Consumer Complaint No. 183 of 2014
Date of filing: 24.9.2014 Date of disposal: 16.9.2016
Complainant: Prasenjit Roy, S/o. Late Shanti Kumar Roy, resident of Kalna Road, PO. Burdwan, PS: Burdwan Sadar, District: Burdwan, PIN – 713 101, W.B.
-V E R S U S-
Opposite Party: 1. ICICI Lombard General Insurance Co. Ltd., having its Branch Office at City Tower, 2nd Floor, Burdwan, PIN – 713 101, service through its Branch Manager.
2. Bhandrai Automobiles Pvt. Ltd., authorized service centre of Tata Motors, having its office at G. T. Road, Fagupur, Burdwan, service through its Branch Manager.
3. Cholamondalam Investment Finance Ltd., having its office at Om Towers, 5th Floor, 46, Chowringhee Road, Kolkata- 700 071, service through its Manager.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Subrata Ghosh & Rumania Bagchi Ghosh.
Appeared for the Opposite Party No. 1: Ld. Advocate, Saurav Kumar Mitra.
Appeared for the Opposite Party No. 2: Ld. Advocate, Sovan Kumar.
Appeared for the Opposite Party No. 3: None.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OP-1 as the OP-1 has arbitrarily and illegally repudiated his legitimate insurance claim on false pretext.
The brief fact of the case of the Complainant is that being the owner of the vehicle being registration number WB-41-G-4406, chassis number-MAT453132D8F18275 and engine number-497TC96FWY830579. The Complainant purchased the said vehicle for earning his livelihood from the OP-2 under hypothecation by the OP-3. The vehicle was insured with the OP-1 for the period from 17.08.2013 to 16.08.2014. The Complainant used the vehicle for transportation of goods like Amul Milk from one place to another. On 08.10.2013 the vehicle was carrying Amul Milk from Palitpur to Bolpur and the same was driven by the authorized driver of the Complainant namely Subal Chandra Roy. But very unfortunately the loaded vehicle dashed with a road side tree at about 3am near the village of Muluk due to rash driving of the vehicle by the driver. As a result, the driver and the helper were seriously injured and admitted at the Bolpur S.D Hospital. The driver died on that day and the helper was under treatment. The vehicle got total damage due to the accident. Thereafter the Complainant lodged an FIR with the Bolpur Police Station on 08.10.2013 and police started accordingly in the number as 354/2013 dated 08.10.2013 u/S 279/338/304A of the I.P.C. The Police seized the vehicle on the same day. Durinng the period of custody in the Bolpur Police Station one mechanical expert of Bolpur, Santiniketan Motor Training School examined the vehicle on 09.10.2013 at 12.45 pm at the Police Station compound and submitted a report regarding damage of the vehicle before the Police Station on 09.10.2013. Thereafter the vehicle was released as per the order of the Ld. ACJM, Court, Bolpur on 10.10.2013 in connection of GR no-695/2013. The Complainant deputed the said damaged vehicle at the service centre of the OP-2 being the authorise service centre of Tata Motors for repairing and the OP-2 gave an estimate for Rs.7,50,370=00 towards repairing cost of the total damaged vehicle. The Complainant intimated the said fact to the OP-3 and lodged a claim after submitting all required documents before the OP-1 through the OP-2. But very surprisingly the OP-1 repudiated the claim of the Complainant due to non-validity of the permit of the said vehicle on the date of loss. The authorised service centre of the OP-2 sent a letter to the Complainant on 17.01.2014 stating that the claim has been rejected by the Insurance Company due to permit issue and now the vehicle is lying at the workshop of the OP-2 in unchanged condition. So the OP-2 requested the Complainant either to take back the vehicle from the custody of the OP-2 or to give them work approval with advance payment for starting the repairing work. The Complainant requested the OP-1 on several occasions to consider his claim as the Complainant has already applied before the M.V. Department, Burdwan for obtaining permit of the said vehicle prior to the date of accident. But due to official negligence or carelessness of the said Department, the Complainant got the certificate of permit for the said vehicle at a very belated stage and effect was given from 11.11.2013to 10.11.2018. So the Complainant requested the OPs to consider the claim lodged by him on non-standard basis, but the OP-1 did not consider the claim till date which amounts to deficiency in service and unfair trade practice on the part of the OP-1. The grounds of repudiation taken by the OP-1 are illegal, arbitrary and beyond the provisions of law which also indicates deficiency in service and unfair trade practice on behalf of the OP-1. Finding no other alternative to get relief and being compelled the Complainant has filed this complaint before this Ld. Forum praying for direction upon the OPs to make payment of Rs.7,50,370=00 towards repairing cost of the damaged vehicle, Rs.1,00,000=00 as compensation due to mental pain, agony and harassment and litigation cost of Rs.25,000=00.
