Heard learned counsel for the parties.
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 case of the complainant, in nutshell is that the complainant being owner of the truck bearing No.OD-11A-1749 purchased the policy covering the period from 05.04.2014 to 04.04.2015. It is alleged inter-alia that on 23.03.2015 the vehicle was completely burnt by fire near Barsal check gate in the District of Singhbhum, Jharkhand. The matter was immediately informed to the police and the insurer. Thereafter the vehicle was shifted to authorized dealer Tarini Motors Pvt.Ltd. The insurer deputed the surveyor who assessed the loss at Rs.11,04,476.22. But the estimate was prepared and submitted by the authorized service centre at Rs.17,93,433/- and additional estimate was also made on 18.12.2015 at Rs.06,05,701/-. The authorized dealer suggested on 25.08.2015 that the vehicle even if replaced has no guarantee for running of the vehicle. Therefore, the complainant time and again requested the OP to pay the repairing cost. But the OP No.1 & 2 did not settle the matter. Therefore, the complaint was filed showing deficiency in service on the part of the OPs.
4. The OP No.1 submitted that the complainant has insured his truck under OP-Insurer for the period from 05.04.2014 to 04.04.2015. They admitted to have received the claim from the complainant and deputed the surveyor who estimated the loss at Rs.11,04,476.00 after considering the estimate supplied by the complainant. Since, there is already settlement of the claim but the complainant did not receive. There is no deficiency in service on the part of the OP.
5. OP No. 2 & 3 were set-exparte.
6. After hearing both the parties, learned District Forum passed the following order:-
Xxxx xxxx xxxx
“ The consumer complaint filed against the Ops is allowed on contest against OP No.1 and exparte against Ops No.2 & 3. The OP No.1 and 2 are directed to pay Rs.16,96,256/-(Rupees Sixteen lakhs ninetysix thousand two hundred fiftysix) only alongwith litigation cost of Rs.3,000/- (Three thousand ) to the complainant within two months from the date of receipt of this order, failing which they shall be liable to pay interest @ 8 % p.a. w.e.f. date of filing of the case i.e. 08.11.2016 till realization of entire amount.”
7. Learned counsel for the appellant submitted that learned District Forum passed the impugned order illegally by not considering the written version filed by the appellant with proper perspectives. According to her the surveyor has already computed the loss after taking all the labour charges and cost of the parts into consideration. She further submitted that the vehicle has not repaired so far. She also submitted that the documents have not been filed by the complainant to show the exact loss due to damage by fire. Therefore, she submitted to set-aside the impugned order by allowing the appeal.
8. Learned counsel for the respondent submitted that they have already submitted all the documents and the surveyor has already computed the loss but did not take into consideration the estimate of repairing. When on repairing of the vehicle, there is no guarantee to run on road even if all the parts are replaced. Further, he submitted that they have tried their best effort to repair the cost of the vehicle. So, he supports the impugned order.
9. Considered the submission of learned counsel for both the parties, perused the DFR and impugned order.
10. It is admitted fact that during currency of the policy the vehicle in question has been damaged on fire. It is also not in dispute that surveyor was deputed and the he has assessed the loss at Rs.11,04,476.00. The policy condition shows that the IDV of vehicle is Rs.21,20,320/- as per policy. No doubt the complainant has to prove his case and deficiency in service on the part of the OP.
11. The Surveyor’s report has been filed and we have gone through same. We found that inspite of surveyor’s report no payment has been made by the complainant, once the settlement of the claim is there, but not disbursed, we are of view that complainant has proved the deficiency in service on the part of the OP. Now considering the amount of loss to the vehicle, the report of the surveyor is worthy one to be gone through. It appears that from the beginning he has written that there was severe damage to the vehicle on fire and most of the parts of the vehicle are damaged. We have read fairly the report of the surveyor, which is also at Annexure-16 dtd.25.08.2015 where it has been clearly stated that the vehicle has been burnt in such a way that it is difficult to give 100 % guarantee for running smoothly. When the vehicle has got so damages by fire, the estimate made by the surveyor as to quantum of loss is structurally a wrong for which we have to accept the estimated the loss by repairing at Rs.17,93,433/- as correct one. However, there is condition of the policy that the cost of repairing should not exceed 75 % of the IDV. Therefore, we are of the view that the complainant is entitled to Rs.15,75,000/- payable by the OP to the complainant.
12. In view of aforesaid discussion, while confirming the impugned order we modified the impugned order by directing the OP to pay Rs.15,75,000/- to the complainant by the OP within a period of 45 days from today, failing which it will carry interest @ 8 % per annum from the date of impugned order till date of payment. Rest of the impugned order will remain unaltered. The money deposited with the learned District Forum as submitted by the learned counsel for the appellant be adjusted and rest of the money awarded be paid forthwith to the complainant.
Appeal is disposed of accordingly. No cost.
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.
