Date of filing: 06.09.2017 Date of disposal: 12.02.2019
Complainant: Susanta Banerjee, S/o. Deb Kumar Banerjee, resident of Tengaberiya, PO: Jamalpur, District: Burdwan, PIN – 713 166.
- V E R S U S -
Opposite Party: National Insurance Company Ltd., Memari Branch, represented by its Branch Manage, having its office at 2nd Floor, Puspan Jail Market Complex, G. T. Road, Opposite of Memari Police Station, Memari, District: Burdwan, Pin – 714 146.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party: Ld. Advocate, Shyamal Kumar Ganguli.
J U D G E M E N T
The present application u/S. 12 of the C. P. Act, 1986 filed by the complainant Susanta Banerjee, S/o. Debkumar Banerjee against the OP claiming Rs. 86,168=00 along with other amount for deficiency in service and unfair trade practice.
The actual fact of the case is that the complainant purchased MAH Scorpio S-2 car manufactured by Mahindra & Mahindra Co. Ltd. against Rs. 8, 27,280=00 and the said vehicle was registered before the registering authority being registration no. WB42AE0310 and the chassis no. is MAITA2TDKF2028394.
The said vehicle was insured by the Ops against premium amount vide policy No. 154101/31/16/6100003834 and was valid from 29-08-2016 to 28.08.2017.
The further case is that the said vehicle met with an accident on 21.01.2017 when the complainant was going towards DIgha with his friend and according to terms and condition the complainant then and there intimated the said accident to OP over telephone and also submitted a written representation on 25.01.2017 before the OP and thereafter the complainant brought the said vehicle before the Saluja Auto Retails Pvt. Ltd. at Burdwan as per instruction of the representative of the OP for repairing and thereafter the complainant submitted claim form as per intimation of the OP along with all documents and the OP also registered the claim vide claim No. 1541013116619000097.
The complainant further stated that on 09.03.2017, the Saluja Auto Retails Pvt. Ltd. returned the vehicle after repairing along with a bill of Rs. 1, 81,058=00 and accordingly the complainant paid the total repairing cost to the garage authority and thereafter submitted the bill to the OP.
The complainant further stated that after receiving the repairing bill the OP kept itself mum in respect of settling the damage claimed by the complainant and as such the complainant requested the OP for several times verbally as well as through letter to settle the claim but the OP did not turn up and then the complainant compelled to lodge complaint before the Consumer Affairs Department, Burdwan. The complainant also alleged that on 30.07.2018 when he updated his bank account then he came to know that the OP deposited a sum of Rs. 94,090=00 in his bank account through NEFT on 28.07.2017 and thereafter came to know from the OP that the matter has already settled and accordingly the OP deposited the said amount in his bank account but the complainant was not satisfied with such settlement amount and he submitted a written representation before the OP on 01.08.2017.
The complainant further stated that he is a bonafide consumer of the OP and never done any act of detrimental to the interest of the OP but still the OP kept itself mum regarding speedy settlement of the claim amount and at the same time they settled the claim by paying a lumpsum amount knowing fully well the cost of repairing charges and for that reason the present claim application filed as the act of the OP towards the complainant is deficiency in service and unfair trade practice and for that the complainant suffered mental pain and agony.
The cause of action arose on and from 28.07.2017, when the OP paid Rs. 94,090=00 in bank account of the complainant.
The OP i.e. the National Insurance Company Limited contested the claim application by written version where they stated that the complainant has no locus standi or any cause of action to file the present complaint petition against the OP and accordingly the present claim application is not maintainable in its present form and the total complaint is nothing but misconceived, groundless and unsustainable in law and accordingly the present Hon’ble District Forum has no jurisdiction to entertain and adjudication upon the dispute, as it is not a consumer dispute and does not fall within the provision of C. P. Act.
The Ops also denied all the allegations as alleged by the complainant and prayed for dismiss the application.
It appears that there is no dispute that the complainant became owner in respect of the vehicle by purchasing and the said vehicle also insured by the OP. It is also not disputed that the vehicle met with an accident on 21.01.2017 when the complainant himself along with his friends all were going to Digha and due to the said accident the vehicle was repaired by Saluja Auto Retails Pvt. Ltd. as per instruction of OP and against a bill amount of Rs. 1,81,000=00.
The specific case of the OP is that the Surveyor as per instruction of the OP calculated the total value of repairing work was Rs. 90,040=00 and the said amount corroborated through the survey report of Motor Re-inspection Report and motor survey report conducted by Kashinath Chattopadhyay and the amount calculated Rs. 94,040=00 and accordingly the OP stated that the complainant deliberately misled the Ld. Forum by furnishing wrong information without accepting the loss assessment of final settlement for Rs. 94,090=00 and further informed that the OP had already paid the said amount in the bank account of the complainant through NEFT on 28.07.2017, accordingly submitted that the claim application is nothing but a vague one and the complainant submitted false charges against OP National Insurance Co. Ltd in connection with deficiency in service and unfair trade practice.
