West Bengal

Dakshin Dinajpur

CC/9/2016

Aju Mandal - Complainant(s)

Versus

The General Manager Cholamandalam MS General Insurance Co. Ltd.,2nd Floor,Dare House, 2,NSC Bose Roa - Opp.Party(s)

Pradipta Kiran Sarkar

28 Feb 2023

ORDER

The instant case has been initiated by the complainant U/S – 12 of C.P. Act,1986 against the Opposite Parties claiming an amount of Rs. 4,07912 /- for repairing charges of the Tractor and litigation cost of the suit.

The fact of the case, in brief, is that the Complainant purchased one tractor being Registration No. WB – 61/9620 on 30.10.2012 from M/S Mahindra & Mahindra Ltd., Manaskamna Road, Malda – 732102 and purchased one Insurance Policy on 20.04.2015 from O.P.No.2 vide Policy No. 3380/00826589/000/00 for Rs. 4,50,000/- for the above mentioned vehicle covering own damage Insurance Policy as the Complainant is a consumer of the Opposite Parties U/S 2(d)(1) of the Consumer Protection Act,1986. When the said vehicle was going to cultivate the land at Mirjapur from his house at Najirpur under Gangarampur P.S., Dist.- Dakshin Dinajpur on 27.06.2015 at 04.00 A.M., the driver lost his control over the said tractor and fell down from Kalahar Bridge under Gangarampur P.S. and badly damaged. The Complainant informed the matter to I/C Gangarampur P.S. on 30.06.2015 and on the basis of said information Gangarampur P.S. started an M.A. Case No.1/15 dt. 04.07.2015 and seized the said vehicle along with vehicular documents on 04.07.2015. Thereafter, the Complainant  took an estimate from the Durga Machinery Mart authorized servicing Centre of Mahindra & Mahindra Ltd.(Fees & Swaray Division) Manaskamna Road ( Jhaljhalia ), Malda for repairing his tractor and gave an estimate of Rs. 4,07,912/- only on 05.08.2015 and the Complainant claimed the said amount to the Opposite Party No.1 and the opposite parties repudiated the said claim on 31.02.2015 as the driver has no effective driving license though he has valid license on the date of accident and for that reason the Complainant faced an irreparable loss and injury. Having no alternative the Complainant filed the instant case for relief as prayed in the plaint.

            Notice was duly served upon the opposite Parties and after receiving the notice, the Opposite Parties appeared before this commission and filed their written version.

            By filing written version, the Opposite Parties have denied that the driver of the tractor had valid driving license at the time of accident and the alleged accident is false and afterthought. It is also stated by the Opposite Parties that the Complainant has violated the terms and conditions of the Insurance Policy so, the Opposite Parties have repudiated the claim. They have also stated that the Complainant did not inform the Opposite Parties regarding the alleged accident forthwith after the accident within the reasonable time under terms and conditions envisaged of the policy. There is no cause of action for filing the instant case. The driving license produced subsequently by the Complainant, is a manufactured document. The offending vehicle was seized by the police after long lapse of seven days and the driver was unable to produce valid driving license at that time before the police. There is no deficiency in service on the part of the Opposite Parties nor the Opposite Parties have made any harassment to the Complainant .The instant case has been filed for illegal gain. Hence, the present case is liable to be dismissed.

To prove his case , the complainant has filed photo copies of

 (i) GDE lodged before Gangarampur P.S. dated 30.06.2015 

(ii)  Extract of the driving license of the driver Jagadish Roy

(iii) Certificate of registration of the tractor

(iv) Insurance policy of Cholamandalam MS General Insurance Co, Ltd.

( v) Seizure list 

( vi ) Estimate cost of damaged  Tractor.

                  On the other hand, the Opposite Parties have filed -

            (1) survey report on 26.07.2022  in support of their defense

            (2)Photo copy of filled up claim Form of the Complainant

            (3) Photo copy of driving license in the name of Jiten Roy

            (4)Photo copy of D.L. particulars of D.L. no.62/48516 

            (5)Photo copy of Insurance policy.

   In view of the above mentioned facts, the following points are cropped up for consideration -  

      POINTS FOR CONSIDERATION  

   

          1.  Whether the Complainant is a consumer to the Opposite Parties?

      2.  Whether there is any deficiency in service on the part of the Opposite parties?

      3.  Whether the Complainant is entitled to get any relief/reliefs as prayed for?

                                         DECISION  WITH  REASONS

          

            We have heard argument by Ld. Advocate for the both sides at length. We have also gone through the written examination–in–chief filed by both the parties. We have also gone through the written argument filed by both the parties.  Perused the other materials on record.   

