DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KANDHAMAL, PHULBANI
C.C.NO.13 OF 2020
Date of Filing :25.11.2020
Date of Order : 28.11.2022
Sri Satya Sundar Mishra- aged about 51 years
S/O: Nikunja Kishor Mishra,
At- Brahman sahi,PO/PS_-Phulbani
Dist- Kandhamal. ……………………….. Complainant.
Versus.
1. TATA-AIG General Insurance Company Ltd.
Peninsuala Business Park,Tower A, 15th floor
G.K.Marg Lower parel, Mumbai,400013
2. The Prop.MIDWAY Motors, Berhampur
At- Raghunathpur(NH-5)
Po- Narendrapur, Ps- Chamakhandi
Dist- Ganjam
3. M/s Mahindra & Mahindra Ltd.
Gateway Building, Appollo Bunder
Mumbai-400001, India …………………………….. OPP. Parties.
Present: Sri Purna Chandra Mishra - President.
Sri Sudhakar Senapothi - Member .
For the Complainant : Mr.B.K.Pattnayak, Advocate & associates
For O.p No.1- Mr.V.V.Ramdas Advocate
For O.p No.2 – Mr. Ranjit Kumar padhy Advocate & associates
For O.p No.3 – Mr.Subash Ch. Pradhan Advocate & associates
JUDGEMENT
Sri Purna Chandra Mishra .President
Complainant Satya Sundar Mishra has filed this case u/s 35 of the C.P Act 2019 alleging deficiency in service for nonpayment of his insurance claim in full by O.P No.1 and missing of his parts of the vehicle from the stockyard of O.P No.2 praying therein for direction to the O.Ps to pay Rs.3,50,000/-(Three lakhs fifty thousand)only towards compensation for loss of parts from the vehicle ,Rs.10,000/-(Ten thousand)towards harassment and hiring charge of lorry and Rs.50,000/-(Fifty thousands)towards mental agony.
- Brief fact leading to the case is that the petitioner has purchased one Mahindra XUV 500 vehicle financed by LIC of India for a consideration of Rs.16,78,900/-(One lakh sixty seven thousand eight hundred ninety)only and the vehicle was registered with the competent authority and the registration number is OD02AT5057. The vehicle was insured with TATA AIG General Insurance Company Ltd. and the policy was in force from 12.03.2019 to 11.03.2020. During the force of the policy on 10.04.2019 the vehicle met with an accident near Harekrushnapur on his way from Boudh to Phulbani. The fact of accident was intimated to the O.P No.1 and as per the instruction of O.P No.1 & 2, the vehicle was taken to stockyard of O.P No.2 i.e Midway Motors, Berhampur. Accordingly the vehicle was taken to stockyard of O.P No.2 where the lists of damages were prepared by the technical persons of O.P No.1 in presence of the stockyard in-charge of O.p No.2
- After several approaches the claim was settled by O.P No.1 on net salvage basis for Rs.8, 83,000/-(Eight Lakhs eighty three thousand) only after deducting the salvage value i.e. Rs.3, 50,000/-(Three lakhs fifty thousand)only. As his claim was not properly compensated, he raised objection for reconsideration and the O.P No.1 assured the complaint to consider his grievance over phone and requested him to receive the sanctioned amount without any delay. So the complainant received a sum of Rs.8, 83,000/- from the Insurance Company on 15.10.2019 by executing the discharge voucher prepared by O.P No.1 with objection. Thereafter, the complainant represented for reconsideration of the loss which was never done and because of nonpayment of the actual loss value the vehicle could not be repaired and lying in the stockyard of O.P. No.2.
At this stage the complainant received a call from O.P No.2 to take back his vehicle. In the month of June 2020 as the vehicle was not repaired as some of the parts were not available with O.P No-2, on receiving the call, he proceeded to Berhampur with a lorry (big truck) to bring back his damaged vehicle where he found that many valuable parts of the vehicle were missing. The matter was reported to Chamakhandi Police Station. The Complainant time and again approached all the O.Ps but his grievance was not attended, for which he has filed this case before this Commission for the reliefs as stated above.
