IN THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL   FORUM   

                                                    SONITPUR  AT  TEZPUR

District:                    Sonitpur  

Present:                    Smti A. Devee

                                      President,

District Consumer D.R Forum,

Sonitpur, Tezpur

Sri  P.Das

Member

District Consumer Disputes

Redressal  Forum, Sonitpur

Smti S.Bora

Member

District Consumer Disputes

Redressal Forum,Sonitpur

                                      CONSUMER COMPLAINT NO.04/2018

1.Sri Sipahi Rai                                                    :           Complainants

S/o Late Baijnath Rai

Vill: Jahajghat, Ward No.1,P.O:Tezpur

Dist:Sonitpur (Assam)-784001

Vs.                      

1.SBI General Insurance Co.Ltd.                                  :           Opp. party

First Floor, City Plaza, 2^nd Floor

Opp Eleye Cinema Hal, Garali, Jorhat

Jorhat-1, Assam                                                   

Appearance:

Mr.Pankaj Nath, Advocate.                                                           :               For the Complainant

Mr.Kishore Kr Bordoloi, Advocate                                            :               For the Opp. party

Date of argument                                                                                                :               20-02-2019

Date of Judgment                                                                                               :               07-03-2019

          JUDGMENT

1. The facts leading to the complaint, in brief, are that Complainant is owner of the truck bearing Registration No.AS-12-E-6309. The truck was duly insured with the opp. party effective from 21-10-2015 to 20-10-2016. On 17-02-16, the truck collided head on with an another truck at a place East Gelabeel Bridge on NH-15 under Orang Police Station and suffered extensive damages apart from claiming the lives of the drivers of both the trucks. A

            written intimation to this effect was given to the opp. party on 18-02-16. Orang Police Station got the vehicle examined by a MVI who reported of almost complete damage of the vehicle. Own Damage claim was lodged by Complainant with all relevant vehicular documents before the opp. party in the month of March,2016 which was registered as Claim No.240937.One Amulya Haloi was deputed by the opp. party for survey and assessment of the damage. As per instruction of one wing of the opp. party attached with the Regional Office of the SBI at Mission Chariali, Complainant sent the entire set of vehicular documents to the opp. party’s Zonal office, Kolkata. Another similar set was sent to the Jorhat Office and also to the Surveyor and loss assessor Sri Amulya Haloi for onward submission to the insurer. According to the Complainant, the representatives of the insurer collected the copies of all the necessary documents from the Complainant for at least four times with assurances of early settlement from the insurer’s personnels namely Sri Anupam Paul, Sri Bhaguram Ghatala and Amit Taiwade. On 7^th November,2016, one Jessu Sarkar from the opp. party’s office assured the complainant of settlement within seven days. Opp. party’s personnel also offered to pay Rs.7,50,000/- on cashloss basis to which the complainant had to express his agreement having been compelled on the ground that keeping the vehicle at the garage was not a prudent decision when he had been bearing the salary of the handyman, salary to the wife of the deceased’s driver, vehicular taxes  and garage charge of the garage named S.S Engineering @ Rs.300/- per day for occupying a valuable space of the garage. Sri Amit Taiwade, Claim Analyst of the opp. party even through the Surveyor served a letter to the complainant asking him to arrange certain documents for processing the claim, which the complainant complied with, but the opp. party did not make any payment. On 18-11-16 the complainant again sent certain documents through mail to the opp. party in response to its requirement. That sometime during December,2016 the opp. party’s personnel advised the Complainant to submit the bills relating to repair of the vehicle. The complainant had to obtain financial assistance from Grey market at high interest rates to get the vehicle repaired. The complainant incurred Rs.12,32,546/- on labour charges cost of spares etc., and the bills of repair were sent to the opp. party’s Jorhat office. The opp. party advised the complainant to handover the originals to the Surveyor and Loss assessor Sri Amulya Haloi which the complainant accordingly complied with on 01-02-17. The Surveyor dispatched the originals onward to the opp. party at Jorhat through courier on 28-02-17. The Complainant had also sent his son to Jorhat Office to know the status of the claim but to no avail as the officials there failed to provide any kind of satisfactory answer as to when the claim would be settled. In the second week of January,2018, the son of the complainant had some works in Kolkata and on 10-01-18, while he paid a visit to the Kolkata office of the opp. party to know the status of the claim, he was shocked to know through the officials there that vide letter dated 20-06-17, the claim had been closed on account of alleged failure of the complainant to provide documents. The letter was also defective as it showed the name of the Surveyor as Sipahi Rai and mobile number of the son of the complainant had been given as the number of the Surveyor. The letter also speaks of three letters of which complainant is in receipt of a letter dated 26-05-17 and the requirement thereunder, of which, according to complainant, had already been complied by the complainant in the first week of June,2017. According to the complainant, it was clear from the letter dated 26-05-17 that the insurer had finalized the amount and had wanted to pay, but nothing was indicated as to what amount they had wished to pay. Further that, the opp. party, insurer could have very well sent a cheque for the amount if they really wanted to pay.

