Dt. 21.08.2015

JAGANNATH BAG, MEMBER

       The present appeal is directed against the Order dated 16.04.2013, passed by  the Ld. District Consumer Disputes Redressal Forum , Kolkata, Unit II, in CC Case No. 23 of 2013 , whereby the complaint was allowed on contest with cost and compensation  against the OP/ Insurance Company , namely , Bajaj Allianz General Insurance Company Ltd.  

        The Complainant’s case , in brief , was as follows:

The Complainant’s vehicle which was a truck with Registration No. WB-39/ 7364 was insured with the OP / Insurance Company. The policy was valid from 25. 10. 2008 to 24.10. 2009 . The vehicle  met with an accident within the territory of Nepal on 15.03. 2009  causing serious injuries to two persons who were residents of Nepal .The vehicle was seized by the Police of the Nepal Government . The OP was informed of the accident by a letter dated 17. 03. 2009. Third party claims were required to be settled. The OP refused to settle such claim and put the responsibility on the Complainants at their own costs and expenses. The Complainants wrote several letters including Advocate’s letter dated 30. 04. 2009 and reminder dated 15. 05. 2009 with request to settle the third party claims . After long persuasion the OP settled the claim of Third Party, where after the vehicle was brought back to India and was got repaired under the instruction of the OP.  The Complainants spent a sum of Rs. 2,33,383/- for repairing of the vehicle and there was loss of an estimated sum of Rs. 5,40,000/- for detention of the vehicle from  15.03.2009 to 14. 09 2010. The Complainants raised a claim of Rs. 7,73,383/- as conveyed vide their letters dated 24. 09.2010 / 28.09.2010 / 11.10.2010 / 27.10.2010 together bills / cash receipts. The claim not being settled by the Insurance Company , the complaint case was filed before the Ld. Forum below on ground of deficiency in service and unfair trade practice.

        The complaint case was contested by the OP / Insurance Company by filing Written Version, wherein it was admitted that the alleged loss occurred in Nepal where the subject vehicle was seized and kept in the custody of the police authority in terms of the prevailing laws of that country. The Complainant insisted on getting the entire amount of the third party claim as reimbursement to facilitate release of the vehicle . The claim amount was disbursed to the final satisfaction of the claimant and the payee undertook to absolve the Insurance Company from any further liability arising directly or indirectly out of the said accident. Therefore, the Complainants did not have any locus standi to file the complaint petition claiming further amount arbitrarily. There being no deficiency in service on the part of the OP, the complaint was liable to be dismissed.

         Ld. Forum below, having perused the evidence led by the Complainants and other material on record including questionnaire raised by the OP and replies furnished by the Complainants, and correspondences between the parties, observed that the Complainant requested the OP / Insurance Company for financial help as he was unable to pay the compensation as claimed under the laws of Nepal . Ld. Forum below further observed that the OP requested the Complainants  to take photographs of the vehicle from all angles or to engage a local surveyor for assessment of damage to the vehicle which shows that the OP was aware of the damage of the vehicle . Further, the OP did not controvert the claim of repairing and detention charges of the vehicle by cogent oral and documentary evidence . Accordingly the complaint was allowed with direction upon the OP to pay Rs.6,75,000/- together with compensation of Rs.20,000/-, apart from payment of cost of Rs.2,000/- to the Complainants.

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the OP-turned -Appellant has come up before this Commission with prayer for direction to set aside the impugned order .

          We have gone through the memorandum of appeal together with copies of the impugned order , the petition of complaint and the W.V. filed before the Ld. Forum below . LCR has been consulted in detail.

          Ld. Advocate appearing for the Appellant submitted that the claim amount was completely disbursed through three dischage vouchers, all dated 02.07.15, of NPR Rs.5,00,000/- (Five Lakh Nepalese Rupee), in full and final settlement of death compensation and medical expenses of late Yadav Bhattarai, NPR Rs.4,22,700/- (Four Lakh Twenty Two Thousand and Seven Hundred Nepalese Rupee) in full and final settlement of property damage of M/s Saurabh  Food Products Ltd. and NPR 2,00,000/-(Two Lakh Nepalese Rupee) in full and final settlement of treatment compensation and medical expenses of Ishwar Bahadur Sunuwar. The vehicle was released from Nepal after payment of such sums by the Insurance Company. Further payment of repairing charges as claimed by the Complainant could not be made an issue as the complainant undertook in writing, as per the discharge vouchers, to absolve the Insurance Company from all liability arising directly or indirectly out of the alleged accident of the vehicle. The Insurance Company paid the entire third party loss. Though the Insurance Company asked the insured to get the quantum of damage assessed by a Surveyor, no such step was taken and no report was submitted. The repairing bills are neither backed by any survey report nor by any documentary evidence in support of actual payment . Mere raising of bills without proper receipt  of amounts does not prove that expenses have been incurred. Ld. Forum below erred in awarding a sum Rs. 6,75,000/- in respect of the vehicle which was only partially damaged. The impugned order be set aside.

