Order no. 33.                                                 Date:17.08.2023.

Sri Apurba Kumar Ghosh….President.

The complaint has files this case against the OP praying for the following reliefs:-

 1. Direction against the OP to pay claim amount according to insurance policy of Rs. 5,72,980/-(five lakhs seventy two thousand nine hundred eighty) only to the complainant along with interest @ 24% per annum from 26.06.2011 till the date of makingpayment.

2. Direction against the OP for making payment of Rs.2,00,000/-(two lakhs) only to the complainant for immense mental harassment, agony caused to the complainant.

3. Direction against the OP for making payment of Rs.2,00,000/-(two lakhs) only as compensation for negligence and deficiency in service.

4. Direction against the OP to pay Rs. 15,000/- (fifteen thousand) only to the complainant as litigation cost.

The case of the complainant in brief is that he is owner of a vehicle namely TATA LPT 2515(TRUCK) being registration no. AS-01/U-7426 which was purchased by the complainant for earning/for his livelihood that truck was only source of living of the complainant/that vehicle of the complainant was insured from the period of 06.01.2011 to the midnight of 05.01.2012/ that vehicle of the complainant met with an accident on 26.06.2011 at around 4.30 am near Teesta Bridge resulting severe damages to the vehicle of the complainant/ on the same day the complainant lodged an FIR with Maynaguri Police Station/the complainant also lodgeda complaint before the opposite party over phone for this claim being no. 5123 003111 0190000037/ the surveyors namely Sri Mrinal Choudhuri and Sri Rjesh Rathi were appointed by the opposite party to investigate the claim but unfortunately at the relevant point of time the complainant was not present at his house, he went to Chennai for treatment of his sister. The further case of the complainant is that in the month of October 2012 the complainant received a repudiation letter issued by the opposite party on the ground of non submission of billsof repairs and stamp receipt for the payment made to the garage and cash memo for the parts replace/the complainant subsequently came to know that his staff had mistakeand submitted repairing bills not relevant to the said accident/the complainant wrote a letter to OP on 18.10.2012 requesting the OP for sanction of his claim/he submitted all the relevant bills voucher as well as other allied document related to the vehicle /on receipt of letter of the complainant the OP reopen the file and passed an order to that effect on 05.12.2012/ the OP appointed another surveyor namely Mr. A.P. Mitra /the complainant obtained the copies of entire case docket under Right to Information Act and on perusal of the documents it reveals that lastly on28.02.2014 the OP has issued a special claim note in respect of the complainant’s claim and recommended the settlement of the claim of Non Standard basis and without considering the documents, bills, vouchers, of the complainant the OP came to the conclusion of the settlement of claim on Non Standard basis for Rs. 88,411/-(eighty eighty thousand four hundred eleven) only/thereafter the OP neither process the claim nor has repudiated the claim/ The complainant has been living in dark suffering mental agony, harassment for the acts and omissions of the OP/ The calculation of the OP was absurd and as per documents provided by the complainant the estimated amount of loss would be Rs. 5,72,980/- (five lakhs seventy two thousand nine hundred eighty) only /The OP has thereafter neither paid any amount to the complainant nor have repudiated the claim and the claim of the complainant is pending for a long time/finding no other alternative the complainant issue a demand notice in the month of December 2016 to the OP on 10.12.2016 which was duly received by the OP on 13.12.2016 but the OP make no reply which is clear deficiency in service and unfair trade practice on the part of the OP.

In support of the complaint case the complainant files some document by a firisti namely:

Notice was issued upon the OP from this commission which was duly served on the OP. On receipt of notice the OP appears before this commission through Vakalatnama, file written version. By filing the written version the OP has stated that the complainant has no locus standi to file the instant case and only to extort excessive amount of compensation he files this case knowing fully well aware that no such cause of action arose for filing of this case.The OP denied all the allegations of the complainant and has stated that the complainant is not at all entitled to get the relief as prayed for.

