THE PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA : AGARTALA

 

CASE No. CC- 13  of  2021

 

Sri Subrata Majumder,

S/O- Priya Ranjan Majumder,

Telkajla, P.O. Telkajla,

P.S. Melaghar,

District- Sepahijala,

Tripura- 799115. .................Complainant.

 

-VERSUS-

 

1. The Divisional Manager,

The Oriental Insurance Company Ltd.,

Hariganga Basak Road, Agartala, 

P.O. Agartala, P.S. West Tripura, 

Tripura West, Pin- 799001.

 

2. Oscar Motors Pvt. Ltd.,

Ford Chennai Plant and Registered Office, 

Ford India Pvt. Ltd.,

S.P. Koil Post, Chengalpattu-603204. …............Opposite party.

 

 

     __________PRESENT__________

 

 SRI RUHIDAS PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION

      WEST TRIPURA, AGARTALA. 

 

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

 

C O U N S E L

 

For the Complainant : Sri Amritlal Saha,

  Sri Kajal Nandi,

  Smt. Manisha Chakraborty,    

  Learned Advocates.

  

For the O.P. No.1 : Sri Prahlad Kr. Debnath,

     Learned Advocate.

 

For the O.P. No.2 : Sri Anupam Baidya,

   Learned Advocate.   

 

 

JUDGMENT  DELIVERED  ON : 14.09.2022.

 

 

J U D G M E N T

The Complainant's case in short is that the complainant purchased a car namely Ford ECO Sport 1.5 Pe Ambiente(petrol) on 11.10.2017 from Oscar Ford, Agartala, on payment of Rs.7,31,000.00/-. The said vehicle was insured  with the Oriental Insurance Company Ltd. for the period from 11.10.2017 to 10.10.2018. The complainant paid premium of Rs.20,553 to the O.P. No.1, the Insurance Company. It is stated by the complainant that on 06.11.2017 the car met with an accident and the car was seriously damaged. He informed about the accident to Birganj Police Station on 06.11.2017 and also informed to the same over phone to the O.P. No.1 Insurance company on the same day. Also gave written intimation to the Insurance company on 07.11.2017. The O.P. Insurance company sent their surveyor  for spot verification. O.P. advised the complainant to send the car to the workshop for repair.  Then on 09.11.2017 the car has been handed over to the O.P. No.2 for necessary repairing. O.P. provided estimate of Rs.3,22,305/- and another estimate  of Rs.1,58,251/- but the Oscar Motors asked to pay 50% advance of the repairing estimate and also claimed @ Rs.500/- per day. As the vehicle was purchased with the finance the complainant was unable to bear the advance cost claimed by the O.P. No.2. It was informed by the O.P. No.2 that the repair will be completed within 20 to 25 days. Despite of advance amount of Rs.2,05,000/- by the complainant the vehicle was not handed over to the complainant after repairing. After visit to the O.P. No.2 it was found that the repairing work was not complete. It was observed that the AC, speaker was not functioning, wheel cap was broken, window grip was tempered, battery was fully down etc. etc. again the O.P. No.2 claimed Rs.16,000/- extra for the repair works beyond estimate. On 07.01.2019 after receiving the full payment of Rs.4,65,667/- O.P. No.2 handed over the said vehicle to the complainant on 07.01.2019. The complainant  filed claim form with all vouchers to the O.P. Insurance company. O.P. Insurance company informed to the complainant that an amount of Rs.2,68,000/- has been sanctioned against the claim for Rs.4,65,667/- for repairing of the damaged insured car. The complainant wanted to receive the sanctioned amount with objection but the O.P. Insurance company did not agree to make any payment in case the complainant would put his signature with objection. He was compelled to receive the offered amount of Rs.2,68,000/- but the balance amount of Rs.1,97,667/- has not been paid despite demand. On the basis of the vouchers complainant claimed Rs.4,65,667/- from the insurance company. Therefore, the complainant filed this complaint before this commission to get the balance amount of Rs.1,97,667/- with interest and compensation for causing mental agony, harassment and sufferings  and also huge financial loss due to the fault of the O.Ps.        

 

2. O.P. No.1 appeared and contested the claim by way of submitting Written objection. In their written objection  it is stated that an amount of Rs.2,68,000/- has been sanctioned in the instant claim and the said amount has been sanctioned by dint of discharged vouchers dated 11.06.2019 wherein the complainant voluntarily received the amount in full and by way of settlement of all claims present or future arising directly or indirectly in respect of the said loss in accident and thus there is no cause of action for filing this complaint. There is also no negligence and deficiency in service in settlement of the claim of the complainant and thus complaint is liable to be dismissed.

  O.P. No.2 also appeared and filed written statement denying the allegations of the complainant made in his complaint petition. O.P. No.2. in their written statement stated that the complaint petition is not maintainable and liable to be dismissed. The complainant received the vehicle after being fully satisfied with the repairs and issued satisfaction note. The O.P. No.2 has nothing to do either with the alleged loan taken by the complainant or with the repair of the said car as the Dealer Oscar, Ford being the service centre was liable for repair of the said car in terms with the dealership agreement entered into between the O.P. and the authorized dealer. As per information with the O.P. No.2 the sum of the Rs.16,000/- was waived by the dealer M/S Ford. It is denied by the O.P. No.2 that the complainant is entitled to get Rs.1,97,667/- from the O.P. M/S Ford India Pvt. Ltd. There is no negligence or deficiency on the part of the O.P. No.2.

