Date of filing: 23.12.2015 Date of disposal: 05.12.2017
Complainant: Keka Roy Chowdhury, W/o.Saumajit Roy Chowdhury, resident of North City
Pearl Tower, 14th floor, Sevoek Road, Siliguri, Pin-734001, presently residing at
Vill. & P.O.-Bahiri, P.S.- Bolpur, Dist.-Birbhum, Pin-731240.
-VERSUS-
Opposite Party: 1. Iffco-Tokio General Insurance Company Ltd., represented by its Branch
Manager, having its office at Shree Radha Appt., Block-B, Shop # 8, 2nd
floor, Iskon Mandir Road, Sevoke Road, Siliguri, W.B., Pin-734001.
2. Saluja Auto Retails Pvt. Ltd., represented by its Manager, having its office
at Metal DVC, NH2, P.O.-Chandul, Dist.-Burdwan, Pin-713141.
Present: Hon’ble President: Smt.Jayanti Maitra(Ray).
Hon’ble Member: Miss Nivedita Ghosh.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No.1: Ld. Advocate, Sourav Kumar Mitra.
Appeared for the Opposite Party No.2: Ld. Advocate, Saugata Dey
JUDGEMENT
This is a case U/s. 12 of the C.P. Act for an award directing the O.P. No.1 to settle the claim by paying Rs.2,84,192.58/- as repairing cost, to pay Rs.30,000/- towards compensation for mental pain, agony and harassment, to pay litigation cost of Rs.20,000/- and to pay interest @ 18% p.a. from 1.7.2015 till realization to the complainant.
The complainant’s short case in hand is that he is the owner of the vehicle Scorpio VLX7SE111 bearing registration No.WB74AE5656, engine No.MXE4G1208686 and chassis number is MA1TH2MXNE2G10750. The said vehicle was purchased for personal use and the vehicle was insured by the O.P. No.1. The O.P. No.1 after taking premium amount issued a policy being No.1-2YZFMB2 in favour of the complainant which was valid from 25.8.2014 to 24.8.2015.
The complainant further stated that on 29.6.2015 when the driver of the complainant was crossing an incomplete culvert at Muratipur, under Bhatar P.S. met accident with a truck, which was coming from opposite side. The vehice felt into the incomplete culvert. After said occurrence the driver intimate to the compliant regarding the accident and pulled the vehicle from the culvert with help of the local people and crane of JCB. The complainant brought the vehicle at her residential house and intimated Saluja Auto Retails Pvt. Ltd., Suri, O.P. No.2 for inspecting the vehicle on 30.6.2015. After inspecting the O.P. No.2 suggested to send down the damaged vehicle at their Burdwan Office for repairing and servicing. The complainant submitted the vehicle before the O.P. No.2 and on same day i.e. on 1.7.2015 the O.P. No.2 intimated the O.P. No.1 Insurance Company about the accident.
On 2.7.2015 the O.P. No.2 sent a SMS to the complainant for repairing order in respect of the damaged vehicle vide repairing order No.R016A001607. The O.P. No.2 also intimate the complainant about the estimated cost of Rs.65,000/- plus taxes extra. On 2.7.2015 the O.P. No.1 inform the complainant by SMS that they registered the claim of the complainant vide claim No.1-3NKRQHI. The Insurance Company also informed to the complainant that one Dipak Paul has been appointed as surveyor and loss assessor. The surveyor conducted his survey on 4.7.2015 at the garage of the O.P. No.2. But neither the O.Ps. nor the surveyor intimated the complainant about the date and time of the survey work. Thereafter neither the O.P. No.1 nor O.P. No.2 intimate anything to the complainant regarding repairing of her vehicle and/or settlement of the claim of the complainant. By not getting any information the complainant sent Email to both the O.Ps. In reply of the Email the O.P. No.1 sent a Email on 14.8.2015 stating that they asked to the O.P. No.2 for taking justification regarding damages of engine with the help of Mahindra Technical team as cause of loss and damages of engine is beyond their jurisdiction. On 13.8.2015 the complainant got another Email from the O.P. No.2 that O.P. No.2 will charge Rs.250/- per day as parking charges if the O.P. No.1 has not settled the claim of the complainant. This conduct of the O.Ps. are deficiency in service and unfair trade practice. But thereafter the complainant did not get any intimation from the end of both side.