The petition of complaint has been contested by the OP-1 by filing written version contending that the claim is not maintainable before the Consumer Forum as the vehicle was goods vehicle and admittedly the same was purchased for commercial purpose. The insurance policy was valid from 17.08.2013 to 16.08.2014 issued in favour of the Complainant by covering the risk by this OP subject to certain terms, conditions and stipulations. Damage of the insured vehicle due to accident was duly intimated by the Complainant and the Complainant was asked for several documents. As the permit of the vehicle was not produced by the insured the claim was repudiated and the same was intimated to the Complainant and the service centre accordingly. Accidental damage was occurred on 08.10.2013, but the permit as produced was valid for the period from 11.11.2013 to 10.11.2018. The OP does not admit that any application for issuance of permit was made by the Complainant and due to any laches on the part of the Motor Vehicle Department, Burdwan the same was not issued. The OP after perusing the document had repudiated the claim of the Complainant on the ground of no permit, so there was no deficiency in service as well as unfair trade practice on behalf of this OP. The vehicle was being used in public place by violating the terms of the policy and provisions of the Motor Vehicle Act. According to the OP-1 a wrongdoer cannot be entitled to get any relief. The Complainant knowing well that he is not entitled to get any relief has filed this complaint with a view to grab some money through an improper and illegal manner. The OP-1 has prayed for dismissal of the complaint with cost.
The petition of complaint has been contested by the OP-2 by filing written version contending that this OP is an authorized dealer and service centre at Burdwan of Tata Motors Limited and also a renowned public and commercial vehicle manufacturing company. The Complainant purchased the subject vehicle with a light commercial vehicle from this OP on 23.08.2013 after making of Rs.8, 59,455=00 towards the cost of the vehicle. The said vehicle was hypothecated with the OP-3 and insured with the OP-1 under an insurance policy which was valid for the period from 17.08.2013 to 16.08.2014 (midnight). The said vehicle was brought to the OP-2 in a damaged condition for which a quotation amounting to Rs.7, 50,370=00 was issued to the Complainant, out of which a sum of Rs.7, 14,220=00 was towards spare parts and Rs.36, 150=00 for labour cost. However it is learnt that the OP-1 had repudiated the claim of the Complainant on the ground of ‘no valid permit on the date of loss’ as such this OP was constrained to write the Complainant by issuing letter dated 17.01.2014 either to take back the vehicle in that condition ‘as it was’ or allow this OP to start the repairing job upon advance payment. Unfortunately, the Complainant did not take appropriate action in that regard for which this OP is also unable to start the repairing work of the damaged vehicle. The damaged vehicle is still lying in the workshop of this OP for which this OP is entitled to claim and get damages from the Complainant. The OP-2 is stated that it has no role or liability in respect of admissibility of the insurance claim so lodged by the Complainant with the OP-1. As the vehicle was plying on the date of the accident without having any route permit, which is a violation of the Motor Vehicle Act and rules framed thereunder and for this reason the OP-1 had turned down the claim of the Complainant regarding the said vehicle. The Complainant has made this OP as a party in this proceeding unnecessarily because within the four corners of the complaint no allegation has been made out by him against this OP. Prayer is made by the OP-2 for dismissal of the complaint against it.
After admission of this complaint notices were issued upon the OPs through the office of this Ld. Forum and all the OPs have appeared through their respective Ld. Counsel by filing Vokalatnama, but the OP-3 chose not to contest the petition of complaint by filing written version though on several occasions time has been prayed for. Therefore the Ld. Forum was pleased to fix the complaint for argument ex parte against the OP-3.
