Brief fact of this case is that, Complainant Sri Rabindra Chowdharyhas purchased a Tipper from Samal Auto India,Bhadrasahi on 17.01.2017 for an amount of Rs.27,02,391/- for his livelihood. Out of the total amount he has paid Rs.2,00,000/- from friendly loan and a finance amount of Rs.25,75,528/-. After incurring further expenditure of Rs.75,000/- towards registration cost at R.T.A.Keonjhar on 25.04.2017 having Regd.No.OD-09C8067,Enginee No.13591803261L63560117, Chasis No.MAT448059G3P27898, make the Tipper Road worthy. The said vehicle was insured before Op.No.1. The OP.No.1 issued insurance policy on payment of Rs.53,342/- vide policy No.l2315201649716500000 valid from  25.01.2017 to 24.01.2018. Unfortunately, the said vehicle met with an accident at Koira in the district of Sundargarh on 05.06.2017 and got badly damaged. Just after the accident, complainant reported this matter to the Insurance company immediately on 06.06.2017 and the Surveyor of the said Insurance Company has inspected at the spot on the same day and on next day on 07.06.2017 deposited all required documents of the accident vehicle for necessary verification. As per the instruction of the Surveyor the alleged vehicle was shifted to Samal Auto India Ltd. Bhadrasahi in the district of Keonjhar, the authorised Service Centre of TATA Motors on 07.06.2017 for necessary repair and incurred further amount of Rs.50,000/-towards towing charges. The authorised service centre Samal Auto India Pvt.Ltd. raised an estimate amounting to Rs.4,92,410/- on 07.06.2017 towards spare parts and labour charges including new cabin cost of Rs.3,30,000/-.On 25.06.2017 ,the Claim department of the OP. No.1 Insurance Company intimated to the complainant that the damaged cabin is repairable although the cabin of the vehicle has been fully damaged which required replacement of a new cabin as per the version of the  Authorised repair Centre. The OP Insurance Co.insisted the complainant to repair the cabin as it cannot be replaced with new one. They shall only provide Recon cabin of only TATA Motors and finding no other way the complainant became bound to accept the proposal of  OP. As at that time there is no availability of the said recon cabin with TATA Motors ,Bhadrasahithe Insurance Co. advised the complainant to replace the cabin available in local market on payment of Rs.1,46,500/- and the said assembled Recon cabin has been affixed. During the period of repair of the vehicle in the idle period also the complainant has paid the instalment of Rs.1,03,500/- to the OP.No.2.As the vehicle is a new one and without allowing him to replace the damaged cabin with new one, a low cost assembled cabin was affixed as a result of the cabin could not be perfectly fitted in the truck and as such the vehicle could not run smoothly and abnormal sound is coming so that the drivers are afraid to drive the vehicle apprehending further accident.Such action of the OP Insurance Company is only to avoid their liability and to settle the claim in a meagre amount for which the new vehicle is standing idle and caused heavy financial loss to the complainant. Thereafter the OP Insurance Company has  settled the claim amounting to Rs.1,82,933.22 basing upon the private and confidential final survey report of surveyor against claim No.C230017052585. The surveyor report is also arbitrary and not acceptable and without giving any chance to the complainant, the Insurance Company settled the claim in much lower side. That, when the authorised service centre of TATA Motors repaired the vehicle and the amount of repair charged item wise, the surveyor slashed the labour charges from Rs.31,520.00 to Rs.19,928.00 and cost of parts from Rs.2,30,911.55 to Rs.1,57,134.54 causing Rs.73,577/- loss which is not acceptable and also when the Recon cabin was purchased from local market at Rs.1,46,500/- the OP allowed Rs.90,000/-causing Rs.56,000/- loss to the complainant and also slashed down the towing charges of Rs.50,000/-. So the OP Insurance company is engaged in unfair trade practice and harassed the complainant like anything. It is nothing but deficiency of service on the part of OP and for such overt act of OP Insurance company the complainant sustained a loss of Rs.2,50,000/- and his vehicle also unable to run properly due to affix of an old assembled Recon cabin caused mental agony and harassment to complainant. The complainant humbly prayed that the OP Insurance Company be directed to pay Rs.2,50,000/- towards less payment and Rs.1,00,000/- towards compensation for mental agony and physical harassment and Rs.10,000/- towards cost of litigation.

The complainant relies upon the following documents:

1. Photocopy of R.C.Book.
2. Retail invoice dt.30.6.17 of M/S Jagadamba Motors towards cost of Assemble Recon cabin worth Rs.1,46,560/-.
3. Private confidential final survey report of Assessor dt.12.7.2017.
4. Insurance paper.
5. Lr.to OP No.1 by complainant dt.6.2.2019 with postal receipt..
6. Advocate Notice on dt.6.9.17.
7. Mail dt.21.7.19 of OP add. To petitioner.