The complainant further submitted that he is a bonafide customer of the O.Ps. and she never done any act detrimental to the interest of the O.Ps. Finding no other alternatives the complainant compelled to file this case before this Forum for relief as stated above.
The O.P. No.1 contested this case denying all the material allegations and stating inter-alia that a policy of insurance bearing No.1-2YZFMB2P400 Policy 88828892 was issued in favour of the complainant by covering the risk of vehicle with engine No.MXE4G12086 and chassis No.MA1TH2MXNE2G10750. At the time of issuance the vehicle was a new vehicle. The original policy is in the custody of the complainant and this O.P. puts the complainant to prove the same before the Ld. Forum. In this regard this O.P. begs to submit that the said policy was not a Cashless Policy but the same was an Indemnification Policy. This O.P. also stated that an intimation of claim was lodged by the complainant and accordingly surveyor Dipak Pal was appointed for surveyed. He did his survey in presence of the complainant. The surveyor has submitted his report. The surveyor vide his mail dated 14.7.2015 asked for some clarification from the O.P. No.2. The said mail has been filed by the complainant. In this regard the complainant strongly denies that the surveyor has not intimated before survey. From the mail of the complainant on 14.8.2015 it will appear that the complainant has admitted that the surveyor intimated them before survey.
The O.P. No.1 also submits that this O.P. strongly denies that any conduct of this O.P. forced the complainant to send any main on 14.8.2015 as alleged. In this regard this O.P. begs to submit that on 13.8.2015 at about 07:07 PM a mail was given by the O.P. No.2 to this O.P. as well as the husband of the complainant. In reply to that on 14.08.2015 at about10:03 AM the officials of the O.P. asked the O.P. No.2 for acting as previous mails. In that mail it was intimated to the complainant for taking necessary steps for submission of all the documents regarding settlement of the case. On the other hand the husband of the complainant forwarded the mails to the complainant at 12:04 PM on 14.08.2015 and the complainant vide her mail dated 14.8.2015 at about 02:30 PM put some question before this O.P. as well as O.P. No.2. In that mail the complainant admits that surveyor intimating them about the execution of survey work and she was present at the time of survey. She in that mail was pointed out that how the estimated cost be escalated from Rs.65,000/- to Rs.2,84,192.58/-. As regard work order, the complainant also puts some question before the O.P. In this regard this O.P. strongly denies that there is a nexus between this O.P. and the O.P. No.2. This O.P. also submits that the O.P. No.1 intimated the complainant actual cause that why the claim cannot be settled, vide mail dated 14.08.2015 at 04:18 PM.
The O.P. No.1 further stated that as the policy is an Indemnification Policy, not a Cashless Policy. The complainant after repairing the vehicle should produce her bill and money receipt and also should intimate the surveyor for post repairing survey. On production of the same and after post repair survey the claim would be settled by this O.P. From the mails and letter of the complainant as well as this O.P. and the O.P. No.2 it will appear that repairing work has not been completed, so the case is a premature one and this O.P. prays to dismiss the instant complaint with cost.
