This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not settle the insurance claim till of this complaint.

The brief fact of the case of the Complainant is that the car was under the coverage of an insurance policy obtained from the Insurance Company by making payment of the premium amounting to Rs.21,142/- and the insurance policy was valid till 17.01.2017. The insurance policy certificate was issued by the National Insurance Company Limited, Divisional Office-VIII, 298, Ashokgarh, 2^nd Floor, Dunlop Bridge, Kolkata-108 i.e. OP-3.All on a sudden on 12.02.2016 at about 12 noon the vehicle of the Complainant got damage in the front portion including other portion due to accident near Airport Gate no-2. Severe smoke was started to come out from the front portion of the said vehicle. After the said accident the Complainant without starting the engine of the vehicle immediately talked with the official of the OPs over telephone and as per the instruction of the official of the OPs the said vehicle was taken to the approved garage namely M/s. Car Center with the help of a crane.Thereafter on the same day the Complainant further talked with the OPs over telephone claiming insurance claim. In reply the insurance official informed her that she will get insurance claim as her vehicle was insured under Bumper to Bumper policy and also assured that the agent will assist her for getting insurance claim and the agent also will collect the documents and signature from the Complainant from her residence. The Complainant was instructed to contact with the said agent namely Sri. Basanta Kumar Saha. Accordingly the Complainant contacted with the said person, who also assured herthat she will get insurance claim as her vehicle was insured under Bumper to Bumper policy and he will collect the relevant document from her within a very span of time. But 17.02.2016no person came at her residence for obtaining the papers and documents, for which she send message. Subsequently the official of the OPs came to her house and collected the documents and signature on several forms and the said documents was deposited with the OPs-Insurance Company on 19.02.2016 through the said officials. But the OPs delayed abnormally to send the surveyor for checking the car in the garage. Subsequently the Complainant contacted with the OPs on several occasion, but the OPs did not comply with the necessary formalities on their part. The Complainant contacted with the official of the OPs on several occasion and on being asked by the OPs the Complainant contacted with the Surveyor. The surveyor inspected the vehicle at the garage on 23.02.2016. thereafter on several dates the surveyor went to the garage and on each and every visit the Complainant being compelled to pay the surveyor for Rs.2,500/-. After inspected the surveyor detected that the engine of the car got damage completely due to the accident. The surveyor along with the mechanic of the garage advised for replacement of all the parts of the engine by new parts of Mahindra for getting the insurance claim. The Complainant was told by the surveyor that the model was launched in the market before three years as such the availability of its parts may not be immediately available, but such delay will not hamper the Complainant to get claim amount. Accordingly the Complainant as per the instruction purchased all original parts and spares of Mahindra and had to incur expenses for such purchase to the tune of Rs.1,70,360/-. The Complainant had also incurred expenses for crane charge to the tune of Rs.1800/- out of her own pocket. The Complainant paid a sum of Rs.2500/-X 5to the surveyor towards his conveyance allowance as per his demand. Prior to completion of repairing works the surveyor send an assessment sheet without proper and final checking based on the previous inspection dated 23.02.2016 and 26.02.2016 when the vehicle was not in a position to ply on the road. But after completion of the entire repairing works the surveyor was requested by the Complainant to inspect the vehicle at the garage, but he did not turn up for checking the vehicle finally. Thereafter the Complainant having no other option send a letter to the OPs on 15.06.2016 requesting to release the insurance claim in her favour as per bill/cash memo. It was also told by her that she is ready to submit all original bills/cash memo as and when asked for. But inspite of receipt of the said letter the OPs did not take any step in this regard and dragged the matter for an indefinite period with different pretext and killed time by giving assurance.Inspite of her repeated request the surveyor did not check the vehicle finally and due to constant pressure of the garage person the Complainant being compelled took back the vehicle from the garage after making payment of the entire bill amount from he own pocket. On 06.07.2016 the Complainant issued a notice through he Ld. Advocate requesting to release the insurance claim of the questioned vehicle as per the bill/cash memo amounting to Rs.1,70,360/- for spare-parts etc. and Rs.1800/- for crane charge. Apart from this the surveyor took Rs.12,500/- from her . But after receipt of the said notice the OPs remained silent over the matter. According to the Complainant it is a gross violation of the insurance contract. As the OPs did not take any step to redress her grievance, finding no other alternative the Complainant has approached before the Ld. DCDRF, Barasat praying for direction upon the OPs to release the insurance claim amounting to Rs.1,70,360/-, + Rs.1800/- towards crane charge, + Rs.12,500/- for surveyor’s charge, compensation to the tune of Rs.2,00,000/- due to her mental harassment and agony for the period from 12.02.2016 till realization of the insurance claim amount and litigation cost of Rs.50,000/-.

