Heard learned counsel for the appellant and respondent. F.A.805 of 2008 is filed by OP whereas F.A.798 of 2008 is filed by the complainant.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to these appeals shall be referred to with reference to their respective status before the learned District Forum. Both the appeals are arises out of a common order passed by the learned District Forum,Bhubaneswar.
3. The case of the case of complainant, in nutshell is that the complainant being the owner of OR-05-U-7855 had purchased insurance policy for sum assured of Rs.4,00,000/- covering the period from 12.03.2006 to 11.03.2007 from the OP. It is alleged inter-alia that while the vehicle was driven by Debi Prasad Swain, the accident took place and the matter was informed to the police. Police started investigation and sent the vehicle for repair. The police submitted the charge-sheet against the said driver of the vehicle and the case is pending in the court of SDJM. Since, the claim is not paid, the complaint was filed.
4. The OP No.1 & 3 are set-exparte.
5. OP No.2 filed written version stating that the complainant was driving the vehicle at the time of accident whereas another driver namely Debi Prasad Swain was shown as driving the vehicle at the time of accident. Since, this matter was for required for investigation, the allegation of the complainant was doubtful. Therefore, they did not settle the matter and as such the complainant has filed the false case against the OP. They have no deficiency in service on their part.
6. After hearing both the parties, learned District Forum passed the following order:-
Xxxx xxxx xxxx
“ In the result, the complaint is hereby allowed on contest against the OP No.2 and ex-parte against the Ops 1 & 3. The Ops are jointly and severally directed to pay Rs.7,000/- towards the insurance claim. The compensation for mental agony is assessed at Rs.2000/- and litigation cost is assessed at Rs.1000/- payable by the Ops to the complainant. The entire amount be paid by the Ops jointly and severally to the complainant within a period of one month from the date of communication of this order, failing which the Ops are to pay interest @ 12 % per annum on Rs.7,000/-.”
7. Learned counsel for the appellant in F.A.805 of 2008 has urged that the learned District Forum has committed error in law by not considering the written version with proper perspectives. According to him the accident with vehicle in question was informed to the insurer in time but it was not informed properly. He submitted that since the investigation is going on they are not in a position to settle the claim of appellant. Therefore, he submitted to set-aside the impugned order by allowing the appeal.
8. In the appeal memo in F.A. 798 of 2008 it is urged to enhance compensation amount and cost as complainant has spent Rs.27,000/- for repairing the vehicle and has got mental agony and harassment due to inaction of OP.
9. Considered the submission of learned counsel for the appellant, perused the DFR and impugned order.
10. It is admitted fact that the vehicle in question of the complainant met accident during currency of the policy. It is not in dispute that the matter was reported to the OP who commenced the investigation. But during investigation it appears that the vehicle in question has not been properly examined. Learned counsel for the appellant candidly admitted that the matter has not been discussed properly by the surveyor. After the accident took place, the matter was reported to the police on the same day of occurrence. Since the investigation is going on, they are waiting the result but the complaint was filed. Therefore, after going through the material on record and submission of both the parties, we are of the opinion that whether the investigation is going on or not but the complainant submits that the claim has not been settled so far even if the complaint was filed by the complainant. It is deficiency in service on the part of the OP. This has been settled by the Hon’ble Apex Court in catena of decisions. It is claim of complainant that investigation report is not the criteria, it is for the surveyor to make the survey properly. Be that as it may, we are of the view that there is deficiency in service lies with the OP.
11. At the same time we find that learned District Forum has computed the loss at Rs.7,000/- without any reason assigned. Since, it is found from the impugned order that complainant has claimed Rs.27,000/- towards the repairing cost. Since, the matter has not been settled, we are of the view that instead of computing the loss, it is left to surveyor to compute the loss again. But due to delay, the complainant is entitled to get the compensation and cost. Therefore, while confirming the impugned order, we hereby modified the impugned order by directing the OP to settle the matter within a period of 45 days from the date of impugned order. It is made clear that OP while settling matter would consider the estimate and other documents to be proved by complainant. Complainant is directed to submit the documents if any before the OP within above period. But non-supply of the documents can not allow appellant to sit over the matter but to comply the order within above period. Learned counsel for the appellant has to go ahead of the settlement of the dispute. Moreover, the compensation and cost as ordered by learned District Forum is to be paid by the appellant to the complainant. All the above order to be complied within above period failing which interest @ 12 % would be payable by OP to complainant on the settled amount, compensation and cost.
On the aforesaid discussion, the appeal No.805/2008 is partly allowed. The appeal filed by the complainant is disposed of accordingly.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
