The case of the complainant, in brief, is that complainant purchased a motor vehicle policy from the Opposite Party, SBI General Insurance being policy no. 0000000000865105 in respect of his vehicle being registration No. NL-01G-8358, engine no. 11C63109042, Chasis No. Mat 466375B3C07368, model No. TATA LPT 3118 manufactured by TATA Motors.
The period of Insurance of the said policy stood from 30.03.2013 to 29.03.2014 (midnight) with vehicle IDV(insured declared value) of Rs. 16,93,000/- which is mentioned in the policy certificate dtd. 29.03.2013 issued to the complainant.
That on 07.12.2013 the said vehicle on its way to Agartala on reaching at Puriang village, NH-44 the driver lost control over his vehicle and to avoid collision with one truck had gone to road side deep drain and as a result of that the vehicle of the complainant caused heavy damage with various parts of its including cabin, dash board, gear box etc. and to that effect complainant lodged a written complaint the basis of which mawryngkneng P.S. noted GDE No. 170/2013 dtd. 10.12.2013. The matter of accident was informed to OP-insurance company by the complainant and OP appointed a surveyor and loss assessor
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Mr. J.P Guha who assessed the damage and advised complainant to repair the vehicle from any garage at his own cost and assured him that the complainant would get all the expenses very soon. Complainant got repairs of his vehicle from several garages and spend Rs.6,39,481/- from his pocket as the vehicle is the only source of income of the complainant for running his livelihood from the earning of the vehicle. After that the insurance company days after days asked the complainant for documents and complainant sent those documents to the OP. On 20.08.2014 the OP-insurance company informed the complainant that they have settled the complainant’s claim and offered him Rs. 1,10,250/- and complainant refused the offer as well as requested the OP for re-assessment of claim. Next on 07.11.2014 the OP repudiated the claim of the complainant, hence, this case with the prayers for directing the Op to pay to the complainant Rs. 6,39,481/- along with interest thereon and for another sum of Rs. 25,000/- as compensation and for direction upon the OP to pay further sum of Rs. 50,000/- for deficiency in service and Rs. 30,000/- for mental agony and harassment and also Rs. 15,000/- for unfair trade practice and lastly another Rs. 15,000/- as cost of litigation.
As against this application of the complainant the OP SBI Insurance Company Ltd. filed written version denying almost all the allegations as ventilated in the petition of complaint stating inter alia that the surveyor Mr. J.B. Guha denied in respect of any permission given by him to the complainant to carry to repair works of the vehicle at any garage at the choice of the complainant and the OP came to learn through his surveyor the concerned manager of the garage mainly M/s Auto Fit Industries also denied that complainant had spent Rs. 6,39,481/- for repair works as claimed and it is also learnt from the surveyor that M/s Auto Fit Industries stated that they have raised a single bill vide bill no. 001878 dtd. 25.02.2014 for an amount of Rs. 2,73,291/- and the receipt payment by the said garage was the single money receipt bearing no. 246 in respect of the repairing works of the vehicle in question in this case being no. NL-01/G-8358 which includes multiple payments against the repairs charge from the complainant/owner prior to date of accident and moreover in support of the bill for the sum of Rs. 2,73,291/- was not preserved by the said garage authority and thus the verbal statement of the said manager as per written version as stated found not convincing and not trust worthy. It is admitted in the written version that OP have withdrawn the offer given to the complainant of Rs. 1,10,250/- as full and final settlement by its letter no. dtd. 07.11.2014 and thus the OP has rightly the repudiated the claim of the complainant and ultimately OP has prayed for dismissal of this case.