The petition of complaint have been contested by the OPs by filing conjoint written version contending that upon receipt of the intimation of the accident on 12.02.2016 the OPs have appointed Mr. Kamal KantyKundu, being the licensed surveyor to investigate and assess the loss. AS per the report of the surveyor the claim of the Complainant has been assessed to the tune of Rs.23,214/- as per the policy condition subject to replacement and bill, hence the complaint filed by the Complainant is devoid of any merit, motivated, baseless as well as contrary to the facts, so the complaint is liable to be rejected in liminie. The surveyor had submitted his report as per the terms and conditions of the insurance policy. The surveyor in his report has stated that the engine parts which got damage after the accident occurred at the Air Port Gate no-2 had been considered in the assessment, but further claim of the Complainant falls under the exclusion clause no-10 wherein it is enumerated that in the event of any accident or breakdown the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the own risk of the insured. As per the claim form the accident was not reported to the police, hence there is no police action in this case and as per the claim intimation letter dated 17.02.2016 it was stated that an un-identified mini goods vehicle was involved in the accident and no personal injury or third party damage is reported. The OPs have informed the Complainant through an e-mail dated 30.05.2016 that the surveyor has assessed the loss to the tune of Rs.23,214/- subject to replacement and bills and further stated that there is some dispute to the loss of engine parts, which is not related to the cause of accident and the same has not been assessed by the surveyor. It is apprehended that from the place of accident the vehicle was towed by the insured to the garage at Kankurgachi without any advice of the officials of the OPs.  According to the OPs as there is no deficiency in service on the parts of the OPs, the complaint is liable to be dismissed.

The Complainant as well as the OPs have adduced evidence on affidavit, the OPs have filed Brief Notes of Argument, the OPs have filed the Surveyor’s report. The Complainant did not file any formal objection against the surveyor’s report, but filing an application the Complainant had sought for appointment of an independent Automobile Engineer for inspection of the questioned vehicle and filed the expert report or opinion. After hearing on the said application (MA-380/2017) the Ld. DCDRF, Barasat was pleased to pass an order on 10.05.2018 directing the both parties to submit the names of Automobile Engineer with a view to inspect the questioned vehicle and forming his expert opinion. Detae was given on 20.08.2018 for submitting the name of Automobile Engineer by the parties. On the said date none was present as such the Complainant is directed to show cause as to why the complaint shall not be dismissed due to non-compliance of the Forum’s order. The Ld. Forum was pleased to fix the matter on 20.02.2019. No names of Automobile Engineer were forthcoming from the end of the parties. Thereafter after establishment of the Additional District Consumer Disputes Redressal Forum (Commission as amended w.e.f. 20.07.2020) the case record has been transferred to this Ld. Commission from the Ld. Commission, Barasat in view of the order passed by the Hon’ble SCDRC. Since transfer of this case record the Complainant did not turn up either in person or through he Ld. Advocate. The Complainant was informed by the official of this Ld. Commission on 02.11.2020 over telephone in her mobile number, inspite of this the Complainant chose not to appear. After waiting for a prolonged period the Complainant was directed to show cause as to why the complaint case shall not be dismissed. But as usual the Ld. Counsel for the OPs were present by filing hazira. Date was fixed on 22.02.2021 for filing reply to the show cause by the Complainant, but on the said date also the Complainant remained absent on calls. The OPs were present through their Ld. Advocate. Though it was written in the order dated 28.12.2020 that in case of failure to submit the reply to the show cause the complaint case will be dismissed, but in the Consumer Protection Act, 2019 there is no provision for dismissal of the complaint in case of non-filing of show cause, rather it is enumerated that in case of absence of the Complainant, the consumer complaint shall be disposed of on its merit based on the evidence adduced by the Complainant. Having regard to the said Act we were not inclined to wait for an indefinite period for presence of the Complainant and hence without dismissing the complaint it was ordered that the complaint will be disposed of on merit.

