Tripura

StateCommission

A/8/2016

The New India Assurance Company Ltd. - Complainant(s)

Versus

Sri. Anjan Saha. - Opp.Party(s)

Mr. Gitangshu Sekhar Das , Mr. Kusal Deb

08 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/08/2016

 

 

 

New India Assurance Company Ltd.,

Agartala Division, 4, Mantribari Road,

P.S. West Agartala, P.O. Agartala,

District- West Tripura.

(Represented by its Senior Divisional Manager)

                                                  ….    ….    ….    ….    Appellant.

 

 

 

                   Vs

 

 

Sri Anjan Saha,

S/o Late Asutosh Saha,

Resident of Colonel Choumuhani,

Krishnanagar, P.S. West Agartala,

P.O. Agartala, District-West Tripura.

                                                            ….    ….    ….    ….    Respondent.

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

 

For the Appellant               :         Mr. G.S. Das, Adv., & Mr. Kusal Deb, Adv.

For the Respondent           :         Mr. J.K. Sen, Adv., Mr. Ratan Datta & Mr. Rupak Das, Adv.

Date of Hearing       :         03.06.2016. 

Date of delivery of Judgment:       08.07.2016.

 

 

 

J U D G M E N T

 

S. Baidya, J,

This appeal filed on 05.03.2016 by the appellant, the New India Assurance Company Ltd. under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment and Order dated 01.02.2016 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-109/2014 whereby the Ld. Forum directed the Insurance Company, the appellant herein, to pay Rs.2,04,929/- as the cost of repairing of the vehicle and also Rs.50,000/- as compensation for deficiency of service and cost of litigation totalling Rs.2,54,929/- to the complainant, the respondent herein with a further direction to the effect that if the amount is not paid, it will carry interest @9% per annum thereafter.  

2. The case of the appellant as narrated in the memo of appeal, in brief, is that on 27.04.2012 the Terox Vehicle bearing No.TR-01-U-0413 belonging to the complainant Anjan Saha met with an accident while the said vehicle was proceeding towards Gungraibari from Jampuijala and accordingly, a GD Entry was entered in the Jampuijala Out Post vide No.238 dated 13.05.2012.
3. It is alleged that the respondent asserted that the repairing cost was estimated by the Progressive Motors amounting to Rs.3,56,253/- and the said vehicle was insured with the appellant Insurance Company, but the appellant did not make any payment as per claim of the respondent.
4. It is also alleged that earlier a case bearing No.CC-45 of 2013 was filed regarding the same claim on the same issue, but the said case was dismissed for non-prosecution on 05.10.2013 and thereafter the respondent filed a fresh complaint case bearing No.CC-109/2014.
5. It is also alleged that the appellant Insurance Company contested the claim of the complainant by filing written objection denying the claim alleging, inter alia, that the complaint petition is barred by limitation and also denying that the accident occurred when the said vehicle was proceeding from Jampuijala towards Gungraibari and the GD Entry was made by the respondent stating that the vehicle met with an accident on the work-time, not on the way to Gungraibari.
6. It is also alleged that the vehicle was repaired without any survey by the Surveyor and against the GD Entry No.238 dated 13.05.2012, the Officer-in-Charge of Jampuijala Out Post submitted two different enquiry reports in respect of the site of the accident and as such, the claim of the respondent was rightly repudiated by the Insurance Company.
7. It is also alleged that the Ld. District Forum considering the pleadings of the parties and the evidences passed the impugned judgment on 01.02.2016 awarding compensation of Rs.2,04,929/- as cost of repairing the vehicle along with Rs.50,000/- for deficiency of service and cost of litigation with interest @9% per annum and thereby being aggrieved and dissatisfied, the present appellant has preferred the instant appeal praying for setting aside the impugned judgment on the grounds that the Ld. Forum without appreciation of the evidences awarded compensation illegally and arbitrarily, that the Ld. Forum did not consider the two contradictory police reports and without any appreciation considered the story of the respondent without any basis, that the Ld. Forum illegally entertained the second complaint of the respondent, that the Ld. Forum ought to have considered that the complaint petition as filed by the complainant was time barred due to the filing of the same after the expiry of two years from the date of accident and without considering the period of limitation passed the impugned judgment illegally, that the Ld. Forum passed the impugned judgment relying on the survey report as submitted by the appellant which have not been exhibited, that the Ld. Forum illegally rejected the deduction of 25% of the assessed loss for repairing of the vehicle without informing the Insurance Company for inspection/survey, that the Ld. Forum without appreciation of the documents passed the impugned judgment which, not being according to law, should be set aside and hence, the instant appeal has been preferred.

