Ld Advocates for the parties are present. Judgement is ready. It is pronounced in open Commissionin 4 pages 2 separate sheet of papers
BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant case is that the Complainant is a permanent inhabitant of above mentioned address within the District of Purba Medinipur and office of the O.P member is at above mentioned address within this jurisdiction. The Complainant purchased the schedule vehicle for his livelihood. The transport business is the only source of income for his family. The Complainant is the registered owner of the vehicle-no -WB29A 4573, Chassis MAT478012B9H24938 Engine Number of vehicle-497SP38HYY641513 .The Complainant manages the schedule vehicle very carefully, Dipak Manna, an experienced driver was the driver of schedule vehicle at the time of incident; he has valid license to drive the vehicle. The Complainant purchased the schedule vehicle by own capital for his livelihood purpose and he used the vehicle for the purpose of carriage of the public goods as hire basis. No financier was involved with this vehicle but erroneously and negligently O.P. entered the name of one financier. The Complainant purchased an insurance policy for the schedule vehicle from the O.P. bearing Policy No. 311900/31/2017/1060. At the time of incident schedule vehicle was under covered by schedule insurance policy of O.P. After payment of premium of insurance policy and fulfillment of all formalities by the Complainant O.P.issued the policy certificate, said insurance policy was valid from 18.08.2016 to 17.08.2017 midnight. On 12.04.2017 said driver parked the schedule vehicle at parking side of the road near Kolsar stoppage and went to attend nature’s call. At that time unfortunately said vehicle involved with an accident by another vehicle. After sometimes said driver returned and found that said vehicle was badly damaged due to accident by unknown vehicle. Owing to said incident/accident said vehicle was badly damaged, then and then said matter was informed to local police station also said matter was informed to O.P. over telephone. Owing to said incident/ accident the Complainant has fallen in a hardship and suffered a lot of financial loss & injury. After some days of the occurrence O.P. sent an officer/ surveyor to investigate and survey and matter of accidental damages in c/w the schedule vehicle. The surveyor as well as representative of O.P.visited to inspect the condition of schedule vehicle and advised the Complainant to submit quotation for repairing the schedule vehicle. As per advice as well as instruction of the O.P , the Complainant met with TC Motors (Authorised Service Station of TATA Motors) for repairing the schedule vehicle of the Complainant and said progress was orally informed to OP. The Engineer/Technician/Mechanics of TC Motors checkup the schedule vehicle and sent a quotation for repairing of schedule vehicle to the Complainant on 26.04.2017. The Complainant submitted said quotation which was supplied by the TC Motors, claim form and others documents to the O.P as per requirements of him. Total insurance value of the schedule vehicle is Rs. 2,25,000/- whereas cost of repairing is Rs. 5,93,265 + labour charges which is payable for repairing the schedule vehicle. In this case assess as total loss of the vehicle is better from repairing of the vehicle, because insurance value of the schedule vehicle is Rs. 2,25,000/- and cost of repairing is Rs. 5,93,265/- + labour charges & others charges. Owing to badly damages of vehicle and above mentioned causes as repairing charges is too much excess from the real value/insurance value of the vehicle, for the aforesaid valid reason the Complainant requested the OP as well as his surveyor/representative to send the claim amount to the Complainant either calculated as total loss value of the vehicle or to give Rs. 2,25,000/- as advance as insurance claim for repairing charges otherwise the Complainant would not repair the schedule vehicle. The Complainant upon the situation and condition of the vehicle elaborately discussed with the O.P member as well as well as his surveyor/representative and after discussion OP agreed to release claim calculated as total loss of the vehicle. The Complainant in several occasions visited at office of the O.P. and meet with the surveyor and request them to release the claim amount as early as possible but except oral assurance no fruitful result came out from the side of O.P. till now vehicle is standing in unrepaired