At the very outset it is to be mentioned that on 18.02.2016 as per the petition of the Complainant the OP-1 was directed for production of the surveyor’s report for proper adjudication of this complaint. Thereafter several opportunities were given to the OP-1 for production of the said report. On 27.07.2016 the OP-1 filed survey report partly with a copy to the Complainant and prayer was made by the OP-1 to provide further opportunity for filing the complete survey report. Prayer was granted subject to payment of cost. Though the OP-1 paid cost, but failed to produce the complete survey report before this Ld. Forum. Under this situation no further time was granted the Ld. Forum was pleased to fix the complaint for final argument.
The Complainant has adduced evidence on affidavit along with several documents in support of his contention. The OP-1 has relied on the Sections of 66 & 87 of the Motor Vehicle Act, 1988 and filed the Xerox copies of those relevant Sections. The OP-1 and the Complainant have placed reliance on some rulings respectively and filed the same.
Before starting discussion on the merit of the complaint we are to say that admittedly the OP-1 did not produce the complete surveyor’s report and filed the same in part, but the same has not been filed on affidavit. It is seen by us that only the first page of the report is filed mentioning the details of the questioned vehicle. The Hon’ble National Commission has held in its judgment reported in (2012) (I) CPR 386 (NC), that the report of the surveyor which is not supported by affidavit cannot be accepted. Therefore as the part report has not been filed on affidavit, it does not bear any evidentiary value.
In respect of the plea of the OP-1 as mentioned in the written version that as the vehicle was purchased for commercial purpose, the complaint is not maintainable before this Ld. Forum, we are to say ‘that hiring of services of the Insurance Company by taking insurance policy by the Complainant who is carrying on commercial activities cannot not be held to be a commercial purpose. The policy is taken for reimbursement or for indemnity for the loss which may be suffered due to various perils. There is no question of trading or carrying on commerce in insurance policies by the insured. May be that insurance coverage is taken for commercial activity carried out by the insured................... In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.................... The contract is one of indemnity and, therefore, insured can recover the actual amount of loss.’ (M/s. Harsolia Motors vs. National Insurance Company Limited). Therefore the plea as taken by the OP-1 has no merit at all.
Firstly, we are to see as to whether there is any deficiency in service and/or unfair trade practice on behalf of the OP-2 or not. We have noticed that the OP-2 is an authorised dealer and service centre of Tata Motors and which used to manufacture passenger and commercial vehicle. The Complainant purchased the questioned vehicle from it against payment of consideration amount. After the accident as the insured vehicle got severe damage the vehicle was brought by the Complainant before the OP-2 for its necessary repairing and after examining the vehicle the OP-2 placed an estimate towards the cost for repairing. As the insurance claim of the Complainant was repudiated by the OP-1 and the OP-2 did not get the estimated cost either from the OP-1 or the Complainant the damaged vehicle is lying till filing of this complaint in damaged condition without being repaired by the OP-2. The OP-2 has made written correspondences with the Complainant stating either to take back the vehicle in damaged condition (as it was) or allow the OP to start repairing work by making advance payment. As the Complainant did not take any appropriate step or initiative in this regard the OP-2 could not start the repairing work of the said vehicle. As the vehicle is still lying at the garage of the OP-2, the OP-2 has prayed for charges. In this respect we are of the view that as it is a Consumer Forum, where only consumer can approach alleging deficiency in service, defective goods, unfair and restrictive trade practice against the service providers, hence the OP-2 is not entitled to get any relief from this Ld. Forum as prayed for. It is seen by us that in the petition of complaint no whisper is made by the Complainant against the OP-2 alleging deficiency in service and/or unfair trade practice against it and no relief has been sought for from the OP-2, hence in our view the complaint is liable to be dismissed on contest against the OP-2 without any cost as we are of the opinion that there is no deficiency in service as well as unfair trade practice on the part of the OP-2.
Secondly, we are to adjudicate as to whether there is any deficiency in service as well as unfair trade practice of the OP-3 or not. Admittedly inspite of its appearance by filing Vokalatnama the OP-3 did not turn up and chose not to contest the petition of complaint by filing written version. It is evident from the record that there is one hypothecation agreement by and between the Complainant and the OP-3 as during purchase of the vehicle the Complainant obtained financial assistance from the OP-3, so the questioned vehicle is hypothecated with the OP-3. The Complainant has made the OP-3 as a party in this proceeding with a view to avoid the complication of non-joinder of necessary party. It is true that no allegation has been made out against this OP within the four corners of the complaint and no relief sought for from it. We have also noticed there is no role of the OP-3 in respect of repudiation of the insurance claim of the Complainant. Therefore as there is no deficiency in service as well as unfair trade practice against this OP, in our view the complaint is liable to be dismissed against this OP-3 ex parte without any cost.
