Counsel for the parties:

For the complainant:-            Kunal Kumar Behera & Associate Advocates 

The Opposite Parties  :-          Sailesh Kumar Behera & Associate Advocates 

ORDER

Shri A.K.Patra,President:

1. The present dispute arises out of the  complaint petition filed by the above named complainant alleging deficiency in service & unfair trade practice against the O.Ps for delay in settlement on insurance claim.
2. The complainant has prayed  for an order directing the O.ps /Insurer to appoint a fresh surveyor and to release insurance benefit after receiving final bill & cash memo of the workshop along with interest and to pay compensation of Rs.1,00,000/- for mental agony & harassment along with litigation cost of Rs.5000/-
3. Peruse the material available on records. We have our thoughtful consideration of the respective contention of the parties and submission of the Learned Advocate of the parties.
4. The brief fact of the complaint are that, the complainant is a register owner of a Bus bearing Regd. No. OR 08 G 9992 which was insured with the O.Ps Oriental Insurance Co.Ltd. Vide insurance policy No.346001/31/2016/184 covering the period from  10.04.2015 to midnight of 09.04.2016. Unfortunately said bus meet with an accident on 17.05.2015 resulting major damages, matter of which was repotted before the Kesing Police Station vide Case No.128/2015.It  was also immediately intimated to the insurer lodging a claim vide a Claim No.346001/31/2016/2015 upon which Mr S.C Senapati has been appointed as the surveyor for the assessment of loss and to settle the insurance claim. It is further stated that, as per the advice of the insurer the damage vehicle was sent to the workshop for repairing. It is alleged that, said surveyor Mr. S.C Senapati issued a letter vide No.SCS/LT/126/15-16 dt.12.10.2015 compelling the complainant to put his signature over the acceptance sheet attached there on where upon he denied and wrote  a letter dt.29.10.2015 to the O.P No.3 & 2 requesting for appointment of another surveyor but it was not responded,  rather the same surveyor Sri, S.C Senapati has submit the final surveyor repot vide his office letter No.SCS/MV(85)/15-16 dt.19.11.2015 holding a final assessment of loss to the tune of Rs2,04,000/- receipt of which was intimated by the O.P No 1 to the complainant on 09.12.2015 vide letter No.BPT/391/15-16. On 08.12.2015 the complainant had also intimated the O.P No.1 regarding completion of the repairing work of the alleged vehicle/Bus. Is submitted that ,as request letter dt.29.10.2015 and 15.12.2015 was not responded, the complainant again wrote to the O.P No.1 were it was clearly mentioned that ,he is  not agreed with the assessment of loss as made by the Surveyor Mr. S.C Senapati  and awaiting  for  early reply from the O.P No.1 to the request letter dt.29.10.2015 of the complainant . On 03.06.2016 the complainant had also issued another reminder addressing the O.P No.1 and mentioning therein that, the assessment made by the surveyor is arbitrarily and without personal inspection of the damage vehicle with an ill intension to harass the complainant.  The complainant supplied details of the expenses incurred for the repairing of the damage vehicle in a separate sheet. On 17.01.2017 the O.P No.1 has issued a separate letter vide No.BPT/493/2016-17 to the complainant annexed  with a separate addendum report as submitted by the surveyor Mr. S.C Senapati wherein the second  revised assessment of loss comes to Rs.2,90,000/- but the complainant is not at all  satisfied with the assessment as made by the surveyor alleging that, the surveyor never visited the damaged vehicle at the work shop where the repairing work was going on , so also the surveyor report is silent about the reason that, why there were some enhancement in the revised survey report ? It is further submitted that, though, there  is  a provision of appointment of separate surveyor in case where insured is not satisfied with the assessment of the surveyor but it was ignored by the insurer is a clearly proved the   deficiency in service on the part of O.Ps. The complainant claims that, he has incurred Rs.8,55,500/- for repairing of the damaged vehicle/Bus but till date his claim has neither been settled nor disbursed for which the complainant has been suffering financial loss and mental agony. On dt.10.03.2017 the complainant has already replied the letter of the O.P No.1 vide No.BPT/541/2016-17 dt.28.02.2017 but the O.P No.1, instead settled the matter had again issued one letter vide No.BPT/100/2017 dt.23.06.2017 to the complainant by threatening him to furnish some paper otherwise the claim of the complainant would be close . The complainant has further stated that, he has visited the O.ps time & again to settle the claim and also wrote many request for settlement of his  claim but the O.ps repudiate his claim without appointing another competent  surveyor is clear instance of negligence, deficient service and unfair service on the part of O.ps. I t is further submitted that, the  cause of action for this complaint  arose on 23.06.2017 when the O.P 1 issued the letter vide No.bpt/100/2017 dt.23.06.2017 to the complainant as such complaint is in time & well within the jurisdiction of this commission . . To substantiate his claim the complainant has filed the copy of the following documents:-