condition and O.P. did not pay the claim amount. On 25.06.2018 the O.P. issued a letter to the Complainant which was received from office of the O.P said letter regarding repairing bill/cash memo in connection with the repairing of vehicle and information regarding latest status of vehicle, which was really illegal, false, incorrect, motivated, concocted, baseless and afterthought created one. The Complainant orally protest against above mentioned letter and further requested to O.P to release the claim amount to the Complainant and on dated 24.07.2018 submit an application with information regarding vehicle, latest status also the Complainant submitted hat he was unable to submitted the repairing bill/cash memo because said vehicle standing as unrepaired condition and request to O.P. for release the claim as total loss of vehicle. The Complainant further submitted policy certificate, copy of D/L and all others available documents including quotation of repair. O.P assured regarding claim of the Complainant and verbally informed to the Complainant that they shall pass the claim amount to the Complainant as early as possible but in vain. The Complainant several times meet with O.P. and request him to settle the claim amount, but only he orally assured to pay all the claim amount to the Complainant but in vain. The cause of action of this case arose on and from 25.06.2018 . The Complainant is in lot of financial crisis and suffering from mental pain and agony for unnecessary harassment and non-payment for claim amount by the O.P. The Complainant submits that the OP member is not interested in setting their genuine and legitimate claims which has caused grave loss and untold hardship to the Complainant for which Op is fully responsible and liable. Under such circumstances, the complainant humbly prays that the Commission may graciously be pleased to direct the Op for payment of claim amount of Rs. 2,25,000/- which is insurance value of schedule vehicle alongwith interest @ Rs. 9 % upon the claim amount, for compensation of Rs.50,000/- for harassment, mental pain and agony etc, for litigation cost of Rs.5,000/-, and for other reliefs as the complainant is entitled to get as per law and equity.
Notice of the case was duly served upon the op. The OP contested the case by filing Written version thereof. The sum and substance of the Written version can be stated as follows: It is stated that save and except which are specifically admitted in the written version no part of the complaint are deemed to be admitted by this O.P. The vehicle no WN 29A 4573 was insured by the company subject to the terms and condition. At the time of insurance the owner of the vehicle declared the value of the vehicle was Rs. 2,25,000/- After the information of accident this insurance company engaged surveyor and loss assessor, After survey Sri Chinmoy Mondal reported on 20.06.2017 that the net loss assessed Rs. 1,23,595/-. After the insurance company O.P. requested the complainant to start the repair the vehicle and the company will settle the claim after receiving the bill of repairing cost. The O.P. Insurance issued the letter on 27.07.2017, 17.08.2017, 24.08.2018 requesting to repair the vehicle and requesting to produce for re inspection the vehicle. As per insurance policy the insurance co. is not liable to aggravate the loss for non repairing the vehicle. Till now complainant did not arrange for repairing the vehicle. Without repairing the vehicle insurance co. cannot pay the loss as per policy condition. The complainant intentionally avoiding the terms and condition policy for obtaining Government Money with illegal way. In the above premises, the op submits that the instant case is liable to be dismissed with costs.
Points for determination are:
1. Is the case maintainable in its present form and in law?
2. Is the Complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused and assessed the complaint on affidavit of the complainant, written version filed by ops, evidence of both parties, and other documents viz copies of FIR, DL, insurance Policy and estimates of costs of repair Surveyors report on record.
We have given thoughtful consideration of the rival arguments of Ld Advocates for both parties.
Having regards had to the facts and circumstances of the case and evidence on record, it is evident that the complainant being a consumer has alleged deficiency in service against the op insurer ; the bundle of facts indicate that this case is maintainable in its present form and in law.
