HON'BLE MR. KAMAL DE, PRESIDING MEMBER
Order No. : 06
Date : 06.02.2019
Both parties are present through their Ld. Lawyers.
The Appeal is taken up for further hearing.
Heard both sides. Considered.
The instant appeal is directed against the impugned judgement dated 16.07.2014 passed by the Ld. D.C.D.R.F., Burdwan in C.C. Case No. 14 of 2012. In filing this Appeal, it is alleged that the Ld. Forum erred in fact as well as in law in passing the impugned judgement in favour of the respondent-complainant.
It is also alleged that the impugned judgement is not proper and as such is not sustainable in law.
It is also stated that the Ld. Forum did not consider the fact that the service centre where the vehicle instant was taken after the alleged accident initially issued estimate of Rs. 2000945/-. Subsequently, as per respondent No. 1 the repairing expenses is Rs. 110000/-.
It is also alleged that the Ld. Forum passed the impugned judgement going beyond the loss assessed by the authorities and licensed independent surveyor.
It is also alleged that no reason was cited by the Ld. Forum for awarding repairing expenses of Rs. 1,10,000/- in spite of submission of the final bill and giving a go-bye to the report of the surveyor.
It is also stated that the Ld. Forum did not consider the fact that survey report is binding upon the parties.
It is alleged that the impugned judgement is bad in law and is liable to be set aside.
Before we pass on to decide the facts in issue, we think that we would take a cursory glance towards the averments of the parties as stipulated in the petition of complaint and written version.
The complainant’s case in nut shell is that he happened to be a registered owner of Tata Indica Vista four-wheeler vehicle bearing No. 38 WB 5211 and the vehicle was insured upon the OPs 1 and 2 on 10.02.2011 under insurance policy No. 30001/56174098/02/000. The policy was valid from 10.02.2011to mid night 09.02.2012 and it was the first party insurance policy.
On 26.05.2011 at about 7.30 AM the complainant met with an accident on NH2 near Chanda More under Jamuria Police Station. The accident took place when the son of the complainant was travelling with the vehicle towards Asansol from Raniganj. One Jafar Ansari was driving the vehicle and suddenly a truck running by the side of the car dashed the car and the car dashed against the road divider and jumped upon the divider.
It is stated that the whole body of the car was severally and badly damaged. After the accident the offending truck fled away.
Soon after the accident the vehicle was removed to the side of the road with the help of the persons of the locality. The complainant also lodged FIR at the Jamuria Police Station.
The complainant, thereafter, registered a claim with the OP on 26.05.2011.
The damaged vehicle was removed from the place of the accident and finally was sent to the garage of OP 3 i.e. B.T. Motors with the help of recovery van.
The complainant submitted claim form and other relevant documents on 27.05.2011 one Surveyor Mr. Tanmoy Dutta of the OP came at the garage of the Op 3 without informing the complainant and surveyed the vehicle.
The complainant on the next date communicated with the office of insurance company and insurance company expressed that it would give the claim of one side damaged either right or left side of the car. The complainant denied accepting such partial compensation. The OP insurance company finally on 29.06.2011 repudiated the claim on the ground of non-submission of the copy of FIR.
The complainant, however, on 30.06.2011 sent to the OP the copy of the FIR dated 27.05.2011. The complainant has alleged that the total estimated cost of repairing purpose was Rs. 2,00,945/-. But OP was reluctant to fulfil such claim of the complainant.
The complainant, however, took delivery of the vehicle from the custody of OP on 16th October, 2012 on payment of Rs. 1,10,000/- towards repairing purpose.
The complainant has alleged that the OPs have deprived the complainant of his legitimate claim and also practised unfair trade.
The complainant, therefore, moved to the Ld. Court below and filed the CC Case.
OPs 1 and 2 contested the case in the Ld. Court below in filing written version alleging that the complaint as filed by the complainant is not maintainable under the provision of Consumer Protection Act.
