BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM.
KAMRUP
C.C.No.110/2013
Present: I) Shri A.F.A.Bora,M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Sri Tirlak Singh @ Trilok Singh - Complainant
S/0 Sri Jaspal Singh
C.O.Sri P.C.Tiwari
Chabra Bhawan, 4th Floor,
K.C.Road,Kumarpara, Guwahati
District: Kamrup,(Metro) Assam-781009
-vs-
I) M/S Bharti AXA General Insurance Co.Ltd - Opp. parties
Represented by its Branch Manager/Incharge,
Vishal Mega Mart Building, 5th Floor,
Near Panbazar Fly Over, A.T.Road
Guwahati, Pin-781001
II) M/S Bharti AXA General Insurance Co.Ltd,
Represented by its Principal Officer/
Managing Director/ Chairman 49
Sakharam Ganesh Dauskar Sarani,
Kolkata -700025 (West Bengal)
Appearance
Learned advocate Mr. D.K.Jain, Smti Namita Hazarika and Sri S.K.PaUL for the complainant .
Learned advocate Mr.Anjan Jyoti Saikia, Sri Utpal Kr.Dutta and Sri Paragjyoti Phukan for the opposite parties.
Date of argument:- 3.3.2020
Date of judgment: - 15.6.2020
JUDGMENT
1) This is a complaint filed by one Sri Tirlak Singh u/s 11 & 12 of the consumer Protection Act,1986 against opp.party No.1, M/S Bharti AXA General Insurance Co.Ltd, represented by its Branch Manager/Incharge, Vishal Mega Mart Building, 5th Floor,Near Panbazar Fly Over, A.T.Road Guwahati, Pin-781001 and opp.party No. 2 M/S Bharti AXA General Insurance co.Ltd., Represented by its Principal Officer/ Managing Director/ Chairman 49 Sakharam Ganesh Dauskar Sarani, Kolkata -700025 (West Bengal).
2) The brief facts of the case is that the complainant is the registered owner of a truck bearing Registration No. AS-01/CC-1972. The said vehicle was insured through the opp.party vide policy No. FCV/ I0I60941/NI/12/KIN111 valid from 30.12.2009 to 29.12.2010 for a total insured declared value of Rs.8,41,225/-.
3) The said vehicle was under hypothecation with Tata Motor Finance Ltd. After insuring the aforesaid vehicle, the opp.parties issued a cover note of the insurance policy in the name of the complainant. The said vehicle met with an accident (capsized on road) on 03/06/2010 under Palin Outpost in the State of Arunchal Pradesh. The said vehicle with the help of crane, was brought to Guwahati on 11.6.2010. The complainant through toll free No. 18001032292 informed the opp.party about the said accident as well as the placement of the said vehicle at the workshop at Adabari, Guwahati.
4) On 21.6.2010 the complainant submitted an estimated claim of Rs.1,59,500/- before the opp.parties. After getting information over phone the opp.party informed the complainant that the surveyor would be reached in the workshop on the very next day i.e. 12.6.2010 and in the mean time, the complainant can start working on the accidental vehicle.
5) The surveyor did not turn up on 12.6.2010 and on several request of the complainant the surveyor at last turned up on 15.6.2010 at about 4.30 p.m.. So, it was very much wrong that the opp.parties were not given the opportunity to conduct the “insitu” inspection and the accident vehicle was dismantled even before a loss was reported to the opp.parties. When the surveyor visited the workshop, only some damaged parts of the accident vehicle were opened and kept in front of the vehicle and the said surveyor took photographs of the said damages and opened parts of the accidental vehicle. On 21.6.2010 the surveyor of the opp.parties namely Sri Prankrishna Saha again visited the office of the complainant .
6) The complainant instead of getting the genuine claim, he received a letter dated 28.6.2010 by which the opp.party No.2 shown their inability to consider his claim. As the opp.parties have failed to settle the genuine claim of the complainant amounting to Rs.2,53,730/- with interest which was claimed by the complainant for expenditure, compensation etc. from the opp.parties.
