In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/91/2021.

Date of filing: 23/07/2021.                     Date of Final Order: 06/12/2023.

Shri Snehasis Mukherjee,

s/o Late H.S. Mukherjee,

r/o P.O. and Vill. Debanandapur,

P.S. Chinsurah, Dist. Hooghly, PIN. 712123.                         …….complainant

  -vs  -

1. The Divisional Manager,

National Insurance Company Limited,

Chandernagore Divisional Office,

147/128, G.T. Road, Bagbazar (East),

P.O. and P.S. Chandernagore,

Dist. Hooghly, PIN. 712136.

2. The Manager,

National Insurance Company Limited,

3 Middleton Street, Prafulla Chandra Sen Sarani, Kolkata. 700071.

…….opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                           Member,  Debasis Bhattacharya.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant is a registered owner of the vehicle being registration no. WB16AJ1816 which is Wagnor car of Maruti Suzuki Company and the complainant availed an insurance policy from the op no. 1 vide insurance policy no. 15360031206160002929 and claim no. being 153600312095426581 and the complainant paid premium regularly without any fault and the said policy was “First Party Insurance” with a total vehicle IDV amounting to Rs. 2,09,992/-. Unfortunately on 18.12.2020 the car met with an accident and the complainant was compelled to shift his car to “Friends Motors” for servicing and repairing the damage caused by the accident and the complainant submitted a letter of claim along with estimated cost of repairing/ servicing of Rs. 15,780/- to the op on 21.12.2020 and claimed the said amount. The complainant was intimated over phone that an inspection would be conducted by a surveyor on behalf of the op no. 1 and accordingly a surveyor of the op visited Friends Motors and complied with all formalities, clicked pictures, checked the documents of the car, verified the estimated bill and assured the complainant that the repairing and servicing charge would be Rs. 15,780/- or more. After completion of entire servicing and repairing of the damage at the Friends Motors the final bill was settled at Rs. 15,430/- which is lesser than the estimated amount along with all necessary documents and completing all formalities and on 18.1.2021 the complainant came to know from one of the staffs of the op no. 1 namely Mr. Tudu that op no. 1 has settled the claim after deducting more than 50% of the claim amount and then the complainant sent a legal notice to the op no. 1 claiming Rs. 15,430/- and further seeking clarification about the provisions of deduction and reimbursement and  op no. 1 replied vide a reply dt. 22.2.2021 that the final settlement of claim to be Rs. 6,153/-. After that the complainant replied on 22.2.2021 requesting the op no. 1 to reimburse the full claim amount and to provide satisfactory answers and op no. 1 vide reply dt. 5.3.2023 stated that the final settlement claim amount to be Rs. 5494/-.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 15,430/- and to pay a sum of Rs. 2,00,000/- as compensation and to pay a sum of Rs. 30,000/- as litigation cost.

Defense Case:-  The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that as the op no. 1 could not go beyond the just survey report and policy terms and conditions there was no scope for reimbursement of the full claim and every policy holder while gets the policy also gets the policy terms and conditions wherein the clause of depreciation is strictly expressed in writing so the op no. 1 was under no obligation to produce any further document and so the complainant is not entitled to any relief as prayed for and this case should be dismissed.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

      Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chinsurah, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

      All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that complainant is the registered owner of the vehicle Wagnor Car of Maruti car of Maruti Suzuki Company.
2. It is also admitted fact that the registration no. of the said vehicle is WB/16A/1816.
3. There is no controversy over the issue that the complainant has Insurance policy in respect of the above noted vehicle under OP-1.
4. There is no dispute over the issue that the said Insurance policy no. is 15360031206160002929 and claim no. being 153600312095426581.           
5. It is admitted fact that  the said policy was 1^st party Insurance company amounting to Rs.209992/-.
6. It is also admitted fact that  the OP-1 has its official place of business at Chinsurah Hooghly.
7. There is no controversy over the issue that on 18.12.2020 the above noted vehicle of the  complainant had come across with an accident and the said vehicle suffered damage.
8. There is no dispute over the issue that the complainant shifted the said vehicle to “Friends Motors” for servicing and repairing the damage.        
9. There is no controversy over the issue that the complainant had to pay Rs.15430/- to above noted “Friends Motors” as repairing charges.          
10. It is admitted fact that  the complainant had claimed the said amount from OP Insurance Company.
11. There is no controversy over the issue that the Op Insurance company repudiated the said claim and agreed to pay Rs.6153/- as per report of the surveyor.       
12. It is admitted fact that the complainant thereafter had sent legal notice to the Op claiming the above noted amount of Rs.15430/- but the OP insurance company had not paid the said amount. 

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that the Op Insurance company had not paid the claim amount to Rs.15430/- inspite of existence of valid Insurance policy but on the other hand the OP Insurance company has taken defence alibi that they are ready to pay Rs.6153/- as per report of the surveyor and there is no negligence or deficiency of service on the part of the Op Insurance Company.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the Op Insurance company in support of the report of Surveyor who is appointed by the OP Insurance company has failed to file cogent documents to justify that the complainant is entitled to get Rs.6153/- instead of Rs.15430/-.  But on the other hand, the complainant side by adducing oral evidence and also by placing cogent documents has proved that the complainant had to pay Rs.15430/- for repairing the damage of the above noted vehicle ;which was under the valid Insurance coverage under the OP Insurance company.  For all these reasons this District Commission is of the view that the complainant is entitled to get Rs.15430/- which is repairing charge of the above noted vehicle of complainant.  But fact remains that the complainant has failed to prove that he has suffered mental agony and pain for which he has claimed Rs.200000/-and for that reason this District Commission is not at all inclined to pay such compensation.  However, the complainant is entitled to get litigation cost of Rs.10000/- from the OP Insurance Company.

            A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly

ordered

that the complaint case being no. 91 of 2021 be and the same is allowed on contest but in part.

Opposite party nos. 1 and 2 are directed to pay the said amount of Rs.25430/- alongwith interest @ Rs.9% per annum  within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.