Now we are to adjudicate the most vital issue as to whether there is any deficiency in service as well as unfair trade practice of the OP-1 or not. Admittedly the Complainant’s questioned vehicle was under the coverage of an insurance policy obtained from the OP-1 which was valid for the period from 17.08.2013 to 16.08.2014. The Complainant used the vehicle for transportation of goods like Amul Milk from one place to another. During validity of the insurance policy on 08.10.2013 the said loaded vehicle dashed with a road side tree at about 3 a.m. when the vehicle was driven by his authorized driver having valid driving license. As a result the driver and the helper got injury seriously and the driver died on the same day and the helper was under treatment. Due to accident the insured vehicle got total damage, FIR lodged before Bolpur Police Station, Police case started, Police seized the vehicle on the same day, During custody of the vehicle at Bolpur Police Station one mechanical expert examined the said vehicle on 09.10.2013 and submitted a report regarding damage of the vehicle before the Police Authority, subsequently the vehicle got release to the Complainant as per the order of the Ld. ACJM Court, Bolpur on 10.10.2013, the damaged vehicle was brought at the OP-2 being an authorized service centre of Tata Motors for repairing, the OP-2 gave an estimate amounting to Rs.7,50,370=00 towards repairing cost of the total damaged vehicle, the OP-1 was intimated about the incident, insurance claim was lodged by the Complainant before the OP-1 along with several documents, surveyor was deputed by the OP-1, report may be submitted, but it is not forthcoming, the OP-1 has repudiated the claim of the Complainant on the ground that on the date of occurrence the vehicle did not have any valid permit, several requests was made by the Complainant for settlement of the claim in favour of the him, but to no effect. The allegation of the Complainant is that the OP-1 has repudiated his legitimate insurance claim arbitrarily and illegally on flimsy pretext. During hearing the ld. Counsel has attracted our notice that on the date of accident there was valid route permit relating to the said vehicle and relying on the annexure-6 it is submitted that as till the date of accident the Complainant did not get permanent valid route permit relating to the said vehicle he has applied for temporary route permit upon making payment of due consideration before the Motor Vehicle Department, Burdwan. Annexure-6 reveals that admittedly the Complainant paid a sum of Rs. 540=00 for temporary route permit for using the vehicle only on 08.01.2013. Anenxure-6 is the money receipt which reveals that he paid the said amount for getting temporary route permit for one day, but no paper relating to the route permit i.e. whether the M.V. Department has allowed his application or not /allowing his application has delivered the route permit to the Complainant or not, no such document is submitted by him. Further submission of the Complainant is that for permanent and valid route permit he had already applied before the M.V. Department, Burdwan prior to the accident i.e. 08.10.2013, but the M.V. Department, Burdwan has failed to issue the route permit to him within the stipulated period. In connection of such submission it is seen by us that in the petition of complaint no case has been made out by the Complainant about temporary route permit. Document reveals that he paid for valid and permanent route permit to the M.V. Department, Burdwan on 06.11.2013 which was issued by the said Department on 22.11.2013 for the period from 11.11.2013 to 10.11.2018. Therefore, the submission as made by the Complainant that prior to the accident he applied for getting valid and permanent rout permit for the questioned vehicle, has no legs to stand upon because the Complainant has failed to corroborate such contention by producing cogent document. In respect of the temporary route permit the Ld. Counsel for the Complainant has argued that on the date of accident he had valid temporary route permit as the annexure-6 reveals. In this connection we are to say that the annexure- 6 reveals that the Complainant paid a sum of Rs. 540=00 to the concerned Department, Burdwan for getting temporary route permit for that day only i.e. 08.10.2013 at about 2:16 p.m., but the alleged accident took place at 3 a.m. on 08.10.2013. Therefore, after the said accident payment was made by the Complainant at about 2:16 p.m. for getting temporary permit from the Authority. So, it is crystal clear that during accident of the questioned vehicle there was no valid route permit either temporary or permanent whatever it may be. It is true that the Surveyor’s report has not been filed by the OP-1 and only the first page of the report has been field by the Insurance Company, of course, which is not on affidavit. Though it does not bear any evidentiary value, inspite of this it is noticed from the said page that the Complainant did not file any route permit either temporary or permanent or valid before the OP-1 at that time of lodgement of his claim along with other related and relevant papers. The Complainant has submitted that he used to make payment on regular basis for taking temporary permit on daily basis. But in respect of such submission the Ld. Counsel for the OP-1 has attracted to the Section 87 of the Motor Vehicle Act, 1998 from where it is evident that
87. Temporary permits-
(1) Regional Transport Authority and the State Transport Authority may without following the procedure laid down in Section 80, grant permits, to be effective for a limited period which shall, not any case exceed four months, to authorise the use of a transport vehicle temporarily-
- For conveyance of passengers on special occasion such as to and from fairs and religious gathering, or
- For the purposes of seasonal business, or
- To meet a particular need, or
- Pending decision on an application for the renewal of a permit………….