7) The opp.parties in their written statement stated that the complainant is not maintainable and is liable to be dismissed in limine as there is a violation of terms and conditions of insurance policy by the owner of the vehicle . According to terms and conditions of the insurance policy the owner is debarred from dismantling damaged vehicle for repairing which is damaged due to accident unless the damaged vehicle is surveyed by the authorized surveyor of the Insurance company. Surveyor of the company is required to inspect the vehicle at the condition of damage so that the actual fact and extent of damage and possible expenses can be ascertained. The opp.parties stated in their written statement that there is no cause of action. To arrive at a decision it will be convenient to determine the dispute on the following issues:-
i) Whether being a consumer of the opp.party the complainant filed his claim before the opp.party by violating the terms and conditions of the insurance policy ?
ii) Whether opp.party have inspected the damaged vehicle after accident to ascertain actual fact of damage and any assessment has been made out ?
iii) Whether complainant is entitled for the cost of repair as well as compensation for deficiency of service on the part of the opp.party and if so to what extent ?
8) We have gone through the written argument and the evidence submitted by the complainant which reveals the story narrated by the complainant in his claim petition. The accident of the vehicle which was insured with the opp.party is undisputed. But the question is whether the complainant informed the matter to the opp.party. It is claimed by the complainant that they have informed the opp. party through their toll fee No. 18001032292 about the accident. If the opp.party is denying of having such information on that day i.e. on 11.6.2010 then opp.party could have proved their claim by submitting the call list of their toll free no. or otherwise of the aforesaid information about the accident that took place on 3.6.2010 at Arunachal Pradesh under Palin outpost. The complainant again stated in his evidence that the vehicle was brought to Adabari, Guwahati for repairing and on 21.6.2010 an estimated cost of Rs.1,59,500/- was submitted to the opp.party through their surveyor along with all original document.
9) From the evidence of the C.W.1 it further reveals that surveyor did not turn up on 12.6.2010, but he came only on 15.6.2010 at about 4.30 p.m. In the mean time the complainant was started repairing of the vehicle and as such doing repairing of the vehicle without intimation and not giving opportunity to the opp.party for “insitu” inspection is not correct.
10) It further reveals that on 21.6.2010 the surveyor of the opp. party again visited the office of the complainant and collected the estimate for repairing and other documents in original in respect of the vehicle including policy cover note, pollution certificate, driving license and copy of FIR etc. The vehicle was got repaired with a cost amounting of Rs.1,70,000/-. But surprisingly a letter was received by the complainant on 21.6.2010 in which opp.party No. 2 intimated their inability to consider the claim . We have perused Ex.4 , the copy of letter dtd. 21.6.2010.
11) If the opp.party is not agreed with the aforesaid claim then they could have immediately on the date of visiting of the surveyor at the work shop informed the complainant and ought have given an opportunity to go for actual remedy, which opp. party had not done. The opp.party No. 2 namely Rajesh Singh deposed that the surveyor took photographs of the affected vehicle while visiting the same and it was found dismantled. This part of the evidence cannot be believe without any opinion from the expert or any report from the Motor Vehicle Inspector. The statement made by the opp.party No.1 is that their surveyor was not given any opportunity to inspect the vehicle which was completely dismantled even before the loss was reported . This fact cannot be accepted safely as it is self contradictory with the earlier statement of the opp.party No.1 who claimed that the vehicle is in superficially damaged. The evidence of O.P.W. 1 about depreciation etc. cannot be accepted as he is not a surveyor or a technical person.
12) The other part of the evidence of O.P.W.1 regarding invalid driving license of the driver of the concerned vehicle and other facts narrated by him relating to the accident is not directly connected to the issues concerned and we do not like to make any further discussion on the above fact. The claim made by the opposite party witness that the vehicle was dropped by the driver on the public road without valid driving license is not substantiated by him by adducing any corroborative evidence.
13) The cross examination of the witnesses further reveals that opp.party No.1 has no personal knowledge about the condition of the vehicle etc. The documents produced as Ex.1, 2, & 3 are admittedly the down loaded photographs . The claimant while cross examining the opp.party No.1 have categorically denied the opinion of the surveyor at Ex.B and according to the complainant the surveyor acted under the instruction of the opp.party and his opinion noted on Ex.B is not correct. We have seen photographs of the concerned vehicle and it has no evidentiary value as those were not proved by certification of any authorized person. Moreover the report of the surveyor at Ex.”B” can not be accepted safely because of the fact that he was not examined as a witness by the opp.party by giving a chance for rebutting the same by the complainant.
