DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No. 65 of 2015
Date of filing: 27.02.2015 Date of disposal: 08.6.2016
Complainant: Mrinmaye Trading & Movers Pvt. Ltd., Regd. & Head Office, 21, Hemanta Basu Sarani, 2nd Floor, Room No. 206, Kolkata – 700 001, having the Branch Office at NSB Road, Glass Factory Compound, Raniganj, District: Burdwan, W.B., PIN – 713 347, being represented by the Director of the Company Sri Rajendar Kumar Bhalatia, S/o. Late Pyarilal Bhalatia, Resident of Rambagan, Searsole, Rajbari, PS: Raniganj, District: Burdwan.
-V E R S U S-
Opposite Party: National Insurance Company Limited, Represented through its Branch Manager, Benachity Branch, Nachan Road, Ajit Banerjee Building, PO: Durgapur – 713 213, District: Burdwan.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party: Ld. Advocate, Shyamal Kuamr Ganguli.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OP as the OP did not decide its legitimate insurance claim till filing of this complaint.
The brief fact of the case of the complainant is that it is one of the directors of Mrinmayee Trading & Movers Pvt. Ltd. having their various transport vehicles and business in all over India and frequently the vehicles are involved in accident and caused damage/loss suffered by the complainant, as well as, the transport company/insured party. The OP issued a valid insurance policy for the period from 19.07.2012 to 18.07.2013 in respect of the vehicle no-WB-06G/8811, which was covered under the liability of payment in case of accidental damage and otherwise loss partly/fully of the vehicle. Complainant paid due premium to the OP for the said insurance policy. On 02.06.2013 at about 9:30 a.m. while one of the directors of the said transport company was coming in the said vehicle, the same met with an accident by collusion with other vehicle, caused heavy damage of the same and the incident was duly intimated to the OP. Due to the said accident the damaged vehicle was seized by the police station Mohammadbazar, Birbhum and police case was started being no-88/2013 dated 04.06.2013. Accordingly the papers and documents in connection with the police case were sent to the OP as per the agreement of the insurance policy. After release from the police station the damaged vehicle was sent to the authorized repairing shop. After getting intimation from the complainant Surveyor was appointed. After the incident as and when the complainant demanded compensation, the OP repeatedly gave assurance for making payment by their authorized agents but the same was not paid till filing of this complaint, which is an example of breach of contract by the OP. The estimated cost for repairing of the damaged vehicle by the repairing garage was to the tune of Rs. 10, 15,870=00. As the OP did not pay any amount towards estimated cost of repairing the complainant issued a notice on 01.01.2015 requesting them to disburse some amount towards repairing cost from the damaged vehicle for the time being. Since then the OP did not consider to make payment for the damaged vehicle and such inaction on behalf of the OP can be termed as deficiency in service. Before coming to this ld. Forum as the claim of the complainant had not been decided by the OP having no alternative the complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OP for making payment to it to the tune of Rs.10,15,870=00 towards the repairing cost of the damaged vehicle. Rs. 90,000=00 as consequential loss for hiring the vehicle from the local area for the period i.e. 1000X15 days X 6 months, Rs. 1, 20,000=00 towards consequential loss for hiring the vehicle per month from the outside area @Rs. 2000 per day X 10 days per month for six months and Rs. 3, 00,000=00 as compensation due to mental agony and disturbance in business.
