THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KANDHAMAL, PHULBANI
C.CNO.31 OF 2014
M/S- Sainath Fuels Circular Road
Near Hanuman Mandir, Phulbani, Kandhamal
Represented by Prop Smt. Renubala Patra
W/o: Sri Biranchi Narayan Patra At: Laxmi Market, Hatapada
Po/PS: Phulbani – 762001 Dist: Kandhamal ……………….. Complainant
Versus.
Branch Manager,
The New India Assurance Company Ltd.
Direct Agent Branch, Ist Floor O.C.H.C. Building , Unit-111
Near Ram Mandir, Janapath Bhubaneswar- 751001. …………………….. OPP. Parties.
For the Complainant – Rabinarayan Patra, Advocate , Phulbani
For the OPP.Parties – Sri M.V.K. Rao, Advocate, Phulbani
Date of Order 30-11-2016
O R D E R
The case of the Complainant in brief is that she is the owner of a Tanker bearing registration no. OD12A-9999 and the same vehicle was registered in the office of the registering authority of Phulbani on 19-07-2013. The said vehicle was purchased in the name of M/S Sainath fuels of Phulbani. The vehicle was insured under the Opposite Party vide policy No. 55020231130100001171 which was valid from 09-07-2013 to 08-07-2014. The Complainant was running her business by transporting of fuels both Diesel and Petrol from Jatni oil depot to Phulbani in the tanker of her Firm. On 29-04-2014 at about 2.30 A.M the said vehicle met with an accident near village Subalaya under Dasapalla police station in the District of Nayagarh, as a result of which the right portion of the said vehicle, cabin, back side of bumper, wheel cover, and stepney side guard were damaged. The information of the said accident was given to the Local Police Station of Dasapalla where the station diary was entered vide S.D No. 515 dated 30-04-2014. The Complainant has also informed the facts to the O.P and the said vehicle was removed after arrival of the surveyor of the O.P. The said vehicle was taken to N.S RAMARAO BODY WORKS No-313/1A, Medavakkam Mambakkam Road, Vengaivasal village, Selaiyur Post. Chennai-600073 for repairing and the matter
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was communicated to the O.P on 03-05-2014 by the son of the Complainant. Accordingly one surveyor cum loss assessor Mr V. Ananthakrishnan was deputed by the O.P through the Regional office of Chennai. The said vehicle was repaired and prefabricated under the guidance of the surveyor till completion of the work .After due payment, the vehicle was released as per the direction of the surveyor and the O.P. After repairing the Complainant submitted the bills including other expenditure to the tune of Rs. 6,52527/- for settlement of his claim. In the month of September 2014 the Complainant came to know that the said claim was settled for Rs. 214510/- but the Complainant has not received any documents from the O.P regarding the said settlement. So ,this complaint was filed by the Complainant against the O.ps for settlement of full repairing charge of amounting Rs. 6,52,527/- along with 12 % annum interest since 23-06-2014 till the date of payment with compensation of Rs. 1,00000/- for loss of business and mental agony and Rs. 30,000 towards cost of litigation .
The case of the O.P as per his version is that the Complainant intimated about the accident on 06-05-2014 by submitting claim form. It is not true that the complainant has intimated about shifting of the tanker to Chennai for the purpose of repairing. Hence, the O.P has engaged the surveyor and deputed him to the work shop. The said surveyor attended the work shop on 10-05-2014 ,15-05-2014,21-05-2014 and 30-05-2014 in four occasions and verified the parts used in the tanker and prepared his report with a detail list of assessment . On 18-06-2014 the surveyor has submitted his report giving the cause of accident and the details of damage. The Complainant has submitted the rough estimate from the N.S Rama Rao Body Works for which the said estimate cannot be taken as actual expenses of the vehicle. The deputy Surveyor has assessed the actual damage and loss to the tune of Rs. 2, 14.510/- and the same was also paid to the insurer as credited to the Bank account of the Complainant.
The further case of the O.Ps is that the Complaint is not maintainable on the point of jurisdiction as the occurrence took place at Subalaya under Nayagargh District and the Insurance policy of the said vehicle was taken from Kharavelnager Branch of Bhubaneswar. So, the Complaint is devoid of merit and liable to be dismissed.
As per the pleadings of both the parties we are framing the following issues for better adjudication of this case ;
(1)Whether this Forum has any jurisdiction to entertain the Complaint?
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(2)Whether there is any deficiency in service on the part of the O.P?
(3)Whether the report of the surveyor is binding for the parties as per law?
(4)Whether the Complainant is entitled to get relief as claimed by him?