In the petition of complaint the Complainant has mentioned that for earning his livelihood he purchased the vehicle and used the vehicle for transportation. Therefore, what prompted the Complainant to get temporary permit for four months at a time, but the Complainant used to get temporary permit on daily basis by making payment. In the M.V. Act, 1998 no provision has been mentioned that permit can be granted on daily basis and for taking the same payment should be made on the said date only, not before. The Ld. Counsel for the OP-1 has also relied on the Section 66 of M.V. Act, 1998, wherein it is mentioned that
66. The necessary for permits:-
(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed Authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. ………………
Therefore it is clear to us that route permit is very much necessary during plying of any vehicle on road in view of the above-mentioned Section of the Motor vehicle Act, 1988. But in the instant case the Complainant has failed to show us that on the date of occurrence the vehicle had valid route permit and for this reason the OP-1 was pleased to repudiate the insurance claim of the Complainant. The OP-1 has relied on several judgments i.e. 2016 (1) CPR (NC) 172 passed by the Hon’ble National Commission, in the case of New India Assurance Company Limited vs. Meenakshi Jarial, decided on 15.12.2015, wherein it has been held that claims are not payable if there is no valid registration certificate, fitness certificate or route permit for vehicle. The OP-1 has also placed its reliance on the judgment passed by the Hon’ble NCDRC in the case of National Insurance Company Limited vs. Toofani Hati, decided on 20.04.2015, reported in 2015 (2) CPR (NC) 422, wherein it has been held that plying of vehicle without permit violates terms and conditions of the policy. In the judgment passed by the Hon’ble Supreme Court in the case of Narinder Singh vs. New India Assurance Company Limited & others, decided on o4.09.2014, reported in (2014) 3 (CPR) (SC) 609, it has been held by Their Lordships that using a vehicle on public road without any registration is a fundamental breach of trust and conditions of policy contract. In the said judgment the Hon’ble Apex Court was pleased to refer the judgment passed by Their Lordships in the case of Amalendu Sahoo vs. Oriental Insurance Company Limited, reported in 2010 (4) SCC (536). In this respect the Ld. Counsel for Complainant has placed reliance on the judgment of the Hon’ble Supreme Court passed in the cases of Amalendu Sahoo vs. Oriental Insurance Company Limited and the National Insurance Company Limited vs. Nitin Khandelwal, reported in 2008 (7) SBR 63. The Ld. Counsel for the Complainant has put much emphasis on the paragraph no-11 of the Nitin’s case (supra). Relying on the judgment of Amalendu Shaoo’s case (supra) the ld. Counsel for the Complainant has submitted that in that judgment the Hon’ble Apex Court was pleased to hold that if there is any breach of contract, the claim should be allowed on non- standard basis i.e. 75% the claimed amount. We have carefully perused the judgment of Nitin’s case (supra). It is seen by us that in the paragraph no-11 Their Lordships have mentioned the cases of Jitendra Kumar vs. Oriental Insurance Company Limited & Another, reported in 2003 (6) SCC 420 and National Insurance Company Limited vs. Swaran Singh & Others, reported in (2004) 3 SCC 297. The Hon’ble Supreme Court in Jitendra Kumar’s case in the paragraphs-9 & 10 has been observed which run as follows-
“9. The question then is: can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the Company, solely on the ground that the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? The answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicle Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the insurance Company in repudiating a claim where the driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(1)(ii) of the Motor Vehicle Act empowers the Insurance Company to repudiate a claim wherein vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver.