The OP in his WV has stated that having receive the intimation of accident from the complainant the OP as per norms and regulations of the Insurance act and rules deputed an independent IRDA approved an Licensed surveyor Subhrendu Bhattacharjee for doing spotsurvey and after doing spot survey /after doing report to the OP/ on receipt of the information from the complainant on 26.07.2011 for final survey along with quotations of M/s M.B.Automobiles amounting to Rs. 4,93,980/- was given/ the Kolkata Regional office deputed in independent IRDA approved an Licensed Mr. Rajesh Rathi for assessing loss as per policy terms and conditions/the complainant and the surveyor Mr. Rajesh Rathi enter into an acceptance note and the Surveyor Rajesh Rathi duly Surveyed the matter, assed loss of Rs. 1,62,563/- + lifting and towing charges/ the OP received intimation on 11.11.201 from the complainant for re-inspection of the vehicle and the OP deputed in Independent IRDA approved and licensed surveyor Mr. Sandip Sarkar who also submitted his to the OP. The further case of the OP is that the OP received the bill for the parts of the vehicle of Bagrang Automobiles on 17.03.2012 and the garage bills of M/s M.B automobiles which was received on 28.03.2012 when the OP again appointed independent IRDA approved and the licensed surveyor Mr. A.P. Maittra to verify the bills on 09.05.2012/ after investigation the investigator submitted the report on 30.08.2012 disclosing that motor parts bill is self generated as no such shop under the name and style Bagrang Automobile found existing at printed address and regarding labour charges bill of M.B. auto mobiles they certified that the said bill neither issued by them nor received the amount quoted on the bill and based on the said facts the OP issued letter to the complainant on 10.09.2012 in intimating repudiation of the claim as the bill submitted by the complainant are false and manipulated, the OP closed the filed on 27.09.2012. The OP has also stated that the complainant again submitted letter to the OP on 17.09.2012 apologizing for the fake and manipulated bills and requested for payment of his claim and the OP issued a letter dt. 09.10.2012 to the complainant for his explanation for submitting false and manipulated bill, the complainant submitted his letter on 16.10.2012 to the OP admitting his mistake and requested for payment of his claim and finding the good gesture of the complainant the OP reopen the file on 13.12.2012, sent the file to Kolkata RO for approval of the claim, in reply Kolkata RO get a letter to the OP on 11.04.2013 with an advise the clarify the irregularities and lastly the OP showing the good gesture of the complainant approved the claim of Rs. 88,411/- as Non- Standard amount (25% deducted on Rs. 1,17,882/- and 75% is allowed) subject to satisfactory compliance of some documents. The OP has also stated that since that the complainant did not submit the documents to the OP and he filed this case for wrongful gain and to harass the OP and the OP has duly extended its best possible service to the complainant but the efforts were ended in vain for non compliance of submitting documents by the complainant and the complainant has failed to proved the deficiency in service on the part of the OP as well as unfair trade practice.

By filing the WV the OP praying for dismissal of this case as on their part there was no latches and there was no deficiency in service.

Having heard the Ld. advocate of the both the side and on perusal of the written complaint, written version of the OP, documents filed by the parties the following points are taken up for consideration by this commission.

POINTS FOR CONSIDERATION

1. Whether the complainant is a consumer as per the provision of C.P. Act. ?
2. Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. ?
3. Whether there is any cause of action to file this case by the complainant?
4. Whether there was deficiency in service on the part of the OP as alleged by the complainant?
5. Is the complainant has able to prove this case and entitled to get any relief as prayed for?

DECISION WITH REASONS

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

Argument of the complainant.

