Ld. Agents of both sides and on considering the materials on record, we are in view that the complainant is a consumer u/s.2 (1)(d)(ii) of C.P.Act,1986 and this Forum has sufficient territorial and pecuniary jurisdiction to entertain the case.
Thus, the points are disposed of in favour of the complainant.
Point No.3 and 4 :-
Both the points are taken up together for the sake of convenience and brevity.
Admittedly, the Bike of the complainant being Chasis No.MBLJA06ADDGF01526 and Engine No.JA06EJDGF11112 was purchased from O.P No.3 on 19/07/14 and subsequently the said bike of complainant was insured with O.P.No.2 being Policy No.156017311410000831 (Annexure-A) and the coverage of insurance runs from 21/07/14 to 20/07/15 (Midnight) and subsequently the insurance policy was handed over to the complainant on 19/07/14 after payment insurance premium of Rs.1017/-.
Fact remains that on 16/07/15 the said Motor bike met with an accident by dashing a concrete pillar nearby a road at Alipurduar and subsequently the Motor bike was brought to the O.P No. 3 on that date. The matter of accident was informed to the Insurance Company. According to the complainant the damage was estimated at first by a Surveyor Bivekananda Bhaduri of O.P.No.3 amounting to Rs.6, 215/- (Annexure-B). Subsequently, the said surveyor again estimated being a supplementary estimate on 17/07/15 amounting to Rs.4, 445/- (Annexure-C). According to the complainant, the O.Ps deposited Rs.3, 812/- on 01/09/15 in the account of complainant at Axis Bank, Alipurduar (The Bank’s statement of complaint Annexure-D).
The complainant has alleged in this case that inspite of giving proper service by the insurance company, they only paid an amount of Rs.3, 812/- on 01/09/15 to the bank account of the complainant without any basis. According to complainant, he is entitled to get full compensation along with cost i.e. totalling Rs. 10,660/-.
On the other hand, the O.P. No.1 and 2 denied the claim of the complainant. They averred in their W/V as well as the evidence on affidavit that as soon as the incident occurred they have been informed and subsequently the O.Ps appointed an IRDA approved independent surveyor for assessing the exact cause and extent of loss, without prejudice and without admitting liability as claimed by the complainant and the surveyor assessed it and accordingly, the report submitted by the said surveyor namely Bibekananda Bhaduri. The O.Ps have repudiated the claim amounting to Rs.3, 812/- and the same was sent in the account of the complainant. There is no deficiency in service on the part of the O.Ps and as such, the O.Ps have claimed for rejection of the complainant’s case. The O.Ps viz. O.P No.1 and 2 have filed some documents in support of their W/V as well as the evidence on affidavit filed herein. (Annexure A/1 is the report of surveyor Bibakanda Bhaduri, who made survey of the Motor Bike of the complainant being No. W.B 70 D – 1536 on 02/08/15). The said surveyor in his report a loss assessed Rs.4, 226/-. Annexure-B/1 reflects that the Insurance Company having its Office at Kolkata, 8 India Exchange Place, NIC Building goes to show that the final assessment about the loss assessed being Rs.3, 812/-.
The complainant in his complaint averred that he submitted the claim along with Photocopy of Driving License, Policy deed, Blue Book, one original cancel cheque before the O.Ps along with all relevant documents on 16/07/2015. It is abundantly clear on observing Annexure – C/1 that the complainant had given a cancelled cheque at the time of claim of damage and accordingly, the loss amount assessed by O.Ps has been deposited in the account of complainant at Axis Bank, Alipurduar. Annexure-D/1 shows that it is a loss voucher on account of payment and disburse of the said amount of Rs. 3, 812/-.
In the instant case, in our view unless the IRDA i.e. Insurance Regulatory Development Authority approved surveyor be appointed and certified by assessing exact cause and extent of loss ,no one can get any amount of money from Insurance Company. Annexure-A/1 goes to show that it is final survey report in this case. It was made by Bibekanana Bhaduri on 02/08/15 being surveyor and loss assessor (licensed) Auto-Mobile Engineer. Though the complainant has filed two reports of surveyor about the estimate of the damage of the Motor Bike on 16/07/15 and 17/07/15 (Annexure- B and C) but in comparison with the survey report Annexure-A/1 filed by O.P.No.1 and 2 is the detailed report of said Bivakananda Bhaduri which made on 02/08/15 while he appointed on 17/07/15 and surveyed on 18/07/15 onwards within the premises of O.P.No.3. The cause and nature of accident have been mentioned therein. The survey report was submitted within 15/16 days from the accident, in question.
The Ld .Agent of the complainant has cited the rulings reported in 1994(2) CPJ 84, Delhi State Redressal Commission, 1997(2) CPC 334 (NC), 2008(2) CPJ 381 (NC). 2014(3) CPJ 178 West Bengal State Commission and 2005(3) CPJ 437 (Tamil Nadu State Commission) and the Ld. Agent for the O.Ps have cited some other rulings cited herein being 2008(3) CPR 51 (NC), 2015(2) CPR 64 (NC), 2015(3) CPR 423 (NC), and 2017(!) CPR 102 (NC).
Perused the above rulings of Hon’ble Court as cited by the Ld. Agent for the complainant and it appears that the fact of the instant case is not fitted with the facts and circumstances of the above said cited cases.
On the contrary, the citation of the Hon’ble Court as referred by the Ld. Agent for the O.Ps it goes to show that the surveyor report is an important document and cannot be wished aside without any compelling evidence to the contrary. The report of surveyor is to be given due weight.
On the contrary, the complainant actually neither in evidence nor placed any argument with regard to the surveyor’s report filed by O.P.No.1 and 2. The said surveyor’s report is unchallenged. The complainant failed to file any repair slip which would definitely show that the complainant spent money for repair of his Bike except the depreciation cost.
However, on scrutiny of the facts and circumstances of this case and the materials on record, we are in view that there is no deficiency in service on the part of the O.Ps and as such, the complainant is not entitled to get any amount of compensation as claimed herein. There is no negligence on the part of O.Ps. As such, we are constrained to hold that the complainant’s case cannot be allowed as sought for.
Thus, the points are decided against the complainant.
All the points are disposed of.
Hence, it is,
ORDERED
that the C.C case No. 30 of 2015 be and the same is dismissed on contest against the O.Ps without any cost.
Let a plain copy of this Final Order be supplied to the concerned parties by hand/be sent under registered post with A/D forthwith for information and necessary action.
Dictated & Corrected by me
