Tripura

West Tripura

CC/14/12

Shri Habul Sarkar. - Complainant(s)

Versus

The Divisional Manager New India Assurance Company Ltd. - Opp.Party(s)

Mr.S.Bhattacharya.

08 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

        CASE NO:  CC- 12   of  2014

         Sri Habul Sarkar,
     S/O- Lt. Rakhal Sarkar, 
     Gandhighat Quarter Complex,
     Agartala, West Tripura.                .........Complainant.

     ______VERSUS_____

     The Divisional Manager,
     New India Assurance Company Limited,
     Agartala Branch,  
      West Tripura.                 ......Opposite Party.
    

                    __________PRESENT__________

 SRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

 

For the Complainant           : Sri Suman Bhattacharya,
                       Advocate.

        For the Opposite Party        : Sri G. S. Das and 
                              Sri Kushal Deb,
                              Advocates.

        JUDGMENT  DELIVERED  ON :  08.04.15.

J U D G M E N T

        This is an complaint U/S 12 of the Consumer Protection Act, 1986 (herein after referred to as 'the Act') filed by the complainant, Sri Habul Sarkar of Gandhighat Quarters Complex, Agartala against the O.P., namely The Divisional Manager, New India Assurance Company Ltd., Agartala Branch, West Tripura over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.P.
    
2.        The fact of the case as gathered from the record is that the complainant is the owner of the vehicle(jeep) of Tata Winger model bearing registration No. TR-01-C-4184. The vehicle was duly insured with the O.P. Insurance company with Insured Declared Value (IDV) of Rs.2,40,000/-. On 23.06.13 at about 6.30 AM, while the vehicle was moving from Usha Bazar to Agartala, it met with an accident near Bholagiri Ashram. To save a running auto rikshaw which suddenly turned towards the right direction without giving any prior signal, the driver of the subject vehicle pressed the brake heavily, for which it dashed against the back of a Maruti Alto Car that was proceeding in a slow motion at the same direction. As a result of the accident, the front part of the subject vehicle got badly damaged. Soon after the accident, the mater was reported to the officer-in-charge of East Agartala P.S. who recorded the gist of  information in the G.D. Book vide East Agartala P.S. G.D. Entry no. 1265 dated 22.06.13. After the accident the vehicle was placed with the dealer Rajarshi Motors Pvt. Ltd. for repairs. They prepared an estimate of expenditure for Rs.1,73,294/- being repairing charges. As the estimate of expenditure prepared by them appeared to be very high, the complainant got the repair works done by another repairer, namely 'Joyram Auto works' of Badharghat for Rs.1,19,040/-. After completion of the repairing  works the complainant submitted the bills to the O.P. Insurance Company for reimbursement. But inspite of repeated requests the O.P. insurance company did not settle the claim. Finding no other alternative, on 06.11.13 he served an advocate's notice upon the O.P. Insurance Company demanding release of the amount billed for within 15 days of the receipt of the notice. But they did not respond to his notice. According to the complainant, the conduct of the O.P. insurance company attracts negligence and deficiency in service. Hence, this complaint.

3.        The O.P. Insurance Insurance company contested the case by filing written objection stating, interalia, that the repairing costs claimed by the complainant appeared to be highly exorbitant. Moreover, some spare parts allegedly replaced by the complainant had no bearing with the resultant damage suffered by the vehicle due to accident. After receiving information as to the accident and having received the claim for payment of the amount towards repairing charges of the vehicle, they appointed a surveyor, Er. Bijan Chakraborty, to assess the loss of the vehicle who after due investigation submitted his report assessing the loss of the damaged vehicle as Rs.19000/-. As the complainant raised objection against the said report, they appointed another surveyor,  Sri Sanjoy Debroy, to review the loss suffered by the vehicle due to accident. Mr. Debroy, surveyor, by his report dated 06.03.14 assessed the loss of the subject vehicle as Rs.25,360/-. They issued a letter to the complainant on 07.02.14 together with a discharge voucher for releasing the said amount, but he did not accept the same. Further that, as per the terms and conditions of policy, the complainant is not entitled to the costs for replcement  of lamps, tyres/tubes, mudguard, bonnet, paint work of damaged portion only etc. unless payment of additional premium is made. It is alleged that the complainant taking the advantage of the accident had replaced some old parts of the vehicle which were not at all related to the accident. It is denied that they were negligent and deficient in rendering service in any manner whatsoever. 

4.        Neither the complainant nor the O.P. adduced oral evidence. On admission, the documents filed by the complainant with firisti were marked as Exhibit-1 Series and the documents filed by the O.P. along with the written objection were marked as  Exhibit- A Series.
        FINDINGS:

5.        The points that would arise for consideration  are:
        (I) Whether the O.P. committed any illegality by not settling the claim made by the complainant;
        (II) Whether the O.Ps are liable for deficiency in service.

6.        The admitted position in this case is that the subject vehicle met with an accident on 22.06.13 near Bholagiri Ashram on Agartala-Airport road and as a result of such accident the front part of the vehicle got badly damaged. The vehicle being a commercial vehicle was under the coverage of package policy of insurance with IDV of Rs.2,40,000/- with the O.P. Insurance company.