3. EVIDENCE ADDUCED BY THE PARTIES:-

The complainant submitted his examination in chief on affidavit as P.W.1. Also submitted 13 documents which have been marked as Exhibit- 1 Series. 

On the other hand O.P.  also submitted examination in chief of one Gopal Krishnan, Divisional Manager of Oriental Insurance Company as D.W.1. Also submitted 2 documents which have been marked as Exhibit- A Series. 

4. POINTS TO BE DETERMINED: - 

(ii) Whether there is deficiency of service on the part of the O.Ps?

  (iii) Whether the complainant is entitled to get compensation/ relief as prayed for?

5. ARGUMENTS: - 

We have heard argument of both sides. At the time of argument Learned counsel of the O.P. No.2 remained absent. Mr. Kajal Nandi for the complainant submitted that there is no dispute about the accident of the vehicle. O.P. No.2 has given repairing estimate on 18.11.2017 for Rs.3,22,305/-  and another estimate on 15.12.2017 for Rs.1,58,251/-. On 24.11.2018 it was informed by the O.P. No.2 that the vehicle was ready but after visiting the workshop complainant found the repairing was not completed.  On 07.01.2019 after receiving full payment of Rs.4,65,667/-, O.P. No.2 handed over the repaired vehicle. And thereafter complainant submitted filled up claim form with the O.P. Insurance company. But Insurance company sanctioned only Rs.2,68,000/- instead of Rs.4,65,667/-. Complainant was compelled to receive the offered amount but for the balance amount of Rs.1,97,667/- this complaint was filed by the complainant before this Commission. Mr. Kajal Nandi relied upon some decisions of the Apex Court as well as the National Commission. 

On the other hand, Mr. P.K. Debnath for the O.P. No.1 submitted that the complainant did not submit final bill. An amount of Rs.2,68,000/- was sanctioned as per Surveyor Report and the amount was received by the complainant after satisfaction without objection. Since complainant received the amount without any objection there is no cause of action for filing the complaint. He further submits that it is settled law that Consumer Court has no jurisdiction to disagree with the assessment made by the surveyor. He further submitted that this is not the case of total repudiation of the claim and in that case the jurisdiction of a special Forum constituted under the C.P. Act is limited. So, the complaint is liable to be dismissed. 

 

6. FINDINGS  AND  DECISION:-

                   Both the points are taken up together for convenience. We have gone through the complaint as well as the written statement, also the evidences adduced from both sides. It is admitted fact that complainant has received Rs.2,68,000/- which was sanctioned by O.P. No.1 though claim was for Rs.4,65,667/-. At para 9 of examination in chief of affidavit submitted by the complainant it is stated that he wanted to received the sanctioned amount with objection and Insurance Company did not agree to make payment with objection, thus he was compelled to receive  the offered amount of Rs.2,68,000/- without writing objection. Except this oral testimony no other documentary evidence is adduced by the complainant about his objection. 

On the other hand, one Gopal Krishnan, Divisional Manager of O.P. No.1 in his examination in chief on affidavit at para 2 stated that the sanctioned amount of Rs.2,68,000/- was received by the complainant voluntarily and it was received in full and by way of settlement of all claims present or future arising directly or indirectly in respect of the said loss in accident. We do not accept the oral testimony of the complainant in respect of fact that he was compelled to receive the amount and he wanted to raise objection. On appreciation of the evidence, we find that the complainant voluntarily accepted the sanctioned amount in full and final settlement of the claim. 

We have also gone through the decisions relied upon by Mr. Kajal Nandi. Decisions are not befitted with this case. Rather these decisions are supporting  the case of the O.P. No.1. Hon'ble Apex Court in Khatema Fibres Ltd. Vs. New India Assurance Co. Ltd. & Ans. (In Civil Appeal No- 9050 of 2018) vide judgment dated 28.09.2021 at para 31 hold that ''This is not a case where the Insurance Company has repudiated the claim of the appellant arbitrarily or on unjustifiable grounds. This is a case where the claim of the appellant has been admitted, to the extent of the loss as assessed by the Surveyor. In case of this nature the jurisdiction of the special forum constituted under the Consumer Protection Act, 1986 is limited. Perhaps if the appellant had gone to the civil court., they could have even summoned the Surveyor and cross examined him on every minute detail. But in a complaint before the Consumer Forum, a consumer can not succeed unless he establishes deficiency in service on the part of the the service provider.'' And also at para 38 hold that ''A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor's report to forensic examination of its anatomy, just as a civil court could do. Once  it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.''

From the above decisions it has been crystal clear that this Commission can not interfere the Surveyor's Report which is a basic document and which has statutory recognition. 

In view of the above findings and the decisions, we hold  that the complaint is devoid of merit. Accordingly, it is dismissed. No costs.  

 

Announced.

 

SD/-

SRI R. PAL

PRESIDENT, 

DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA, AGARTALA. 

 

 

SD/-

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.