Date of filing:-02/11/2015.
Date of Order:-04/08/2017.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM(COURT)
B A R G A R H
Consumer Complaint No.61 of 2015.
Rajendra Kumar Agrawal, S/o. Om Prakash Agrawal, aged about 41(forty one) years, R/o. Sohela Po/Ps. Sohela, District-Bargarh.
..... ..... ..... Complainant.
-: V e r s u s :-
The Branch Manager, Oriental Insurance Company Ltd., Bargarh Branch, represented through it’s Division Manager, At/Po/Ps./Dist:- Sambalpur.
..... ..... .....Opposite Parties.
Counsel for the Parties.
For the Complainant:- Sri B.Mishra, Advocate with other Advocates.
For the Opposite Party :- Sri P.K.Mahapatra, Advocate with other Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r(w).
Dt.04/08/2017 -: J U D G E M E N T :-
Presented by Sri K.P. Mishra, President:-
Brief Fact of the Case:-
In accordance with the Sec-12 of the Consumer Protection Act 1986 the Complainant has preferred to file the case pertaining to the deficiencies of service and unfair trade practice committed by the Opposite Parties as envisaged here under.
The case of the Complainant is that he being the registered owner of the vehicle, Tipper Hyva bearing Registered No. OD-17-B-4331 insured his said vehicle with the Opposite Party by paying a considerable amount of premium under Comprehensive/Package to the Opposite Party and was plying with the same by hiring a driver and was earning his lively hood out of the income of the same.
Further his case is that on Dt.23.02.2015, during the subsistence of the insurance period his said vehicle met with an accident on the N.H. near the Ekambra Chowk under the Bargarh Jurisdiction causing an extensive damage to it’s body and other parts too, for which immediately there after the Complainant informed the Opposite Party and the local police station and claimed before the Opposite Party as per the terms and condition of the policy.
Further on getting information and claim for the said damage of the vehicle the Opposite Party directed the Complainant to get it repair in their authorized service center at his own funds which would be reimbursed by them on production of the cash memo of the cost of the repair.
On the advice of the Opposite Party the Complainant took his said vehicle by towing to the authorized service Center of the company’s dealer namely the Maa Santoshi Infraventure (P) Ltd., Jharsuguda where the said service center gave him an estimation for such repair amounting to Rs.9,15,378/-(Rupees nine lakh fifteen thousand three hundred seventy eight)only but after completion of the repair he gave a bill for the repair for an amount of Rs 7,76,704/-(Rupees seven lakh seventy six thousand seven hundred four)only including the labour charges, accordingly issued Cash Memo on the payment of the said amount by the Complainant and further he paid Rs.11,800/-(Rupees eleven thousand eight hundred)only for towing the vehicle from the place of accident to the service center. And as such the Complainant submitted the bill, voucher of the same amount to the Opposite Party for reimbursement. On production the bill,voucher the Opposite Party assured him to pay him the same after the same being supervised, verified and approved by their higher authority, but to the utter surprise of the Complainant, the Opposite Party settled the claim for Rs.6,25,000/-(Rupees six lakh twenty five thousand)only as against his claim and the bill voucher submitted by him. To which the Complainant received discharge voucher of the said amount with protest, on being assured by the Opposite Party to make payment of the rest amount after being approved by their higher authority. But after that even after several reminder they did not pay any heed to that and avoided repeatedly with some or other pretext, which amounts to unfair trade practice and deficiencies of service, for which the case is filed before the Forum for redressal of his grievance, with a prayer for a direction to make payment of the aforesaid differential amount of Rs.1,63,000/-(Rupees one lakh sixty three thousand)only as he has already spent as per their direction, and Rs.50,000/-(Rupees fifty thousand)only against the compensation and beside that for litigation expenses. And in support of his case the Complainant has relied on some documents mentioned below.
R.C. Book of the vehicle.
Policy of the Vehicle.
S.D.Entry.
Estimate of service center.
Bill of service center.
Discharge Voucher of the Opposite Party.
Towing voucher.
On perusal of the Complaint, documents filed by the Complainant and on hearing of his counsel the Forum found it to be a genuine case as such admitted the same and sent notice to the Opposite Party for appearance and filing of his version if any, on receipt of the notice the Opposite Party appeared and filed his version, contending therein all evasive averments to the complaint.
The Opposite Party appeared in the Forum through his Advocate on Dt.30.12.2015 and filed it’s version on Dt.14.11.2016, in it, has claimed the case to be not maintainable, denying any deficiencies in rendering service to the Complainant besides that it has also challenged the maintainability of the case before the present Forum claiming the Complainant as not a consumer in view of the same vehicle was being used for commercial purpose .
In furtherance to it’s version it has claimed that since he has taken all possible measure and has settled the amount within seven months from the date of the claim and the Complainant has received the discharge voucher with out any protest for an amount of Rs.6,25,000/-(Rupees six lakh twenty five thousand only)as full and final settlement against the claim, as such is estopped from claiming for any amount further. Besides that has also claimed the case to be not maintainable in the present Forum and on other grounds also. And in substantiating his case has filed some documents relating to the appointment of loss assessor a qualified engineer as surveyor and other documents also, in addition to that has filed it’s notes of arguments through his learned counsel and claim to dismiss the case Under Section 26 of the Act.
Perused the complaint, documents of the Complainant and the version and documents filed by the Opposite Party and on hearing their respective counsels and also going through the note of argument placed before us by their respective counsels, some question of Laws and facts cropped up before us to adjudicate the case, which are mentioned below.
Whether the complainant is a consumer under the Consumer Protection Act 1986 ?
Whether the there is any deficiencies in rendering service on the Part of the Opposite Party ?