7.        It is the allegation of the complainant that he incurred total expenditure of Rs.1,19,040/- towards the repairing costs of the damaged vehicle as per estimate of expenditure furnished by the repairer, namely 'Joyram Auto Works' of Badharghat, Agartala. But the O.P. Insurance company arbitrarily offered him only Rs.25,360/- towards the repairing charges of the damaged vehicle. On the other hand, the O.P. Insurance Company controverted the plea of the complainant saying that the repairing charges claimed by him were not consistent with the damage actually suffered by the vehicle due to accident. Further that, some items of spare parts allegedly replaced by the complainant are not reimbursable as per provision of IMT 23. 

8.        As it appears, the complainant claimed Rs.1,19,040/- being the repairing charges of the damaged vehicle basing on the estimate of expenditure drawn by the repairer, namely 'Joyram Auto Works'. The estimate is a probable expenditure. This may be revised if increase occurs in the cost of labour and materials. Curiously, the complainant has not produced a single voucher as a proof of purchase of spare parts. The reason is best  known to him. On scrutiny of the estimate, we find that replacement of some parts of the vehicle were not at all consistent with the nature of damage sustained by the vehicle. From the complaint itself lodged by the complainant with East Agartala P.S. it is apparent that as a result of collusion only the front part of the subject vehicle got damaged. If so, it is not understandable to us what was the necessary for replacement of the rear bumper(LH) and rear bumper (RH), Serial no- 27 and 28 of the estimate voucher. Similar discrepancies also noticed with respect to replacement of some other items of spare parts. If the repairer of the vehicle was brought before the Forum as a witness by the complainant, the matter would have been made clear. 

9.        While arguing the case, the learned counsel for the complainant submitted that the O.P. Insurance Company can not take advantage of the provision of IMT 23 as referred to by the O.P. side for the reason that at the time of taking the policy the exclusion clause was neither communicated nor copy thereof furnished to the insured. In Revision petition No- 186/2007 (National Insurance Co. Ltd. Vrs. D.P. Jain) which was decided on  15.05.07 the Hon'ble National Commission held that it is mandatory for the insurance company to explain the terms and conditions of the policy and such certificate is required to be recorded for the advantage of clarity. In view of the above said decision rendered by the Hon'ble National Commission, the O.P. Insurance Company can not deprive the complainant from getting the costs of some of the replaced spare parts on the plea of non payment of additional premium under the provision of IMT 23. 

10.        It appears that having received the claim petition, the O.P. Insurance company appointed a surveyor, namely Sri Bijan Chakraborty to assess the loss of the damaged vehicle. The surveyor submitted his report on 13.09.13 assessing loss of the vehicle as Rs.19000/-. As the complainant expressed his dissatisfaction over the quantum of amount assessed by the said surveyor, the O.P. Insurance Company appointed another surveyor, namely Sanjoy Debroy to review the matter who after thorough investigation submitted his report on 06.03.14 assessing the loss of the damaged vehicle as Rs.25,360/- which has been accepted by the O.P. Insurance company. 

11.        On examination of the final survey report we find that the cost of the front repairing of the vehicle was assessed as sS.11,500/- and mechanical labour charges as Rs.1500/-. No explanation has been given by the surveyor for non accepting the repairing costs of Rs.25,000/- and mechanical labour of charges of Rs.5000/- as claimed by the complainant on the basis of the estimate of expenditure furnished by the repairer. In this view of the matter, we are not inclined to accept the costs of front repairing and mechanical charges of the damaged vehicle assessed by the surveyor. The surveyor in the  remark column of his report dated 06.03.14 stated that ''it is surprising fact that though the insured submitted a bill amounting to Rs.25000/- towards body opening, fitting and repairing charge, but the repairer did not dismantled the body according to the estimate and bill.''  We are not in agreement with the abovesaid observation of the surveyor because of the fact that the earlier surveyor, Sri Bijan Chakraborty, in his report dated 13.09.13 clearly stated that during physical inspection of the damaged vehicle it was found in dismantle condition. 

12.        For all the foregoing reasons,  except for the costs of front body repairing (bonnet, front casing and lower portion of the body) and mechanic labour charges assessed by the surveyor vide his report dated 06.03.14 (Annexure-C), the other part of his report towards assessment of the loss of the  damaged vehicle is found to be reasonable and accordingly it is accepted. It is needless to say that non- settlement  of the claim for considerable period without any justifiable cause constitutes negligence and deficiency in rendering service.

13.        In the result, therefore, the complaint U/S 12 of the Act filed by the complainant is allowed on contest. The O.P. Insurance Company is directed to pay Rs.30,000/- instead of Rs.13,000/- already assessed by the surveyor towards the front repairing and labour charges and Rs.12,800/- as costs of spare parts of the damaged vehicle totalling Rs.42,800/-(Rupees Forty two thousand eight hundred) to the complainant with 9% interest per annum from the date of presentation of the complaint before this Forum on 14.02.14 till the payment is made in full. The O.P. is further directed to pay Rs.3000/-(Rupees Three thousand) to the complainant towards mental agony and harassment with Rs.2000/- (Rupees Two thousand) as the costs of litigation.  

14.                  A N N O U N C E D

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 
SRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.    SRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.