Sri Subhra Sankar Bhatta, Judicial Member

Ld. Counsel appearing for the Appellants is present.

Today is fixed for passing ex parte judgment and order.

The appeal is taken up for delivery of ex parte judgment and order.

Considered the submissions advanced by the Ld. Counsel for the Appellants/The New India Assurance Company Limited on 22.08.2023.

Seen the brief notes of arguments and other materials available on record including the impugned judgment and order passed by the District Consumer Disputes Redressal Forum, Hooghly at Chinsurah on 26^th February, 2019 in connection with consumer complaint case no. CC/191/2016.

The Branch Manager, The New India Assurance Company Limited, Serampore Branch office and the Divisional Manager, New India Assurance Company Limited, Chinsurah Division as Appellants have preferred the present appeal against the Respondents viz. 1) Sri Sankar Kumar Shaw and  2) Mr. Manik Lal Das (who were the Complainant and OP No. 3 in the complaint case) under Section 15 of the Consumer Protection Act, 1986 challenging the impugned judgment and order passed by the District Commission on 26^th February, 2019 in complaint case no. CC/191/2016 whereby Ld. District Commission was pleased to allow the complaint case on contest against the OP with a litigation cost of Rs.10,000/- to be paid by the OP nos. 1 & 2. The OP nos. 1 & 2 are directed to pay a sum of Rs. 4,17,200/- i.e. IDV of the damaged vehicle including interest @8% thereon from the date of filing the complaint till realization. At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account. Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information & necessary action. 

Being aggrieved by and dissatisfied with the above judgment and order of the District Commission the OP Nos. 1 and 2 as Appellants have preferred the present appeal on various grounds as canvassed in the memorandum of appeal. It has been contended that the impugned order of the Ld. District Commission is erroneous and contrary to law; that the Ld. Commission below failed to understand that there was a huge difference between the estimate of repair and assessment and awarded the total loss; that the observation of the Ld. Commission below is bad in law since all the surveyors have accredited by IRDA who are mostly conversant with the insurance terms conditions and clauses towards assessing the loss pursuant to the policy; that the Ld. Commission below failed to observe that the estimate of repair may increase or decrease after removal and dismantling and consequently the estimate of repair can never be changed; that the Ld. Commission below did not observe the job sheet of the repairer duly signed by the customer which speaks much less quantity of replaced item and other costs; that the Ld. Commission below did not also observe that due to non-cooperation on the part of the Complainant no repair works was done and as such Complainant is not entitled to any amount towards reimbursement; that the Ld. Commission below failed to observe that no cost has been incurred by the Complainant towards the repair of the vehicle in question; that the Complainant is not entitled to get any insurance coverage under the insurance policy in question. On all such grounds the Appellants have prayed for allowing the present appeal after setting aside the impugned judgment and order.

It reveals from the case record that Respondent no. 1 entered appearance in the case by filing vokalatnama on 23^rd July, 2019 vide order no. 2. Subsequently, Respondent no. 1 did not turn up to contest the appeal. Similarly, service of notice was duly served upon Respondent no. 2 but he did not also turn up. Resultantly, the present appeal was proceeded ex parte against both the Respondents.

Case if the Complainant in brief is that complainant purchased a car namely TATA SUMO LX bearing Registration no. WB16AC9790 in the year 2012 after availing loan facility from the State Bank of India, Rishrah Branch and use to pay the EMI to the concerned Bank regularly. The Complainant purchased one insurance policy (Private Car Package Policy) for the car in question from OP No. 1 through the agent OP No. 3 being policy no. 51250131140100008178 with the validity period from 20.03.2015 to 19.03.2016. The said vehicle in question met an accident near Mollaberh at Dankuni on 18^th May, 2015 and as a result of which the eldest son of the Complainant viz. Suraj Kumar Shaw and his friend Sanu Singh succumbed to their injuries. The information of such accident was duly informed to the concerned Police Station and an FIR was registered and started on 19.05.2015. The vehicle in question was taken to the garage on the self-same date. Subsequently, the Complainant informed the said incident to Opposite Party no. 1 on 20.05.2015. On 7^th August, 2015 the OP No. 1 replied acknowledging the financial inability of the Complainant to repair the said car in question. In the meantime the said car in question was sent to the garage for necessary repair by the Complainant. The garage authority informed that the estimated cost of repair of the vehicle in question would be Rs.7,00,000/-. At that relevant time the Complainant was not in a position to repair the vehicle in question after paying the EMI to the Bank. The decision of the Complainant was an earning member of the family.

