SRI BIJOY KUMAR DAS,PRESIDENT:-  

                       Deficiency in service in respect of under valued settlement of claim amount of the complainant’s accident faced vehicle are the allegations arrayed against Ops.

2.                 Complaint in a nutshell reveals that, complainant who is an Advocate by profession is the owner of a Mahindra(Verito) car bearing Regd.No.OD-5J-1522, and was purchased from M/s.Utkal Automobiles,Bhubaneswar. The vehicle was insured with OP-Insurance Company for the year 2016-17 bearing Policy No.16370031156100002689. It is revealed from the complaint petition that on dtd.22.06.2016, when complainant’s family members were travelling, the vehicle faced an accident on Nemala Road and said vehicle was damaged extensively. It is also revealed from the complaint petition that, as the complainant remained busy in his professional work could not intimate the police and the OP-Insurance Company at an early date. It is revealed that at the material  time of accident the driver was having valid driving license and the insurance policy of the vehicle was in force and the intimation was given to OP-Insurance Company on dtd.29.06.2016. The vehicle sent to M/s.Utkal Automobiles,Bhubaneswar,the authorised dealer and workshop of Mahindra Company for its repair/ replacement of the damaged spare part. After a detail inspection by the Technical Engineers of the workshop prepared an estimate and repaired the vehicle with assessories, accordingly complainant paid Rs.3,33,640/- towards repairing charges  to M/s. Utkal Automobiles on receipt of bills and retail invoice. It is further stated that, authorized dealer purchased the accessories from different shops. The amount  of the expenditure was intimated to OP-Insurance Company and claim was registered bearing No.1637003116619000128 and OP-Company assured the complainant to settle the claim on obtaining the repair and replacement bill alongwith money receipts, which was complied by the complainant on dtd.20.02.2017. It is further stated that, prior to submission of bills on dtd.20.02.2017 by the complainant, OP issued a letter on dtd.18.02.2017 seeking certain clarifications from the complainant. Accordingly, on dtd.23.02.2017 complainant intimated about his compliance to the OP by Regd. Post dtd.23.02.2017. On dtd.01.03.2017, complainant received a telephonic message from H.D.F.C. Bank,Kendrapara that an amount of Rs.70.300/- has been credited to his account towards settlement of insurance claim. Being aggrieved, on settlement amount, complainant on writing protested before the OP-Insurance Company through Regd. post. It is alleged that OP-Insurance Company has committed deficiency in service by arbitrary settling the insurance amount on ignoring the actual cost of repair/replacement. The cause of action of the instant case arose on dtd.01.03.2017, when the complainant informed about settlement of claim amount and on dtd.02.03.17, when the complainant made protest to the settlement of insurance claim by Op-Company. Accordingly, it is prayed that a direction may be given to OP-Insurance Company to re-settle the insurance claim basing on the actual expenditure of Rs.3,33,640/- and to pay Rs.3000/- which includes compensation  for mental agony and cost of litigation.

3.            On receipt of notice, OP-Insurance company appeared through their Ld. Counsel and filed written statement into the dispute. OP-Insurance Company in their parawise reply denies the allegations and raised the questions of gravity of damaged to the vehicle, when no passengers have sustained any injury. It is also averred that neither any F.I.R. has been filed nor the intimation of accident of vehicle given to OP-Insurance Company on a reasonable time. Thus, the OP-Company countered that, it is a false and frivolous complaint and the claims are excessive and the complainant is to be rejected.

4.               Heard the Learned Counsel for complainant and case of OP on merit, perused the documents filed into the case which are marked as exhibits. The facts of the dispute are that, complainant is the owner of the Mahindra car(Verito) bearing Regd. No.OD-05J-1522 and the vehicle was insured with OP-Insurance Company under Pvt. Car package policy. The Insurance of the said vehicle was valid from dtd.30.06.2015 to midnight of dtd.29.06.2016 with insured declared value(IDV) for Rs.5,75,000/. It is also further a fact that towards claim amount of the accident faced vehicle OP-Insurance Company has awarded and released an amount of Rs.70,300/- to the bank account of the complainant-insured.