 

Points for Consideration

8. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in awarding the compensation by the impugned judgment and (ii) whether the judgment under appeal should be set aside as prayed for.

Decision with Reasons     

9. Both the points are taken up together for the sake of convenience and brevity.
10. On perusal of the pleadings of the parties, the evidences, documents and impugned judgment, we find certain admitted facts. Admittedly, the vehicle of the complainant-respondent met with an accident on 27.04.2012. It is also admitted fact that the said accident took place within the insurance coverage period which was effective from 31.07.2011 to 30.07.2012 vide insurance policy No.53100031110100201356. It is also admitted fact that the matter of said vehicle accident was entered in the GD book of Jampuijala Out Post vide GD Entry No.238 dated 13.05.2012 on the basis of an application of the complainant-respondent. It is also admitted fact that the complainant informed the said accident to the present appellant-Insurance Company and the Insurance Company in turn sent a letter dated 28.06.2012 to the Officer-in-Charge of Jampuijala Out Post who on enquiry sent a report dated 03.07.2012 to the Insurance Company. It is also admitted fact that over the said vehicle accident the Insurance Company vide letter dated 08.05.2012 appointed Sri Sankar Roy, an enlisted Surveyor to make inspection/survey regarding the damages, if any, caused to the said vehicle of the complainant due to said accident. It is also admitted fact that the Surveyor submitted his report dated 30.06.2012.
11. It is also admitted fact that the Insurance Company vide letter dated 12.09.2012 repudiated the claim of the complainant on the ground that the said accident occurred on the work-time and at the work-place as per the application of the complainant made before the Jampuijala Out Post which is not covered as per terms of the insurance policy. It is also admitted fact that the Officer-in-Charge of Jampuijala Out Post submitted a second enquiry report concerning the said GD Entry No.238 dated 13.05.2012 stating that the said vehicle accident occurred when the vehicle was proceeding towards Gungraibari from Jampuijala side, but not on the work-time and at the work-place. It is also admitted fact that the Insurance Company vide letter dated 12.12.2012 intimated the complainant that the Insurance Authority did not consider to review the first decision conveyed to him by a letter dated 12.09.2012 confirming the earlier repudiation of the claim.  
12. The Ld. Counsel for the appellant Insurance Company submitted that immediately after the vehicle accident, it was mandatory on the part of the complainant to inform the Insurance Company regarding the said accident so that the Insurance Company by appointing a Surveyor can assess the quantum of damages caused to the vehicle of the complainant due to said accident, but in the instant case, the complainant instead of informing the Insurance Company got his vehicle repaired through M/s Progressive Motors and as a result, the Insurance Company could not get any opportunity to inspect and assess the quantum of damages actually caused to the vehicle of the complainant due to said vehicle accident.
13. The Ld. Counsel for the appellant also submitted that on the basis of the GD Entry No.238 dated 13.05.2012 entered on the basis of the application of the complainant, the Officer-in-Charge of Jampuijala Out Post made enquiry over the said accident and report on 03.07.2012 pursuant to the request made by the Insurance Company. He also submitted that the Insurance Company considering all repudiated the claim of the complainant on the ground that the accident took place on the work-time which is not covered by the insurance policy and that repudiation was communicated to the complainant vide letter dated 12.09.2012, but on getting such information the complainant in collusion with the said Officer-in-Charge of Jampuijala Out Post secured another enquiry report dated 14.09.2012 wherein it has been stated that the said accident occurred while the vehicle of the complainant was proceeding towards Gungraibari from Jampuijala side and not on the work-time. He also submitted that in the second enquiry report, police suo moto and in collusion with complainant stated that there was some mistake in the earlier enquiry report. He also submitted that the complainant in collusion with the Officer-in-Charge secured the second enquiry report wherein it has been stated that the accident occurred while the vehicle was proceeding towards Gungraibari from Jampuijala side, not on the work-time, with a view to make the said accident covered as per terms and conditions of the insurance policy.