            At the time of argument Ld Advocate for the Complainant narrated the fact of the case as mentioned in the plaint. He further submitted that at the point of admission stage, this Commission dismissed the complaint on 02.06.2016 on the ground that the driver of the tractor had no valid license at the time of accident. The Complainant , then preferred an appeal before the Hon’ble State Consumer Dispute Redressal  Commission, Kolkata vide First Appeal No. A/519/2016. The Hon’ble State Consumer Dispute Redressal Commission, Kolkata, after hearing the appeal on merit observed that the driving license of the driver was issued by the licensing authority on 28.06.2010 and it was valid up to 27.06.2016, while the accident was occurred on 27.06.2015 and for that reason hon’ble State Commission, Kolkata allowed the appeal and set aside the dismissal order dated 02.06.2016 of this District Commission and asked this Commission to dispose of the complaint on merit after issuing notice to the Opposite Parties. Accordingly,  notices were issued to the Opposite Parties. The Opposite Parties appeared before this Commission and contested the case. After hearing both sides on merit this Commission came to a conclusion that the Complainant raised the claim after six months from the date of accident and the claim of the Complainant was rightly repudiated by the Insurance Company and the consumer complaint was dismissed on 14.06.2018 on the ground that the Complainant could not provide proper documents in support of his claim. There after the Complainant preferred an appeal vide First Appeal No.A/33/2018 before the Siliguri Circuit Bench of West Bengal State Consumer Dispute Redressal Commission. The Hon’ble Siliguri Circuit Bench after hearing both sides on merit observed that Ld. District Commission is found to be irregular not authorized in law and hold in his final order dated 08.02.2019  that Ld District Commission should rehear the case again by giving an opportunity to both sides to furnish any relevant documents in support of their case and after hearing the parties and after perusing all the material documents in this case Ld District Commission should pass a final verdict over the alleged consumer dispute within two months. Thus, the appeal filed by the Complainant was allowed on contest without imposing any cost and the order dated 14.06.2018 passed by this commission was set aside. Ld. advocate for the Complainant further submitted that again the case is heard by both the parties and judgment was delivered on 17.12.202 in favour of the Complainant. Against the said final order and judgment dated 17.12.2020 of this Commission the Opposite Parties again preferred an appeal before West Bengal State Consumer Disputes Redressal Commission, Siliguri Circuit Bench being First Appeal No. A/17/2021. After hearing both sides Ld. Appellate Commission allowed the Appeal directing this Commission to re-hear the matter particularly the assessment report by the Complainant and surveyor cum loss assessor Kaustuv Basu appointed by the Opposite Party. Ld. Advocate for the Complainant further submitted that the Complainant is a consumer to the Opposite Parties and there is deficiency in service on the part of the Opposite Parties. So, the Complainant is entitled to get relief as prayed for.

            On the other hand, Ld. Advocate for the Opposite Parties also narrated their defense case as mentioned in the written version. Ld. Advocate further added that at the time of accident the driver had no valid and effective driving license The occurrence of accident was also not intimated to the Opposite Parties in reasonable time so, the repudiation is not illegal and unjustified. The estimate repairing cost is prepared by the DMMART automobiles (p) Limited, an authorized service centre of the said tractor company so, the estimated repairing cost is not genuine and not acceptable. The surveyor Arnab Dey submitted his survey report on 22.07.2015. There is no negligence and deficiency in service on the part of the Opposite Parties so, the case is liable to be dismissed.

            In support of his defense, Ld. Advocate for the Opposite Parties cited an observation of Revision Petition no.1624 of 2011 held by National Consumer Disputes Redressal Commission, New Delhi on 11.08.2017 and observation in Revision Petition .o.1407 of 2014 held by NCDRC, New Delhi on 09.05.2017.

            Now, let us discuss all the points one by one. 

Point No. 1   

 

           On perusal of materials on record, it appears that the Opposite Parties have admitted in para – 11 of their written version that the vehicle was insured with the Opposite Parties vide Policy no. 3380/00826589/000/00 for the period from 20.04.2015 to mid night on 01.04.2016. If that be the so, then it is clear that the Complainant is a consumer to the Opposite Parties according to section (2)(d) (i) of Consumer Protection Act,1986. 