After receipt of notice, all the O.Ps appeared through their Advocates and filed their written version.
- The O.P No.1 in his written version admitted the fact of accident and also admitted the validity of the insurance cover of the vehicle in question. The O.P No.1 stated that the loss of the vehicle was assessed by one licensed Surveyor and as per the report of the surveyor, it was entertained as constructive total loss on the insistence of the insured. The claim was settled on net salvage basis, the IDV of the vehicle was Rs.12, 35,000/-(Twelve Lakhs thirty five thousand)only out of which there was compulsory deduction of Rs.2000/-(Two thousand) and wreck value was Rs.3, 50,000/- and net liability on NOA basis is Rs.8, 83,000/-(Eight lakhs eighty three thousand) only. The discharge voucher of the insured was counter signed by the financer of the vehicle in which he has admitted to have understood the terms of settlement clearly. The O.P has discharged all its liability under the contract and therefore prays for dismissal of the case with cost.
- The written statement of O.P No.2 has been signed by one Suryamani Nayak who claims to be the Service Manager of Midway Motor, Berhampur, who claims to have been authorized by the O.P No.2 to verify the written statement. But on perusal of record no such authorization is available on record to substantiate his claim and therefore the written statement filed by O.P No.2 is not accepted, as it has been filed by an authorized person.
- In similar manner the written statement has been verified by one Saurav Tripathy Regional Sales Manager who claims to be the power of attorney holder of O.P No.3.Since the case has been filed against Mahindra & Mahindra as O.P No.3 can’t be represented by the person claiming to be attorney holder of O.P No.1. in the absence of any such documents So the written statement O.P No.3 stands rejected.
- The Petitioner in support of his case has filed the copy of new vehicle, money receipt of Midway Motors Pvt. Ltd., copy of Midway Motors Pvt. Ltd. GST invoice slip dt.12.03.2018, copy of certificate cum policy schedule cum receipt of TATA AIG General Insurance Co. Ltd., copy of registration changes receipt of transport Deptt.Odisha,dtd.17.05.2018, copy of registration certificate of vehicle vide No. OD02-AT5057,copy of extract of SDE No. 08model, PS-Boudh,dt.11.04.2019,copy of cash memo Shree Ambica Break Down Service, copy of FIR report vide No.0148,copy of the final form submitted by police,copy of Four colour photos of the vehicle before into custody by Midway motors , copy of four colour photos as found on dt.20.06.2020 after loss of parts, a report from surveyor Er.Eliyas Ahamad Khan.The petitioner has filed his evidence in shape of affidavit.
- .The O.P No.1 in support of his case has filed the copy of declaration for payment of the amount to the LIC of India dt. 17.11.2019, copy of consent letter for handing over of the salvage of damaged vehicle No. OD.02-AT-5057, copy of consent letter for settlement claim on net of salvage basis, Surveyors report with estimate of damage.
- In view of the pleadings and counter pleadings of the parties the following issues are framed.
A. Whether the Insurance company has illegally deducted a sum of Rs.3, 50,000/-from the actual claim of the Petitioner or not?