On scanning and evaluation of the evidence, it appears that the complainant has alleged on oath that the Complainant purchased an insurance policy for the schedule vehicle from the O.P. bearing Policy No. 311900/31/2017/1060. At the time of incident schedule vehicle was under covered by schedule insurance policy of O.P. After payment of premium of insurance policy and fulfillment of all formalities by the Complainant O.P.issued the policy certificate, said insurance policy was valid from 18.08.2016 to 17.08.2017 midnight. On 12.04.2017 said driver parked the schedule vehicle at parking side of the road near Kolsar stoppage and went to attend nature’s call. At that time unfortunately said vehicle involved with an accident by another vehicle. After sometimes said driver returned and found that said vehicle was badly damaged due to accident by unknown vehicle. Owing to said incident/accident said vehicle was badly damaged, then and then said matter was informed to local police station also said matter was informed to O.P. over telephone. Owing to said incident/ accident the Complainant has fallen in a hardship and suffered a lot of financial loss & injury. After some days of the occurrence O.P. sent an officer/ surveyor to investigate and survey and matter of accidental damages in c/w the schedule vehicle. The surveyor as well as representative of O.P.visited to inspect the condition of schedule vehicle and advised the Complainant to submit quotation for repairing the schedule vehicle. As per advice as well as instruction of the O.P, the Complainant met with TC Motors (Authorised Service Station of TATA Motors) for repairing the schedule vehicle of the Complainant and said progress was orally informed to OP. The Engineer/Technician/Mechanics of TC Motors checkup the schedule vehicle and sent a quotation for repairing of schedule vehicle to the Complainant on 26.04.2017. The Complainant submitted said quotation which was supplied by the TC Motors, claim form and others documents to the O.P as per requirements of him. Total insurance value of the schedule vehicle is Rs. 2,25,000/- whereas cost of repairing is Rs. 5,93,265 + labour charges which is payable for repairing the schedule vehicle. In this case assess as total loss of the vehicle is better from repairing of the vehicle, because insurance value of the schedule vehicle is Rs. 2,25,000/- and cost of repairing is Rs. 5,93,265/- + labour charges & others charges. Owing to badly damages of vehicle and above mentioned causes as repairing charges is too much excess from the real value/insurance value of the vehicle, for the aforesaid valid reason the Complainant requested the OP as well as his surveyor/representative to send the claim amount to the Complainant either calculated as total loss value of the vehicle or to give Rs. 2,25,000/- as advance as insurance claim for repairing charges otherwise the Complainant would not repair the schedule vehicle.
There is no dispute about the alleged accident and the facts that the Complainant purchased an insurance policy for the schedule vehicle from the O.P. bearing Policy No. 311900/31/2017/1060. At the time of incident schedule vehicle was under covered by schedule insurance policy of O.P. After payment of premium of insurance policy and fulfillment of all formalities by the Complainant O.P.issued the policy certificate, said insurance policy was valid from 18.08.2016 to 17.08.2017 midnight. Total insurance value of the schedule vehicle is Rs. 2,25,000/-; costs of repairing is Rs. 5,93,265 + labour charges which is payable for repairing the schedule vehicle. Owing to badly damages of vehicle and above mentioned causes repairing charges is too much excess from the real value/insurance value of the vehicle. The complainant has shown a justified reason for his inability to repair the vehicle. The Surveyor has also assessed the salvage value of the damaged vehicle. It appears from the Surveyor report that the surveyor remarked assessed damages are consistent with the nature of reported accidentHe finally assessed the Net loss at Rs.1,23,595/- .When the Surveyors are appointed under the Insurance Act their report can not be pushed aside. There is no credible evidence to discard the Surveyor’s Report, a main document basing on which claims settled. The op could have settled the claim on the basis of recommendation of the Surveyor . There is no correspondence from the op to settle the claim as per report of the Surveyor. As such, the op fell into the mischief zone of the deficiency in service by not settling the claim of the complainant. The complainant is entitled to get Rs.1,23,595/-alongwith interest @ 8% per annum from the date of filing of this case till realization in the nature of compensation and Rs.3000/- as towards litigation costs.
Both the points are disposed of accordingly.
Thus, the case succeeds.
Hence, it is
O R D E R E D
That CC/337 of 2019 be and the same is allowed on contest against the op.
The OP is hereby directed to pay Rs.1,23,595/-alongwith interest @ 8% per annum from the date of filing of this case till realization in the nature of compensation and Rs.3000/- as towards litigation costs within 45 days from the date of this order.
The complainant will be at liberty to put the order into execution as per law.
Let a copy of the judgment be supplied to each of the parties free of cost.
