DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 12th day of June, 2019
C.D Case No. 95 of 2016
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Dig Bijay Bal
S/o: Bijay Kumar Bal
Vill: Charitaraf,
Po: Samantaraipur,
Via: Tihidi
Dist: Bhadrak
……………………. Complainant
(Versus)
1. Manager, M/s Cholomandalam General Insurance Co. Ltd.
Represent through
Alok Ranjan Pattanaik
Manager, Insurance Claim Dept.
45/46, 2nd Floor, Ashok Nagar,
Bhubaneswar- 751009, Odisha
2. Bibekananda Behera
Marketing Officer (SVR/300)
Dahanigadia, Bhadrak
…………………………..Opp. Parties
Counsel For Complainant: Sk. Jamil & Others, Adv
Counsel For the OP No. 1: Sri P. Kanongo, Adv
Counsel For the OP No. 2: Set Ex-parte
Date of hearing: 12.12.2017
Date of order: 12.06.2019
RAGHUNATH KAR, PRESIDENT
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.Ps.
The facts of the complaint are to the effect that the complainant purchased one Ashok Leyland Mini Truck from the Leyland Company. The said truck has been financed by Hinduja Finance Ltd. Lewis Road, Bhubaneswar and the said vehicle has been duly registered before the R.T.A, Bhadrak having registration No- OD-22C-2068. The complainant has duly insured the said vehicle under M/s Cholo Mandalan General Insurance Co. Ltd. OP No. 1 through the agent of said Insurance Co. Ltd. i.e. OP No. 2 and has paid the insurance dues. OP No. 1 has issued the Insurance Policy to the complainant of the said vehicle having its policy No- 3379/01292216/000/00. The said vehicle met an accident on 15.05.2016 and the damage caused to the vehicle was duly informed to the OP No. 1 being the insurer by the complainant through the OP No. 2.
That after due survey of the damage caused to the vehicle by the OP through his surveyor, the damaged vehicle of the complainant was repaired by the authorized showroom i.e. Sanjeevani Motor at Charampa, Bhadrak as per the instruction of the OP No. 1. The complainant disbursed Rs 29,522/- to Sanjeevani Motors towards the repairing estimated cost. The complainant after taking the delivery of the vehicle submitted all the bills/invoices and other estimated cost given by the Sanjeevani Motors for the repairing of said vehicle to the OP No. 1 for the reimbursement. All the repairing and damages caused to the vehicle covered under the Insurance Policy. The OP No. 1 arbitrary paid a sum of Rs 10,400/- to the complainant over riding his genuine claim of Rs 29,522/-. The OP No. 1 and his company is negligent in his service and for his deficiency of service the complainant sustained a loss of Rs 19,122/-. The complainant requested both the O.Ps to settle the matter amicably. But O.Ps did not settle the matter. On dt. 29.07.2016 the complainant sent an advocate notice to OP No. 1 for the settlement of disputes and the deficiencies caused to him. But the OP No. 1 did not pay the rest genuine claim of the complainant by taking a frivolous plea. The complainant has been mentally sock seriously he has sustained loss both mentally and finically for the deficiency of service caused by the O.Ps. Hence the complainant sought for the following reliefs.
1. The complainant has claimed a sum of Rs 49,122/- for the OP No. 1.
2. For the damage of vehicle, mental agony and cost of the litigation in view of the above amount.
The complainant has filed and relied upon the following documents in the shape of Xerox copies.
1. The legal notice issued by the concerned advocate of the complainant- 3 sheets.
2. Certificate of insurance- 1 sheet.
3. Retail invoice- 1 sheet.
4. Reply from the concerned advocate of O.Ps.
The OP No. 1 has appeared in this Forum to his concerned advocate and filed the written version. The OP No. 2 has been set ex-parte. The OP No. 1 has filed his written version challenging the cause of action, the maintainability of the complaint. The averments made by the OP No. 1 in the Para- 1, 2, 3, 4, and 5 have been absolutely denied by the OP No. 1. The averments made in the Para- 10, 11, 12 and 13 are denied by the OP. In fact according to the OP No. 1 being intimated by the complainant/insured with regard to accidental damage of his insured vehicle on dt. 15.05.2016, this OP had immediately deputed the surveyor Er. S. K. Padhi for assessment of the loss in the matter and after necessary survey in that regard the net loss was assessed to be Rs 10,400/- and accordingly he has submitted his report on dt. 08.11.2016 before this OP. The copy of the said surveyors report is being filed herewith as Annexure- II for the kind perusal of the Forum in the matter. Thereafter this OP has settle the claim in accordance to the surveyors report as well as the guidelines for settlement of such claim as laid down by Govt. of India and also paid the net loss assessed amount to the tune of Rs 10,400/- to the complainant, which is also admittedly received by the complainant without any objection thereto. Thereafter the present complaint is filed by the complainant alleging the deficiency of the service on the part of this OP in the matter, which is after through and in-order to put this OP into unnecessary harassments, the complainant has filed such vexatious claim, which is not only illegal but also not maintainable in the eye of law. In may be mentioned here that the law is well settled that the surveyors report is an important piece of document which cannot be ignored. The surveyor is appointed under the statutory provisions of Sec. 64 UM (2) of Insurance Act 1938. In terms of Sec. 64 UM (2) the surveyor in an independent professional engaged by the insurer to assess the loss with respect to the property of the insured and the report prepared by the surveyor is of a significant and evidentiary value and cannot be ignored without giving valid reasons coming into any conclusion. In this context this OP is also relying upon the decision of NCDRC in Revision Petition No. 3217/2014 as well as in F.A No. 240/10 along with judgment passed by Hon’ble Supreme Court of India Civil Appeal No. 1130/2007.