14. The Ld. Counsel for the appellant also submitted that the Ld. District Forum did not consider at all the collusive second enquiry report, although the first enquiry report was also made on the basis of the same GD Entry. He also submitted that the complainant miserably failed to produce the estimate made by the Progressive Motors before the Ld. District Forum and also failed to produce cash memo, vouchers showing the expenditure incurred by the complainant for repairing his vehicle. He also submitted that the Surveyor deducted 25% of the assessed amount as the complainant got his vehicle repaired without informing the Insurance Company who could not get any opportunity to assess the quantum of damages actually caused to the vehicle of the complainant due to such accident. He also submitted referring to IMT.47 that the insurer shall be under no liability in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto. He also submitted that in the instant case, the vehicle of the complainant overturned while it was working at the work-place and as such, such damage caused to the vehicle of the complainant due to vehicle accident is not covered by the policy and the Insurance Company is under no liability to pay any compensation for such damage caused to the vehicle of the complainant. He also submitted that the Ld. District Forum failed to appreciate this legal position and also factual aspects of collusive second enquiry report and erroneously and illegally passed the impugned judgment awarding compensation to the complainant against the Insurance Company which, not being proper, legal and justified, is not sustainable in the eye of law and is liable to be set aside and the appeal should be allowed.
15. The Ld. Counsel for the respondent submitted that it was the first accident in respect of vehicle of the complainant and for want of lack of knowledge he did not inform the Insurance Company before getting his vehicle repaired through Progressive Motors. He also submitted that the complainant could not produce the estimate for repairing his vehicle, but the Surveyor appointed by the Insurance Company inspected and assessed the quantum of damages suffered by the complainant due to such accident. He also submitted that the complainant never made any collusion with the Officer-in-Charge of Jampuijala Out Post as alleged by the Insurance Company. He also submitted that the Officer-in-Charge of Jampuijala Out Post prepared second enquiry report in connection with the GD Entry No.238 dated 13.05.2012 following a suo moto enquiry when the Officer-in-Charge realized that there was some mistake in the first enquiry report. He also submitted that the complainant had no hand in the matter of preparation of the second enquiry report by the Officer-in-Charge of Jampuijala Out Post.
16. The Ld. Counsel for the respondent also submitted that the said vehicle accident occurred while the said vehicle was proceeding towards Gungraibari from Jampuijala side and that fact was established on examination of the witnesses by the Officer-in-Charge of the said Out Post on making spot/local enquiry and there was no reason to disbelieve the second enquiry report, but the Insurance Company arbitrarily and whimsically refused to review their earlier decision. He also submitted that there is no terms and conditions in the insurance certificate showing that an amount @25% is liable to be deducted from the total quantum of damages assessed by the Surveyor so appointed. He also submitted that the Ld. District Forum rightly held that this deduction is not proper and rightly allowed the quantum of net damages assessed by the Surveyor to the tune of Rs.2,04,929/- as cost of repairing his vehicle. He also submitted that the complainant suffered a lot due to the whimsical and arbitrary acts of the Insurance Company by way of not settling the claim of the complainant. He also submitted that for such deficiency of service on the part of the Insurance Company, the Ld. Forum rightly allowed an amount of Rs.50,000/- as compensation. He then submitted that the Ld. Forum meticulously considered all aspects of the case and rightly passed the impugned judgment which, being proper, legal and justified, should be affirmed and the appeal should be dismissed.
17. In view of the rival submissions made by the Ld. Counsels for both sides, it appears to us that the appellant Insurance Company relied on the first enquiry report being the same compatible with the content of the Jampuijala Out Post GD Entry No.238 dated 13.05.2012. On the other hand, the respondent-complainant relied on the second enquiry report of the said Out Post made by the same Officer-in-Charge, but that Officer-in-Charge of Jampuijala Out Post has not been examined either by the complainant or by the Insurance Company in the Ld. Forum.
18. As per said GD Entry, the accident occurred on the work-time and the first enquiry report has also been made in the same line, but as per IMT.47, if the excavators meet with an accident on work-time, that is not covered by the insurance. So, it is palpable that the Insurance Authority relying on the said GD Entry and the first enquiry report repudiated the claim of the complainant following IMT.47. The GD Entry No.238 dated 13.05.2012 was made on the basis of the application of the complainant. The first enquiry report was prepared by the Officer-in-Charge of said Out Post on 03.07.2012. The second enquiry report was prepared by the same Officer-in-Charge on 14.09.2012 in connection with the said GD Entry No.238 dated 13.05.2012. Now, question arises which one of the two enquiry reports can be believed and acceptable.
