West Bengal

Siliguri

CC/2012/109

1) JASBINDAR KAUIR, - Complainant(s)

Versus

THE BRANCH MANAGER, New India Assurance Company Limited, - Opp.Party(s)

28 May 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 109/S/2012.                DATED : 28.05.2015.                 

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS              : SMT. PRATITI BHATTACHARYYA &

                                                              SRI PABITRA MAJUMDAR.

 

COMPLAINANT                      : JASBINDAR KAUR,

                                              W/O S. Harchand Singh,

  Having place of residence at

  C/O Kartar Garage, 2^nd Mile,

  Sevoke Road, P.O.- Siliguri,

  P.S.- Bhaktinagar, Dist.- Jalpaiguri. 

                                                           

 

O.Ps.           1.                THE BRANCH MANAGER,     

                                                 New India Assurance Company Limited,

                                                Malhotra Towers, 2^nd Floor, Hill Cart

 Road, P.O. & P.S.- Pradhan Nagar,

 Dist.- Darjeeling. PIN Code – 734 003.

 

                             2.                 KARTAR GARAGE,  

                                                 Opposite Bazar Kolkata,

                                                 Sevoke Road, Siliguri,

                                                 P.O. & P.S. - Siliguri, Dist. – Darjeeling.

                                                                                                                                                                       

FOR THE COMPLAINANT         : Sri Monojit Roy, Advocate.

FOR THE OP No.1                         : Sri J. P. Pawa, Advocate.

 

JUDGEMENT

 

The complainant’s case succinctly summarized as follows :-

The complainant purchased a motor vehicle insurance policy with respect to her vehicle no.NL-01-D-5452.  Same was valid from 22.03.2008 to 21.03.2009.  On 08.03.2009 at about 1 p.m. the vehicle suffered by an accident.  On 29.03.2009 complaint was lodged to Kotwali P.S. A case under Section 279/338/304A was started.  The vehicle was seized from the spot by a seizure list.  The G.R. Case No.752/09 was

 

Contd......P/2

-:2:-

 

 

instituted.  The vehicle was taken to OP No.2 for repair of the said vehicle.  Estimated cost was Rs.4,70,587/-.  The towing cost was Rs.5,500/-.  After that the complainant requested the OP No.1, along with necessary documents to reimburse his legitimate claim of Rs.4,70,587/-, but the same was not paid.  Till the date of filing no such claim has been reimbursed by OP No.1.  The further case of the complainant is that complainant sent legal notice to the OP No.1 requesting to disburse the claim amount of Rs.1,04,500/- instead of Rs.4,70,587/-, but no action was taken.

It is further case of the complainant that cause of action arose on 08.03.2009, 09.03.2009 and thereafter day to day when the I.C., Kotwali P.S. started a G.R. case under Section 279/338/304A and afterwards till the submitting legal notice.  Accordingly, the complainant prays for payment to be paid by OP No.1 as per Insurance Act, and Rs.50,000/- for compensation. 

The OP No.1 has filed written version denying inter-alia all the material allegations raised by the complainant. 

It is contended that complaint is frivolous and not maintainable.  The OP admits the insurance policy of the complainant with respect to the vehicle NL-01-D-5452, but subject to certain terms, conditions, exclusions etc.  It is further contended that after receiving the information of accident, surveyor namely Mr. Pranay Pal was appointed.  The surveyor filed report on 16.03.2009.  Final report was filed on 22.08.2010.  The OP took the plea that Engine number was modified for which there was no endorsement in the policy.  So, violation of settled principle of law debarred the complainant from getting any compensation. 

Further case of the OP is that relevant documents were not submitted by the complainant to the surveyor for which preparation of final report was not possible. 

Contd......P/3

-:3:-

 

The OP further states that after several notices on 17.07.2012 and 16.08.2012, the complainant did not supply the Tax token, Driving License, Police Report etc.

It is also case of the OP that the OP has neither repudiated the said claim nor yet closed the claim file as “No Claim”.  So, there is negligence on the part of the complainant who is not entitled to get any relief under the Consumer Protection Act, 1986. 