Hence the OP No. 1 has prayed for the dismissal of this complaint. The OP No. 1 has filed the following documents (Xerox copies).
1. Motor policy schedule cum certificate of insurance- 1 sheet.
2. Private and confidential motor survey report (Final)- 5 sheets.
3. Legal notice-2 sheets.
OBSERVATION
We have already perused the complaint and written version filed by the complainant and the O.Ps as well as the documents filed by the complainant. As per our observation the complainant has become aggrieved that he has received Rs 10,400/- towards the compensation of his damaged vehicle, but that is not genuine actually his legitimate claim towards the compensation is Rs 29,552/-. The complainant has filed sum documents with regard to his claimed compensation. He has also filed the insurance certificate we have found that there is a difference of amount between the claimed amount by the complainant and awarded amount by the OP. The surveyor appointed by the OP has reported in the net loss assessed vide amount Rs 10,400/-. But on the other hand in the retail invoice filed by the complainant issued by Sanjibani Motors Pvt. Ltd. The assessed amount is Rs 29,522/- the loss amount assessed by the surveyor of the OP No. 1 and the retail invoice of Sanjibani Motors contain difference of the amount incurred in the reparation of the damaged vehicle but this difference of assessment and the disbursed amount make us confused. In this case the complainant at his own suit will has repaired his damaged vehicle in Sanjibani Motors at Charampa without the instruction of the OP No. 1. The OP has also never agreed to reimburse the expenditure made by the complainant fore repairing the damaged vehicle as per the retail invoice submitted by Sanjibani Motors. It is obligatory duty of the insurer to settle the claim after assessment of loss according to the terms and conditions of the policy. The OP No. 1 has admitted that he has duly discharged his duty perfectly at every point of time. The complainant has requested the OP is settle the matter amicable but the OP has denied this statement strictly.
The insurance policy bearing No. 3379/01285787/000/00 was issued covering the risk period from dt. 12.11.2015 to 11.11.2016 with respect to vehicle bearing registration No OD-22-C-2068. The OP has settle the claim in accordance to the surveyors report as well as the guidelines for settlement of such claim as laid down by Govt. of India and also paid the net loss assessed amount to the tune of Rs 10,400/- to the complainant, which is also admittedly received by the complainant without any objection thereto.
The complainant has not come to this Forum with clean hands as follows.
1. As per the law Sanjibani Motors where the damaged vehicle was repaired is a necessary part to this case. The complainant has not impeded either the proprietor or the manager of Sanjibani Motors to this case as one of the O.Ps. Hence this complaint is barred by non-joinder of necessary parties.
2. The complainant should have brought Sanjibani Motors the lime light. But he has failed to do so. Bu means of non-joinder of the aforesaid party some truths have been suppressed.
3. After receiving the assessed amount from the OP No. 1 vide amount Rs 10,400/- admitted by the complainant in the Para No- 3 of the complaint he has no locustandi to claim further amount upon the OP No. 1. When the complainant has already received the repairing amount with full satisfaction and without any objection, we observed that the OP No. 1 has caused no deficiency of service towards the complainant.
4. It is evident from the report of surveyor in the column No. 10 the complainant has not informed to the local police with regard to the accident. We find no police report appended in the complaint.
5. The surveyor has categorically described the expenses disbursed for repairing the vehicle but the complainant has filed a mere retail invoice.
6. The complainant has failed to categorically mention the date and place of the cause of action where and when it has accrued. So this complaint is barred by cause of action.
As per the above discussion we have found neither any cause of action nor deficiency of service in this complaint. Hence it is ordered;
- ORDER
The complaint be and the same is dismissed on contest against OP No. 1 and ex-parte against OP No. 2 having no merit without cost.
This order is pronounced in the open Forum on this day of 12th June, 2019 under my hand and seal of the Forum.