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In this case some documents have been filed by the complainant by preparation of a list on 12.12.2018 and it appears that those have been mentioned in the list so filed in Xerox but a few of those are seen as filed in original. OP side has filed two documents one is letter of repudiation dtd. 07.11.2014 and another is the Surveyor-Loss Assessor’s Report dtd. 31.10.2014. Affidavit in chief as evidence is filed from the side of complainant as PW-1 while on the other hand one Akhil Kulhari of SBI General Insurance Company Ltd. filed his examination-in-chief as OPW-1. No more witness from either of the side. Complainant filed his written argument and on the other hand written argument is also filed on the side of the OP-Insurance Company. Complainant side has referred a case of Hon’ble Chhattisgarh Sate Consumer Disputes Redressal Commission, Raipur as reported in I(2018) CPJ 3A(CN) (Chhat) and this has been mentioned by the Ld. advocate for the complainant during argument of this case. Ld. advocate for the complainant during argument submitted that complainant spent a sum of Rs. 6,39,481/- as the surveyor assured complainant that complainant would get all the expenses for doing such repair works of the vehicle damaged and it is also submitted that Op at one point of time settled the complainant’s claim and offered him Rs. 1,10,250/- but complainant refused to accept the same claiming reassessment. It is finally argued by the Ld. advocate for the complainant that case of the complainant is genuine and so this case has been initiated where complainant has prayed for a total sum of Rs. 7,74,481/- from the OP-company. The Ld. advocate for the OP-insurance company admitted that an offer of Rs. 1,10,250/- was given to the complainant as against his claim but subsequently they came to learn that such offered sum of money should not be handed over to the complainant and for that reason on 07.11.2014 they repudiated the claim of the complainant and thus argued that complainant should not get any relief as he has claimed and submits for dismissal of this case.
Upon the pleadings of the parties the following issues are framed for the determination of this case:-
- Is the case maintainable in its present form before this District Consumer Disputes Redressal Forum, Siliguri as per C.P. Act. 1986?
- Has there been any deficiency in service upon the complainant by the OP-insurance company?
- Has there been any unfair trade practice committed by the OP-insurance company against the complainant?
- Is the complainant entitled to get the relief/reliefs as prayed for?
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DECISION WITH REASONS.
Issue Nos. 1 to 4.
These above issues are taken up together for consideration for the sake of convenience of discussion and to avoid repetition as those are interrelated with one another.
Firstly it appears from the documents produced before this Forum that the Insurance Coverage of the vehicle in question as per policy with the SBI General Insurance extended from 30.03.2013 to 29.03.2014 while the accident of the vehicle occurred on 07.12.2013 and the insured declared value (I.D.V.) under the said policy was of Rs. 16,93,000/- only. As regards the incident of accident the petition of complaint described the manner in which that was taken place and to that effect we have perused all the papers including police report in respect of accident of vehicle bearing registration no. NL-01-G-8358(Truck) and the model number of the same is TATA LPT 3118 manufactured by TATA Motors. The OP is the insurer, SBI General Insurance whose office is situated at building Parthiba (1st floor) opposite stadium main gate, Bidhan Road, Siliguri, Dist.-Darjeeling and in this context there is no doubt in it that the instant case on the point of territorial jurisdiction is well maintainable with this Forum. This particular case as it appears is not at all lacking for pecuniary jurisdiction too. The case has been filed within two years from the date of cause of action as arisen so it is not hit by section 24A of the C.P. Act.1986 and above all being insured while the complainant as owner of the vehicle being No. NL-01G-8358 has initiated this case which vehicle was fallen on accident and received letter of repudiation as against claim for accidental repairs on the allegation of deficiency in service and on adoption of unfair trade practice against the OP-Insurance Company then it can safely be said that complainant is a consumer as per section 2(a)(d) of the C.P. Act. 1986, hence, this instant case is maintainable in purview of the said Act. of 1986. The Ld. advocate for the complainant during argument has relied upon the judgment passed by Hon’ble State Commission, Delhi as filed there under section 17(1)(a) (ii) of the C.P. Act. 1986 which was decided on 22.12.2014 and Ld. advocate submitted that here in this case the OP-Insurance Company at first instance as against claim of the complainant awarded a sum of Rs. 1,10,250/- as discharge voucher on the basis of the report of one independent surveyor Mr. J.B. Guha as per assessment of loss repairs carried out by that surveyor and this letter was of dtd. 20.08.2014 was sent to the complainant but complainant refused to accept that amount. During consideration it appears that subsequently by a letter dtd. 07.11.2014 referring that offer of Rs. 1,10,250/- which was