                   The complaint is filed before the Forum on allegation that Op-Insurance Company without considering the actual loss of the vehicle and ignoring the Retail invoice, Cash memos, estimate of Authorized workshop, i.e, M/S Utkal Automobiles, Bhubaneswar awarded an arbitrary amount and sent the amount to the complainant’s Bank Account and Complainant being informed about the release of claim amount of Rs. 70,300/- from concerned Bank authorities immediately protested the matter before the Op-Insurance Company through Regd. Post with A.D. On the otherhand OP-Insurance Company except their replies in the written statement adds no more document or any other pleas to substantiate their stand.

                         It is quite clear from the Complaint, written statement and documents filed before us, that the questions raised by Op- Insurance Company cannot be taken into consideration at this stage, when Op has already settled the disputed claim of complainant-insured  and the questions raised by OP-Company takes a back stage in the circumstances. The only question has to be decided here as alleged by the complainant regarding quantum of settlement of claim amount.

                     It is the case of the complainant that, he repaired his accident faced vehicle in the authorized workshop on assurance of the OP-Company, and submitted bills/vouchers amounting of Rs.3,34,630/-. Complainant to substantiate his pleas regarding expenditure for repair of vehicles, files attested photocopies of cash memo, Retail invoice, estimate which are marked as Exhibit D-1 to Exhibit –L, the Insurance Policy schedule (Exhibit-M), the attested  photocopies of Bank Account (Ext.-N), protest letter addressed to Op- Insurance dtd. 2/3/2017 (Ext.-A).

                      But the OP-Insurance Company, without considering the actual expenditure released an amount of Rs.70,300/-, which was sent to the complainant’s bank account and complainant being intimated by bank authority  on dtd.01.03.2017 immediately protest to OP-Insurance company by Regd. post on dtd.02.03.2017. The OP in the written statement formally denies the assurance and repair cost claimed by the complainant, by stating the claim amount is excessive, false without any basis. No document or any opinion regarding  loss is filed by the Op-Company. The important piece of document in the present litigation is Surveyor’s report or loss assessment report conducted by a qualified person and it is the legal obligation of the OP-Insurance Company to appoint a qualified loss assessor to assess the  damage, depreciation and salvage etc. But the vital document, loss assessment report, is not presented on behalf of the OP-Insurance company, if the OP-Company has preformed the legal obligation of obtaining a report on loss assessment by a qualified surveyor/loss assessor, but, the same does not see the light of the day. It is also astonishing that without any surveyor’s report or loss assessment, How the OP-Insurance Company concluded that, the complainant deserves to such extent of compensation of Rs.70,300/-against his claim? by violating the section 64-UM(2) of the Insurance Act, 1938. Exbit-C the letter of OP-Company address to the complainant dtd.18.02.17 clearly reflects that on production of repair and replacement bill along with money receipts, the claim of the complainant will be settled. Further, the written statement of Op-Insurance Company is silent regarding details of bills/money receipts filed by the complainant for assessment of loss as false and excessive. On the allegation of undervalued assessment of settlement of claim, complainant files  supporting documents, i.e. Money receipts, Retail Invoice and estimate amounting of Rs.3,34,640/- and the documents marked as Exhibits-D-1 to H-3, which includes an estimate amount of Rs.1,71,000/. The estimate amount prepared by PragatiRaj Automobiles,Bhubaneswar(Exhibit H-1 to H-3) cannot be treated as expenditure or payment of repair cost of the vehicle in question as claimed by the complainant. Simultaneously, the expenditure of billing and payments mentioned in the Retail Invoice and Money receipts(Ext.D-1 to E-2) pertains  to a one time payment made by the complainant towards repairs cost of the vehicle, which amounts to Rs.12,548/-. It appears that the said one time payment of Rs.12,548/- calculated as Rs.25,096/- in expenditure of repair cost of the vehicle and included in the claim amount of the complainant as per the complaint. Accordingly, the said amount of Rs.1,71,000/- + Rs.12,548/- = Rs.1,83,548/- is to be deducted from the total claim amount of the complainant, which comes into Rs.3,34,640/- - Rs.1,83,548/- = Rs.1,51,092/-. Hence, it is clear that complainant has spent an amount of Rs.1,51,092/- towards repair cost of his damaged vehicle  and settlement and realize of claim amount of rs.70,300/- is a undervalued assessment done by the OP-Company.  