         Ld. Advocate appearing for the Respondent / Complainant submitted that the vehicle insured having met with the accident within the territory of Nepal, the Insurance Company was bound by the terms of the policy to clear the third party risk. They unnecessarily delayed inspite of repeated requests by the Complainant, as a result of which, a huge loss on account of detention and idleness of the vehicle occurred which is tantamount to deficiency in service on the part of the Insurance Company . The Insurance Company was required to depute a Surveyor for assessment of loss immediately after receipt of intimation about the accident ,but  they avoided to do so which is also deficiency in service, since the claim should have been settled in three months from the date of intimation .

       The point for consideration is whether the Ld. Forum’s order suffers from material irregularity or jurisdictional error warranting any interference.

                                           Decision with Reasons:

        There is no dispute that the vehicle of the Complainant was insured with the Appellant / Insurance Company and the vehicle met with an accident within the territory of Nepal, while the policy was valid .The third party claims were paid by the Insurance Company , but the cost of repairing of the vehicle and the alleged detention charges were not settled which was the moot point of the dispute under consideration.

       Ld. Advocate of the Appellant asserted that all claims arising out of third party liability were cleared with issue of discharge vouchers and the Insurance Company was absolved vide such discharge vouchers from all liabilities arising directly or indirectly out of the said accident . Ld Advocate of the Respondent / Complainant emphasized that those discharge vouchers were not related to any payment concerning the damage and detention of the vehicle involving a substantial amount of money and the Insurance Company is under lawful obligation in terms of the policy to pay cost and compensation.

      The fact goes that the three discharge vouchers are related to the third party liability only and there is nothing in the said discharge vouchers that the own damage part of the insured stood settled by those discharge vouchers . The policy in question was obtained covering both own damage risk and third party risk. The settlement of third party risk does not absolve the insurer from settlement of claim raised by the insured for own damage concerning the vehicle. Ld. Forum below allowed the claim of repairing charges amounting to Rs.2,33,383/- as the Appellant/OP did not controvert the bills / cash receipts with evidence. The claim of Rs.5,40,000/- on account of detention charges appears to be allowed without considering the fact that though the Respondent / Complainant was, immediately upon receipt of intimation about the accident, asked by the insurer  to get photographs of the vehicle from all angles or to engage a local surveyor for assessment of the damage of the vehicle , no such action / step was taken by the Respondent / Complainant on the alleged ground that as per laws of Nepal , photographs of the damaged vehicle could not be taken unless compensation was paid to the injured persons . It reveals from materials on record that the process of settlement of third party risks took time after correspondences among the concerned parties , the Respondent / Complainant having expressed their inability to settle third party claims before seeking reimbursement from the Insurance Company .Viewed in that perspective   the claim for detention charges amounting to Rs.5,40,000/- does not stand justified . The impugned order needs modification on that ground . The appeal succeeds in part. Hence

                                                Ordered

That the appeal be and the same is allowed in part with modification of the impugned order to the effect that the Appellant shall pay a sum of Rs. 2,33,383/- in stead of Rs. 6,75,000/- as awarded by the Ld. Forum below to the Respondent. Other parts of the impugned order shall remain unchanged. The entire amount as hereby ordered by modification of the impugned order together with litigation cost of Rs. 2000/- and compensation of Rs. 20,000/- as ordered by the Ld. Forum below shall be paid by the Appellant to the Respondent within a period of 40 days from the date of this order, failing which the total sum of Rs. 2,55,383/ - (two lakh fifty five thousand three hundred and eighty three) shall earn interest @ 9% p.a. from this date till full realization . There shall be no separate order as to costs.

      Let a copy of this order be sent to the Ld. Forum below along with the LCR.