14) Our careful scrutiny of record shows that for consideration of issue no.1 and 2 mentioned here in above it is necessary to consider the facts disclosed and circumstances prevailed at that time. The story narrated by the opp.party is also clear enough that their surveyor visited the concerned vehicle and also took photoghaphs of the damaged vehicle. If vehicle was not in situ condition then the opp.party could have very easily examined the surveyor who actually visited the damaged vehicle and collected report/ documents etc. from the owner of the vehicle which they have not done to substantiate their claim.
15) It further appears to us that complainant was not given any opportunity to cross examined the surveyor for establishing the fact about the condition of the damaged vehicle as well as the repairing etc. which complainant have done on good faith giving the voucher and bills to the surveyor of the opp.party. As such ,in our humble opinion the plea taken by the opp.party cannot be accepted without sufficient evidence for a reasonable and justified consideration. Accordingly issue no.1 is safely decided in affirmative & in favour of the complainant.
16) So far issue No. 2 is concerned it is found very clear from the evidence on record that surveyor of the opp.party visited the affected vehicle and have a discussion with the complainant and collected documents of the vehicle including bill of the repairing etc. which remains undisputed.
17) We have considered the testimony of C.W.2 who supported the fact that concerned vehicle was brought back to Guwahati after observing necessary formalities on 11.6.2010 and it was informed to the opp.party. Ex.9 proved by C.W.2 is a police report dtd. 10.6.2010 issued by Officer-In-Charge of Palin Police out post . The witness have testified Ex.3 i.e. the bill of expenditure, amounting to Rs.1,59,500/- against repairing etc. The evidence of C.W.2 further reveals that Ex.5 & 6 are the copies of letters sent to the opp.party by the complainant . The cross examination of this witness by the opp.party reveals the fact that no MVI report was submitted by the claimant and police officers was not called as a witness and admittedly witnesses to testify Ex.3 are not produced giving an opportunity to the opp.party to rebut.
18) From the above discussion, we are of the opinion that if any MVI report is necessary than opp.party could have collected the same for proper estimation from the concerned police station. Moreover , if the surveyor is not satisfied on examination of the vehicle he could have immediately informed the complainant . When he admittedly visited the accidental vehicle and met the complainant and also collected necessary documents of the vehicle concerned then no question of denial comes . As such the preponderance of probability is that after the accident the vehicle was managed to take back by a crane to Guwahati for repairing which is undisputed. The owner of the truck took pain and sufferings for bringing his damaged vehicle from the site of the accident at Arunachal Pradesh for repairing to a workshop at Guwahati which was also a burden on the part of the insurance company and they ought to have bear the cost for such transportation etc. which they have not done at any point of time. Mere denying the claim by submitting a letter by the opp.party to the complainant is not sufficient to repudiate the claim of the complainant.
19) In the result, issue No. (ii) is also decided in favour of the complainant. From the discussion made in earlier two issues , we are of considered opinion that opp. party is found negligent in providing service as well as not properly attended the claimant even after receipt of the information about the accident as already discussed . Merely issuing a letter denying the claim is not sufficient to reject the claim made by the complainant.
(ORDER)
As such, complainant is entitled for a claim having a genuine policy cover as sought for and accordingly issue No-3 is decided in affirmative in favour of the complainant. The claim was made for an amount to the tune of Rs.2,53,730/- but from the document as already discussed, the bill was submitted as Annex-C from Sushil Welding Works amounting to Rs. 1,59,500/-. Hence, the insurance company is liable to pay the amount i.e. 1,59,500/- along with interest @6% from the date of filing the complaint till realization. The opp. party is further directed to pay an amount of Rs.10,000/- as compensation for physical harassment & mental agony along with an another amount of Rs.10,000/- as cost of the proceeding . The aforesaid three amount is to be paid within 45 days from the date of judgment failing which opp. party shall have to pay an interest @12% for the entire awarded amount till realization.
Given under our hand and seal of the District Forum, Kamrup, this the 15th day of June, 2020.
(Smt A.D.Lahkar) (Md J.Islam) (Shri A.F.A.Bora)
Member Member President