Ld. Advocate of the complainant during argument submits that, the complainant has been able to prove his case not only through his written deposition in the forms of an affidavit but also by providing valid documents in support of his case. He also argued that the complainant in his written deposition has specifically corroborated his case regarding the validity of the insurance policy, date of accident, intimation given to the OP within time regarding the accident. He also argued that, after the accident intimation was also given to the police authority of Maynaguri Police Station. It is also argument of the complainant that, the OP appointed Mrinal Chowdhury and Subsequently Rajesh Rathi to investigate the claim of the complainant but due to non-presence of the complainant in his house when he went to Chennai for medical treatment of his sister the OP company repudiated the claim in the month of October 2012. He also argued that,   again the complainant wrote letter to the OP on 18.10.2012 for sanction of his claim and again sent all the relevant documents to the OP and on receipt of that letter the OP Insurance Company reopen the file of the complainant and again the OP Insurance Company neither settled the claim of the complainant nor repudiate the claim. He further argued that, the complainant again by sending letter dated 04.01.2016 applied for the entire insurance  case document under the provisions of Right to Information Act, 2005 and the OP provided the same to the complainant wherefrom the complainant came to know that, the OP, dealt with the case in an illegal manner and the OP did not repudiate the claim nor allowed the same but on 28.02.2014 the OP issued a special claim note and recommended for settlement of the claim on Non-Standard basis and settled the claim for Rs. 88,411/-. It is further argument of the complainant that, since 28.02.2014 the OP has neither processed the claim further nor has repudiate the claim and thereafter the OP sent a letter to the complainant which was received by the complainant on 17.01.2017 where the OP insisted the complainant to receive the claim on Non-Standard basis. He also argued that the OP through letter dated 17.01.2017 acknowledged the claim of the complainant but to evade its legal liability to pay the full compensation taking false and baseless plea. It is also argument of the complainant that from the case docket received under RTI Act they came to know that, various recommendations have been made on various occasions and the amounts of recommendation vary from each other and final recommendation was made on 28.02.2014 when they recommended the claim for settlement on repair for Rs. 1,17,882/- but as per discussion held with DGM who advised for settlement of the claim recommendation on Non-Standard basis for Rs. 88,114/- after deducting 25% from the claim amount. It is also argued that, the OP without application of any law decreased the claim of Rs. 5,32,138/- to Rs. 88,411/- only on the verbal direction of the DGM which is itself an instance of unfair trade practice and deficiency in service of the OP.

Argument of the OP

Ld. Advocate of the OP Insurance Company during argument submits that the complainant has filed his case on some false allegations which is baseless, fabricated and motivated story to justify his unjust & unlawful claim against the OP. He also argued that the complainant is not at all entitled to get the claim amount from the OP as the complainant has filed his case by adopting false and vague pleas and as such the complaint is liable to be dismissed.

He further argued that, the allegations and the claim contained in the complaint as well as in the written deposition of the complainant against the OP, Insurance Company are totally false, fabricated, manufactured for the purpose of this case for his wrongful gains. It is also the argument of the OP that, the OP never adopted any unfair trade practice and there was no deficiency in service on the part of the OP rather the OP extended its best possible service to the complainant but all efforts were ended in vain for non compliance of submitting documents by the complainant.

Ld. Advocate of the OP further argued that, immediately after getting intimation of accident from the complainant the OP deputed an independent IRDA approved and licensed surveyor Subhvendu Bhattacharjee for doing spot survey, he after survey submitted report to the OP and thereafter Kolkata Regional Office of the OP deputed an independent IRDA approved and licensed surveyor Rajesh Rathi for assessing the loss as per policy terms & conditions and the Rajesh Rathi entered into an acceptance note and Rajesh Rathi after survey assessed the loss of Rs. 1,62,563/- + lifting & Towing charge.

It also the argument of the OP that, to extort huge amount of compensation form the OP, Insurance Company the complainant submitted the bills which are false and manipulated and there was no such existence of Bajrang Automobiles where from the complainant allegedly purchased motor parts. It is further argument of the OP that, the complainant submitted  a letter dated 16.10.2012 to the OP admitting his mistake and requested for making payment of his claim and the OP showing the good gesture of the complainant re-opened the file on 13.12.2012, OP sent the file to the  Kolkata Regional Office and thereafter approved the claim of Rs. 88,411/- only on Non-Standard Basis i.e. 25% deducted on Rs. 1,17,882/-.

Having heard the Ld. Advocate of both the sides and on perusal of the complaint, written version, evidence of the parties, documents filed by them and on perusal of the written notes of argument it is admitted fact that, the complainant is the owner of a TATA LPT 2515 (Truck) which was duly insured with the OP.

