Heard learned counsel for the appellant.

2.        Captioned appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.        The brief case of the complainant is that he being the owner of a Truck bearing Regn. No. OR-16C-7161 has purchased a policy from the opposite party covering the risk period from 5.12.2009 to 4.12.2010. It is alleged inter alia that on 12.6.2010, the vehicle met with an accident and the vehicle was badly damaged. Thereafter, F.I.R. was lodged and the matter was  reported to the opposite party. The complainant alleged that after the vehicle was damaged, Surveyor was deputed by the opposite party and he assessed the loss at Rs. 90,,095/-, but the complainant raised a bill of Rs. 2,37,177/-. The complainant being dissatisfied with the amount as assessed by the Surveyor filed the complaint petition.

4.        The opposite party filed the written version stating that they have received the information and deputed the Surveyor and after necessary enquiry, the Surveyor assessed the loss at Rs. 92,111/-. Further the opposite party submitted that they have already paid the amount as per Surveyor’s report to the concerned Financier.

5.        After hearing the parties, learned District Forum passed the following order:-

                    xxxxxx                    xxxxxx

           “ Thus, under the circumstances, we direct the O.P. to pay the repairing charges as spent by the complainant for the repair of his accident vehicle No. OR-16C-7161 amounting to Rs. 2,37,177/- ( Rupees Two Lakhs Thirty Seven Thousand one hundred seventy seven) only after deducting the depreciation as per procedure and the amount paid to the Financier within 30 days from the date of receipt of this order, failing which the O.P. would be liable to pay interest at the rate of 12% (Twelve percent) per annum on the awarded amount after 30 days of receipt of this order till the actual day of payment of the awarded amount to the complainant.

           The case is disposed of accordingly.”

6.        Learned counsel for the appellant submitted that learned District Forum committed error in law by not taking into consideration the report of the Surveyor who found the loss to be Rs. 92,111/- payable by the opposite party to the complainant. Apart from this, he submitted that money has already been paid to the loan account of the complainant. Since the money has already been computed and given to the complainant or his Financier, there is no cause of action. Learned District Forum ought to have considered the report of the Surveyor and accordingly should have awarded the compensation. Therefore, he submitted to set aside the impugned order by allowing the appeal.

7.        Considered the submissions, perused the DFR including the impugned order.

8.        It is admitted fact that during the currency of the policy the accident took place and the matter was reported to the police and the insurer deputed the surveyor who assessed the loss at Rs. 92,111/- , but subsequently the Insurance Company applied its mind and calculated the loss at Rs. 90.095/-.

9.        The question arises now as to whether the complainant proved its case and deficiency in service on the part of the opposite party. The insurer, who is opposite party has computed the loss as per the Surveyor’s report but the reason not known why it was paid to the Financier of the complainant. There is no discussion in the impugned order as to why the loss is computed at Rs. 90,095/- by O.P. Of course the settled  amount was paid to Financier who is said to be de jure owner of the property but de facto owner is complainant. Apart from this, the complainant has reported the matter to the police as well as the insurer. Since the payment has not been to the complainant and the complainant being the user has not received the awarded amount, there is deficiency in service on the part of the opposite party.

10.     In the impugned order, it is not stated how the complainant was awarded Rs. 2,37,177/-. The voucher submitted by the opposite party shows that actually the complainant has paid Rs. 76,695/- to Sushila Automobiles on 30.7.2010 towards repairing of the vehicle. However, the Surveyor after consideration of the materials on record has come to the conclusion that the complainant is entitled to get Rs. 90.095/-. It is settled in law that Surveyor’s report should be based on the complaint filed by the complainant. Under such circumstances, while confirming the findings of the learned District Forum, we hereby modify the impugned order by directing the opposite party to pay Rs. 92,111/-  which is originally assessed by them to the complainant within 45 days from today failing which they are directed to pay 12% interest from the date of impugned order till the date of payment. Payment already made should be adjusted out of the aforesaid amount.

           DFR be sent back forthwith.

           Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.