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calculated as full and final settlement of the claim the claim of the complainant declined and this repudiation of claim letter mentions about the verification of bill number 001878/money receipt No. 246 of Auto Fit and Industries amounting Rs. 2,73,291/- as was sent by the complainant and OP-Insurance Company stated that this bill has been prepared out of conspiracy hatched in between the complainant and the repairer. As regards accident of the vehicle nothing has been challenged from the part of the insurer-OP from the papers on record which is certificate as issued by officer-in-charge, Mawrymgkneong Police Station East Khasi Hills District it appears that the vehicle in question met an accident at Puriang East Khasi Hills District, Meghalaya on 07.12.2013 ant it got partially damaged. Perused the Tax Invoice as against repairs of the vehicle dtd. 30.05.2014 on job card dtd. 29.03.2014 while Service Request type: Accident and it is clear from that a sum of Rs. 2,73,291/- was paid by the complainant as the registered owner of the vehicle being No. NL-01G-8358 and now this amount of Rs. 2,73,291/- and claim to that effect by the complainant as noticed from the letter of repudiation dtd. 07.11.2014 has been declined by the OP-Insurance Company and it is stated therein that the repairer Auto Fit & Industries has manufactured the same in conspiracy with the owner of the vehicle. It is to be noted here that OP-Insurance Company has in this context relied upon the investigation report of one Kabi Das(surveyor- Loss Assessor) which of dtd. 31.10.2014. The complainant’s Ld. advocate during argument challenged this report of the surveyor and moreover submitted that accidental repairs of the vehicle was done also to another garage named as Virdi Engineering situated at Birpara Dist.- Jalpaiguri and thus in total a sum of Rs. 6,39,481/- on the count of accidental repair has been prayed for in this case. It is to be noted here that the report of surveyor stated that the insured has misused this opportunity of accident and accidental benefit repairs to that effect by colluding with Auto Fit & Industries to produce a bill of Rs. 2,73,291/- towards various repairs which are unrelated and not connected to this accident including normal running repairs carried out prior to this accident and as those are not authorized by the surveyor so not admissible by the insurer. Under the facts and circumstances of the case on going through the materials on record particularly the bills of Virdi Engineering and that of Auto Fit & Industries we are of the considered view that the Tax Invoice regarding repairs of the vehicle with amount of Rs. 2,73,291/- which is computer generated should not be disbelieved but reliance cannot be given to other bills as produced by the complainant as against accidental repairs of the vehicle. The accidental repairs amounting Rs. 2,73,291/- is worthy of credit as because it has been in details also and the reasons for disbelieving the same as ventilated in the surveyor’s report dtd. 31.10.2014 are not justified and in this respect it is to be borne in mind that
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primarily the insurance company admitted the claim of the complainant by offering of Rs. 1,10,250/- the surveyor’s report dtd. 31.10.2014 in support of denying that amount of Rs. 2,73,291/- never produced a single scrap of paper. The OP-Insurance Company had the opportunity to bring the Manager of the Auto Fit & Industries for his evidence before this Forum on the count of challenge of that billed amount of Rs. 2,73,291/- but that has not been done. From the letter of the OP-Insurance Company dtd. 20.08.2014 it appears that complainant issued a discharge voucher therewith amounting Rs. 1,10,250/- and requested the complainant for return of that discharge voucher duly signed across revenue stamp along with the following AML documents such as a) Xerox of PAN Card of insured self attested, b) Xerox of address proof of insured like Telephone/Electricity bill etc. self attested, c) One passport size photo of the insured for enabling them to make payment of the claim but complainant declined that offer. This offer was on the basis of report of independent surveyor, Mr. J.B. Guha as against accidental repairs of the vehicle in question but