Orissa

Debagarh

CC/11/2019

Gouri Shankar Somani, S/O.Nanalal Somani - Complainant(s)

Versus

The Branch Manager, New India Assurance Co.Ltd - Opp.Party(s)

04 Dec 2021

ORDER

IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH

C.C. Case No- 11/2019

            Present-Sri Dipak Kumar Mahapatra, President, Smt. Arati Das, Member.

Gouri Shankar Somani,

S/O-Nanalal Somani,

R/O-Deogarh Town ,Rajamunda,

P.O/P.S/Dist-Deogarh.

Pin-768108                                                                                                                              … Complainant

Versus

1.   The Branch Manager,

            New India Assurance Co. Ltd.,

            Dist-Sambalpur (Orissa).

2.   The Regional Head;

            New IndiaAssurance Co. Ltd.,

            Bhubaneswar Regional Office
            Alok Bharati Towers, 1st flr., Saheed Nagar,
            Bhubaneshwar - 751 007.

3.  The Branch Head,

           New India Assurance Building,

            87, M G Road, Fort, Mumbai.

           MUMBAI MAHARASHTRA- 400001                                            … Opposite Parties

Counsels:-

For the Complainant           :-                     Nemo.

For the O.P-1,2 & 3              :-                     Sri R.L Pradhan & Associates, Advocate.

                                             DATE OF HEARING : 26.11.2021, DATE OF ORDER : 04.12.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that, the complainant is the owner of one Mahindra Xylo vide Registration No-OR-15-N-2399 having Chassis No-MA1YA2BVM92D25294 and Engine No-BV94C38700 which was insured up to dtd.18.05.2017. On dt.28.04.2017 at about 10.00 a.m. the vehicle was got accident near village Jharamunda under Kuchinda Police Station in Sambalpur district where the family members of the Complainant sitting inside the Xylo were got severely injured. The Complainant lodged a FIR in the Kuchinda Police Station vide FIR no- 81 dtd. 28.04.2017 and informed the O.P-1 accordingly. The O.P-1 sent two persons to the spot of accident on the next day i.e dtd. 29.04.2017 inspected the vehicle and provided claim form to be duly filled in by the Complainant for Insurance claim and asked to shift the accident vehicle to the garage at which the complainant wanted to repair the said Xylo. On dtd. 15.05.2017, the Complainant shifted the accident vehicle to the garage named as AUTO CENTRE at Kharsia Road, Dimrapur Chauk, and Raigarh in the State of Chhattisgarh. The said garage provided a job card against the job assigned and dismantled the Xylo and repaired the same and delivered to the Complainant on dtd. 30^th September 2017 along with 02(two) bills of Rs.2,05,817.00/- for spares and Rs.1,24,887.00/- towards labour charges in a total of Rs. 3,30,704.00/- which was paid by the Complainant in cash. Thereafter the Complainant has repeatedly made contacts and requests to the O.P-1 to settle the claim amount but on dtd. 19.04.2018 the O.P-1 has transferred an amount of Rs. 1,26,053/-only to the account of the Complainant vide account no-04020100005985 in the State Bank of India at Deogarh, Orissa. The Complainant asked the O.P-1 about the lesser payment against the accident claim, the O.P-1 stated that as certain items which are not included in the Insurance cover, they have left the items as per their guidelines but did not disclose those items which have been excluded from Insurance cover. The Complainant fell in confusion as the O.P-1 did not mention specifically about the excluded items as these covered a major amount  of the Insurance claim amounting to Rs. 2,04,651/- and due to the exclusion the Complainant faced a great financial setback, mental pain and agony. Though the matter was brought to the notice of the O.Ps but no solution came out of this as the O.Ps turned deaf ears. The O.Ps has failed to give proper service to the complainant by Non- Settlement/partial settlement of the claim even the Vehicle (XYLO)was having a valid Insurance Cover hence he sustained financial loss, mental pain and agony due to Deficiency in Service and Unfair Trade Practice caused by the O.Ps incurring loss of money by travelling from Deogarh to Sambalpur accordingly he sought relief in this forum.

           The O.P-1, 2 & 3 despite of service of notice though appear in this commission and filed Vakalatnama on dtd. 24.09.2019 through their Advocate, they did not bother to file written statements to their defense before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose off the case on merit basis considering the Complaint petition filed by the Complainant.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

            From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he had availed an Insurance Policy on payment of premium amount as consideration for availing services.  So far as the case in hand is concerned, the claim of the complainant has been supported by original vouchers, bills and receipts from one AUTO CENTRE at Kharsia Road, Dimrapur Chauk, Raigarh(C.G). It has been held that the actual expenses incurred by the complainant Rs.2,05,817.00/- for spares and Rs.1,24,887.00/- towards labour charges in a total of Rs. 3,30,704.00/- which was paid by the Complainant in cash in getting the XYLO  repaired apart from the expenses on account of XYLO carrying it to the workshop. But the O.Ps on dtd. 19.04.2018 the O.P-1 has transferred an amount of Rs. 1,26,053/-only to the account of the Complainant vide account no-04020100005985 in the State Bank of India at Deogarh which was very lesser amount in comparison to the actual expenditure incurred. On asking the reason of lesser payment, the O.P-1 stated that as certain items which are not included in the Insurance cover, they have left the items as per their guidelines but did not disclose those items which have been excluded from Insurance cover. The Complainant fell in confusion as the O.P-1 did not mention specifically about the excluded items as these covered a major amount  of the Insurance claim but evasively denied to consider the claim without providing any such documents towards the deductions made. The judgment of Hon’ble Supreme Court reported in “New India Assurance Company Limited v. Pardeep Kumar” () is applicable to the facts of the present case, wherein it has been laid down that Surveyors report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. It is mentioned that the prices were taken from any authorized dealer of the said vehile, where genuine parts are available.  This matter has been well settled in the case of  “Sh. Balbir Singh. vs Shriram General Insurance Co.” ... decided on 22 November, 2018 by H. P. State Consumer Disputes Redressal Commission, Shimla. Hence we order as under:-

ORDER

The Complaint petition is allowed. The O.Ps are jointly and severally directed to pay the differential amount of Rs. 2,04,651/- (Rs. 3,30,704-1,26,053) to the Complainant with 9% interest from the date settling the claim and reimbursement of Rs 1,26,053/-to the account of the Complainant, till the date of realization. Further the O.Ps are jointly and severally directed to pay Rs. 50,000/-(Fifty thousand Only) to the complainant as compensation for inconvenience, harassment and mental agony faced by the complainant and Rs.10,000/-(Rupees Ten Thousand)towards cost of litigation. All the above orders are to be carried out within 30 (Thirty) days of receiving of this order, failing which, the complainant is at liberty to proceed in due process of law.  

Order pronounced in the open court today i.e, on 4^th day of December-2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,                                                                                             

 

MEMBER.                                                                                          PRESIDENT.

                                                      Dictated and Corrected

                                                                      By me.

                    President.