Further case of the Complainant is that on 23^rd September, 2015 the Complainant again sent a letter to OP No. 1 and also informed the surveyor of the company disclosing the estimate given by the TATA MOTORS for repairing the vehicle amounting to Rs.7,00,000/-. The Complainant further informed about his inability to repair the vehicle in question due to hapless financial conditions.  In reply the OP requested the Complainant to repair the car.  According to the policy condition if the cost of repair exceeds 75% of the IDV, then the same would be treated as comprehensive total loss ignoring the financial condition and policy condition that are binding upon the parties.  It has been also contended that in the meantime there had been an assessment agreement sheet which was signed by the Complainant provided by the Surveyor and loss Assessor of the OP/Insurance Company. Thereafter on 12.11.2015 and 03.12.2015 the OP/Insurance Company reiterated their same view by asking the Complainant to repair the car although they were well aware about the difficulties and financial inability of the Complainant to repair the car.  Ultimately on 08.01.2016 the OP/Insurance Company sent a letter to the Complainant repudiating the claim as “No Claim” which was illegal.

Under such compelling circumstances and finding no other alternatives the Complainant instituted the petition of complaint before the District Consumer Disputes Redressal Forum at Hooghly, Chinsurah praying for relief and redressal as sought for in the prayer portion of the petition of complaint.

The Opposite Party no. 1/The Branch Manager, The New India Assurance Company Limited, Serampore Branch office contested the case by filing written version and denied all the material allegations as brought in the petition of complaint.  It has been contended that after receiving the claim from the Complainant the Insurance Company appointed Mr. Aloke Kumar Chandra, the Surveyor and Loss Assessor.  After the survey work, said Surveyor had clearly opined that the vehicle was repairable. Basing upon such opinion of the Surveyor the Insurance Company through series of letters requested the Complainant to start repairing works but instead of doing so the Complainant expressed that as his elder son succumbed to his injuries in the said accident, he did not want to use the said car anymore and he did not want to keep the said car in his home.  Rather the Complainant requested for settlement of the claim on the basis of total loss.  It has been also contended that the insured in any accidental damage of the insured vehicle except under no depreciation policy which is available only for five years in a brand new car on a higher premium is entitled to get that amount of claim which will be arrived after proper deduction as per the agreement sheet.  According to the defence if the assessed claim is less than the IDV how the claim would be settled as a claim of total loss and thus keeping the vehicle unrepaired and ignoring the repeated requests to that effect from the end of the Insurance Company. It has been alleged that the Complainant did not extend cooperation and as such the Insurance Company would not process the claim and ultimately the claim was repudiated treating as “No Claim”.  It has been further contended that there was no deficiency in service from the end of the Insurance Company.  The Insurance Company prayed for dismissal of the petition of complaint with costs.

OP No. 3 Mr. Manik Lal Das also contested the case by filing written version wherein he specifically stated that he is simply an agent of the Insurance Company (OP NO. 1) having agency code no. 1D10776779.  It has been stated that his work was only to help the people towards the policy and if any compensation is claimed by the insured the same would be considered by the Insurance Company.  It has been also stated that the Complainant/Shankar Shaw purchased a car (TATA SUMO) and obtained a policy namely “Private Package Policy” on 19.03.2015 from OP No. 1/Insurance Company through him being policy no. 51250131140100008178 having the validity period from 20.03.2015 to 19.03.2016.  OP No. 3 conceded the fact that the insured vehicle of the Complainant met with an accident on 18.05.2015 and consequently the said vehicle was badly damaged. The liability of claim is certainly upon the OP No. 1/Insurance Company and not upon him.  The OP No. 3 prayed for releasing him from the complaint case.

Admittedly, Complainant is the owner of a car (TATA SUMO LX) bearing registration no. WB-16AC-9790 and he obtained an insurance policy (Private car package policy)from the Appellants/Insurance Company and the said policy was valid from 20.03.2015 to 19.03.2016 with an IDV of Rs.4,17,200/- on vehicle only with no bumper to bumper clause.

