Orissa

StateCommission

A/669/2009

The New India Assurance Co. Ltd., - Complainant(s)

Versus

Shokh Aftab Alam, - Opp.Party(s)

M/s. A.A. Khan & Assoc.

05 Jan 2023

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
ODISHA, CUTTACK
 
First Appeal No. A/669/2009
( Date of Filing : 07 Aug 2009 )
(Arisen out of Order Dated 09/06/2009 in Case No. CD/21/2009 of District Sundargarh)
 
1. The New India Assurance Co. Ltd.,
Sundargarh, At- Tusar Market Complex, Dist- Sundargarh, by Divisional Manager, New India Assurance Co. Ltd., Kathajodi Road, Badambadi, Cuttack.
...........Appellant(s)
Versus
1. Shokh Aftab Alam,
S/o- Shokh Abdul Hafiz, Ram Bagicha, Dist- Sundargarh.
...........Respondent(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE Dr. D.P. Choudhury PRESIDENT
 HON'BLE MR. Pramode Kumar Prusty. MEMBER
 HON'BLE MS. Sudhiralaxmi Pattnaik MEMBER
 
PRESENT:M/s. A.A. Khan & Assoc., Advocate for the Appellant 1
 M/s. D.P. Mohapatra & Assoc., Advocate for the Respondent 1
Dated : 05 Jan 2023
Final Order / Judgement

                 Heard learned counsel for both the sides.

2.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

3.                      The unfolded story    of the complainant, is that the complainant  had a truck bearing Regd.No.UP 71B 2711 and purchased the policy for such vehicle covering  the risk from 22.07.2007  to 21.08.2008. It is alleged inter-alia that on 19.01.2008  the vehicle met accident after which the matter was informed to the Op who deputed the surveyor. The complainant alleged that he has spent  Rs.1,80,000/- towards repairing  the vehicle but the OP computed the loss at lower side. Challenging such computation of loss,  the complaint was filed.

4.            The  OP    filed written version stating that  during currency of the policy the vehicle met accident and they deputed the surveyor who assessed the loss but the complainant disputed such amount.  Therefore,   they have submitted to set-aside the impugned order by allowing the appeal.

5.                       After hearing both the parties, learned District Forum   passed the following order:-

               Xxxx              xxxx              xxxx

                              “Thus, under the circumstances, we direct the OP to pay Rs.1,80,353/- (Rupees One lakh eighty thousand three hundred fiftythree) only to the complainant deducting depreciation as per practice procedure and guideline of insurance company. The oP is further directed to pay Rs.5,000/- as litigation cost. The above amount has to be paid by the OP to the complainant within 30 days from the date of receipt of this order, failing which the awarded amount would carry 18 % (Eighteen percent) interest from the date of receipt of this order till the date of actual payment.”

6.               Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version with proper perspectives.  According to him, it is settled in law that the surveyor’s report should be taken as appropriate document to compute the loss. In the instant case the complainant could not produce the money receipt for payment of Rs.1,80,000/-  but learned District Forum has awarded loss  the compensation for Rs.1,80,000/- which is beyond the record and the pleadings of the parties. He also submitted that   the complainant could not produce  any other documents based on which  the money receipt of Rs.1,80,000/- was issued and  such order of the learned District Forum is  based on the amount of Rs.1,80,000/-  which  has no basis to stand  on evidence on record. Learned counsel for the appellant further submitted that  while they are going to settle the claim the complaint case was filed i.e. the claim has not been settled so far. Therefore, he submitted to set-aside the impugned order by allowing the appeal.

7.               Learned counsel for the respondent submitted that learned District Forum has considered all the materials on record and accordingly passed the impugned order. He drew our attention to the fact that the surveyor submitted report on 20.03.2009 but that was not handed over  to them where it is  filed during filing of the appeal. He also drew   our attention to the impugned order which  shows that the order has been passed on 09.06.2009.  When the OP was in possession of the surveyor report only  he conceded same  and thus  they have adopted unfair trade practice. Further he submitted that the claim was not settled inspite of submission of surveyor’s report there is deficiency in service on the part of the OP. Therefore, he supports the impugned order.

8.                      Considered the submission  of learned counsel for the parties, perused the DFR and impugned order.       

9.                 It is  admitted fact that the vehicle of the complainant, during currency of the policy met accident and the matter was reported to the OP. It is also not in dispute that the surveyor has made survey of the vehicle  but the complainant has alleged that the surveyor’s report has been received on the aforesaid dates whereas the claim was not settled. On the otherhand, learned counsel for the appellant submitted that while they are going to settle the matter, the complaint  case has been filed. When in the month of March,2009   the report has been submitted but order has been  passed in June,2009, there is already gap of three months  yet the claim was not settled. It is settled in law that sitting over the claim without settlement is a deficiency  in service on the part of the OP. Therefore, we are convinced  that  there is deficiency in service on the part of the OP  for not settling the claim.

10.       So, far compensation is concerned, learned counsel for the appellant submitted that the claim has to be settled as per the surveyor’s report which  states that the loss    computed for claim is  at Rs.70,500/-. On the otherhand learned counsel for the appellant submitted that   the estimate of the repairing  the vehicle  was for Rs.1,80,000/-. On the otherhand, learned counsel for the appellant submitted that the complainant could produce the money receipt about repairing of the vehicle  is Rs.1,17,400/-. We  have gone through both the reports.  The surveyor’s report is not very elaborate because it  has already deducted   depreciation cost and re-usable cost and other materials. We are not satisfied about computation of the  loss by surveyor.  On the otherhand, Annexure A-90 shows that  the complainant has paid Rs.1,17,400/- for repairing of the vehicle to Om Prakash Sharma. Since, the complainant has been  able to produce  the money receipt of Rs.1,17,400/- towards repairing of the vehicle, we  would accept it  as the genuine expenditure made by him and as such the claim of the  complainant remains as Rs.1,17,400/-.

11.          Learned counsel for the respondent submitted that the complainant has been harassed from time to time and for that he should get the compensation for mental agony and harassment. The impugned order is silent with regard to mental agony and harassment .  He has not filed the separate appeal . Of course   there is compensation for mental agony and the harassment to be ordered by learned District Forum. We have gone through the complaint petition and found that there is prayer for awarding compensation but the learned District Forum has not awarded same.  However, the awarding of compensation U/S-14 of the Act can be awarded whether it is prayed for or not.   This is a matter of 2009. Now after 15 years we are deciding the matter.   It is a fit case to award compensation of Rs.10,000/-  to be payable by the OP to the complainant. Cost awarded by the  learned District Forum remain intact.

12.            While confirming the impugned order, we modified the impugned order by directing the OP to pay Rs.1,17,400/- towards claim settled and compensation of Rs.10,000/- for the mental agony and harassment.  If all the  payments are not paid within 45 days, thus all would carry  interest @ 18 % per annum from the date of impugned order  till date of payment. Rest of the impugned order  passed by the learned District Forum will remain unaltered.

                    Appeal 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.

 
 
[HON'BLE MR. JUSTICE Dr. D.P. Choudhury]
PRESIDENT
 
 
[HON'BLE MR. Pramode Kumar Prusty.]
MEMBER
 
 
[HON'BLE MS. Sudhiralaxmi Pattnaik]
MEMBER
 

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