19. The copy of the survey report of the Surveyor and Assessor Sankar Roy has been filed in the Ld. Forum from the side of the Insurance Company. The Ld. Counsel for the appellant submitted that the Ld. District Forum has relied on the copy of the said survey report, although the said survey report has not been made exhibited from either side. In that connection, the Ld. Counsel for the appellant also submitted that the reliance placed on the copy of the said survey report which has not been exhibited, by the Ld. Forum is unsustainable in law. We are unable to accept such submission of the Ld. Counsel of the Insurance Company for the following reasons. Firstly, the copy of the survey report has been produced by the Insurance Company; Secondly, it has been held by the Hon’ble Supreme Court of India reported in 2010 Legal Eagle (SC) 155 that complaints before Consumer Fora are tried summarily and the Evidence Act in term does not apply. It also appears from the said reported decision that the Hon’ble Supreme Court of India enunciated the said principle of law in connection with applicability of sections 61, 64, 74 & 75 of the Evidence Act, 1872. The Hon’ble Apex Court also has been pleased to hold in another case reported in (2009) 9 SCC 221 that provisions of the Evidence Act are not applicable before the Consumer Fora and the Fora under the C.P. Act, 1986 are to follow the principles of natural justice. From the above principles of law, it is evident that the Consumer Fora may rely on a document produced from either side, if it is believable and acceptable, even if the said document is not proved as per provisions of the Indian Evidence Act, 1872. In view of the above, we may rely on the copy of the survey report produced from the side of the appellant Insurance Company in the Ld. Forum.
20. From the said motor survey report (final), it transpires that the Surveyor and Assessor Sankar Roy made survey on 11.05.2012 to 13.05.2012 and again on 25.06.2012. As per survey report dated 30.06.2012 which was prepared before the preparation of the first enquiry report dated 03.07.2012 by the Officer-in-Charge of Jampuijala Out Post, the place of accident was in between Gungraibari and Jampuijala as mentioned under point no.09 of the said survey report. From the application (Annexure-A) of the complainant Anjan Saha dated 13.05.2012 we find that the place of work at Gungraibari under Takarjala PS, but the accident took place as per survey report in between Gungraibari and Jampuijala. The Surveyor under point no.13 in his report clearly recorded that the insured (complainant) told him that the captioned machine was proceeding towards Gungraibari from Jampuijala. This statement was made by the complainant before Surveyor of the Insurance Company even before the first enquiry report dated 03.07.2012 prepared by the O/C, Jampuijala Out Post. It is clear that the said accident took place while the vehicle of the complainant was proceeding towards Gungraibari from Jampuijala side. From the above, we may draw a conclusion that the place of accident was not at the place of work and also not on the work-time which is compatible with the second enquiry report prepared by the Officer-in-Charge of Jampuijala Out Post. Not only so, the Officer-in-Charge of the Jampuijala Out Post in his second enquiry report clearly stated that there was some mistake in the first enquiry report dated 03.07.2012 and the fact is that the accident took place while the vehicle was proceeding towards the place of work, but not on the work-time. In view of the above, we are of the view that the second enquiry report which is corroborated by the survey report dated 30.06.2012 made by the Surveyor appointed from the side of the Insurance Company even before the enquiry report dated 03.07.2012, is believable and acceptable.
21. It transpires that on the basis of the second enquiry report, the appellant referred the matter to their Insurance Authority to review its earlier decision of repudiation of the claim of the complainant, but the Insurance Authority even without going through the survey report of the Surveyor appointed by them declined to review its earlier decision of repudiation of the claim which, as per our view, is found not according to law. The Insurance Authority had the opportunity to reconsider the claim of the complainant going through the second enquiry report and the report of the Surveyor and the same not being done, we are of the view that the Insurance Authority was not legal and proper in rejecting the claim of the complainant finally by their letter dated 12.12.2012 and as such, the rejection of the claim of the complainant finally by the Insurance Company vide letter dated 12.12.2012 is not acceptable in the eye of law.
22. It is true that the complainant failed to produce the estimate made by the Progressive Motors for repairing the vehicle of the complainant. Not only so, the complainant also failed to produce cash memo, vouchers showing payment to the Progressive Motors, but the Surveyor appointed by the Insurance Company elaborately dealt with this matter in his report. It is not the case of the Insurance Company that the survey report made by the Surveyor is not believable one. Although as per case of the complainant, the Progressive Motors estimated a cost of Rs.3,56,253/- concerning the repairing charge of the vehicle of the complainant, but the Surveyor of the Insurance Company after allowing depreciation of the parts installed in the vehicle of the complainant and also allowing a deduction of Rs.20,000/- towards selvages value assessed net loss at Rs.2,04,929/-. It also transpires that the Surveyor recommended for deduction of 25% of the net loss since the insured (complainant) did not give any scope of the physical verification/survey the subject machine in its accidental condition and completed the repairing works without the knowledge of the insurer concerned (appellant). But the irony of fate is that the appellant Insurance Company even failed to settle the claim of the complainant as per loss assessed by the Surveyor appointed by it. However, it has not been mentioned in the survey report as to under what provision the Surveyor recommended for such deduction of 25% of the net loss. Even at the time of hearing of the appeal, the Ld. Counsel for the appellant could not show us any such provision of law for making such recommendation for deduction of 25% of the net loss as assessed by the Surveyor. In that view of the matter, we are of the view that the deduction of 25% of the net loss as recommended by the Surveyor of the Insurance Company is not sustainable in law and therefore, it is not acceptable. In this regard, we find that the Ld. District Forum also rightly did not accept such recommendation for deduction of 25% of the net loss.