Complainant has filed the original following documents :-

1.       Insurance policy being policy no.512301/31/07/01/00010937.

2.       Complaint to the I.C. Kowtali P.S. dated 09.03.2009.

3.       Complaint to the I.C. Kotwali P.S. dated 16.03.2009.

4.       Seizure List in connection with Kotwali P.S. Case No.147/09 dated 09.03.2009.

5.       Order Sheet of CJM, Jalpaiguri in connection with Kotwali P.S. Case No.147/09 dated 09.03.2009.

6.       Estimate by the OP No.2 dated 18.05.09 amounting to Rs.1,04,500/-.

7.       Written communication dated 09.03.2009, 26.03.09 and 18.05.2009 to the OP No.1 by the complainant.

8.       Legal Notice dated 03.04.2012 under registered post with A/D. 

 

OP No.1 has filed the following documents :-

1.       Copy of the “Surveyor’s Final Report” dated 22.08.2010 ( Annx-1).

2.       Copy of the ‘Letter’ dated 17.07.2012 issued by the OP to the complainant (Annexure-2).

3.       Copy of the ‘Letter’ dated 16.08.2012 issued by the OP to the complainant. 

 

Points for decision

 

1.       Whether the complainant is able to prove his case that the OP No.1 was negligent or there was deficiency in service on their part.

 

Contd......P/4

-:4:-

 

 

2.       Whether the complainant is entitled to get relief as prayed for as laid down in Section 14 of The Consumer Protection Act, 1986. 

 

Decision with reason

 

So, from the both side’s cases shown in the complaint, and the written version, it appears that still dated the insured OP did not pay any amount to the complainant regarding loss of the said vehicle.  The surveyor was appointed by the OP insurance company for calculation of loss.  The surveyor has vividly calculated the total loss in four pages (Xerox copy), wherein at page no.4, which has been shows “if the Insured agree to accept any other mode besides the repairing basis then the claim could only settled on Cash loss on repairing basis worth Rs.1,80,392.00.  Which in my opinion lucrative for Insurer then the repairing basis assessment worth Rs.2,57,403.70.  However accept of the same is depends on final discretions of Insurer”.

The documents have been perused.  The circumstances, in which the accident took place also considered.  The age of the vehicle also considered.  The vehicle was used for livelihood same has been controverted by OP/Insurance Company.  The surveyor has assessed loss shown above.  Considered also the terms and conditions of insurance certificate.   

If the assessed sum by the surveyor is allowed, then parties shall be compensated regarding loss by accident.  Along with this sum, i.e., the claim amount would be given to the complainant, he is also entitled to get Rs.50,000/- for financial loss and mental agony. 

The complainant is also entitled to get litigation cost of Rs.5,000/-. 

The incident took place on 08.03.2009.  The complainant approached before this Forum on 04.10.2012.  It was the duty of the OP/Insurance Company to make arrangement for repairing the vehicle at

 

Contd......P/5

-:5:-

 

once, but that has not been done as per record.  Therefore, the OP shall pay interest @ 9% per annum since institution of this case till full payment. 

So, we are of the considered opinion that if above order is passed allowing the complaint, then the interest of the complainant i.e., consumer shall be protected better as per the spirit of the Consumer Protection Act, 1986. 

Hence, it is

                      O R D E I N E D

that the Consumer Case No.109/S/2012 be, and the same is hereby allowed on contest.

The complainant is entitled to get Rs.2,57,403/- (Two Lac Fifty Seven Thousand Four Hundred and Three rupees only) from the OP No.1/Insurance Company as per surveyor’s estimate for his insured vehicle.   

The complainant is also entitled to get Rs.50,000/- for financial loss and mental agony from the OP No.1. 

The complainant is further entitled to get Rs.5,000/- for cost of litigation from the OP No.1.

The complainant is also entitled to get interest @ 9% per annum since institution of this case, till full payment.

The OP No.1 is directed to pay Rs.2,57,403/- (Two Lac Fifty Seven Thousand Four Hundred and Three rupees only) by issuing an account payee cheque in the name of the complainant, as per surveyor’s estimate for his insured vehicle, within 45 days of this order. 

The OP No.1 is also directed to pay Rs.50,000/- by issuing an account payee cheque, in the name of the complainant, for his financial loss and mental agony, within 45 days of this order.

The OP No.1 is further directed to pay Rs.5,000/- by issuing an account payee cheque in the name of the complainant for his cost of litigation, within 45 days of this order.

 

Contd......P/6

-:6:-

 

 

The OP No.1 is further directed to pay interest @ 9% per annum since institution of this case till full payment.

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

-Member-                        -Member-                         -President-