1. Copy of the Registration Certificate along with the copy of Smart Card of the Bus bearing Regd . No. OR 08 G 9992.
2. Copy of the Insurance Certificate of the Bus bearing Regd No. OR 08 G 9992 vide policy No. 346001/31/2016/184.
3. Copy for the plain paper and formal FIR in connection with Ps case No.128/2015 Dt.17.05.2015 of Kesinga Police Station.
4. Letter Vide No.SCS/L/126/15-16 Dt.12.10.2015 issued by the Surveyor and loss assessor for the finalization of the assessment.
5. Letter Dt.29.10.2015 issued by the complainant for the non acceptance of the Assessment as furnished by the surveyor.
6. Xerox copies of the postal receipts Dt.29.10.2015
7. Copy of the final survey report Dt.19.11.2015
8. Letter Dt.08.12.2015 issued by the complainant intimating the completion of the repairing work.
9. Letter vide No.BPT/391/2015-16 Dt.09.12.2015 issued by the O.pp No.1.
10.  Copy of reply letter Dt.15.12.2015 issued by the complainant.
11. Copy of the reminder letter Dt.03.06.2016 issued by the complainant along with the estimate of the repairing expenses.
12. Letter vide No,BPT/493 /2016-17 Dt.17.01.2017 issued by the Opp No.1 along with the Addendum Report Dt.2312.2016.
13. Letter vide No. BPT/541/2016-17 Dt.28.02.2017 issued by the Opp No.1
14. Copy of the reply letter Dt.10.03.2017 issued by the complainant.
15. Letter vide BPT/100/2017 Dt.23.06.2017 issued by the Opp No.1.
16. Original Bill vide No.508 Dt.21.09.2015.
17. Original Bill vide No.127 Dt.25.11.2015
18. Original Bill vide No.88 Dt.19.12.2015