23. From the above, it has been established that the vehicle of the complainant had valid insurance coverage on the date of such vehicle accident occurred on 27.04.2012 while the vehicle of the complainant was proceeding towards Gungraibari from Jampuijala side. It has also been established that the said accident never occurred on work-time or at the place of work. It has also been established that the net loss at Rs.2,04,929/- assessed by the Surveyor is acceptable. It has also been established that the rejection of the claim of the complainant finally by the letter of repudiation dated 12.12.2012 is erroneous and not acceptable. It has also been established that from the date of final repudiation of the claim of the complainant vide letter dated 12.12.2012 i.e. the date of accrual of the last cause of action, the complaint has been filed by the complainant before the Ld. District Forum was within two years as provided under section 24A of the Consumer Protection Act, 1986 and as such, the complaint is not barred by law of limitation.
24.  The Ld. Counsel for the appellant submitted nothing before us regarding the maintainability of the second complaint before the Ld. District Forum. So, we do not find any ground to make any comment in this regard. However, first complaint was dismissed for non-prosecution and not on merit and as such, second complaint i.e. the instant one, is legally maintainable in view of the decision of the Hon’ble Apex Court reported in AIR 2000 (S.C.) 914.
25. It transpires that the Ld. District Forum awarded a compensation of Rs.50,000/- in favour of the complainant for deficiency of service on the part of the Insurance Company including cost of litigation. We find that the application of the complainant dated 13.05.2012 made before the Jampuijala Out Post, the GD Entry No.238 dated 13.05.2012 entered on the basis of the said application of the complainant and the first enquiry report made by the O/C, Jampuijala Out Post have mislead the Insurance Company to repudiate the claim of the complainant for the first time vide letter dated 12.09.2012. So, it can be said that till the said date the Insurance Company had a good defence to repudiate the claim of the complainant as per IMT.47. But the scenario has been changed with the submission of the second enquiry report dated 14.09.2012 corroborated by the survey report dated 30.06.2012. So, it can be said when the appellant again referred the matter to the Insurance Authority to review its earlier decision of the repudiation of the claim of the complainant, the Insurance Authority could easily change its earlier decision and settle the claim of the complainant on the basis of the net loss suffered by the complainant as assessed by the Surveyor of the Insurance Company. So, it is palpable that the Insurance Company was at fault from the date of final repudiation of the claim intimated vide letter dated 12.12.2012 causing unnecessary harassment and suffering to the complainant. From that standpoint, we are of the view that the awarding of a compensation of Rs.50,000/- for deficiency of service and cost of litigation is found on the higher side. We are also of the view that if an amount of Rs.25,000/- is awarded as compensation for deficiency of service including cost of litigation, in lieu of Rs.50,000/-, is found proper and justifiable one.
26. Going through the operative operation of the impugned judgment we find that the Ld. District Forum omitted to mention the time-limit within which the o.p. Insurance Company will make payment to the complainant and also omitted to mention from which date the interest @9% per annum so awarded will be effective. We find it appropriate to make certain amendment in the said impugned judgment in this regard which is as follows: The complainant, respondent herein is entitled to get Rs.2,04,929/- towards the cost of repairing of his vehicle and also Rs.25,000/-as compensation for deficiency of service and cost of litigation. The o.p. Insurance Company, the appellant herein is directed to pay the said amount to the complainant, the respondent herein within five weeks from the date of the judgment passed by the Ld. District Forum, failing which the amount will carry interest @9% per annum after the expiry of said five weeks till the payment is made.
27. The impugned judgment dated 01.02.2016 passed by the Ld. District Forum in case No.CC-109/2014 is modified accordingly.
28. The present appellant is directed to deposit a sum of Rs.5,000/- as cost of appeal in the Legal Aid Account of this Commission within four weeks, failing which this amount will carry interest @9% per annum till the payment is made.
29. In the result, the appeal is allowed in part.

          

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura