Date: 17-11-2014

Sri Debasis Bhattacharya

This appeal is directed against the order dt. 11-09-2013 in case No. 60/2012, passed by the ld. District Forum, Hooghly, whereby the complaint case has been allowed in part.  Being aggrieved and/or dissatisfied with the same, the OP No. 2 thereof has preferred this appeal.

Precisely, case of the Complainant is that he purchased a ‘Tata Venture GX’ bearing registration no. WB 26 R-2141 with the financial assistance of OP No. 3 i.e. United Bank of India, Serampore Branch and the said car was insured with OP no. 2 i.e. Bajaj Allianz General Insurance Co. Ltd., Serampore Branch after paying considerable amount as premium for such insurance.  The said insured car met with an accident on 25-08-2011, for which an FIR was lodged with the Karimpur P.S., Nadia being case no. 98/2011 dated 25-08-2011 u/ss. 279/338, IPC.  After complying with legal formalities, the car was handed over to the authorized service centre of Tata Motors i.e. Nistarini Automobiles i.e. OP no. 1 on 09-09-2011.  Complainant paid a sum of Rs. 60,000/- to the OP No. 1 on 29-12-2011 and also filed insurance claim being claim no. OC-12-2401-1801-00007499 to the office of the OP No. 2, and Mr. Abhijit Dutta, Surveyor also conducted inspection of the car.  However, till date the Complainant has not received the car in good and workable condition due to alleged non-availability of spare parts.  The Complainant appraised the OPs about the prevailing circumstances by a letter dated 08-12-2011, but to no avail.  The OP insurer has not settled his insurance claim.  On the other hand, he has been repaying the loan amount to the OP No. 3.  Being aggrieved, the Complainant filed the instant case.

The case of the OP No. 1 is that the Complainant has paid initially a sum of Rs. 60,000/- as token money, but, she failed and/or neglected to make further payment to enable them to procure major parts to carry out necessary repairing work, but, the Complainant insisted upon it to carry out necessary repairing work without further payment, with a promise to clear the residual dues after settlement of the insurance claim, of which it remained totally in dark.  The request of the OP No. 1 to pay at least 50% of the estimated value by a letter dated 12-07-2012 has also not been responded to by the Complainant.  Accordingly, there has been no mala fide intention on its part, and the allegation against it is completely a concocted one/cock-and-bull story.  

Case of the OP No. 2 is that after receiving intimation from the Complainant, they immediately appointed an IRDA approved licensed Surveyor to assess the damage caused to the vehicle.  After careful inspection and according to the terms and conditions of the policy, the Surveyor assessed an amount of Rs. 2,96,846/-.  In furtherance to the completion of the survey report, OP no. 2 made a very rational and reasonable proposal to the Complainant vide letter dated 22-12-2011, where it offered to the Complainant that he could get his vehicle repaired and an amount of Rs. 2,96,846/- would be provided to him after final inspection or he can opt for Rs. 2,22,635/- towards full and final satisfaction without awaiting repair.  However, instead of giving any reply to their proposal, the Complainant filed the instant complaint case before the Ld. District Forum without giving appropriate and reasonable chance to the OP insurer to settle the claim, which makes the instant complaint premature and prejudicial to the interest of the insurance company.  No claim is entertainable or payable as per the bills produced by the Complainant and the same has to be settled only as per the policy terms after assessment of the loss by the statutory Surveyor.  Therefore, further claim of the Complainant, as prayed by him, is baseless and untenable under the policy norms, more so, as the Complainant has not submitted any claim before the OP No. 2, therefore, the issue of settlement of claim does not arise at all.

It is to be considered in this appeal as to whether the impugned order is sustainable from factual and/or legal perspectives, or not.

