SMT. BANDANA ROY, PRESIDENT

            The synopsis of the complaint case is that vehicle No. WB-30S/4968 met with an accident on 16.08.2015 at about 5.00 PM on Jhargram-  Lodhasuli Pitch Road  near village Baria under PS Jhargram. In the accident said vehicle got badly damaged. The vehicle was covered by insurance issued by the ICICI Lambard General Insurance Co. Ltd. being policy No. 3001/MI-02823506/00/000 valid up to 3005.2016. The OP Insurance Co. was informed about the accident by registered post. The said vehicle was repaired by Bhandari Automobiles at a cost of Rs. 4,22,341/- and out of said amount  a sum of Rs.  80,000/- was recovered from this complaint being owner of the said vehicle. It is the case of the complainant that as the vehicle was covered under insurance, the total amount of repair of the damaged vehicle had to be borne by the Insurance Co. but the Bhandari Automobiles realized Rs. 80,000/- from the complainant which according to the complainant is not justified and illegal.  Hence, the complainant has filed this complaint case for recovery of Rs. 80,000/- and others reliefs.

            The OPs no. 1and 2 have  contested the complaint case by filing written version.  They have contended that this complaint is totally misconceived  and unsustainable and liable to be dismissed.  It is contended by these OPs that the damaged vehicle had been repair by them and a total repairing cost was Rs. 4,22,341/-. These OPs also informed the Insurance Co. regarding the cost of such repair.  Bhandari Automobiles informed the complainant/owner that he would have to pay Rs. 80,000/- for repair of the vehicle and he paid the same amount without raising kind of objection. After a lapse of long two years the complainant realized that the repairer concerned has realized Rs. 80,000/- from him quite illegally and has filed this case for refund of the same which is absurd.

            The OP Nos. 3  and 4, the Lamberd General Insurance Co. Pvt. Ltd.have filed a joint written version and denied all the material allegations made against them and claimed dismissal of the complaint on various grounds of law.

            The positive defense of these OPs is that being intimated about the accident, these OPs appointed a surveyor Mr. Koushik Mudi who properly inspected the vehicle and  prepared a list of parts and its cost on verification with the bill submitted by the Repairer, Bhandari Automobiles. The surveyor thereafter sent a report to the Insurance Co. In the  said report the surveyor allowed cost oif Rs. 288196/- and Rs. 14222/- totaling Rs. 302425/-  and cost of labour Rs. 52,4809/-  and said amount has been paid by the  Insurance Co. to the repairer Bhandari Automobiles through NEFT VDIE Cheque No. CMS385390859 on 11.01.2016.

            So, these Ops have prayed for dismissal of the complaint as because  there is no deficiency of service on their part as they have cleared up the dues of the repairer as per report of the surveyor.

            The Ops have prayed for dismissal of the complaint on several other grounds.

            On the pleadings of the parties as above, the following issues need be considered (1) whether the case is maintainable and whether the complainant is entitled to get the reliefs as prayed for.

                                                  DECISION WITH REASONS.

Both the points are taken up together for discussion for the sake of convenience and brevity.

Perused the complaint, the written version of the OPs, the documents filed by all the parties, the affidavit in chief of the complainant and questionnaires filed by the OPs.  and the reply   thereof  filed by the complainant and also heard the submissions of the ld advocate for the parties. Considered.

            Admittedly the disputed vehicle was covered by insurance issued by the ICICI Lambard General Insurance Co. Ltd. being policy No. 3001/MI-02823506/00/000 valid up to 3005.2016. Though the OP Nos. 3 and 4  the insurers of the vehicle, denied the accident by they admitted that on being intimated of the accident  and claim the OPs 3 and 4 appointed an IRDA License holder Mr. Kousi Mudi who inspected the  damaged vehicle and verified the actual damage and prepared a list of parts and its cost item wise. He also verified the estimate of repairer Bhandari Automobiles pvt. ltd  and submitted the report.  The surveyor allowed Rs. 288,196/- only along with Rs. 14222/-  in total  and cost of labour charge of Rs. 52,480, totaling. 3,41,998/-. The Ops have paid the same  amount by chqeue No. CMS385390859 oin 11.01.2016 through NEFT VDEI.  The surveyor’s report has been made Annexure A in this case.