The O.P. No.2 also contested the case by filing written version and stating that this O.P. No.2 does not require any technical help for diagnosis hydrostatic lock of engine and the fact of diagnosis of the hydrostatic lock was communicated to the O.P. No.1. The O.P. No.1 intentionally delayed the matter, did not give clear order to start work but also intimated that the coverage will be done as per policy terms and conditions which is not clear to the O.P. No.2. The O.P. No.2 is facing huge loss as the place where the vehicle is parked is a commercial place and there is no fault or negligence in the part of the O.P. No.2. The allegations made against the O.P. No.2 are all false, baseless manufactured concocted. For parking charges the O.P. No.2 claims Rs.250/- from 1.7.2015 to till date from the complainant or from O.P. No.1. The vehicle of the complainant is causing serious obstruction in the garage of the O.P. No.2.
The O.P. No.2 also submits that the dispute is clearly between the complainant and the O.P. No.1 and in fact there is no ground to proceed with the case against the O.P. No.2, as there is no negligence/ unfair trade practice on the part of the O.P. No.2. The O.P. No.2 also prays to dismiss the case against the O.P. No.2. The vehicle of the complainant is still lying idle in the garage of the O.P. No.2 and the condition of vehicle is deteriorating day by day. No monetary transaction, is any form, took place with the O.P. No.2.
DECISION WITH REASON
To prove the case the complainant has filed affidavit of examination in chief wherein she has stated the fact of the case. O.P. put questionnaires to the evidence of complainant ad complainant also made a reply to such questionnaires. The O.P. also files evidence on affidavit. The complainant did not put any questionnaires to t he O.P. Thereafter, argument was heard in details. From the evidence on record it is admitted that the complainant purchased the policy from the O.P. No.1 which was continued from 25.8.2014 to 24.8.2015. It also admitted that the said vehicle met with an accident and was damaged. Complainant stated that following the accident the vehicle was taken to the O.P. No.2 for repairing. Through O.P. No.2 the complainant also intimated the matter to the O.P. No.1, Insurance Company about the accident for realization of the repairing cost as per terms of the policy. The O.P. No.2 taking the repairing order intimated the complainant estimating a cost of Rs.65,000/- and assured that the vehicle get ready by 24.7.2015. The complainant stated that she also received SMS on 2.7.2015 that the said claim was registered by O.P. No.1 and that one Dipak Pal has been appointed as surveyor and loss assessor, who conducted survey on 14.7.2015 at the garage of O.P. No.2. However, complainant alleges that the survey was conducted in her absence. Complainant stated that on 14.7.2015 O.P. No.1 intimated by Email to the complainant for taking justification regarding damages of engine with the help of Mahindra Technical Team as loss of damages of engine, is beyond their jurisdiction. She filed the copies of Email. Two copies of Email sent to the O.P. No.2 by O.P. No.1 on 14.7.2015, goes to show that the claim of the complainant is not under cashless facility. O.P. No.2 garage was directed to go ahead as per advice of insured as insurance formality is done and as per the insurance claims subject to terms and condition of the policy, after submission of all supporting documents including vehicle repairing invoice and money receipt. The O.P. No.2 was also requested to inform the surveyor to re-inspect the vehicle on completion of the repairing. The complainant also filed the copy of Email dated 14.7.2015 she sent to the O.P. No.1 asking to know how the estimated cost had been escalated from 65,000/- to Rs.2,84,192/-, where she has also admitted that the surveyor investigated the loss and estimate Rs.65,000/- at first.
From the evidence of the complainant as well as the O.P. No.1 it is clear that the vehicle is in the custody of the O.P. No.2 awaiting for repair. The complainant could not take any steps for repairing of the said vehicle though O.P. No.2 was asked to go ahead by O.P. No.1 as per instruction of the complainant. Therefore, it is clear that the policy, which is not a cashless policy the complainant is to repair the vehicle by O.P. No.2 and she should produce the bills and money receipt to the insurer and after repairing the said vehicle should be surveyed for settling the matter by the O.P. insurer. Complainant could not take any initiative for repairing of the said vehicle nor did the vehicle was ever repaired by O.P. No.2. On the other hand the O.P. No.2 demanding parking charges @ 250/- per day as the vehicle is laid in damaged condition and it is deteriorating day by day. Complainant awaited reply from the O.Ps. as to why estimate of cost of repair escalated from Rs.65,000/- to Rs.2,84,192/- after dismantle of engine of vehicle by O.P. No.2. She also enquired who ordered O.P. No.2 to dismantle the engine. In such circumstances, the complainant filed this case praying for direction upon the O.P. No.1 to settle the claim paying Rs.2,84,192/- as repairing cost and for compensation for harassment and litigation cost.