It is also an admitted fact that the said vehicle met with an accident on 18^th May, 2015 near Mollabrah at Dankuni and a result of which eldest son of the Complainant/Respondent No. 1 viz. Suraj Kumar Shaw succumbed to his injuries.  FIR was lodged on 19.05.2019 over the said accident and the vehicle was carried to the garage on the self-same day.  Subsequently, the Complainant/Respondent No. 1 informed the OP/Insurance Company on 20.05.2015 and 07.08.2015 respectively.  It is the clear case of the Complainant/Respondent No. 1 that there was a delay in intimating the incident to the OP/ Insurance Company as the son of the Complainant/Respondent No. 1 died in the said accident. Ultimately, the Complainant/Respondent No. 1 submitted his claim for the damage of the said car but in reply the OP/Insurance Company though acknowledged the factum of accident but asked the Complainant to repair the said vehicle.  Accordingly, the Complainant/Respondent shifted the vehicle to the TATA Motor`s Garage at Salap More Howarh and informed the OP regarding the estimated cost of repair of the said car amounting to Rs. 7 lakh estimated by the Authorised Service Centre of manufacturing company.  The Complainant/Respondent again sent a letter to the OP/Insurance Company on 23.09.2015 and informed the Surveyor of the Company about the estimate given by TATA Motors to repair the said car.  The Respondent/Complainant unequivocally intimated the Appellant/Insurance Company that he is unable to bear the expenses towards repairing the damaged vehicle.  In reply the Insurance Company requested the Respondent/Complainant to repair the car in spite of the policy condition which provides that if the cost of repair exceeds 75% of IDV then the same would be treated as comprehensive total loss.  Finally, on 08.11.2016 the Insurance Company repudiated the claim of the Respondent/Complainant as “no Claim”.

It is crystal clear from the Insurance Policy that the insured declared value of the vehicle in question was Rs.4,17,200/- .  According to the Respondent/Complainant he is certainly entitled to get the IDV of the insured vehicle amounting to Rs.4,17,200/- treating the claim as constructive total loss.  It is apparent that the Surveyor of the Insurance Company inspected the vehicle in question and settled the claim of repair to the tune of Rs.2,08.030/-.  On the other hand the Authorized Service Centre of the TATA Company estimated the cost of repairing of the damaged vehicle to the tune of Rs.7,00,000/-.  No explanation has come from the end of the Appellant/Insurance Company for such huge difference in assessing the cost of repair.  The Respondent/Complainant did not adduce cogent evidence to rebut the Surveyor`s report.  Interestingly, the Surveyor did not disclose the reason for not accepting the estimate approved by the Service Centre of TCS Motors. Practically, the loss assessed by the Surveyor and the loss assessed by the TCS Motors are quite different.  Huge difference has come between the estimate and loss assessed by the Surveyor and the loss estimated repairing cost assessed by the TCS Motors. Thus being the position we have no way left but to hold that the Respondent/Complainant is entitled to get 75% of the IDV i.e. Rs.4,17,200/- on non-standard basis.  In our considered opinion 75% of IDV on non-standard basis will be just and proper.

Considering all aspects from all angles and keeping in mind the submission of the Ld. Counsel for the Appellant/Insurance Company and regard being had to the peculiar facts and circumstances of the case we hold and firmly hold that the Respondent/Complainant is entitled to get 75% of the IDV i.e. Rs.4,17,200/- towards loss and damage sustained by him due to the said accident.  Thus we find irregularity and illegality in the impugned judgment and order passed by the Ld. Commission below.  The observation of the Ld. Commission below to the effect “ Complainant is entitled to get the IDV value of the damaged vehicle amounting to Rs.4,17,200/- including interest @ 8% thereon from the date of filing the complaint till the realization” is certainly wrong and cannot sustain in the eye of law.  It is to be borne in mind that the Respondent/Complainant is not at all entitled to get the total IDV amount due to the damage caused in the said accident.  Moreover, both the Surveyor/Loss Assessor of the Appellant/ Insurance Company and the estimate of the TCS Motors go to indicate that the vehicle in question can be repaired.  So question of awarding the total IDV amount cannot be and should not be allowed as the value of the damaged vehicle.

Resultantly, the present appeal succeeds ex parte in part.

It is, therefore,

ORDERED

That the present appeal being no. A/304/2019 be and the same is allowed ex parte but considering the circumstances without any order as to costs.

The impugned judgment and order dated 26.02.2019 passed by the District Consumer Disputes Redressal Forum Hooghly at Chinsurah in connection with consumer complaint case no. CC/191/2016 are hereby modified in the following manner:

The Appellants/Insurance Company are hereby directed to pay a sum of Rs3,12,900/- being 75% of the IDV on non-standard basis towards the damage of the vehicle in question including interest @8% per annum there on from the date of filing of the petition of complaint till its realization.  The other portion remains unaltered.

Let a copy of this judgment and order be transmitted to the Ld. District Commission forthwith for information and taking necessary action.

Let a copy of this judgment and order be handed over/sent to the concerned parties free of costs.

Registrar of this Commission is directed to act accordingly.

Interim order, if any, be vacated at once.

Thus, the appeal stands disposed of.

Note accordingly.