Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 31.10.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite parties to pay the full estimated amount of Rs. 8,12,841/- ( Rs. Eight Lakh Twelve Thousand Eight Hundred Forty One only ).
- To direct the opposite parties to pay Rs. 1,50,000/- ( Rs. One Lakh Fifty Thousand only ) as compensation.
- To direct the opposite parties to pay Taxi charges, hired by complainant since 30.12.2013 upto 12.05.2014 for 134 days @ Rs. 800/- per day i.e. Rs. 1,07,200/- ( Rs. One Lakh Seven Thousand Two Hundred only ).
- To direct the opposite parties to pay Rs. 17,500/- ( Rs. Seventeen Thousand Five Hundred only ) as litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that she is a director of Pvt. Ltd. Company and has purchased a FIAT Linea Emotion ( Diesel ) car through the loan from Axis Bank, Boring Road, Patna from Guinea Motors Pvt. Ltd. ( opposite party no. 4 ) on 24.01.2013 on payment of Rs. 7,92,393/-. The aforesaid car was insured with opposite party no. 1 to 3 on 24.01.2013 for premium of Rs. 12,643/- only upto 23.02.2014 for total value of the car as will appears from annexure – 1.
The aforesaid car met an accident on way to Siliguri and got damaged and thereafter the brother – in – law of the complainant lodged a FIR in Nagarkatta P.S. Jalpaiguri in respect to the aforesaid accident as will appear from annexure – 2.
In the accident the Dewar of the complainant was injured and was treated in the hospital and thereafter the aforesaid car was brought to Patna on 28.12.2013 by truck and the opposite parties were informed in respect of the aforesaid accident as will appear from annexure – 3 and 3/A. The aforesaid car was brought to the work shop of opposite party no. 4 Guinea Motors and pre – job card was opened there and photographs of ill fated car was taken. Thereafter the complainant deposited Rs. 18,000/- as a pre condition for repair work to be taken by opposite party no. 4 as will appear from annexure – 4 and 5 series of the complaint petition.
The further case of the complainant is that opposite party no. 4 ( M/s Guinea Motors Pvt. Ltd. ) after verification of the said car gave estimate in respect of the same for repair works to the complainant amounting to Rs. 8,12,841/- only as will appear from annexure – 6 of the complaint petition.
On great persuasion the insurance company appointed surveyor on 31.12.2013 and got surveyed the aforesaid vehicle and the aforesaid surveyor M/s JHA & ASSOCIATES assessed only Rs. 5,26,139/- for repair of the aforesaid car in – spite of recommendation of complete repair work of damage vehicle. The aforesaid survey report has been annexed as annexure – 7.
It is further grievance of the complainant that she regularly persuaded for repair work of aforesaid car but neither insurance company nor opposite party no. 4 completed their job. The complainant also deposited Rs. 18,000/- for repair work because the agreement between the TATA Motors and FIAT came to an end on 31.12.2013. The complainant thereafter requested opposite party no. 1 and 2 several time and all the time they assured that the vehicle of complainant will be repaired soon as will appear from annexure – 8 and 8/A. Thereafter on 11.04.2014 the opposite party no. 3 ( the authorized officer of insurance company ) instructed to the complainant for submission of final repair bill and money receipt as well as Pan card and address proof with insurance company. The complainant after receipt of the aforesaid letter on 15.04.2014 replied on the next day i.e. 16.04.2014 that till date neither repair work not finalization of insurance claim were taken up. Hence no question arises for submission of required documents of opposite parties as will appear from annexure – 9 and 9/A.
The grievance of the complainant is that no action has been taken on behalf of opposite parties with regard to the finalization of the claim.
On behalf of opposite party no. 1 to 3 ( insurance company ) written statement has been filed. In Para – 7 of written statement it has been asserted that the complaint be dismissed for non – joinder of necessary parties i.e. Axis bank Ltd. with whom the said vehicle was hypothecated. It has been further asserted by opposite parties that the surveyor submitted final claim report dated 26.01.2014 to insurance company and found that vehicle is repairable and assessed the loss of Rs. 5,26,139/- with body shell and Rs. 4,47,038/- without body shell on repairing basis which is based on dismantle parts of vehicle by surveyor as per terms and conditions of the policy. The opposite party no. 1 to 3 had also annexed survey report which is on page 8 to 12. In Para – 14 of written statement the opposite parties have specifically stated that after submission of survey report, the insurance company several times requested the complainant to give consent for repair of the vehicle and submit final estimate but she did not do so and lastly the insurance company vide annexure – 9 of the complaint petition requested the complainant to submit final bill. Vide letter dated 11.04.2014 it was also informed to the complainant that the company shall not be liable if the damage occurred due to aggravation of loss like corrosion and parking charges.