 

            Accordingly, this point is decided in favour of the Complainant.  

 

Point Nos. 2 & 3   

 

            Both these points are taken up together for discussion for the sake of convenience and brevity.   

             Now, on perusal of the four corners of the case record as well the final orders/ Judgments of the Appellate courts that the first allegation of the Opposite Parties, is that at the time of accident, the vehicle was driven by the driver who did not hold valid and effective driving license but this allegation has been decided by the State Consumer Disputes Redressal Commission, West Bengal in his Final Order/ Judgment dated 28.11.2017 in First Appeal No. A/519/2016 in favour of the Complainant that at the time of accident, the driver of the tractor had a valid driving license. 

            The second allegation of the Opposite Parties, that the claim of the Complainant was repudiated due not informing the Opposite Parties in time and not submitting of the necessary documents before the Opposite Parties. This point has also been decided by the West Bengal State Consumer Disputes Redressal Commission, Siliguri, Circuit Bench in his Final Order/Judgment dated 18.02.2019 in First Appeal No. A/33/2018 in favour of the Complainant stating that accident was informed to the Opposite Parties in time and the necessary papers were also submitted before the Opposite Parties in time so, the repudiation of claim on the part of the Insurance company are found to be illegal one.

           Thereafter, the said Appeal is remanded back to re-hear the case only to determine the actual estimation of damage sustained by the Complainant and also to the estimation by any surveyor appointed by the Insurance company and thereafter determine the compensation amount and other relieves prayed by the Complainant.

             After receiving the said case on remand both the parties were directed to produce the assessment/survey report. The Assessment of loss sustained by the Complainant was submitted in earlier stage of the case but the Opposite Parties did not submit report despite of giving several opportunities. As the case is very old and the Opposite Party has not submitted the survey report so,we heard argument  and disposed of the case on 17.12.2020 in favour of the Complainant relying upon the estimate of damage of the vehicle.   

          Against the said Final Order/judgment dated 17.12.2020 passed by this Commission, the Opposite Parties again preferred an appeal before West Bengal Consumer Disputes Redressal Commission, Siliguri, Circuit Bench being First Appeal No. A/17/2021 wherein the Opposite Parties assured that they will submit the survey report before the District Commission and sought for a chance to contest the case again. Thereafter, Ld. Appellate Commission again remanded back the said case with a direction to re-hear the matter and determine the loss of the Complainant and compensation on the basis of the assessment report of the Complainant and survey report of the Opposite Parties.   

            Now, on perusal of the estimate cost of the damaged sustained by the Complainant of the tractor prepared by DMMART AUTOMOTIVE (p) Ltd. and the survey report submitted by the Opposite Party on 26.07.2022 it appears that as per the estimate cost for repairing of the damaged vehicle prepared by DMMART AUTOMOTIVE (p) Ltd is Rs.4,07,912/- whereas as per the survey report submitted by the surveyor/loss assessor appointed by the Opposite Party is Rs.49,735/- after depreciation. But on careful scrutiny of the Surveyor Report, we find some discrepancies which compelled us to think that the said Surveyor Report is fake and fabricated. The discrepancies are as follows  -

1) The damaged tractor was repaired by DMMART AUTOMOTIVE (P), MALDA whereas in Survey Report the name of the Repairer is mentioned as URO AUTOCARE, MEDINIPUR. Again, in the reverse page of the Report, in the column of Repairer Details, the name of Repairer is mentioned as SHARMA BODY BUILDERS, MALDA which is wrong.    

 

2)  Date of assessment is 22.07.2015 at 10.51 A.M. and the date of Re-Inspection is also 22.07.2015 which is not possible but palace of Re- Inspection has not been mentioned.

 

3)  The name of Surveyor is Arnab De and the Survey Report has been submitted by Surveyor/ Assessor Kaustabh Basu. The date below the signature of Surveyor/ Assessor is not clear. The date appears to be 25.04.2013 or 25.04.2015. Whatever be the year but the month is April and the accident occurred on 27.06.2015. We astonished to see that the accident occurred in the month of June whereas the Survey Report is prepared in the month of April.    