It is also alleged that the complaint is misconceived and is barred under the principle of estoppel, waiver and acquiescence. It is denied that the insurance policy bearing No. 300001/56174098/002/002 was ever issued by the insurance company. It is stated that there is no deficiency on the part of the OPs. It is stated by the OPs that an intimation regarding an accident was received by these OPs vide letter dated 28.05.2011 by the complainant.
A surveyor, namely, Rajat Gupta was appointed according to Insurance Act. Claim form was also issued and the complainant was asked for submitting the document.
The surveyor after his investigation submitted his report and assessed the loss at Rs. 36,482/-.
It is also stated that in spite of report of the surveyor, as necessary document, FIR was not submitted by the complainant and no copy of FIR was submitted by the complainant. It is stated that insurance company could not have direct knowledge about the accident and appears from investigation report.
It is also stated that no final bill was not even submitted by the OPs and the claim of the complainant is prematured one. These OPs have prayed for dismissal of the complaint case. OP3 B.T. Motors, however, did not contest the case.
The Ld. Forum after contested hearing was pleased to direct the OPs 1 and 2 to settle the claim, in the light of actual cost of repairing incurred by the complainant along with other reliefs, in the light of the observations made in the body of the impugned judgement.
Being aggrieved by and dissatisfied with the impugned judgement dated 16.07.2014 passed by the D.C.D.R.F., Burdwan in CC Case No. 14 of 2012, the appellant LICI Lombard General Insurance Co. Ltd. has preferred the instant appeal for setting aside the judgement on the ground as discussed earlier.
Decision with reasons
We have to decide whether the impugned judgement passed by the Ld. Forum below suffers from any illegality, irregularity or impropriety.
The crux of the controversy is whether the report of the surveyor is acceptable or not?
To put otherwise, whether insurer Surendra Khaitan is entitled to get damages for total repairing cost of the vehicle?
We have perused and considered the documents on record including report of the surveyor and the copy of the FIR.
FIR as we know is the first flash of the case.
It is appearing from the case record that the vehicle of the complainant on 26.05.2011 met with an accident on NH2 near Chanda More under Jamuria Police Station. After the accident, the complainant on 27.05.2011 lodged FIR with Jamuria Police Station, District Burdwan (Paschm Bardhaman). From the copy of the FIR it appears that the offending truck hit the car of the complainant – respondent on the right side and as a result the car was badly damaged.
It is not forthcoming before us whether Police started any case over the FIR or not or whether the case was chargesheeted or not etc. etc.
The complainant – respondent has not filed any document regarding the registration of the case or charge – sheet or anything else.
It is stated by the complainant – respondent that the complainant – respondent informed the matter to the Jamuria Police Station. There is nothing on record whether Jamuria Police Station registered any case or started investigation or submitted any charge sheet or final report. No case number and nothing is forthcoming before us.
It is also not understood to us whether any case was started on such an incident. But it can however, be presumed that the Police must have registered a case or investigated the case, had the accident be a massive one. But complainant – respondent has not filed any document regarding registration of any criminal case etc.
The complainant has not also filed any document regarding the follow up action of the Police over the incident.
We, however, find that insurance company deployed a surveyor who has stated categorically in his report that the damaged observed on RH side appeared consistent with the declaration of accident narrated in the claim form and the damage at the left-hand side does not at all match or tally with the accident declaration. Hence, left hand side damage could not be recommended. The surveyor assessed the loss at Rs. 30,500/-.
We also find from the copy of the so-called FIR that the offending truck pushed the car of the complainant – respondent on the right side.
The recital of the FIR supports the version of the surveyor. We know that the loss assessed by the approved surveyor appointed in view of provision of Section 64 – UM of the Insurance Act is binding, more so, in the absence of any evidence on record to establish that the loss assessed by the approved surveyor was not correct or justified.
Complainant – respondent has not also filed any photograph of the damaged car to establish that the car was also damaged on the left-hand side and it is not also reflected in the copy of the FIR.