It has been further stated that it is on the part of complainant to get her vehicle repaired and submitted bill before opposite parties for settlement of the claim but the complainant did not do so.
On behalf of complainant a rejoinder has been filed. The complainant has denied the statement made by the opposite parties from Para – 14 to 17 of the written statement stating therein that it was incumbent upon the opposite party no. 1 to 3 ( insurance company ) to give approval of the estimate submitted by opposite party no. 4 and instructed them to complete the required job of the repair of the vehicle. Unfortunately the opposite parties have maintained silence over that even after getting two survey reports in respect to the complainant’s vehicle. Complainant on 19.02.2014 and 22.02.2014 reminded them to give approval and instruction to their authorized shop ( opposite party no. 4 ) but they failed to do.
We have narrated the case of the respective parties in brief in the forgoing paragraphs.
From the fact asserted by the respective parties, it is crystal clear that insurance is admitted, accident is admitted and the opposite parties have not raised any doubt about any factual statement of the complainant in her complaint petition. Hence it will not be proper for us to dwell on admitted facts.
It further transpires that the aforesaid car was brought to the Guinea Motors ( opposite party no. 4 ) on 28.12.2013 and job card was opened by opposite party no. 4 and the complainant deposited Rs. 18,000/- vide annexure – 4 and 5 series. Opposite party no. 4 after verification has given estimate of Rs. 8,12,841/- as will appear from annexure – 6. The surveyor of the insurance company surveyed the entire vehicle and assessed damage to the tune of Rs. 5,26,139/-.
The grievance of the complainant is that although the aforesaid vehicle was brought to opposite party no. 4 on 28.12.2013 and surveyor surveyed the vehicle on 31.12.2013, the opposite parties never gave consent to opposite party no. 4 to repair the aforesaid vehicle. This fact is crystal clear from annexure – 8 and 8/A as well as from annexure – 9/A of complaint petition.
It goes without saying when vide annexure – 9 the opposite party no. 1 to 3 requested the complainant to furnish final repair bill and money receipt with Pan Card and address proof in order to settle the claim, the complainant vide annexure – 9/A dated 16.04.2014 has clearly stated that as the opposite parties have not given approval to the estimate submitted to opposite party no. 4 till date and therefore the aforesaid vehicle could not be repaired, then how the final bill can be submitted.
It is surprising that in the entire written statement the opposite party no. 1 to 3 has no where stated that they have given approval to the estimate ( annexure – 6 ) furnished by opposite party no. 4.
It goes without saying that unless the insurance company gives requisite permission for repairing the vehicle to the authorized service center the repair work cannot be done. The conduct of the insurance company is also clear from the fact that despite assessment of loss by the surveyor to the tune of Rs. 5,26,139/-, the opposite parties did not proceed in accordance with law. It is also surprising that inspite of giving their consent to estimate for repairing the vehicle to opposite party no. 4, opposite parties have asked the complainant to furnish the final bill. The aforesaid conducts of the opposite party no. 1 to 3 disclose serious deficiency on the part of opposite party no. 1 to 3.
For the discussion made above, we direct the opposite party no. 1 to 3 to pay the claim amount assessed by surveyor of Rs. 5,26,139/- ( Rs. Five Lakh Twenty Six Thousand One Hundred Thirty Nine only ) to the complainant within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite party no. 1 to 3 will have to pay an interest @ 10% on the amount of Rs. 5,26,139/- ( Rs. Five Lakh Twenty Six Thousand One Hundred Thirty Nine only ) till it final payment.
Opposite party no. 1 to 3 are further directed to pay Rs. 1,00,000/- ( Rs. One Lakh only ) to the complainant by way of compensation and litigation costs within the period of two months.
Accordingly, this complaint petition stands allowed to the extent referred above.
Member President
