In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 404 / 2007 1) Dr. Indrani Dasgupta, 33, Gariahat Road, Kolkata-700031. ---------- Complainant ---Verses--- 1) The Branch Manager, ICICI Lombard General Insurance Co. Ltd., 46D, Chowringee Road, Kolkata-700071. 2) ICICI Lombard General Insurance Co. Ltd., Apeejay House, 7th Floor, Block-B, 15, Park Street, Kolkata-700016. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattachatya, Member. Order No. 1 3 Dated 1 6 / 1 0 / 2 0 0 9 . The instant case arises out of the petition of complaint filed by Dr. (Mrs) Indrani Dasgupta u/s 12 of C.P. Act, 1986 against (1) Branch Manager, ICICI Lombard General Insurance Co. Ltd., 3rd floor, Block-B, J.K. Millennium Centre, 46 D, Chowringhee Road, Kolkata-71 and (2) ICICI Lombard General Insurance Co. Ltd., Apeejay House, 7th floor, Block-B, 15, Park Street, Kolkata-16 with a prayer (a) to issue notice upon the o.ps., (b) to direct the o.ps. to pay a sum of Rs.110596/- with 9% interest till the date of payment, (c) to direct the o.ps. to pay compensation for harassment and mental tension together with litigation cost amounting to Rs.15000/- and (d) to pass such other order or orders as deemed fit and proper by the Forum. Specific case of the complainant is that on 24.9.07 when the complainant was on an emergency to visit a very critical patient at AMRI Hospital there was sudden torrential rain which caused flooding of the roads in front of the AMRI Hospital near Dhakuria Bridge approach. Her car suddenly stopped. The complainant immediately called up Ganges Ford Emergency Services, the authorized service centre for Ford vehicles for help. But the Ganges Ford Emergency Services people expressed their inability to send any mechanic to inspect / check the vehicle nor they were in a position to tow the vehicle in question to their service centre. Finding no other alternative, the complainant contacted Automobile Association of Eastern India through her husband and managed to tow her vehicle up to her residence (annex-B). On 26.9.07 the said vehicle was further towed to Ganges Ford workshop at 5, Hyde Road, Kolkata with the help of M.J. Breakdown Services (annex-C). The insurer, i.e. ICICI Lombard General Insurance Co. Ltd. was intimated of the breakdown of the vehicle under complaint Reg. no. MOT 00597397 on 28.9.07. The vehicle was surveyed by Mr. Subhankar Ganguly and Rajat Gupta on the same day, though the survey report submitted on 6.10.07 and not on 26.7.07 which was wrongly typed as per written statement of o.p. nos.1 and 2 filed on 10.6.08. The survey report dt.26.7.07 (wrongly typed) was received by the complainant on 10.10.07 (annex-D). The Ganges Ford estimated the cost of repairing to make the vehicle in road worthy condition at Rs.110596/- (annex-E). The complainant on receipt of the said survey report wrote a letter to Branch manager, ICICI Lombard General Insurance Co. Ltd. explaining the whole situation regarding the sudden seizure of the vehicle and requesting for settling her claim (annex-F). The claim was not entertained by the insurer by their E-mail dt.22.10.07 following the survey report dt.26.7.07 citing the reasons as – “the vehicle shall not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle be driven before necessary repairs are affected any extension of damages or any further damage to the vehicle, should be entirely at insured’s risk” (Para 5 of the evidence on affidavit of the o.ps.). Accordingly the o.ps. repudiated the claim of the complainant on the basis of surveyor’s report (annex-G). The complainant states that non settlement of insurance claim is clearly deficiency of service on the part of o.ps.. Hence the case. Decision with reasons : On perusal of the pleading, affidavit of examination in chief of complainant and o.ps. their BNAs and documents on record, it is evident that the averment of the o.ps. that the complainant did never contact Ganges Ford Emergency Service nor the Automobile Association of Eastern Indian (AAEI) for towing the vehicle appears to be a mere conjecture since no positive evidence has been adduced by them in support of their averment. On the contrary, the complainant filed two bills in support of her claim that the vehicle was towed to her residence by AAEI on 24.9.07 and from her residence to Ganges Ford Workshop at 5, Hyde Road, Kolkata on 26.9.07 by M.J. Breakdown Services (annex-B & C). If the complainant did not inform the Ganges Ford Emergency Service on 24.9.07, then how could they know that the vehicle in question was not road worthy due to inundation of the road consequent to he sudden torrential rain and tow the vehicle from the residence of the complainant to Ganges Ford Workshop at 5, Hyde Road, Kolkata on 26.9.07. Thus, the denial of the o.ps. that the complainant did call the Ganges Ford Emergency Service as well as the AAEI, does not stand on its own feet. O.ps in their w/v stated that relying on the report of independent surveyor, they had repudiated the claim of the complainant. As such , there was no deficiency of service from their end. Now let us see how far the said surveyors are independent. From the affidavit of examination in chief of o.p. nos.1 and 2, it is evident that the surveyor Rajat Gupta made the affidavit of evidence on behalf of o.p. nos.1 and 2 which was supposed to be done by o.p. no.1 or 2. This fact indicates that the surveyor Rajat Gupta was not at all an independent surveyor, rather he acted in collaboration with the o.ps. In fact, by making affidavit on behalf of O.P. Nos. 1 & 2, he lost his entity as on independent surveyor. As such, his survey report can not be relied upon. This apart, whatever is told in their survey report, the same is not backed by any tangible evidence. All the inferences are drawn on the basis of their presumptions / conjectures without any positive evidence. And thus the repudiation of claims by the o.ps. on the basis of the said surveyor’s report is nothing but repudiation of claims on assumptions which is not sustainable in law. Insurers litigating endlessly for wrong reasons are nothing but deficiency in service. Thus, the complainant succeeds the case. Hence, ordered, that the o.ps. are directed to pay jointly and for severally Rs.1,10,596/- (Rupees one lakh ten thousand five hundred ninety six) only to the complainant towards the reimbursement of the repairing cost within thirty days from the date of issue of this order. In default, this amount will carry interest @ 10% p.a. till the said amount is paid in full. An amount of Rs.10,000/- (Rupees ten thousand) only is awarded as compensation for the harassment and mental tension suffered by the complainant consequent to repudiation of her claim by the o.ps., which should be paid by the o.ps. jointly and for severally within thirty days from the date of issue of this order and in default, the said amount will carry interest @ 10% p.a. till its payment in full. The o.ps. are also directed to pay jointly and for severally Rs.5000/- (Rupees five thousand) only as litigation cost to the complainant within thirty days from the date of issue of this order and in default, the amount will carry interest @ 10% p.a. till its payment in full. Fees paid are correct. The case is thus disposed of from this Forum. Let this certified copy of this order be supplied to the parties on receipt of prescribed fees. ____Sd-________ _____Sd-_______ MEMBER PRESIDENT | 