We find that the copy of the FIR that the FIR was sent to the Police Station by registered post with A/D on 27.05.2011.
It is also not clear before us why the complainant – respondent did not move to the local Police Station immediately after the alleged incident.
Be that as it may, the complainant – respondent failed to make out any case as to why the survey report of the approved surveyor should be rejected.
Appellant also did not take the pain of taking the surveyor into the cross-examination to prove to the contrary complainant – respondent did not call him for cross-examination at the Ld. Forum below. No objection to survey report was also filed thereat.
Moreover, we find that the repairing cost was estimated, firstly, at Rs. 2,00,945/- and subsequently, the amount was reduced to Rs. 1,10,000/-.
The anomaly or the difference of such amount is not also understood to us.
It also appears from the observation of the Ld. Lower Forum that no final bill of repair was submitted to the OPs – appellant.
Ld. Forum also observed that the case was prematured one for non-submission of final bill of repair. It is also not understood before us how the Ld. Forum below passed the award, if the case was prematured or non-submission of the final bill or copy of FIR to OPs 1 and 2 (Insurance Company).
We are afraid to hold that the Ld. Forum below passed an award on some futuristic course of action by the complainant – respondent and such order cannot sustain in the eye of Law.
We think that the Ld. Forum below did not consider the report of the surveyor and passed the award avoiding the report of the licensed surveyor without any observation as to why the report of their surveyor cannot be accepted.
We also find that the initial estimate was Rs. 2,00,945/- and subsequently, as per the complainant – respondent the repair expenses is Rs. 1,10,000/-, though he could not produce any supporting document for such repair before OPs 1 and 2 (Insurance Company). In spite of non-submission of supporting document, the Ld. Forum directed the appellant to pay Rs. 1,10,000/-. We think that the impugned judgement is totally bad in law and cannot sustain. The Ld. Forum also did not consider the fact that the complainant – respondent admitted in the FIR that due to alleged accident the right side of the said vehicle was damaged whereas subsequently he claimed for loss of damages on both left ad right sides of the vehicle as well as for the whole body of the said vehicle.
We know that the insurance is not for profit and it is for ‘just damaged’.
We are afraid the Ld. Forum has acted illegally and committed material irregularity in passing the impugned order.
We hold that the complainant – respondent is entitled to get Rs. 30,500/- as assessed by the surveyor or Loss Assessor.
Perused the decisions reported in Civil Appeal No. 3253 of 2012, S.C. date of order 09.04.2009 New India Assurance Co. Ltd. VS Pradeep Kumar. 2016 (3) CPR 526 (NC) Bharati Axa General Insurance Co. Ltd. VS Abhay Kumar. 2016 (2) CPR 282 NC Satish Kr. Lavjibhai Parmar VS National Insurance Co. Ltd. 2014 (3) CPR 360 NC Oriental Insurance Co. Ltd. VS M/S. Rishab Refectories Ltd. 2015 (2) CPR 265 NC M. Devappa Kanchan VS Untied India Insurance Co. Ltd. 2012 (2) CPR 430 NC Sumit Kr. Agarwal VS Oriental Insurance Co. Ltd., as cited by the Ld. Lawyer at the side of respondent. The said decisions are not apt and applicable in the facts and circumstances in the present case.
In result the Appeal merit success.
Hence,
ORDERED
That the RBR/A/21/2018 is allowed on contest.
The impugned judgement dated 16.07.2014 passed by the Ld. D.C.D.R.F., Burdwan arising out of DFC Case No. 14 of 2012 is set aside.
Appellant – OPs 1 and 2 are directed to pay an amount of Rs. 30,500/- along with litigation cost of Rs. 20,000/- to the complainant – respondent within one month from the date of this order i.d. complainant – respondent will be at liberty to put this order into execution before the Ld. Forum below. Let a copy of the order be supplied to the parties free of cost.