Whether the Complainant is entitle for the claim amount ?
While dealing with the first question of the issue we dealt with the matter, vividly going through the materials available in the record it reveals that the Complainant has purchased the said vehicle being financed by a financial company and has got it registered in the office of the R.T.A., Bargarh and also has insured the same with the Opposite Party by paying a considerable amount in comprehensive policy scheme of the Opposite Party, to cover the indemnification of the loss if incurred in case of any accident as such he is a bonafied consumer of the Opposite Party company, moreover it is revealed from the record that the same vehicle was used for commercial purpose for earning his lively-hood by hiring a driver and out of the income from the same he was maintaining his livelihood so in accordance of the Act Under Section 2(d)(ii) explanation he is a consumer and as such the case filed in the forum is maintainable, which has been supported by a decision of the Hon'ble Supreme Court of India in a case between United India Vrs Ajmer Singh and also has relied on many more decision and in it’s counter the Opposite Party’s counsel has also relied on a lot of decision of the Hon'ble Supreme Court and other court, but the decision which has been placed before the Forum are in a different footing and are not similar to the case in hand and also it is not possible to refer all the decision and analysis of the same here in a summary trial by the Forum and specially when there is no ambiguity in the matter of adjudication hence our views is expressed accordingly in favor of the Complainant.
Secondly while dealing with the question of the deficiencies in rendering service to the Complainant, it reveals from the materials available in the record that immediately after the said accident the Complainant has informed about the same to the police and also to the Opposite Party and on it’s advice shifted the damaged vehicle by towing to the Autorised service center by paying Rs.11,800/-(Rupees eleven thousand eight hundred)only from his own then asked for an estimation of the required repair of the same and the said service center estimated the total costs at Rs.9,15,378/-(Rupees nine lakh fifteen thousand three hundred seventy eight)only including labour charges but, after the required repair the costs of the same was Rs.7,76,704/-(Rupees seven lakh seventy six thousand seven hundred four)only and issued Cash Memo for the same amount, in addition to that the towing charges was included for Rs.11,800/-(Rupees eleven thousand eight hundred)only so the Complainant presented all the total cost of the repair for Rs.7,88,504/-(Rupees seven lakh eighty eight thousand five hundred four)only before the Opposite Party with the bill voucher of the same, but the Opposite Party sanctioned an amount of Rs.6,25,000/-(Rupees six lakh twenty five thousand)only and got it signed by the Complainant in it’s discharge voucher with an assurance to give the rest amount after consultion with their higher authority but till date took no step to that effect. Here the question is that had it been an undue expenses made as per the version of the Opposite Party then he could have produced the bill, voucher for the total estimate cost as enumerated by the service center but he has not done so but has submitted the actual cost incurred in the repair for which he has paid from his own source, moreover the plea of the Opposite Party regarding the deputation of the loss assessor and the Surveyor Engineer and their report it is not known to the Complainant and the report which has been submitted by them is based on presumption and notional enquiry made by them from the service center but against their such report, the service center has given the bill for the amount produced by the Complainant, who has undertaken the repair himself ,so in our view the report submitted by the loss assessor and the engineer regarding the actual cost of the same can not override the bill submitted by the service center,more over the said service center has not been proved to be known or having any prior acquaintance with the Complainant so that he could motivate him for a false or fictitious bill rather it is the Opposite Party who had advised the Complainant to get the said vehicle repaired in the said authorized service center and submit the bill which he had assured to reimburse. But on the contrary has denied it’s own commitment and has fixed an amount of his own which it’self is an unfair trade practice and deficiencies of service on their part, that apart, from such behavior of the Opposite Party it can be deduced that they have made the Complainant to sign the discharge voucher by giving false assurance which amounts to the afore said offenses as per the Consuemr Protection Act-1986, hence in our considerate view the further claim of the differential amount of Rs.1,63,000/-(Rupees one lakh sixty three thousand)only is a genuine one and as such our views goes in favor of the complainant.
Thirdly while dealing with the point of consideration regarding the entitlement of the amount claimed by the Complainant, it is clear from the materials available in the record the Opposite Party has not denied in any form at any time regarding the suggestion made by them to the Complainant to repair the said vehicle in the concerned authorised service center nor any of his deputed surveyor or loss assessor has ever restricted in the repair of the vehicle nor have objected to any expenses made by the time of repair, further more the Opposite Party has already made a considerable amount to the Complainant but by deducting differential amount without assigning any reason, further more the documents relating to the depreciation policy as enumerated by the Opposite Party is also not applicable in this case as the accident has occurred with in only three months of the insurance of the same vehicle, so keeping in view all the materials available before us we are of the logistic view that the complainant is very much entitle to the full amount of his claim, hence our views is expressed in favor of the Complainant. Hence Order follows.
O R D E R
Hence in view of the above facts and circumstances the Opposite Party is directed to pay the differential amount of claim of the Complainant amounting to Rs.1,63,000/-(Rupees one lakh sixty three thousand)only and Rs. 2,000/-(Rupees two thousand)only towards the physical and mental agony undergone by the Complainant with interest @ of 9%(nine percent) per annum from the date of the discharge voucher obtained from the Complainant till the date of Order within thirty days from the receipt of the order in default of which the total amount would carry an interest @ of 12% (twelve percent) per annum till the actual realization of the amount.
Accordingly the Order is pronounced in the open Forum allowing the complaint against the Opposite Party, and the case is disposed off.
Typed to my dictation
and corrected by me.
(Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree, I agree,
(Ajanta Subhadarsinee) (Sri Pradeep Kumar Dash)
M e m b e r. M e m b e r.