B. Whether the O.P No.2 is negligent in rendering proper watch and ward service to the vehicle kept in his stockyard ?
C. Is there any deficiency in service on the part of the O.Ps ?
D. To what relief the Petitioner is entitled ?
9. The first question relating to this case is whether the complainant has been devoided by the Insurance company in getting his total claim of Rs.12,35,000/-(Twelve lakhs thirty five thousand)only. It is alleged by the complainant that the O.P No.1 has sanctioned claim to the tune of Rs,8,83000/-(Eighty lakhs eighy three thousand)only. He received the sanctioned amount under protest and his signature was obtained as if he received the amount to his final satisfaction. It is an admitted fact that the vehicle has been damaged completely. The complainant has been paid the amount as per the settlement arrived between the O.P No.1 and himself. The O.P No.1 has filed the copy of the settlement which has been signed by the complainant in presence of the senior Branch Manager, LIC Phulbani two and other agents, namely S.Sahu and P.S.Jena on dt. 25.10.2019. It has been specifically stated that” My claim has been worked upon and I hereby agree to accept. The full and final settlement of any claim on net of salvage basis for Rs.8,83000/-(Eighty lakhs eighty three thousand)only. This consent is given by me after clearly understanding the mode of settlement of the claim.” During the course of the argument Ld. Counsel appearing for O.P No.1 stated that the complainant is working as Development Officer in LIC of India,Phulbani and the settlement has been arrived in presence of his senior boss ,i.e Senior Branch Manager,LIC,Phulbani Branch who is a signatory to the settlement and his agents of the same Branch. This document is not disputed by the complainant in any manner. So it is crystal clear from the consent letter for settlement of claim on net salvage basis that the complainant in his own volition has made the settlement in presence of the financer i.e. Senior Branch Manager, LIC of India,Phulbani Branch and other witnesses. So the allegation of the complainant that his signature has been obtained in a fraudulent manner in completely false and as the complainant has under taken not to file any other case or raise any objection against the settlement the present claim against O.P No.1 is not maintainable as it has no basis at all.
- The next question relating to this case is whether the O.P No.2 is negligent in keeping the vehicle in his stockyard ? It is seen from the FIR filed by the complainant in Chamakhandi PS, corresponding to PS Case No .148 dt.03.11.2020 that many parts of the vehicle has been theft away. On the basis of the FIR, police after investigation of the case has filed chargesheet against the Manager of the Midway Motors. Since a case of theft has been established while the vehicle was in the custody of O.P No.2 in his stockyard he is responsible for the loss arising out of. It is crystal clear that the O.P No.2 has failed to provide proper watch and ward for which he is liable to compensate theft for the loss sustained by the complainant.
- From the discussions in the proceeding paragraphs, it is seen that the O.P No.1 has complied with the terms of settlement and there is no deficiency of service on the part of O.P No.1. So far as O.P No.2 is concerned, he has failed to provide proper watch and ward to the vehicle parked in his stockyard resulting in theft of many valuable part of the vehicle. Since the O.P No.2 could not provide proper watch and ward, there is deficiency of service on his part. So he not entitled to get any charge for safe parking of the vehicle.
- Now comes the question to what relief the complainant is entitled ?
It is clear from the discussion above that there is no further claim against O.P No.1.
- So far as the loss of the complainant is concerned it is seen that the Surveyor who assessed the loss has fixed net salvage value to be 3,00000/-(three lakhs) only. This report of the Surveyor is not challenged by the complainant at any stage of the proceeding. Even though in the settlement cost of the salvage vehicle has been mentioned as Rs.3,50000/-(three lakhs fifty thousand)only , there is no document on record to show that the assessment made by the Surveyor is incorrect. The complainant has filed a report of an IRDA registered Surveyor-cum-valuer who has assesses the present net salvage value of the vehicle after theft of parts from the stockyard of O.P No.2 to be Rs.90,000/-(Ninety thousand) only . Even though the O.P No.2 has received the copy of the report with objection, no objection was subsequently filed by him. So the difference between the value of the salvage made by the first Surveyor and the Second Surveyor is Rs,2,10,000/-(two lakhs ten thousand)only which is reduced due to theft of various part from the accident vehicle. Since the difference in the salvage has come up due to the theft of valuable parts of the accident vehicle while in the custody of O.P No.2,he is liable to compensate the petitioner for the loss sustained by him and hence the order.
ORDER
The complaint petition is allowed in part against O.P No.2 and dismissed against other O.Ps. The O.P No.2 is directed to pay a sum of Rs,2,10,000/-(two lakhs ten thousand) only and immediately return the rest salvage of the vehicle to the complainant without claiming any charge for safe parking. The O.P No.2 is further directed to pay Rs.10000/-(ten thousand)only towards cost of litigation. The order is to be complied with in a period of 30days from the date of receipt of this order.
Computerized and corrected by me.
I Agree
MEMBER PRESIDENT
Pronounced in the open Commissioner today on this 28th day of November 2022 in the presence of the parties.
MEMBER PRESIDENT