subsequently by virtue of a letter dtd. 07.11.2014 the OP-Insurance Company withdrew that offer of Rs. 1,10,250/- and thus declined the whole claim of the complainant. These two letters one of dtd. 20.08.2014 and the second that of dtd. 07.11.2014 are found to be contradictory to each other. We do not find any cogent and convincing reason in those two letters first one for the above mentioned offer of Rs. 1,10,250/- and the second one for withdrawal of that offer and at the same time rejection of the bill No. 001878 claimed by the complainant for payment a sum of Rs. 2,73,291/- as against accidental repairs of the vehicle done at Auto Fit & Industries and thereafter, repudiation of the whole claim of the complainant. In this context we have perused the Surveyor-Loss Assessor’s report dtd. 31.10.2014 of one Kabi Das wherein it has been alleged that the bill of Rs. 2,73,291/- as against accidental repairing as sent to Insurance Company is a manufactured one for which the insurer is not liable. It has been reported by Kabi Das, Surveyor- Loss Assessor that the concerned manager of Auto Fit & Industries during investigation expressed his inability to produced the documentary support in respect of receipted amount of their issued MR bearing No. 246 dtd. 25.02.2014 stating that the documents have not been preserved. On this point question arose as to why the said manager was not called through this Forum as a witness from the part of the OP for testing the veracity of the matter. On the other hand while we looked into the bill amounting Rs. 2,73,291/- then it is noticed that such bill has been prepared giving details quoting item Nos. against each of such accidental repairs which should not be discarded simply. In this case it appears that matter of accident is admitted and in consequence of that primarily as against accidental repairs of the vehicle concern the OP-Insurance
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Company issued discharge voucher of Rs. 1,10,250/- on the basis of report of independent surveyor which offered declined by the complainant and also next to that was withdrawn by the OP. The referred case and its decision as put forward by the complainant passed by Hon’ble State Commission, Delhi has been pleased to hold “the major factors which were essential and germane to decide an Insurance claim were readily available to the insurance company. Rejection of the claim on these petty grounds/contradictions is nothing but gross deficiency in service on the part of the insurance company. It also amounts to indulgence in unfair trade practice”. In this case the principle of law as laid down in the above mentioned referred case of Hon’ble State Commission, Delhi in between Mukul Agarwal and another Vs M/s Bajaj Allianz General Insurance Company Ltd. and two others is very much applicable.
Under these facts and circumstances of this case we are of the considered view that the complainant has been able to establish his case and thus it is held that the OP SBI General Insurance has caused deficiency in service against the complainant and to that effect the allegation of adoption of unfair trade practice upon the complainant has been proved. All the issued are thus disposed of in favour of the complainant. The complainant is entitled to get insurance claim of Rs. 2,73,291/- with regard to the accidental repairs of the vehicle in question which met an accident within the insurance coverage period as per insurance policy issued by the OP-Insurance Company. The complainant for such claim has suffered mental pain and agony as well as faced harassment and on that count complainant is further entitled to get a sum of Rs. 30,000/- from the OP-SBI General Insurance. In the result the instant case succeeds in part. Proper fees paid. Hence, it is,
O R D E R E D,
that this Consumer Case No. 46-S-2016 is allowed on contest in part against the OP-SBI General Insurance. The complainant is entitled to get a sum of Rs. 2,73,291/- towards repairing charges of the vehicle in question being no. NL-01/G-8358 from the OP of this case.
The complainant is further entitled to get a sum of Rs.30,000/- towards compensation for mental pain agony and harassment from the OP.
The OP-SBI General Insurance/SBI General Insurance Company Limited is thus directed to pay the said sum of Rs. 2,73,291+ Rs. 30,000/- totaling Rs. 3,03,291/-(Rupees three lakhs three thousand two hundred ninety one) to the complainant within 45 days from the date of this order failing which the amount shall
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carry interest @ 9% per annum from the date of institution of the instant case i.e., from 30.05.2016 till full realization of the said sum. In case of default the complainant is at liberty to put this final order/decree in execution.
Let a copy of this final order/judgment be supplied to the parties at once free of cost.