We have carefully perused the complaint petition, written version, evidence, surveyor’s report and BNA of the OPs. It is seen by us that the vehicle of the Complainant was under the coverage of an insurance policy obtained from the Insurance Company by making payment of the premium amounting to Rs.21,142/- and the insurance policy was valid till 17.01.2017.  Within the validity period of the insurance policy all on a sudden on 12.02.2016 at about 12 noon the vehicle of the Complainant got damage. Upon getting the insurance claim form along with all relevant documents the OPs have appointed one licensed surveyor for inspection of the damaged vehicle and after investigation for submitting a report. After investigation the said surveyor had assessed the loss to the tune of Rs.23,214/- and submitted a report before the Insurance Company stating that the Complainant is entitled to get a sum of Rs.23,214/- for the damaged insured vehicle. Accordingly the OPs have intimated the Complainant that ‘an independent report has been obtained by us from Mr. Kundu, Surveyor who has assessed the loss under the policy as Rs.23,214/- subject to replacement and bills. Since there is some dispute to the loss to engine parts which is not related to the cause of accident, the same has not been assessed. This is for your kind information. In case you want further clarification, you may contact our office during office hours on any working day’.

But there is no iota of evidence on behalf of the Complainant that she being dissatisfied with the assessed amount had approached before the OPs as per instruction. The petition of complaint reveals that the Complainant has claimed an amount of Rs.12,500/- which according to her was paid to the surveyor for taking him at the garage from his house hiring a car, but the terms and conditions of the policy don not match with such claim. As per settled principle of law the Complainant is not entitled to get any amount going beyond the terms and the conditions of the insurance policy. We have noticed that without approaching before the OPs, the Complainant has filed this complaint claiming the insurance claim to the tune of Rs.1,70,360/- along with other expenses.

The OPs have filed the surveyor report, which the Complainant did not bother to challenge by filing questionnaire in accordance with law. Without challenging the said report the Complainant had prayed for appointment of another independent surveyor. But the settled law is that until and unless the first report of one surveyor is not rejected/dismissed by the Court of Law, the second surveyor cannot be appointed. Of course the report should be rejected assigning cogent reason. As the surveyor was not cross-examined by the Complainant by way of filing questionnaire, hence the Ld. Commission did not get an opportunity for hearing on the surveyor’s report. So the report submitted by Mr. Kamal KantiKundu, Surveyor is still existing in the record and we have no authority to reject the same without making hearing on the said report. In view of the Ruling passed by the Hon’ble Higher Court/Commission wherein it has been held that the surveyor’s report is an important document, which cannot be brushed aside without assigning proper reason. The OPs have placed reliance on the decision passed by the Hon’ble NCDRC in the Revision Petition no-4062/2008 in the matter of Mina Saha Vs. National Insurance Company Limited, wherein Their Lordships have observed that the report submitted by the surveyor is an important piece of evidence and same has to be accepted unless some cogent evidence is led to challenge and displace the said report. The Ops have also placed reliance on another judgment reported in AIR 1999 SC 3252 in the case of Oriental Insurance Company vs. Sony Cherian wherein it has been held by Their Lordships that ‘the Insurance Policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly therein.

Having regard to the abovementioned judgment we are to say that the abovementioned Rulings are applicable in the case in hand on the ground that as per the terms and the conditions of the insurance policy the surveyor has assessed the claim towards loss and damage of the insured vehicle and moreover the said report has not been challenged by the Complainant.

Therefore going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT/CC/118/2020 is hereby allowed on contest against the OPs without any cost to the extent that the OPs shall pay amount of Rs.23,214/- to the Complainant within 45 days from the date of passing this judgment, failing which the said amount shall carry interest @12% p.a. for the period from 01.08.2016 till realization of the entire amount, in default the Complainant will be at liberty to put the entire order in execution as per provision of law.

Let plain copy of this judgment be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]

                   MEMBER