                  Though in the written statement OP-Insurance Company challenges the claim amount as false and excessive, but did not substantiate their stand, and in absence of report of any loss assessor and not considering the age of vehicle  insured declared value(IDV) settled the claimant to the tune of Rs. 70,300/-. As per insurance policy(Ext.M) the vehicle was insured for a value of Rs.5,75,000/- and the policy was valid for dtd.30.06.2015 to dtd.29.06.2016 and the vehicle faced accident on dtd.22.06.16 and damaged occurred just about one year of taking the policy, prior to renewal of policy on dt. 30.6.2015, the vehicle in question was insured on date of purchase with an IDV of Rs. 7,09,167/- (Exhibit-L). It further reveals from the New vehicle Delivery Receipt(Ext.J) that just after two years of purchase of the vehicle, same has faced the accident.  In settlement of Insurance claim in case of damage, the depericiation value must be taken into consideration while settling the claim. No depericiation value is disclosed before this Forum by OP- Company. The procedure of fixing depreciation is widely discussed in the case laws cited here. The Hon’ble Apex Court in case of Dharmendra Goel-Vrs-Oriental Insurance Company Ltd. reported in (2008) 8 SCC 279, and in case of New India Insurance Co.Ltd.-Vrs-Pradeep Kumar reported in 2016(1) CPR 434(SC) and Hon’ble National Commission’s decision reported in 2013(4) CPR 96(NC) in case of Sher Singh Shobta-Vrs-National Insurance Company.  It is noteworthy to mention here that in the cited decisions are partially different from the case in hand as in the discussed case laws surveyor was appointed and loss assessment was challenged, but in the instant case OP-Insurance Company has not come forward with a clean hand to justify the award amount against the claim of the complainant suppressing the status of the loss assessment report. Further, in the cited case laws Hon’ble Apex Court and Hon’ble National commission observed how the depreciation value of the vehicle will be fixed, when the claim is filed before OP-Company to settle the damages. Now, it is clear that the depreciation value of the vehicle cannot be more than 10 per cent of deserving repair cost as observed earlier and complainant-insured is entitled to get an amount of Rs.1,51,092/- as repair cost of the vehicle and on calculation 10 per cent depreciation value i.e. Rs.15,109/- and after deducting the depreciation value  the complainant is entitled to get Rs.1,35,983/-(Rs.1,51,.092 – Rs.15.109/-). It is an admitted fact that OP-Insurance Company has released an amount of Rs.70,300/- towards settlement of claim of the complainant which according to us is illegal and arbitrary settlement having no legal basis. Accordingly, the OP-Insurance Company will pay an amount of Rs.65,683/-(Rs.1,35,983-Rs.70,300/-) towards repair cost of the vehicle in question.

                  Having observations reflected above, it is directed that, OP-Insurance Company will pay an amount of Rs.65,683/- with 6 per cent simple rate of interest calculating from dtd.01.03.2017 to till its realization along with Rs.1000/-(Rupees One thousand)only as cost of litigation. The order is to be carried out by OP-Insurance Company within one month of receipt of this order, failing which 9 per cent interest will be imposed for the delayed period.                                                                                                                          

                The complaint is allowed in part with cost on merit.  

           Pronounced in the open Court, this 24^th   day of January,2018.                 

                           I, agree.                          

                           Sd/-                                                       Sd/-

                        MEMBER                                          PRESIDENT                                                                                                         

List of Exhibits on filed by Complainant:-

                               Sd/-                                                      Sd/-  

                        MEMBER                                          PRESIDENT