Consumer Complaint No. 28 of 2015
Date of filing: 22.01.2015 Date of disposal: 10.7.2017
Complainant: Armina Khatun, W/o. Sk. Abul Kalam, resident of Kamal Sagar, PO: Rajbati, PS. & District: Burdwah, PIN – 713 104.
-V E R S U S-
Opposite Party: 1. Shriram General Insurance Company Ltd., represented through its Branch Manager, Asansol Branch, having its office at 74 (192), G. T. Road, P.C. Chatterjee Market, 3rd Floor, A Block, PS: Asansol, District: Burdwan, PIN – 713 303.
2. Bank of India, Nawabhat Branch, represented through its Branch Manager, having its office at Nawabhat, Fagupur, PS. & District: Burdwan, PIN – 713 101.
Present: Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate,Suvro Chakraborty.
Appeared for the Opposite Party No. 1: Ld. Advocate,Saurav Kumar Mitra.
Appeared for the Opposite Party No. 2: None (ex parte)..
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OP-1 as the OP-1 did not bother to decide/settle the insurance claim of the Complainant arbitrarily and illegally.
The brief fact of the case of the Complainant is that she purchased one heavy goods vehicle obtaining financial assistance from the proforma OP-2. The vehicle of the Complainant was covered under an insurance policy obtained from the OP-1, which was valid for the period from 12.08.2012 to 11.08.2013. During validity of the said policy the insured vehicle met with an accident on 11.06.2013 in the State of Andhra Pradesh under Visakhapattanam District. Due to such accident the vehicle got severe damage. The OP-1 was intimated and accordingly spot Surveyor was appointed. After spot survey the vehicle was released and the vehicle was brought to Burdwan and the same was put to Chowdhury Fabicators and Classic Automobile for necessary repair. Mr. Ashok Kumar Mukhopadhyay was appointed as Surveyor and during his survey it was pointed before him that as the chasis of the vehicle got bent that cannot be repaired. However as per direction of the surveyor a bill for labour charge was produced before the surveyor. The IDV of the said vehicle was for Rs.11, 98,000=00 and as the chasis of the vehicle got bent the Complainant on several occasions asked the OP-1 for settlement of the claim on total loss basis. Inspite of this the OP-1 did not bother to care. According to the Complainant the defect occurred in the vehicle due to accident cannot be removed though repairing, but the OP-1 by issuing a letter dated 25.11.2013 asked the Complainant for its necessary repairing. Through the said letter the OP-1 asked for some documents which are not in the custody of her. The OP-1 did not provide the surveyor report to her and she is intending to cross examine the Surveyor if the survey report be filed before the Ld. Forum. Since 25.11.2013 the Complainant on several times visited the office of the OP-1, but the said OP kept itself silent over the insurance claim of her. The OP-1 has created pressure to her for production of the documents i.e. 161 statement, driving license verification etc but the certified copy of 161 statements is not available to her and the driving license of the driver has been produced to the Surveyor. Such inaction of the OP-1 can easily be termed as deficiency in service and as her grievance has not been redressed by the OP-1, hence by filing this complaint the Complainant has prayed for direction upon the OP-1 to pay a sum of Rs.11, 98,000=00 towards the total loss of the insured vehicle, compensation to the tune of Rs.25, 000=00 due to mental pain, agony and harassment and litigation cost of Rs.25, 000=00 to her.
The petition of complaint has been contested by the OP-1 by filing written version contending that undoubtedly the vehicle of the Complainant was under the coverage of an insurance policy for the period from 12.08.2012 to 11.08.2013. According to this OP this complaint is not maintainable before this Ld. Forum because the Complainant was using the vehicle for commercial purpose and at the time of accident also it was engaged in commercial activity. An insurance claim in respect of the questioned vehicle was lodged on 11.06.2013 by the insured and after getting information the OP appointed the spot Surveyor, who after his inspection submitted the report. The OP has submitted that neither in the spot surveyor nor in the claim intimation slip the fact of bending of chasis has been mentioned. Upon receipt of the claim intimation claim form was issued in favour of the Complainant, which was submitted by her. In the said claim form the Complainant did not mention about any damage of the chasis. Upon receipt of the claim form Mr. Ashok Kumar Mukhopadhya was appointed as Surveyor, who after completion of surveyor submitted his report on 19.11.2013. In the meantime the Complainant wrote a letter dated 26.10.2013, but in the said letter bending of chasis was not mentioned. It is mentioned by the OP-1 in the report the surveyor has assessed the damage to the tune of Rs.1, 71,457.50. From the survey report it is appeared that the vehicle was repaired at the garage and for repairing the vehicle one letter was sent to the Complainant on 23.09.2013 and 05.10.2013. As the vehicle was not repaired the Surveyor submitted his final report. After submission of the final report the OP sent a letter to the Complainant on 25.11.2013 for production of the document showing the repairing cost of the said vehicle. According to this OP the Complainant has not come before this Ld. Forum with clean hands as without submitting the required document to this OP, the Complainant has filed this complaint alleging deficiency in service of this OP. As this complaint being premature one and there is no deficiency in service on behalf of this OP, hence prayer is made by this OP for dismissal of the complaint with exemplary cost.