On hearing Ld. Lawyer for both sides and also on considering the petition along with written version the following issues are considered and framed.
- Whether present claim application maintainable in its present form?
- Whether the OP created any deficiency in service as well as unfair trade practice towards the complainant?
- Whether the complainant is entitled to get any relief as prayed for?
- To what other relief or reliefs, the complainant is entitled to get according to law?
To prove the claim application complainant produced evidence-in-chief and questionnaires to the OP and also cited photocopy of law books to show that he is a bonafide consumer and is compelled to lodge the complaint as the OP has done unfair trade practice and deficiency in service against him.
On the contrary OP also contested the claim application on the ground that the complainant is not at all bonafide consumer and they have not done any unfair trade practice upon the complainant and to prove the same cited photocopy of law books i.e.
- 2018 (4) CPR 166 (NC) page 166 to 171.
- 2018 (2) CPR 545 (NC) page 545 to 553.
- 3. 2018 (1) CPR 122 (NC) page 122 to 125.
- 2018 (1) CPR 342 (NC) page 342 to 345.
- 2018 (1) CPR 424 (NC) page 424 to 427.
Issue No. 1:-
Complainant purchased a MAH Scorpio S2 car manufactured by Mahindra & Mahindra Company Ltd. at a price of Rs. 8, 27,280=00 and after purchasing the said vehicle complainant registered the same before the Registration Authority, Burdwan vide Registration No. WB42AE0310, chassis No. is MAITA2TDKF2028394 and engine No. is TDF4083494 and thereafter insured the said vehicle before the OP and the OP also insured the said vehicle after receiving the premium amount vide policy No. 154101/31/16/6100003834 and it was valid from 29.08.2016 to 28.07.2017.
Now it appears that Insurance Company has its office at 2nd Floor, Puspanjali Market Complex, G. T. Road, opposite to Memari Police Station, Memari, District: Burdwan.
There is no dispute that the complainant became the owner of the said vehicle after purchasing the same from Mahindra & Mahindra Company Limited and thereafter insured the same before the OP. So without any hesitation this Forum easily holds that the complainant able to prove that he is a bonafide consumer and filed the present claim application within proper jurisdiction, i.e., pecuniary as well as territorial jurisdiction.
Accordingly this issue disposed of.
Issue No. 2:-
This is the issue which is the most vital point of consideration in the preset claim application, as it appears that the complainant has field the present claim application against OP on the ground that OP, being insurer of the vehicle which is purchased by the complainant, is not agreed to pay entire amount which paid by the complainant after repairing and further instead of entire amount, paid some amount (Rs. 94,090=00) as per their assessment and the complainant is not agreed to accept the same.
At the time of argument, Ld. Lawyer for the OP submitted that the claim application is not maintainable according to their terms and conditions of the agreement, executed between parties and to prove the same, the said Ld. Lawyer also cited some Rulings i.e. 2018 (4) CPR 166 (NC) page 166 to 171, the report of the Surveyor forms the basis for Settlement of the insurance claim unless there are cogent grounds for not accepting the same, 2018 (2)CPR 545 (NC) page 545 to 553, 2018 (1) CPR 122 (NC) page 122 to 125, 2018 (1) CPR 342 (NC) page 342 to 345 complainant is entitled to get full amount for loss as assessed by Surveyor appointed by Insurance Company 2018 (1) CPR 424 (NC) page 434 to 427.
On the other hand ld. Lawyer for the complainant submits that present claim application is maintainable and he repairs the vehicle at the garage mention by OP and paid entire amount as per their bill.
Now it appears that the complainant after purchasing the vehicle take steps for registration and thereafter insured the said vehicle vide policy No. 154101/31/16/6100003834, valid from 29.08.2016 to 28.07.2017 and during the said period the vehicle met an accident on 21.01.2017 and after the accident the complainant informed the same to the OP over telephone and also submitted written representations on 25.01.2017 and as per instruction of the OP the vehicle brought by the complainant before the Saluja Auto Retails Pvt. Ltd. at Burdwan for repairing and on 09.03.2017 the Saluja Ltd. returned the vehicle after repairing it along with a bill of Rs. 1,81,058=00 but the OP kept himself mum in respect of settling damage claim though the complainant requested them verbally as well as issuing letter on several times and thereafter on 30.07.2017 when the complainant updated his bank account, then only came to know that the OP deposited a sum of T+Rs. 94,090=00 in his bank account through NEFT on 28.07.2017.