The petition of complaint has been contested by the OP by filing written version contending that the complaint is wholly misconceived, groundless, and unsustainable in law and for which the same is liable to be dismissed. It is mentioned in the written version by the OP that the OP extended coverage of insurance for the said Toyota Fortuner bearing no. WB-06G/8811 which was valid for the period from 19.07.2012 to 18.07.2013 and insured sum was of Rs. 17, 91,800=00 for the said vehicle. The incident of the accident was duly informed by the complainant on 03.60.2013 to the Branch Manager of the OP, preliminary survey was done by Sri Kalyan Kumar Das, approved Surveyor and Loss Assessor on 03.06.2013 at Mohammadbazar P.S. compound. The preliminary survey report is filed in this complaint. A motor claim form was issued by the OP which was submitted by the complainant duly filled up on 24.06.2013. An FIR was lodged by Dinesh Jhunjhunwalla claiming to be an employee of the complainant at Mohammadbazar P.S. on 04.06.2013 stating that the incident of accident happened near Joypur village under Mohammadbazar P.S. due to dashing by one pick up van moving in a rash and negligent manner. As a result of which the insured vehicle being no-WB-06G/8811 got damage considerably and the incident of accident was occurred due to rash and negligent driving by the driver of the alleged vehicle, bearing no-WB-15B/7600. One final Surveyor, namely, Sri Aloke Chandra was appointed by the OP, who conducted the final survey on 10.07.2013 and 29.08.2013 at the repairing centre and assessed the loss to the tune of Rs. 8, 96,941=00. On careful verification of the vehicle particulars, it is noticed that the chassis number was different from the salvaged chassis number and replaced chassis number. In fact as per vehicle particulars the chassis number stated to be as MBJ11JV6106020906 which is different from salvaged chassis number-MBJ11JV5105020906 and replaced chasis number noted as MBJ11JV5105033767. Accordingly the said Surveyor was advised to undertake re-inspection of the vehicle involved in the accident. The Surveyor undertook survey on 24.01.2013 at the repairing centre and his observation was that salvaged parts were produced and tallied and chassis number was found punched on new chassis number being MBJ11JV5105033767. Certain clarifications was also sought for by appointing Sri Goutam Kumar Sapui, Investigator requesting to verify the RC particulars which was submitted by him earlier on 27.04.2014 to re-investigate since last two digits was not appearing when it was compared with the proposal form. Therefore, the OP could not finalize or ascertain the actual claim amount on the basis of the survey report as the chassis numbers were different. The OP has further mentioned that it is always ready to decide the claim of the complainant but unfortunately due to dissimilarity of the chassis numbers it did not take any action and the claim of the complainant is still pending without being repudiated. As the claim is under process, not repudiated so far, no cause of action arose for filing this complaint and according to the OP as this complaint is premature one, the same is liable to be dismissed with cost.
The Complainant has adduced evidence on affidavit along with several documents relating to the complaint and its claim. The Ld. Counsel for the Complainant has placed reliance on several rulings during argument and the copy of the same is filed by way of firisti. After filing of this complaint and at the stage of evidence of the OP, the OP has filed the Surveyor’s report, but not on affidavit.
We have carefully perused the record and the documents filed by the contesting parties, rulings filed by the Complainant and the report of the Surveyor. It is seen by us that there are some admitted facts in the case in hand i.e. the questioned vehicle of the Complainant was under the coverage of an insurance policy obtained from the OP, the policy was valid for the period from 19.07.2012 to 18.07.2013, due premium was paid for the policy, during validity of the said policy on 02.06.2013 the insured vehicle met with an accident by collision with other vehicle, due to the accident the insured vehicle got severe damage, incident of accident was duly intimated to the OP through written correspondence, the vehicle was seized by the police station, Mohammadbazar, Birbhum, Police case started being no-88/2013 dated 04.06.2013, papers and documents related with the police case were sent to the OP as per agreement of the insurance policy, after release from the police station the damaged vehicle was sent to the authorized repairing garage for its necessary repairing, the OP was duly intimated, claim form issued by the OP, claim was lodged along with related papers and documents by the Complainant with the OP, assurance for settlement of the claim was given by the OP through written correspondence, upon receipt of the claim form the OP appointed one Surveyor and Loss Assessor to assess the loss and damage of the insured vehicle, Surveyor and the Loss Assessor inspected the vehicle at the repairing garage, one Investigator inspected the vehicle, Surveyor submitted his report mentioning the loss and damage to the tune of Rs. 8,96,941=00, the copy of the report was not provided to the Complainant by the OP, the Complainant was in dark about the assessment of loss and damage before coming to this ld. Forum, through the instant proceeding the Complainant got a copy of the Surveyor’s report, chasis number was found punched on new chasis, the vehicle became road worthy, the Complainant had to incur expenditure to the tune of Rs.10,15,870=00 towards repairing cost of the vehicle, the OP did not decide the claim and the same is still pending. The allegation of the Complainant is that inspite of submitting the Surveyor’s report by the Surveyor, the OP did not bother to decide its legitimate insurance claim and hence this complaint is filed praying for certain reliefs. According to the Complainant as the OP is under obligation to decide any insurance claim within 30 days from its lodgment as per the IRDA, hence such inaction on behalf of the OP can certainly be termed as deficiency in service. The case of the OP is that as the Surveyor’s report has revealed that chasis number was found punched on new chasis, hence it could not decide the claim and since then the claim is pending. It is further stated by the OP that notice was issued to the Complainant for cogent and convincing clarification regarding two chasis numbers, but as the Complainant did not make any reply to such quarry, the OP could not decide the insurance claim of the Complainant. according to the OP as the Complainant has failed to comply with the said formalities, there is no deficiency in service on its part and it is ready to decide the claim as and when it will receive the cogent reply from the Complainant.
