DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No. 66 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 10.10.2012 to 09.10.2013 against the vehicle no-WB-39A/7613, JCB Loader to cover the liability of payment in case of accidental damage and otherwise loss partly/fully of the vehicle which is belonging to the Complainant. The Complainant on good faith paid due premium in respect of the policy for receiving better service of payment of compensation than any other Insurance Company, which was told by the authorized agent of the OP and officer/employee. But practically the OP did not keep their verbal assurance. On 30.08.2013 the said insured vehicle met with an accident due to collision with other vehicle and as a result the vehicle got severe damage. Upon receipt of the said incident from the Complainant one Surveyor was appointed by the OP. As per normal procedure the damaged vehicle was sent to the authorized workshop for its necessary repairing. The authorized surveyor of the OP namely R.K. Jalan came to survey the loss of the vehicle and assessed the cost of repairing to the tune of Rs.7, 75,070=00. The repairing workshop assessed the cost of repairing for Rs.8, 29,839=00, which was sent to the OP by the Complainant on 28.11.2013. The Complainant being compelled to hire other vehicle during repairing period for running business of the company with an intimation to the Insurance Company and requested the OP for making payment of the cost of repairing of the damaged vehicle, which was not done by the OP and therefore such inaction can be termed an breach of contract and deficiency in service on the part of the OP. 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 also an example of breach of contract by the OP. As the OP did not pay any amount towards estimated cost of repairing the Complainant issued written correspondences requesting them to disburse some amount towards repairing cost for 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.8,29,839=00 towards the estimated repairing cost of the damaged vehicle, Rs. 1,72,800=00 towards hire of the vehicle in place of damaged vehicle, Rs.1,50,000=00 towards business loss due to delay payment and Rs.50,000=00 as cost and interest.
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 JCB Loader bearing no-WB-39A/7613 which was valid for the period from 10.10.2012 to 09.10.2013 and insured sum was of Rs. 31,29,158=00 for the said vehicle. The incident of the accident was duly informed by the Complainant on 11.09.2013 to the OP, survey was done by Sri R.K. Jalan, approved Surveyor and Loss Assessor, who gave a report stating total repairing charges to the tune of Rs.7,75,070.05=00 and depreciation was calculated for Rs.80,466.86. Thereafter the Complainant a letter to the Senior Branch Manager of the OP-Company stating that re-inspection of the damaged vehicle may be undertaken along with submission of a bill issued by the authorized repairing workshop for an amount of Rs.8, 29,839.40. On 01.01.2015 the Complainant issued one notice to the Senior Branch Manager of the OP claiming an amount of Rs.12, 02,639=00. Thereafter as per direction of the OP Mr. Radheshyam Bhadra, surveyor undertook spot/preliminary survey on 30.08.2013 at about 6 a.m. at the place of accident at Durgapur. Report was received by the OP on 13.09.2013. In the said report under column ‘G’ it has been mentioned that the incident of accident was not informed to the police. Under sub-heading ‘e’ it has been reported that while the insured vehicle was working at the spot and the bucket was loaded, suddenly it got heat with any other machines, caused the right side arm PIN broken. Entire system effected and suffered damage and due to accident nobody was injured and no third party property was involved. Final survey conducted by R.K. Jalan, who submitted his report on 10.02.2014 stating the net loss on repairing basis to the extent of Rs.6, 94,294=00. As per the final survey the photo producer submitted identification number as L 2Z06906 but as per invoice no-(i) 2013 9042100151 dated 26.11.2013 (ii) 20139042100150 dated 26.11.2013 (iii) 2013 9051100424 dated 31.10.2013 (iv) 2013 9051100152 dated 26.11.2013 of Tractor India private Limited. The machine Sl number mentioned as L 2Z06902. As per re-inspection report lift arm assembly number was 1516 which was replaced by 1817 and as per final survey photo the number was correct. As per photo of final report corresponding number of the replaced arm is P No-81407772. The OP vide its letter dated 21.01.2015 informed the Tractors India Private Limited to clarify certain discrepancies in the quotation and invoices issued to the Complainant for the vehicle. It was informed that as per the quotation number 2300587 dated 30.08.2013 and 2000000802 dated 02.09.2013 the registration number of the vehicle is WB-39A/7613, Model number and serial number are 2012 & L2Z06906. It has also been stated that as per invoice number (i) 2013 9042100151 dated 26.11.2013 (ii) 20139042100150 dated 26.11.2013 (iii) 2013 9051100424 dated 31.10.2013 (iv) 2013 9051100152 dated 26.11.2013 of Tractor India Private Limited. The repairing workshop in reply forwarded two certificates dated 30.08.2014 stating that the part and machine numbers are same as per the quotation and invoice but due to some reason from manufacturing end the number punched 81407773 over the material which is different. The OP again deputed one investigator, Mr. Prabir Kumar Sinha for verification of the report of invoice number. Under above facts and circumstances the said claim could not be settled due to non-submission of proper documents and as a result of which the Complainant had not been able to establish the claim inspite of repeated requests made by the OP. According to the OP as the complaint being pre-mature one 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. The OP has filed the surveyor’s report, but not on affidavit. The OP has submitted some papers and documents in support of its case.
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 10.10.2012 to 09.10.2013, due premium was paid for the policy, during validity of the said policy on 30.08.2013 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 damaged vehicle was sent to the authorized repairing workshop 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 workshop, one Investigator inspected the vehicle, surveyor submitted his report mentioning the loss and damage to the tune of Rs.6,94,294=00 after deducting the depreciation, salvage & policy excess, the Complainant had to incur expenditure to the tune of Rs.8,29,839=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 there are some discrepancies by and between the surveyor’s report and the quotation and original invoice, the OP was not in a position to decide the claim and regarding such discrepancies some clarifications was sought for by the OP from the repairing workshop as well as the Complainant, but no reply has yet been received by the OP till date. For this reason the claim is still pending. As no cause of action has arisen till date, hence according to the OP the instant complaint is a pre-mature one. 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.6, 94,294=00after deduction the depreciation @10% &50%, policy excess and approximate salvage. The contention of the OP is that as there were some discrepancies regarding some numbers in the surveyor’s report after tallying the same with original quotation and invoice 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 same was different from original document. 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 either by the Complainant or the authorized workshop. 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 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.6,94,294=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 abovementioned 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 into 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