The Complainant has adduced evidence on affidavit along with some documents in support of her contention. The OP-1 has challenged the evidence of the Complainant by filing questionnaire and the Complainant has filed reply to the same on affidavit. The OP-1 has adduced evidence on affidavit with a copy to the other side. The OP-1 has also submitted the Surveyor’s report. Though it is not filed supported by any affidavit, the Complainant did not raise any objection.
As per the prayer of the Complainant an Expert was appointed for inspection of the vehicle, who after inspection has submitted his report by way of reply to the specific questions put by the Complainant to the Ld. Expert by filing an application. Mr. Tanmoy Roy Chowdhury, Automobile Expert was appointed as an Expert. The Complainant put the following questions to the Ld. Expert-
- Whether the chasis of the vehicle has been bend or not?
- Whether the same can be repaired or not?
- If the same be repaired whether it be able to carry the approved load as mentioned in the registration certificate or not?
- In the report the Ld. Expert has mentioned that the question vehicle was examined by him in presence of the representatives of both parties on 15.09.2016 and he replied to the questions of the Complainant as follows-
- Yes, it is found that the chasis of the said vehicle has been seriously bent.
- It is not possible to repair.
- It is not possible.
During argument the ld. Counsel for the OP-1 has attracted our notice to the question no-2 filed by it to the Complainant. From the reply of the Complainant it is evident that the Complainant did not give any written representation before the Surveyor regarding bent of chasis of the alleged vehicle. In respect of such reply the ld. Counsel for the OP-1 has submitted that as no written representation was given to the Surveyor regarding bend of chassis, at this juncture the statement of bending of chassis does not stand at all. The ld. Counsel for Complainant has raised vehement objection against such submission stating that due to inadvertence the answer was given as no, but from the Surveyor’s report it is evident that the chasis frame severely bent deformed and twisted.
From the expert opinion it is evident to us that the ld. Expert has opined that the chasis of the said vehicle has been seriously bent, which is beyond repair and in case of repairing of the bending chasis the same cannot be able to carry the approved load as mentioned in the registration certificate. The expert opinion has not been challenged by the OP-1 and hence, the same has reached in its finality. Therefore, in our view the Complainant has succeeded to prove his case by adducing cogent evidence and the unchallenged expert opinion also helps the contention of the Complainant. It is an admitted fact that chasis is the backbone of a vehicle. If the backbone got severe damage and became bent, the same cannot be repaired and according to the ld. expert the repaired chasis cannot work perfectly as per specification. Therefore, the repair of the chasis does not arise at all. It is seen by us that the IDV was declared in respect of the said policy to the tune of Rs. 11, 98,000=00. As the vehicle got damage in its totality, hence in our view the Complainant is entitled to get the insurance claim on total loss basis. It is true that as the OP-1 did not settle the claim, for which the Complainant had to run from pillar to post by making several written representations to the OP-1 praying for settlement of his claim, to no effect, such action of the OP-1 denotes the deficient service on its part for which the OP-1 is liable to pay compensation to the Complainant. The Complainant is also entitled to get litigation cost from the OP-1 as by filing this complaint the Complainant has incurred some expenses.
Within the four corners of the complaint as no allegation has been made out by the Complainant in respect of the OP-2, hence the complaint does not stand against the OP-2.
Going by the foregoing discussion, hence it is
O r d e r e d
that the complaint is allowed on contest against the OP-1 with cost and dismissed ex parte against the OP-2 without any cost. The OP-1 is directed to pay sum of Rs. 11,98,000=00 to the Complainant towards IDV of the insured vehicle within 45 days from the date of passing of this judgment, in default, the amount shall carry interest @6% per annum for the default period. The OP-1 is further directed to pay a sum of Rs. 2,000=00 towards compensation due to unnecessary harassment, mental agony and pain and litigation cost of Rs. 1,000=00 to the Complainant within 45 days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the entire award/decree in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