O.P. argues that as complainant never produces any bill or money receipt after repairing the vehicle and the question of post repair survey does not arise at this stage. Therefore, the case of the complainant is a premature one. It is also admitted fact that the policy was in effect when the vehicle was damaged following the accident and O.P. No.2 in its written version also stated that he sent Email and several follow up requisite letter and timely submission of details of estimate the O.P. No.2 but this O.P. No.2 never give any instruction to proceed for repair work by the Insurance Company. Therefore, the O.P. No.2 charges garage rental @ 250/- per day. The primary estimate was given on 14.7.2015 that Hydrostatic lock damaged inside the engine and the fact of diagnosis of the hydrostatic lock was communicated to the O.P. No.1 on 21.7.2015 and thereafter estimate was handed over to O.P. No.1 on 28.7.2015. The copy of the same and the photocopies were also annexed. But O.P. No.1 intentionally delayed the matter and did not give any clear cut order to start repairing work and only intimated that the coverage will be done as per policy terms and conditions.
From the evidence on record as well as from the documents filed by the parties it is clear that O.P. No.1 is also negligent in not taking proper steps for repair of the vehicle in terms and conditions of policy and unnecessarily made delay in avoiding the matter asking O.P. No.2 to seek instruction from the complainant etc. Therefore, O.P. No.1 is negligent and has deficiency in service towards the insurance policy of the complainant. The complainant has to suffer for this reason. She is not able to get the vehicle repaired and the vehicle is getting damaged day by day lying idle in the garage. Therefore, the complainant is entitled to get compensation for mental pain, agony and harassment. However, as the vehicle is not repaired by the O.P. No.2 and complainant is not in a position to file any bill voucher regarding repairing cost which she claimed Rs.2,84,192/- in this case. The complainant has been able to prove that the vehicle following an accident was damaged within the validity time of the policy. It was sent to O.P. No.2 for repairing immediately after accident. The matter was informed to the insurer by the complainant through the O.P. No.2. The complainant suffered financial as well as mental pain and agony for such harassment. Therefore, she is entitled to be compensated for the deficiency in service also for causing harassment by the O.P. No.1. Complaint petition, therefore, is allowed. C.F. paid is correct.
Hence, it is
Ordered
that the complaint case be and the same is allowed in contest against the O.P. No.1 and dismissed against the O.P. No.2 without any cost.
The complainant is also entitled to get repairing cost of the damaged vehicle from O.P. No.1 after repair of the damaged vehicle by the O.P. No.2 and the repairing cost of the vehicle will be within Rs.2,84,192/- and will not exceeds the same.
The O.P. No.1 is directed to pay Rs.2,84,192/- as repairing cost of the damaged vehicle to the complainant after receiving the bill voucher in tune of terms and conditions of policy. The complainant must produce the bill voucher before the O.P. No.1 for getting the bill amount upto that limit of Rs.2,84,192/-.
The O.P. No.1 is also directed to pay Rs.1000/- as compensation to the complainant.
The O.P. No.1 is further directed to pay Rs.500/- as litigation cost to the complainant.
The above all directions will be complied with within 60 days from this date of order, failing which the complainant is at liberty to execute the same in accordance with law.
Let the copies of this order be supplied to the parties free of cost.
Jayanti Maitra (Ray)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
Jayanti Maitra (Ray)
President
D.C.D.R.F., Burdwan
(Nivedita Ghosh)
Member
D.C.D.R.F., Burdwan
