SMT. BANDANA ROY, PRESIDENT

            The synopsis of the complaint is that the complainant is the owner of vehicle No. WB-29B/2880. Said vehicle was insured with the OP being policy No. 150305/31/16/6300025425  for the period from 23.03.17 to midnight of 22.03.20187.  The said vehicle was in accident on 03.10.2017 at about 4.00 AM under Sutahata PS and the said vehicle got badly damaged. The matter was informed to the OC Sutahata PS in writing and  G D E No. 103 was entered. The complainant also informed the incident to the OP  Insurance Co. on the date of accident. The driver and had valid license on the date of the accident. The complainant got the said damaged vehicle repaired in a garage at Sutahata and incurred cost of Rs. 183,524/-.  On 29.12.2017 the complainant deposited all the relevant papers and bills and demanded the said cost. But the OP without any kind of information deposited a sum of Rs. 70,000/-in the A/C of the complainant towards cost of repair. The complainant repeatedly requested for payment of the rest amount but the OP did not give any reply nor deposited the said amount.

Hence, the instant case with the prayers as made in the complaint petition on the allegation of deficiency of service on the part of the OP.

            The OP National Insurance Ltd. contested the case by filing  written version and denied the material allegations of the complaint and claimed dismissal of the complaint on various provisions of law.

            The specific case of the OP is that the OP has not repudiated the claim of the complainant and so, there is no cause of action to file this complaint case. After proper survey the OP has settled the claim at Rs. 70,000/- with the consent of the complainant.

             Under such circumstances, the OP prays for dismissal of the complaint petition with costs.

            Point to be considered in this case is whether the complaint case is maintainable and (2) whether the complainant is entitled to get the reliefs as prayed for.

Decision with reasons

            Both the points are taken up together for consideration for the sake of convenience.

            We have carefully perused the affidavit of the complainant, the written version and all  the documents filed by both the parties, the affidavit in chief, the questionnaires and reply thereto filed by the respective parties and heard the submission of the ld advocate for the complainant. Considered.

            In order to prove his case the complainant has filed the copy of Insurance Policy , copy of FIR before the OC Sutahata PS and also copies of bills for purchase of spare parts and also repairing of the damaged vehicle issued from One stop Car shop and SP Automobiles.  The OP has filed written version  and alleged that  the claimant is not entitled to get the relief in this case  and also stated that proper survey inspection is necessary in such claim.  On the basis of a preliminary survey report the OP paid Rs. 70,000/ to the complainant as per his consent. Hence, without survey report and assessment, the claim cannot be settled as claimant has received Rs. 70,000/- as full and final settlement.

            OP did not cross-examine the complainant by way of filing questionnaires.

            In his affidavit in-chief the complainant has stated that the OP has intentionally without taking any permission from him deposited Rs. 70,000/- in his bank Account. After knowing the said fact of Rs. 70,000/- deposited in his account, the complainant demanded the rest amount but till now  the OP Insurance Co did not give any reply or did not pay the rest amount of Rs. 1,13,529/-.

            It appears that though the complainant admitted that he received Rs. 70,000/- from the OP but denied that it was paid on his consent. Instead the complainant has stated said fact by filing affidavit in –chief. On the contrary the OP did not file any document to prove that the complainant received that amount on his consent. The OP even did not cross-examine the complainant  oin this point. When OP has stated something other , the burden is on the OP tp prove that fact. But in this case, there is no satisfactory document filed on behalf of the OP to prove that the complainant  gave consent to receive only Rs. 70000/-which had been assessed by the surveyor.

            We have thoroughly examined the cash memos of One Stop Car shop  and SP Automobiles  and we are of the view that the complainant is entitled to get a sum  of Rs.1,35,529/- more as claimed by him from the OP , but considering the facts and circumstances of the case  there will be no order of compensation but litigation cost of Rs. 3000/- .

Both the issues are answered accordingly.                 

                Hence, it is

O R D E R E D

That CC/ 61 of 2018 be and the same is allowed in part on contest against the OP National Insurance Co.

 The OP is   directed to pay a sum of Rs. 1,35,529/- to the complainant towards repairing charge of the insured vehicle along with litigation cost of Rs. 3000/- within one month from the date of this order, id the OP shall have to pay interest @  9 % per annum  from 19.02.2018 on the awarded amount till  full realization.                                                                                     

The complainant is at liberty to execute this order if the OP fails to comply the award as above 

There is no order of compensation.

Let copy of the judgment be supplied to all the parties free of cost.