Admittedly complainant paid Rs. 1,81,058=00 as repairing cost to Saluja Auto Retail Pvt. Ltd. and it is also not disputed that OP deposited Rs. 94,090=00 in the bank account of the complainant as repairing cost of the vehicle and accordingly question arises what amount would be considered as actual cost for repairing. Complainant is also able to produce bill issued by Saluja Ltd. on 09.03.2017 for Rs. 1,81,058=00 and Kashinath Chattopadhyay, Surveyor and Loss Assessor also submitted a bill dated 12.04.2017 for Rs. 87,000=00, when Bijoy Kr. Gupta, Branch Manager of National Insurance Company ltd. recommended Rs. 94,090=00 as claim amount but never mention about the procedure which used for recommendation of total bill.
It also appears that Surveyor Mr. Chattopadhyay surveyed the said vehicle at the garage of Saluja Ltd. on 10.03.2017 when the said vehicle handed over to the complainant on 09.03.2017 after proper repair and raised no objection regarding repairing work done by Saluja Ltd., rather admitted the same by mentioning that when he inspected the vehicle after proper instruction from competent authority on 10.03.2017 then he found that the said vehicle fully repaired as per recommendation and also found that the vehicle properly repaired, painting work properly carried out and glass windshield have also fitted newly and further mention about the names of all parts which replaced during the period of repair as per recommendation and it also appears that Mr. Chattopadhyay again submitted another report on same date and submitted that as per instruction which received on 30.01.2017 from National Insurance Co. ltd. He surveyed and inspected the vehicle on 31.01.2017, 09.02.2017, 03.03.2017 & 10.03.2017 and submitted final bill on 12.04.2017 and the bill amount deposited to the bank account of the complainant through NEFT on 28.07.2017 and the OP is not able to say about the actual cause for such delay and during the period of consideration this Forum also failed to understand, i.e. when Surveyor submitted a bill of Rs. 87,000=00 then why the bill was considered as Rs. 54,7207 + 2736 along with VAT & ST charges and further as to why the said amount was not added with Rs. 87,000=00 as per bill.
Moreover, it is clear that prior to report of Mr. Chattopadhyay the vehicle was properly repaired by Saluja Ltd. and also submitted a bill but that bill was not considered and at the same time never denied that the bill was not submitted properly.
So conduct of OP clearly shows that OP admit the bill issued by Saluja Ltd. and for that they never challenge the said bill and at the same time never denied by saying that inspection work by Saluja Ltd. was not properly done as per rules and regulation and for that the bill should not be accepted. Accordingly it is clear that there is no dispute regarding the bill and as such the bill prepared by Saluja Ltd. is according to law and it is accepted.
Accordingly this issue disposed of in favour of the complainant.
Issue No. 3 & 4:-
Both the issues are taken up together for consideration.
Now it appears that complainant is able to prove that he is bonafide consumer of the vehicle and also able to prove that the vehicle met with an accident on 21.01.2017 and thereafter the same was repaired at Saluja Auto Retail Pvt. Ltd. against bill amount of Rs. 1,81,058=00.
Complainant is also able to prove that after payment of Rs. 1, 81,000=00 as per bill, he informed the same to the OP as insurer on several times and also able to prove that OP takes no step regarding the bill amount which paid by the complainant and instead of taking step they sent this Surveyor for inspection the vehicle and according to Surveyor report the vehicle was properly repaired and this Surveyor never stated anything regarding the bill submitted by the garage to the complainant.
At the same time the attitude of the OP is also found not clear towards the complainant that is at first they never raise any objection regarding the bill and also not raise any objection regarding repairing work even when the Surveyor appointed by them issued another bill after inspection the vehicle then also they never informed the same to the complainant, i.e., why the amount for repairing work were shows different and also not informed that they have deposited the same to the bank account of the complainant.
It further appears that at the time of reply against the questionnaire by the complainant, the OP failed to answer properly i.e., the complainant asked them whether they are interested to produce the Surveyor before the Consumer Forum for examination and then the reply was that they have already submitted the inspection report in this written objection. So the attitude of the OP clearly shows that they have failed to consider the bill issued by Saluja Pvt. Ltd. after repair the vehicle and at the same time also failed to show that as to why they consider the bill of Rs. 94,090=00 instead of Rs. 1,81,058=00.
Accordingly, both the issues are disposed of in favour of the complainant.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 184/2017 be and the same is allowed on contest with cost with a direction to the OP to pay Rs. 86,968=00 (Rs. 1, 81,058 – 94,090) to the complainant as rest amount of vehicle repairing cost within 45 days from the date of passing of this award, in default, it will carry penal interest @8% per annum for the default period and the OP is also directed to pay Rs. 5,000=00 as compensation for mental pain, agony and harassment and Rs. 2,000=00 as litigation cost to the complainant within 45 days from the date of passing of this award, in default, the complainant is at liberty to put the award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions lf law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