10. It is the case of the parties that the fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion, the Insurance Company could not have repudiated the claim of the Appellant.”
12. Similarly, in Swaran Singh’s case (supra), this Court has held as under:
“If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.”
Having regard to the aforementioned observation of the Hon’ble Supreme Court in the cases of Jitendra Kumar as well as Swaran Singh in our view the said observations are applicable in the case in hand because in the instant complaint admittedly the insured vehicle of the Complainant got severe damage due to road accident and it is also true that at the time of accident the vehicle did not possess any valid route permit either temporary or permanent whatever it may be, but for getting temporary route permit money was deposited, no paper was issued relating to the route permit. According to the OP-1 as during accident there was no valid route permit of the questioned vehicle the claim was settled on non-standard basis. In respect of the ‘accident’ and ‘no valid route permit’ we are to say that the OP-1 did not prove by adducing cogent evidence that there was nexus by and between the accident and no valid route permit. Therefore in view of the observation as mentioned above (Jitendra’s case & Swanran Singh’s case) the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning route permit.
Be it mentioned that the judgments on which the Op-1 has placed their reliance, in those judgments Nitin’s case (supra), Jitendra’s case (supra) and Swaran Singh’s (supra) case have not been referred.
Admittedly, the OP-1 had repudiated the claim of the Complainant on the ground that on the date of accident the vehicle did not bear any valid route permit. But in view of the abovementioned observation of the Hon’ble Supreme Court the Insurance Company cannot avoid its liability entirely based on the said ground as mentioned in the repudiation letter. It is seen by us that the OP-2 being the authorised service centre issued an estimated cost for repairing of the totally damaged vehicle to the tune of Rs. 7, 50,370=00. The Ld. Counsel for the Complainant has relied on the ruling reported in 2009 (4) CPR 241 (NC), in the case of the Oriental Insurance Company Limited Vs. Meher Chand, passed by the Hon’ble NCDRC, decided on 09.10.2009, wherein it has been held that where authorised garage had assessed the damage of insured vehicle and surveyor decided the amount substantially he was supposed to give sound and cogent reasons and in absence of such reasons such report was not acceptable. Admittedly in the case in hand no survey report is forthcoming inspite of appointment of a surveyor by the OP-1 after the incident and lodgement of the claim. Therefore, in our view the OP-1 shall settle the claim of the Complainant (estimated cost given by the authorised garage-OP-2) on non-standard basis i.e. @75% of the assessed amount of Rs.7, 50,370=00. In Nitin’s case (supra) the Hon’ble Supreme Court was pleased to mention that non-standard basis means the claim should be settled @75% of the claimed amount, hence we are also inclined to apply the said proposition in the instant case. Therefore, the OP-1 shall pay a sum of Rs.5, 62,777=00 to the Complainant i.e. 75% of the assessed amount of Rs.7, 50,370=00. Admittedly as the grievance of the Complainant had not been redressed by the OP-1 before coming to the Court of Law and for a considerable period the Complainant had to face mental agony, financial stringency and harassment due to deficiency in service of the OP-1, hence the Complainant is entitled to get compensation from the OP-1 and by filing this complaint undoubtedly the Complainant had to incur some expenses, so the Complainant is also entitled to get some litigation cost from the OP-1.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint be dismissed on contest without any cost against the OP-2, dismissed ex parte without any cost against the OP-3 and allowed on contest with cost. The OP-1 is directed to make payment of Rs. 5, 62,777=00 (Rs. Five lac sixty two thousand seven hundred and seventy seven) only to the Complainant within 45 (forty five) days towards the 75% of the claimed/assessed amount on non-standard basis from the date of passing of this judgment, in default the abovementioned amount shall carry interest @8% p.a. for the default period. The OP-1 is further directed to pay a sum of Rs.2, 000=00 (Rs. Two thousand) only towards compensation due to harassment, mental agony and litigation cost of Rs.1, 000=00 (Rs. One thousand) only to the Complainant within 45 (forty five) days from the date of passing of this judgment, in default the Complainant will be at liberty to put the entire award into execution as per provision of Law.
Let plain copies of this order be supplied to the parties free of cost as per provision of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
