Per Hon’ble Mr.S.R.Khanzode, Presiding Judicial Member
These two appeals takes an exception to an order dated 23/09/2009 passed in consumer complaint no.420/2006, Mr.Madhukar Parshuram Thorat v/s. The New India Assurance Co.Ltd. and another; by South Mumbai District Consumer Disputes Redressal Forum. It was a case of alleged deficiency in service on the part of opponent no.1-Insurance Company for not sanctioning the claim as per the estimated bill of accident involved vehicle and against opponent no.2 to retain the vehicle for repairs. Forum partly allowing the complaint directed opponent no.1-New India Assurance Company (herein after referred as ‘Insurance Company’ in short) to sanction the claim at `1,28,097/- and pay the said amount along with interest @ 9% p.a. and further directed opponent no.2 to receive repair bill of `1,28,097/- and return the vehicle and in addition to that complainant was directed to pay `2,000/- to opponent no.2-M/s.Om Sai Motor Pvt.Ltd. (herein after referred as ‘Garage’) for work and maintenance. It was also further directed that Insurance Company shall pay `20,000/- as compensation towards mental torture and inconvenience caused to the complainant. Feeling aggrieved by the order, opponent no.1-Insurance Company preferred appeal no.A/10/34, while Garage preferred Appeal no.A/09/1321. Since both the appeals involves identical question of facts and common question of law are being disposed of by this common order. At the time of hearing of appeal respondent no.1/original complainant preferred to remain absent. Intimation of the date fixed by way of abundant precaution at the later point of time given to him also proved futile since by that time it was reported that he was not available at the address mentioned, which is mentioned by the complainant in his own complaint.
Heard the parties present.
In the instant case, obviously the accident involved vehicle was given for repairs to opponent no.2, who prepared the repair bill of `1,28,097/- and intimated to the complainant on 04/04/2006 to take back the vehicle on payment of repair charges. Therefore, certainly, no deficiency in service on the part of garage can be alleged and, therefore, to entertain the consumer complaint and give directions as per impugned order itself is not proper.
As far as Insurance company is concerned, as per surveyor’s report they settled the insurance claim at `83,740/- and offered the said amount to the complainant, which perhaps the complainant did not accept. The complainant did not present the case that his claim was arbitrarily rejected by not sanctioning the same entirely by the Insurance Company. There is absolutely no evidence led on behalf of the complainant to show that the Insurance Company did not accept the insurance claim in toto and, thus, arbitrarily rejected part of the insurance claim. Since the initial onus to discharge the burden of proof which lies on the part of the complainant is not discharged, no further onus to discharge the burden of proof shifts on the part of the Insurance Company to justify their action to settle the claim as per the surveyor’s report at `83,740/-. Thus, deficiency in service on the part of Insurance Company is neither alleged nor established. Thus, the impugned order as against the Insurance Company would not survive.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
Appeal nos.A/09/1321 & A/10/34 are allowed.
Impugned order dated 23/09/2009 is quashed and set aside.
Consumer complaint stands dismissed.
In the given circumstances, no order as to costs.
Pronounced on 8th April, 2013.