We have seen that report . The OPs no 1 and 2 also submitted that the surveyor is an independent person and the  Insurance Co. hired him for assessing the loss of actual damage s a expert man on this subject and after inspection he assessed the claim amount and actual damage. These OPs have stated that the claim application should be dismissed as the complainant cannot claim the amount exceeding what has been assessed in the surveyor’s report as per Sec 64 U M  of the Insurance Act. 

The OPs no. 1 and 2 the Repairer of the said damaged vehicle also stated by filing written version that their Repair Section  made an estimate for repairing the said car and estimate amount was Rs. 4,22,341/- and they informed the Insurance Authority about such cost. They also informed the owner /complainant that rest amount of Rs. 80000/- should be paid by him otherwise they would not start repair work of the said vehicle. So according to these OPs on consent of the complainant they realize Rs 80,000/- from him and now after lapse of two years  the complainant that the Repairing Authority took Rs 80000/- wrongly. 

The complainant filed examination in-chief on affidavit and admitted that the OP 1 and 2 repaired his damaged vehicle and out of total cost of Rs. 4,22,341/- out of which he paid Rs. 80,000/-. The Insurance Co approved sum of Rs. 3,37,455/- only. According to the complainant it is not justifiable because the insurance was  0% depreciation cost.  During cross-examination by the OPs whether there was endorsement on the Policy as Nil depreciation cost, the complainant answered  - Yes. It was also  asked whether the complainant paid any extra premium for the Nil depreciation cost and where there was any endorsement to that effect,  the answer was “Yes”.  The depreciation  policy premium was Rs. 4788/-.  It was asked  whether the OP no.1 submitted  repair bill  to the Insurance Co. and whether he had put any written objection to the bills of the OP no.1. The answer was ‘” Yes’’.  the OP  no. 1 and 2 also jointly  cross-examined the complainant  by filing written questionnaires. The complainant was asked  that from the amount of Rs. 4,22,341/-the Insurance Co. only approved Rs. 3,37,455/-. The complainant answered  to questions no. 6 and 7 that  after examining and repairing of the badly damaged vehicle Bhandari made estimate of Rs. 4,22,341/-and that estimate was immediately delivered  before the owner and the insurance Co.  The complainant admitted that by the instruction of Maruti Insurance Broking Pvt. Ltd, Maniktala, he claimed whole estimate amount before the Insurance Co. The complainant also admitted that the Insurance Co. only approved Rs. 3,37,455/-  out of Rs. 4,22,341/- which had been claimed by the complainant.

Ld advocate for the complainant submitted that the OP no 2 assured verbally that they took all the responsibility for the repair of the disputed vehicle. ld. Advocate for the complainant asserted that the Insurance Co. should pay  Rs. 80,000/- which was recovered by the repairer from the owner of the vehicle.

It appears that according to the survey report the cost of repair  etc was Rs. 3,37,455/-  but the actual cost has been incurred for the repair is Rs 4,22,341/-which has been well supported by the documents issued by the Bhandari Automobiles. The complainant has claimed this amount from the Insurance Co. 

In this regard we may refer a decision reported in 2018 (2) CPR 785 (NC) wherein it has been observed that the report of the surveyor is not always conclusive; Surveyor may over look  certain factors which may be counted at the time of recovery. Under –assessment of loss by surveyor is deprecated.

Considering the whole materials on records,  particularly the report of the surveyor and the particulars of bill submitted by the OPs no. 2, the repairer of the damaged vehicle, as well as the insurance policy with  0% depreciation cost,  we are of the view that the complainant is entitled to get Rs. 80,000/-  from the Insurance Co. concerned which amount he has already paid to the OP no. 1 and 2 towards cost of repair of the damaged vehicle.

Both the points are answered accordingly.             

             Hence, it is

O R D E R E D

That CC/499 of 2017 be and the same is allowed on contest against the OPs. No. 3 and 4 and dismissed on contest against the OPs no 1 and 2.

The OP Nos.3 and 4 are jointly and severally directed to pay the complainant a sum of Rs 80,000/- for cost of repair of the insured vehicle and Rs. 3000/- as litigation cost within one month from the date of this order, in default the said OPs would be liable to pay 10% interest on the awarded amount till its full realization.

Let copy of the judgment be supplied to all the parties free of cost.