 

4) The Survey Report is prepared on 25.04.2013/2015 but what prohibited the Opposite Parties to Produce the said report on 26.07.2022 after a lapse of Seven (07) years and delayed the case for disposal for a long time willfully and intentionally. In the report the reason for delay has been mentioned as the Insured not reachable which is not believable. 

 

5)  Generally, the surveyor report is submitted in Letter Pad of the surveyor but in the instant case, the surveyor report is submitted in a computerized copy without seal of the Insurance Company. It is also not mentioned that on which date the survey report has been submitted before the Insurance Company. 

 

               Now, the Insured vehicle is a tractor so, less numbers of glass and fiber has been used. Almost metal parts of the tractor have been damaged. In the surveyor report all the damaged metal parts have not been included which are mentioned in the in the report of the repairer i.e. DMMART AUTOMOTIVE (P). After careful scrutiny we found that the following metal parts of the tractor were damaged-   

                Now,   AS PER INDIA MOTOR TARIFF  

              The tariff advisory committee has laid down rules, regulations, rates, advantages, terms & conditions, as contained herein, for transaction of motor insurance business in India in accordance with the provisions of part II B of the Insurance Act, 1938. 

                This tariff supersedes THE PROVISIONS OF THE India motor tariff in existence up to 30^th June, 2002. 

               The provisions of this tariff are binding on all concerned and any breach of the provisions of The Insurance Act, 1938.   

           Further, SCHEDULE OF DEPRECIATION FOR ARRIVING AT IDV 

       AGE OF THE VEHICLE                     % OF DEPRECIATION FOR FIXING IDV

   Not exceeding 6 months                                                            5% 

   Exceeding 6 months but not exceeding 1 year                          15%

   Exceeding 1 year but not exceeding 2 years                             20% 

   Exceeding 2 years but not exceeding 3 years                            30% 

   Exceeding 3 years but not exceeding 4 years                             40% 

   Exceeding 4 years but not exceeding 5 years                              50%  

   NOTE – IDV of vehicle beyond 5 years of age and of obsolete models of the vehicle is to be determined on the basis of an understanding between the insurer and the insured.  

         For the purpose of claimTL/CTL claim settlement, this IDV will not change during the currency of the policy period in question. It is clearly understood that the liability of the insurer shall in no case exceed the IDV as specified in the policy schedule less than the value of the wreck, in as is where is condition. 

             DEPRECIATION ON PARTS FOR PARTIAL LOSS CLAIMS

The following rates of depreciation shall apply for replacement of parts for partial loss claims in respect of all categories of vehicle/ accessories -

1. Rate of depreciation for all rubber/ nylon/ plastic parts, tyres and tubes, batteries and air bags  - 50% 
2. Rate of depreciation for all fibers glass components  - 30%  
3. Rate of depreciation for all parts made of glass  -       Nil 

 In the instant case, no fiber parts or plastic parts or glass have been shown damaged of the tractor in the report of repairer. We have found 48 nos. of damaged metal parts in the said report which are to be repaired and the total cost of the said damaged metal parts are Rs.3,75,738/- (approx). Now, after deduction of 15% depreciation amount (Rs.56,360) from the Total cost of Rs.3,75,738/- it stands as Rs. 3,19,378/- which is payable to the Complainant.

No labour charge has been mentioned in Repairer report.

The IDV of vehicle is Rs.4,50,000/-.

We do not find in deviancy in service on the party of the opposite party No.3.

 In view of the above mentioned discussions, it has been established that the Complainant is a bona fide consumer to the Opposite Parties and there is deficiency in service on the part of the Opposite Parties

 

Accordingly, both these points are decided in favour of the Complainant. 

 

Hence, it is

                                                                  O R D E R E D

 

           That the Consumer Case No. 09 of 2016 is allowed on contest in part but with cost against the O.P. Nos. 1 & 2 and dismissed against O.P. No.3. 

 

           The Opposite Party Nos. 1 & 2 are directed to pay Rs.3,19,378/- only for repairing of the tractor of the Complainant in connection with the said policy no. 3380/00826589/000/00 along with an interest @ 8% from 27.06.2015  till the date of realization by issuing an account payee cheque in favour of the Complainant within 45 days failing which the Complainant is at liberty to execute the order as per law. The Opposite Party Nos. 1 & 2 are further directed to pay Rs.20,000/- towards Compensation and Rs. 10,000/- towards litigation cost.

 

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