Under the above complain the case was admitted and notice issued to Ops.  In their written version the Op stated that the present case is not maintainable under Law and fact.The present case is bad for mis-joinder and non-joinder of party since the complainant has not made the authorised dealer/workshop which had repaired the vehicle as a necessary party to the present complaint. There is no cause of action for the instant case since the claim of the complainant has already been paid and as such there is no dispute which is pending to be redressed. The averments as embodied in para No.1 to 10 of the complaint petition are the matters of record hence there is no need of any reply. In reply to averments as made in para No.11 to 18 of the complaint petition, it is worthwhile to mention here that HDFC ERGO General Insurance Co.Ltd. is admittedly the insurer of vehicle bearing Regd.No.OD-09-C-8067 and thus has performed its duty chronologically as per the procedure. Copy of the policy schedule and the terms and conditions of the policy are annexed as Annexure A&B. In reply to averment made in para No.19&20 of the complaint petition the Insurance Company has made payment of the claim dues basing upon the report furnished by Surveyor and Loss Assessor to the tune of Rs.1,82,933/- copy of the survey report with assessment is annexed as Annexure C. The complainant has alleged that he had spend an extra amount of Rs.2,50,000/- towards repairing of the vehicle but the tax invoice issued by the authorised dealer/workshop for an amount of Rs.1,24,788/- and the bill allegedly issued by M/S Jagadamba Motor was Rs.2,71,348/- .Copy of the bills are Annexed D&E. It is further more submitted that the complainant  is claiming for expense incurred in towing the vehicle at Rs.50,000/- but as per the terms and conditions of the policy, the maximum towing expense which can be paid Rs.2500/-.The relevant section is reproduced hereunder as “In the event of the vehicle being disabled by reason of loss or damaged covered under this policy the company will bear the reasonable cost of protection and removal to the nearest repairer and re-delivery to the insured but not exceeding Rs.750/- for three wheeled vehicles, Rs.1500/- for taxis and Rs.2500/- for other commercial vehicles in respect of any one accident.” It is pertinent to mention that the complainant has alleged that the claim was paid without his consent but it is submitted that the Insurance Company settled the claim after sharing of the survey report and after taking the required consent on the satisfaction voucher.Copy of the claim is annexed as Annexure-F. It is further submitted that assessed amount in two parts was paid to the complainant on 29.06.2017(when advance was provided) and the remaining amount on 10.08.2017, but the complainant did not lodge any immediate protest regarding such payment or assessment but waited till 25.07.2019 to file the present complaint which clearly shows that the present complaint is an afterthought made with an intensions to make unlawful gain from the insurer. The complainant has alleged that the labour charges were reduced from Rs.31,520.00 to Rs.23,011.55, parts amounting to Rs.1,57,134.54 to Rs.73,577/- is totally incorrect since the labour charges to which the complainant is referring to and is mentioned in the survey report also included the towing charges. Also the difference in amounts under parts was due to the age of the vehicle, the applicable depreciation as per policy terms and conditions. That the humble insurer begs to submit here that the present complainant has come to this Hon’ble Forum with some vague allegations without any materials particulars. Causing mental agony, pecuniary loss and deficiency of service etc. on the part of this OP are meaningless and fallacious rather in order to patch-up his own faults so also to take under advantage, this case is filed as such badly necessary to be dismissed with exemplary cost for dragging this insurer in to court of law. In the above circumstances the present case is liable to be dismissed with costs.

The OP Insurance Company relies upon the following documents.

1. Copy of policy schedule and terms & conditions as Annexure A&B.
2. Copy of the survey report with assessment as Annexure-C
3. Copy of the repair bill as Annexure D&E.
4. Copy of the claim Form as Annexure-F.

On the above pleadings the following issues are framed to decide the case.

1. Whether the case is maintainable?
2. Whether any cause of action arises on this case?
3. Whether Ops have made any deficiency of service?
4. Whether the complainant is entitled to get any relief sought for?
5. Whether the case is bad for mis-joinder & non-joinder of party.

FINDINGS

All the issues are discussed jointly to decide the case. It is a fact that the complainant is registered owner of a vehicle bearing Regd.No.OD-09C8067 (Tipper) which is duly insured before HDFC ERGO Insurance company (OP No.1) on dt. 05.06.2017. The said vehicle met with an accident at Koida under SundargarhDistrict. On 06.06.2017. The surveyor of the Insurance Company inspected the spot and submitted his report. The complainant prayed to get a sum of Rs.3,60,000/- but the Insurance Company has paid Rs.1,82,933.00 as per their survey report. But the complainant is aggrieved that as per the advice of one Raman Ranjan Jenaofclaim department of Insurance company a Recon cabin was affixedon the said vehicle which created problem and the vehicle could not run smoothly and abnormal sound was created for which drivers are very much afraid of for driving the vehicle for which the complainant caused very financial loss. It is the duty of “TATA Motor company, the authorised dealer “ to supply the new cabin. But in this case the complainant has not made the authorised dealer or authorised service station as a necessary party to sought out his problem. So far as the Insurance claim is concern the Insurance company has made his payment as per the survey report. The complainant in this situation has not come to this commission/Court in clean hands. So, the complainant is not entitled to get any relief at this stage. The case is not maintainable. The OP has not made any deficiency of service from their side.

ORDER

            The complaint case being devoid of merits is dismissed without any cost.