We have heard both the learned counsel of the parties. We have gone through the Complaint petition, the counter submitted by the O.Ps, the affidavits given by the parties, the deposition and documents marked Exhibits by both the parties and written arguments submitted by both the learned advocates of the parties. We have also heard arguments from both sides.
ISSUE NO.1
It is admitted fact that the alleged accident was held on 29-04-2014 at Subalaya under the Dasapalla police Station of the District of Nayagargh. It is also admitted that the vehicle was insured under the O.P through the office of New India Assurance Company, Bhubaneswar Branch. As per section 11(2) (a) of C.P Act, a complaint shall be instituted in a District Forum within the local limits of whose jurisdictions “the Opposite Party or each of the Opposite Parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for again”. The O.P has a branch office of the Company at Phulbani and the Branch Manager of the said Branch was examined in this case on behalf of the O.P. as a witness. Moreover the vehicle was registered under R.T.O of Phulbani. Hence, this Forum has it’s jurisdiction to entertain the said complaint as per law. This issue is answered accordingly in favor of the Complainant.
ISSUE NO.2
As per Section (2) (g) ‘Deficiency’ means any fault, imperfection , shortcoming or inadequacy in the quality , nature and manner of performance which is required to be maintained by or under any law form the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service” .
In this case the surveyor has assed actual damage and loss of the vehicle for Rs. 2, 14,510/- but the estimate given by the garage Owner was Rs. 5, 68,671/- as per Exit-10 and Rs.83,856/-given by L.G Auto works vide Exit-12 & 13. So, there is long difference between the two estimates. As per claim form submitted by the Complainant the approximate estimated cost of repairs was Rs. 6, 93,500/- . Hence, the calculation of the surveyor of the Insurance Company is not proper and there is fault on the part of the O.P while discharging their duties. In the said situation the O.P has
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committed deficiency in service by not considering the estimate given by the Complainant regarding the repair of the vehicle. This issue is also answered in favor of the Complainant.
ISSUE NO 3
As per settled principle of law the surveyor report cannot accepted abruptly
but can only be considered with ground of realities. It is admitted by the witness of the O.P the Branch Manager of the Insurance Company , Phulbani Branch that the repair of the vehicle was conducted by the garage owner as per the instruction of the surveyor ( cross examination ). In Para 6 of the counter, the O.P has stated that the Surveyor has visited to the work shop N.S Ramarao Body works on 4 occasions it is on 10-05-2014, 15-05-2014,21-05-2014 and 30-05-2014 and verified the parts used in the tank. So, there is no ground to disbelieve the estimate of repair given by the Garage owner. Hence, the surveyor report is not binding to the parties in the said circumstances. This issue is answered in favor of the Complainant.
ISSUE NO 4
In our view the Complainant is entitled to get the relief in this case as per above discussion. We have verified the invoices given by the Garage Owner N.S Ramarao body works of Chennai and the report submitted on 18-06-2014 by the surveyor including the assessment report . We have also perused Exit-12 & 13, the invoices given by L.G Auto works of Chennai. It is admitted by the Complainant that the O.P has deposited Rs. 2, 14,510.25 paisa on 16-12-2014 in the account of her firm SAINATH FUELS as per surveyor report. It is seen that the Surveyor reduced more than 3 lakhs rupees from the estimate of the garage owner without any reason. The learned counsel of the Complainant submitted that N/S Ramarao Body works has already received Rs. 5,68,671/-from the Complainant on 31-03-2014 vide Exit-11 and L.G Auto works has received Rs. 83,856/- from the Complainant on the same day vide Exit-14. Thereafter the vehicle was released by them. We have verified both Exit-11 and Exit -14. There is no discrepancy between both the receipts. The Complainant has proved both the payments amounting Rs. 6, 52,527/-.There is no valid ground to disallow the above claim of the Complainant. The learned counsel for the Complainant has placed reliance on a Judgment of the Hon’ble National Commission in 2015 NCJ 663(NC) between new India Assurance Company Limited Vs. M/S Gabind Ram Khemchand. We have perused the said decision where it is observed that the surveyor report can not be accepted out right. So, this issue is answered in favor of the Complainant.
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As per above discussion the Complaint filed by the Complainant is allowed in part. The O.P is directed to pay Rs. 2, 19,000/- which 50 % of the balance amount of Rs. 6, 52,527/- along with Rs. 5,000/- towards the cost of litigation to the Complainant within 30 days from the date of receipt of this order. In case of failure the same amount shall carry 12% annum interest from the date of final order till the date of payment.
The C.C is disposed of accordingly .Supply free copies of this order to both the parties at an early date.
MEMBER MEMBER PRESIDENT