2. With the above averments in main and alleging deficiency in service on the part of the opp. party, the complainant is thus before the Forum praying relief of Rs.12,32,546/- as the cost of repair of his damaged vehicle,  Rs.5,00,000/- for undue delay in settlement of the claim and for causing mental pain and agony, and Rs.30,000/- as cost of litigation.

3.  Opp.party failed to file written version within the prescribed period and its petition  to vacate the order of exparte proceeding passed on 12-03-18 was rejected vide order dated 03-04-18.  However, opp. party was allowed to take part in rest of the proceedings.

4. Complainant tendered his evidence-in-chief on affidavit exhibiting several documents thereunder. He was cross-examined by opp. party.

                Both sides have filed written arguments. Also heard the learned counsels for the parties.

                We have carefully considered the materials available on record including the written arguments filed by both the parties and draw up the following points for determination of the case.

POINTS FOR DETERMINATION

1. Whether there was deficiency in service on the part of the opposite party ?
2. Whether the Complainant is entitled to get any relief ?

DECISION ON THE POINTS WITH DISCUSSION

5.Point No.(i):   Complainant in the complaint and his evidence on affidavit categorically stated that the opposite party offered to pay Rs.7,50,000(Seven lakh fifty thousand) on cash loss basis. The Complainant agreed to such offer and complied with the direction issued. In support of his claim, Complainant has produced courier service (DTDC Express Limited ) receipt as Ext-7 and letter issued by Sri Amit Taiwade, Claims Analyst, SBI General Insurance Co.Ltd as Ext-8.

6. It has already been observed that the opposite party failed to submit any written version. During cross-examination of the Complainant, suggestion was given that he had not submitted KYC documents and therefore on 12-06-2017, claim was finally closed. However Ext-7 remained unchallenged in cross-examination. Vide Ext-8, Complainant was asked to produce the following documents for processing the offer for Rs.7,50,000/-

1. Passport size color photograph
2. ID Proof –Voter ID copy/ Passport copy/ Pancard copy/Computerized Driving license-any one
3. Latest Address Proof – Telephone bill/ Electricity bill/Ration card/Bank statement / Aadhar card- any one.
4. NOC from Financier/loan account details.
5. Cancelled cheque copy with name of insured printed on it.
6. Original Policy for cancellation.
7. Consent letter on Rs.100/- Stamp paper, sign and seal of Insured and duly notarized (Format attached)
8. Discharge voucher with sign and seal of Insured (Format attached)

7. Complainant at paragraph 10 of the complaint and paragraph 11 of his evidence on affidavit stated that since his vehicle was not under finance, no NOC from the financier is required.
8. Complainant also stated that time and again he had contacted the opposite party for early settlement of the claim, but he did not get any satisfactory answer. He also stated that when his son with some of his own works visited Kolkata sometime during the second week of January, 2018 he decided to visit the Kolkata office of the opp. party. During his visit he came to know on 10-01-2018 about the closure of the claim vide letter dated 20-06-2017. He also claimed that the letter dated 20-06-2017 was never served or handed over to him prior to 10-01-2018. Such claim is found unchallenged and unrebutted too. The opposite party, nowhere has claimed that closure of claim was properly served or handed over to the Complainant prior to 10-01-2018. Now the question is - what prevented them from giving closure notice to the Complainant ? No answer is found available on record.

9. Learned counsel Mr K.Bordoloi appearing for the opposite party has submitted that the Complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. He has given emphasis that the vehicle was used for commercial purpose. On a very careful scrutiny of the cross-examination of the Complainant, we have found that the Complainant used the vehicle for earning livelihood of himself and his family. Thus he falls   within the scope of explanation to Section 1(1)(d) of the Act. Hence, the contention raised by Mr Bordoloi is not at all sustainable.                                                                                     

10. For the reasons stated above, Point No.(i) is decided in the affirmative, i.e., in favour of the Complainant.
11. Point No.ii):   Having regard to the entire facts and taking into view the offer tendered by the opposite party for cash loss settlement of the claim at Rs.7,50,000/- and willingness of the complaint to accept the offer, we find it expedient to direct the opposite party to pay the offered amount of Rs.7,50,000/- with interest @9% per annum from the date of filing complaint. Considering the mental pain and agony of the Complainant and consequence of such agony to lodge the complaint, we also find it a fit case to direct the opposite party to pay Rs.1,00,000/-(Rupees One Lakh) only as compensation and cost of Rs.10,000/-(Ten thousand ) only. 

O R D E R

                Consequently the complaint is allowed. Opposite party is directed to settle the claim at Rs.7,50,000/- with interest @9% per annum from the date of filing complaint.Opp. party is further directed to pay Rs.1,00,000/- as compensation and another amount of Rs.10,000/- as cost of litigation.

                Opposite party is directed to settle the claim within 60 (sixty) days from the date of receipt of copy of the judgment and order.

         Given under our hands and seal of this Forum this 7th day of March, 2019.

Dictated and corrected by:

(A.DEVEE)                                                                                                                       (A. DEVEE)  

President                                                                                                                              President

Dist.Consumer D. R Forum                                     District Consumer Disputes Redressal Forum

Sonitpur,Tezpur                                                                                                           Sonitpur,Tezpur                                                                          

We  agree:-     (Sri P.Das)            ( Smt S. Bora)

Member                    Member      ,