Decision with reasons

            Ld. Advocate for the Appellant has submitted that the estimated amount of cost of repairing of the instant vehicle given by the OP No. 1 was Rs. 3,38,631/-, out of which, the Complainant paid Rs. 60,000/-, as part payment, but the OP No. 1 did not repair the vehicle.  The main allegation of the Complainant for non-repairing of the car is against the OP No. 1, and not against the OP No. 2, being the insurance company, i.e., the present Appellant.  In any case, the repairing work was not finally done.  In such a peculiar state of event, the Surveyor appointed in the matter to make a first hand report had made out in his report the net assessed amount for the parts + labour cost of Rs. 2,96,846/-.  Accordingly, the insurance company made a proposal to the Complainant by a letter dated 22-12-2011 either to get her vehicle repaired, whereupon an amount of Rs. 2,96,846/- as per the Surveyor Report would be provided to her after final inspection or she could have Rs. 2,22,635/- being full and final settlement of her claim without awaiting the repair.  But, the Complainant, without replying to it, when the offer remained opened, she filed the case before the Ld. District Forum.  Therefore, there is no deficiency in service on the part of the insurance company and so, the compensation accorded to the Complainant was not a rightful one.  The car has been languishing in the repairing shop of the OP No. 1 for long 3 years, for which the Complainant is solely responsible and liable for any demurrage.  He has referred to Clause No. 2 relating to the exigencies for non-liability of the insurance company to make payment and Condition No. 4 of the Private Car Package Policy in this respect.  He has referred to certain decisions of the Hon’ble Supreme Court in this respect, as reported in (2000) 10 SCC 19, (2009) 3 WBLR SC 888, AIR 1999 SC 3252 and I (2009) CPJ 6 (SC).

            Ld. Advocate for the Respondent No. 1 has submitted that the claim has been made within a reasonable time, and survey was done.  But, still the insurance company has not taken any step to settle her claim, for which, after serving Advocate’s notice upon the insurance company, the complaint case was filed before the Ld. District Forum.  Further, the insurance company could provide cashless facility to the Complainant to carry out the necessary works of the car to its authorized service centre employed in the matter, being the OP No. 1.

            Ld. Advocate for the Respondent No. 2 has out made out that their case has been vividly expressed in their WV.

            It is found on scrutiny of the materials on record that just after the incident of accident, it was reported to the insurance company, i.e., on 25-08-2011, which is reflected in the insurance company’s letter dated 22-12-2011 to the Complainant and there has been no lapse on the part of the insured as also towards taking steps for repairing of the car and  paid Rs. 60,000/- as advance, which the OP No. 1 acknowledged by a letter to the Complainant dated 18-03-2012, in which it recorded that there was verbal/telephonic approval of the insurer in respect of the job.  It also mentioned that the repairing process is lingering as all the parts are not available at a time.  Therefore, the Complainant issued a letter through her Ld. Advocate to the insurance company dated 22-03-2012 informing the condition with a request for proper settlement of the insurance claim sympathetically, which was received there on 26-03-2012.  As it appears that the vehicle has not been repaired by the OP No. 1 since the time the complaint case had been filed before the Ld. District Forum.  Surveyor report is a vital piece of document which cannot be brushed aside without sufficient cogent reason.  Therefore, we do not find any basis in the offer of the insurance company asking the Complainant to accept Rs. 2,22,635/-  as full and final settlement of her claim.  It does not speak high of an institution to take undue advantage of one’s financial constraint.  Therefore, in our considered view, it would be just and proper to direct the insurer to settle Complainant’s claim as estimated by the Surveyor along with interest @ 9% p.a. from the date of filing of the case before the Ld. District Forum.  However, the order as to litigation cost of Rs. 10,000/- is in perfect tune and as such, the same does not require any modification.

            Accordingly, the appeal succeeds in part.

Hence,

ORDERED

            that the appeal be and the same is allowed in part on contest against the Respondent Nos. 1 and 2 and exparte against the Respondent No. 3.  The impugned order is modified to the extent as under:-

The OP No. 2 being the Appellant is directed to make payment of Rs. 2,96,846/- to the Complainant along with interest @ 9% p.a. from the date of filing of the case i.e. 03-05-2012 till full payment, within a period of 45 days hence.  The litigation cost as awarded in favour of the Complainant by the Ld. District Forum will remain intact. 

Order as regards the other compensation of a sum of Rs. 25,000/- given by the Ld. District Forum is struck off.