5.  On being noticed, the Ops /Insurer appeared through their learned advocate Mr. S. K .Behera and filed their written version denying the complaint allegation on all its materials particulars.
6. The Ops submitted that, as per the insurance policy vide policy certificate No.346001/631/2016/184 where the insured declare value (IDV) of the alleged vehicle was Rs.9,44,444/- and the liability of the insurer is limited to the terms & condition of the policy . The Insurer  /O.Ps have  asked  the complainant to prove the alleged accident and loss caused to the insured vehicle by submitting valid documentary evidence. It is submitted that, insurance policy cover the damages caused to the insured vehicle due to accident and it does not cover the defects arises out of day to day running of the insured vehicle . It is further contended that, the alleged bus was already in defective condition for which the complainant had obtain permission from the RTO Kalahandi vide Office order No.770 dt.16.05.2015 to shift the said bus from Bhawanipatna to Bolangir within a period of 16.05.2015 to 15.06.2015 for repairing , Body building/Engine work with a condition that the Bus should not be exceeding speed limit of 30km/ph but due to rash, negligent and speed driving of the driver the accident was occurred which clearly a violation of the condition of the permission issued u/s 66 of MV Act 1988. The matter of the accident was also not informed to the insurer immediately and without consent of the insurer the complainant had shifted the But to the workshop for which the insurer get no opportunity for  inspection of the alleged vehicle at the spot of the accident. It is submitted that, soon after receiving the intimation regarding accident of the alleged vehicle the insurer had deputed one Er. S.C Senapati, a register expert surveyor & value assessor    in the field of  assessment of loss, to assesses the loss  cause to the insured. The surveyor has properly assessed  the loss and submit his report . He has never compelled the complainant to put signature on any assessment sheet which the complainant has taken false plea in this case without any evidence on record. The surveyor visited the alleged vehicle on 07.06.2015 and on 07.08.205 in presence of insured. He has submitted his inspection report but in pursuance to a request letter of the complainant dt.29.10.2015 the O.Ps deputed Er. Balkrushna Patra, a register surveyor & loss assessor, who had physically conducted re-inspection survey of the alleged vehicle on 18.12.2018 in presence of the insured and basing on the report of the Er. Balkrushna Patra and to the satisfaction of the complainant addendum survey report was prepared by the expert surveyor on 23.12.2016 and net revised assessment of loss comes to Rs.2,90,000/- but the complainant has disputing the said second & final report with a malafide  intention by submitting false & fabricated self manufactured details of expenses in order to get excess amount of compensation . The insurer is ready to release insurance benefit as per the revised assessment of loss i.e Rs.2,90,000/- vide addendum survey report  dt.23.12.2016 for which issued request letter 28.02.2017 and 23.06.2017 to the complainant to provide vehicular document with original bill/cash memo for verification & further  proceeding to settle the claim but it was not responded by the complainant. Complainant has never issued any reply letter to the O.ps on 10.03.2017 . It  is a false allegation rather, delay in settlement of claim is only due to negligence & non cooperation on the part of complainant by not responding to said request letter for production of relevant documents issued from the side of O.ps . it is further submitted that, there is no cause of action and this complaint is filed beyond the  limitation period as prescribed under C.P Act. It is furether submitted that, the document filed by the complainant vide SL No. n,p,q,r of the complaint petition are false, self manufacturing documents as may not be taken as evidence in this case. The repairer and driver of the alleged vehicle are the necessary party as such case is bad for non-joinder of necessary party . It is further submitted that ,there is no negligence or deficiency of service or unfair trade practice on the part of O.ps hence complaint is not maintainable liable to be dismissed with cost. To substantiate their claim the O.ps have  filed the copy of permission order vide No.770 dt.16.05.2015 issued to Manas Ranjan Das by the RTO, Kalahandi. Copy of survey report on dt.19.11.2015 & addendum survey report on dt.23.12.2016 submitted by registered surveyor Er. S.C Senapathi.
7. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation. Here in this case neither the averments of the complaint petition are supported by any affidavit of the complainant nor the complainant has ever filed any evidence on affidavit as prescribed under C.P.Act to proved his case though sufficient opportunities has been given to him .
8. The complainant has claimed that he has spent Rs.8,55,500/-for repairing of damage caused  the accident vehicle but non  examine to prove such expenditure incurred to  repair the damaged  caused to the vehicle on the other hand honoring the request of the complainant the insurer has  deputed surveyor for second time to reassess the loss with the help of Er.Batakurshna Patra upon which the loss was re-assess and  finally rest at Rs.2,90,000/-accordingly the final addendum survey report is submitted on  dt.23.12.2016 by registered surveyor Er. S.C Senapathi. Though this final addendum survey report submitted on dt.23.12.2016 is disputed by the complainant but he has failed to prove any fraud or mischief played by the surveyor in any manner while assessing the loss as such it remain un-rebutted.
9. Law is well settled that the surveyor is an expert and its report stand on the footing of expert evidence. Relying  on the judgment of the Hon’ble Supreme Court passed in Sri Vankatesware Syndicate Vrs. Oriental Insurance Company Ltd.(2009)8 SCC 507 and Khatema Fibres Ltd. Vrs. New India Insurance Company Ltd.(2021) SCC  818 ,we are of the opinion that, addendum survey report submitted on  dt.23.12 16 is to be given due importance.
10. .Loss caused to the complainant due to accident of his insured vehicle but insurance benefit is not yet released by the Ops even after receiving of the final   surveyor report  dt.23.12.2016 where the loss assessed  at Rs.2,90,000/-against the claim of Rs. Rs.8,55,500/-as such there is sufficient cause of action continuing to bring this complaint and complaint is maintainable under Consumer Protection Act 2019 .
11. .Hence, in the light of above said discussion and settled principle of law we are of the considered view  that the complainant is entitled for insurance benefit and the Opposite Parties have neglected for settlement of claim as such we are of the opinion that , the Ops are deficient in service. The  complainant in this case  is entitle for the loss as assessed by the surveyor i.e. Rs.2,90,000/-only and further he is entitle for the interest @ 9% per annum over the said amount since  dt.23.12 16 i.e  the date of final assessment of loss along with litigation expenses of Rs.10,000/-. Accordingly ,the Ops are directed to pay the said amount to the complainant within four weeks from the date of received of this order failing which the Ops are liable to pay 18% interest over the awarded amount till its realization.
12.  This consumer Complain is partly allowed in the above terms against the ops on contest .

  Dictated & corrected by me.

       President.                                                                       

I agree.

                       Member.                             President               

Pronounced in open forum today on this 19^th January 2023  under the seal and signature of this Commission .The pending application if any is also stands disposed off accordingly.

Free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order receipt from this Commission. Order accordingly.

                      Member                                     President