We have duly considered the argument advanced by the ld. Counsel for the parties. It is noticed by us that the Surveyor appointed by the OP had submitted his report before the OP mentioning that the cause of accident as narrated by the insured was viewed having consistency with the damages. Considering the magnitude of damages sustained by the concerned vehicle the Surveyor assessed the loss to the tune of Rs. 8, 96,941=00 after deducting the depreciation @10% &50%, policy excess and approximate salvage. It was observed in the said report that repairing job including paint work as recommended by the undersigned was carried out properly and satisfactorily, visual parts which were recommended by the undersigned for replacement were found replaced with new, since the vehicle was found good road worthy condition, the inner parts which were recommended for replacement might have been replaced properly, salvage parts were produced and found tally. Chasis number was found punched on new chasis. The contention of the OP is that as the chasis number was found punched on new chasis, the OP could not decide the claim and in this connection letter was issued to the Complainant from its end for giving clarification on this point as to why the chasis number was different from the earlier. But in this respect the OP has failed to show us any evidence that the said letter was actually issued and the same was received by the Complainant. As there is no iota of evidence, the contention of the OP has no legs to stand upon. Regarding Surveyor’s report we are of the opinion that there are several judgments wherein it has been held that the Surveyor’s report is an important document which cannot brushed aside and it should be given due weightage.
The Ld. Counsel for the Complainant has relied on some judgments i.e.-
1. 2013 (2) CPR 488 (NC)
2. 2010 (1) CPR 58 (NC)
3. 2014 (2) CPR 305 (NC)
4. 2013 (2) CPR 482 (NC)
5. 2011 (2) CPR 73 (NC)
6. 2011 (1) CPR 191 (NC)
Now we are to discuss on the said rulings. The rulings nos-1-3 are matching with the fact of the instant complaint, because in those rulings it has been held by Their Lordships as and when the cause of action will start. It has been stated by the OP that as the claim is still pending no cause of action arose. As per those rulings as the Complainant lodged its claim before the OP hence the cause of action has already been started and as the claim is still pending, hence the cause of action is still continuing. The ruling no-4 is applicable in the case in hand because it has been held therein that delay in settlement of insurance claim amounts to deficiency in service. In the present case inspite of specific direction as mentioned in the IRDA Guideline and claim should be settled within 30 days, but the claim of the Complainant had not been settled by the OP within that period, not only that considering the Surveyor’s report the OP did not bother either to settle or repudiate the claim and kept itself completely silent over the matter for a prolonged period, which obviously an example of deficiency in service on behalf of the OP. In the ruling no-5 it has been held that non-settlement of insurance claim without any reason is deficiency in service. In our opinion the said observation can be implemented in the case in had because the fact of that case and the present is almost same and identical. The ruling no-6 is also applicable in this complaint.
It is noticed by us that the Complainant has successfully proved its case that there is deficiency in service on the part of the OP, for which the Complainant is entitled to get compensation from the OP and due to deficiency in service of the OP, the Complainant had to approach before this Ld. Forum and incurred some expenditure towards litigation cost, hence we are of the view that the Complainant is also entitled to get litigation cost.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest with cost. The OP is directed to pay a sum of Rs. 8,96,941=00 to the Complainant towards repairing cost of the damaged insured vehicle, which the Surveyor had also assessed within a period of 45 days from the date of passing of this judgment, in default, the above-mentioned amount shall carry penal interest @8% p.a. for the default period. The OP is further directed for making payment of Rs. 3,000=00 as compensation due to harassment, mental agony, financial loss etc. and Rs.1,000=00 as litigation cost to the Complainant within a period of 45 days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the entire decree in execution as per provision of Law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