It is also admitted fact that validity period of the Insurance policy was from 06.01.2011 to the midnight of 05.01.2012. it is also admitted fact by both the parties that, the said Truck of the complainant met with an accident on 26.06.2011. It is also not denied by the OP that the complainant did not intimate the incident of accident to the them.

It is further admitted fact that the complainant lodged a complaint before the OP.

It is also fact that, the claim of the complainant has neither settled till today nor same has been repudiated by the OP.

It is also admitted fact that, the OP lastly approved the claim of Rs. 88,411/- only as Non-Standard Basis i.e. after deduction of 25% on Rs. 1,17,882/-.

From perusal of the documents filed by the parties it also reveals that, after getting intimation of accident of the vehicle the OP appointed several surveyors of IRDA approved and licensed for assessing the loss as per policy terms & conditions.

It also reveals that, the surveyor Rajesh Rathi appointed by the OP duly surveyed the matter and assessed the loss of Rs. 1,62,563/- + Lifting and Towing charges.

Thereafter as per Special Claim Report dated 24.01.2013 recommending the settlement of claim for Rs. 1,17,882/-.

Again on 28.02.2014 the OP issued a Special Claim note and thereby recommended the settlement of claim on Non-Standard Basis for Rs. 88,411/-.

From those recommendations it can be seen that, various recommendations have been made on various occasions and amounts of recommendation vary from each other. Accordingly it can safely be presumed that, the OP Insurance Company is not sure about the quantum of monetary loss sustained by the complainant due to that accident.

Lastly the Op approved a sum of Rs. 88,411/- as Non-Standard Basis. But why they calculated the amount as Non-Standard Basis has not been explained in this case.

On the other hand from the record it reveals that, the Kolkata Regional Office of the OP deputed an independent IRDA approved and Licensed surveyor Mr. Rajesh Rathi for assessing the loss as per policy Terms & Conditions and the complainant and the surveyor Mr. Rajesh Rathi enter into an acceptance note and the surveyor Rajesh Rathi duly surveyed the matter and assessed the loss of Rs. 1,62,563/- + Lifting & Towing charges.

It is fact that, the OP- Insurance Company had no objection/grievance against the loss assessment report of Mr. Rajesh Rathi.

It is also fact that, the complainant has also failed to substantiate the excess amount of loss than the loss assessment report of Mr. Rajesh Rathi. The complainant did not produce any documents to prove the fact that, he sustained loss more than amount of money assessed by Mr. Rajesh Rathi.

Considering all we are of the view that, the complainant has been able to prove its case to the effect that, there was deficiency in service and unfair trade practice on the part of the OP who deliberately did not settle the claim till today though the vehicle of the complainant met with an accident on 26.06.2011 which was within the effective period of Insurance Policy.

Hence, it is therefore,

ORDERED,

That, the instant Consumer Case being No. 13/2017 is hereby allowed in part on contest.

The OP is directed to pay a sum of Rs. 1,62,563/- (rupees one lakh sixty two thousand five hundred sixty three) only towards loss + Rs.5,000/-(Rupees five thousand ) only as lifting charge towing charges to the complainant.

The OP is also directed to pay a sum of Rs. 30,000/- (Rupees thirty thousand) only to the complainant for mental pain, agony and harassment caused by the OP.

The OP is also directed to pay Rs. 20,000/- (Rupees twenty thousand) only to the complainant for negligence and deficiency in service.

The OP is also directed to pay Rs. 5,000/- (Rupees five thousand) only to the complainant as litigation cost.

The OP is also directed to pay Rs. 10,000/- (Rupees ten thousand) only to the Consumer Legal Aid Account of this Commission.

The OP is also directed to pay the above stated amount within one month from this day along with interest @ 7% per annum to the complainant with effect from the date of reopening the claim file i.e. since 13.12.2012 till making payment of the entire amount I/d the complainant is at liberty to prefer execution application as per law.

Let a copy of this order be given to the parties free of cost.