JUDGEMENT

          Complainant by filing this complaint has submitted that he purchased a car being No.WB-24-K-5118 in his own name under hypothecation with the Axis Bank and after purchase the complainant submitted all required documents on payment of premium of Rs.10,530/- purchased Insurance Policy being No.150100/31/10/6100030371 from the office of op, National Insurance Company Limited and same was issued by the op company for the purpose of covering all risk in the event of any kind of loss including Total Own Damage Claim in conection with the usage of the said car and the said policy was valid for the period from 01.10.2010 to midnight of 30.09.2011 and it was in force and binding upon op for the particular period.  

          Fact remains that on 05.06.2011 at about 01:10 PM complainant was proceeding from Garia towards Baranagar riding the car along with his other family members following E.M. Bye Pass Road and when they reached near Bartaman Bhavan, one unknown lorry came from the same direction and suddenly dashed the complainant from the left side without giving any prior alarm and for the said unexpected knock by the unknown truck, the driver-cum-insured of the car had lost his control and hit the right side road divider and tree on the road.  Though the car of the complainant was moving at normal speed and in consequences to that the front portion of the car and both sides of the car as well as lower mechanical portion was badly damaged and the roof of the car was also damaged.  The complainant himself was plying the car and he himself was injured and became senseless after the accident.  So it was not possible to note down the number of the offending vehicle and complainant had been admitted to Ruby General Hospital for treatment and fact remains that the car was fully damaged and was lying by the E.M. Bye Pass Road.

          On 05.06.2011 complainant lodged a written complaint with the Parama Investigating Center, Tiljala Police Station, Kolkata informing the aforesaid case of full damage of the car.  On 06.06.2011 complainant submitted a letter in the office of the op giving information regarding the incident of full damage of the aforesaid car.  On 23.06.2011 complainant submitted a printed Motor Claim Form provided by the office of the op along with a copy of Estimation Report consisting of four pages and other papers.  On 01.08.2011 complainant submitted another statement of the accident in the office of the op, but subsequently on 21.11.2011 complainant filed again a letter for getting information with regard to the status of the Insurance Claim of the damaged car.  But even after receipt of so many reminders of complainant, op’s office did not take any step to make any reply till 09.04.2013.

          Subsequently after expiry of 23 months the office of the op dispatched a most belated letter dated 03.04.2013 signed by the Divisional Manager as on 09.04.2013 stating that there is non co-operation on the part of the complainant and as such op was closing the file as “no claim”.  Thereafter complainant finding no other alternative on 24.04.2013 again sent a letter drawing the attention of the office of the op that in spite of filing all the documents the op ultimately closed down the claim as no claim and as such the complainant requested the op to re-open the claim afresh. 

          When op by a letter dated 06.06.2013 asked the complainant to file the same set of documents again and again which have already been submitted on 23.06.2011 and which documents are lying in the office of the op for the last two years continuously without having any result.  So, complainant again sent a letter on 24.06.2013 reporting that fact and requested the op to inform the complainant what should be the next step required to be followed by the complainant for getting the claim successfully.

          But unfortunately on 11.07.2013 after expiry of two years and one month the office of op repudiated the instant claim of the complainant by a letter dated 11.07.2013 out of outright due to misconception informing the complainant that the decision for no claim stands and that was received by the complainant on 20.07.2013 and same was legal and for which finally cause of action to file this claim was arisen and ultimately for redressal complainant has appeared before this Forum and for directing the op for reimbursement of the damages as claimed by the complainant to that extent of Rs.3,83,214/- and other damages.

          On the other hand the National Insurance Company Limited by filing written statement submitted that in the instant case complainant submitted estimated bill provided by the garage of his choice where he placed the said vehicle for repairing after the alleged accident, but no proof of actual expenses incurred by the complainant for repairing of the said vehicle has been submitted at any material point of time.  Therefore in absence of such proof of actual repairing expenses, op was not in a position to assess their actual liability and thereby to settle the claim of the complainant.  Several letters were given to the complainant requesting him to submit the actual proof of expenses in original, which he incurred for repairing of his said vehicle after the alleged accident though the complainant never paid any heed to the same and ultimately op closed down the claim of the complainant as No Claim.

          Moreover as per provisions of the Insurance Act, 1938, it is always compulsory on the part of the op to appoint a licensed independent surveyor and such survey report is a very important piece of evidence.  Therefore it is submitted that even if for the sake of argument it is assumed though not admitted that the claim of the complainant is at all payable, in that case, under no circumstances, complainant cannot be considered to be entitled to the entire sum insured as prayed for by him.  But it is admitted that vehicle was insured by valid Insurance Policy as stated by the complainant and moreover op was not informed about the accident until and unless complainant cannot prove it by procuring cogent documentary evidence.

          Moreover he has tried to convince that for the first time by a letter dated 03.04.2013 complainant was reported that his claim was closed down and repudiated as No Claim.  But truth is that prior to that several intimations was made by the op for submitting all the documents as well as surveyor’s report.  So, it is clear that complainant did not act properly for which the claim was repudiated and so there was no deficiency or negligence on the part of the op when op is not in a position to assess their liability and therefore until and unless the surveyor report is produced, no claim can be considered and in the above circumstances, the present complaint should be dismissed when complainant has failed to prove the deficiency and negligence on the part of the op.

                                                         Decision with reasons

          After careful consideration of the entire materials on record and after studying properly the complaint and written version and on overall evaluation of the argument as advanced by the Ld. Lawyers of both the parties, we have gathered that the present vehicle was insured by the present Insurance Company and sum insured was Rs.3,83,214/- and it was valid from 01.10.2010 to 30.09.2011.  Fact remains that accident took place on 05.06.2011 at about 01:10 PM.  On that date written complaint was filed at Tiljala Police Station and on 06.06.2011 complainant submitted letter in the office of the op informing that accident of full damage of the car.  Complainant submitted claim on 23.06.2011 and complainant received letter of the op on 03.04.2013 by which complainant was informed that his file was closed as No Claim.  Whereas complainant’s claim was for a sum of Rs.4,83,214/- but sum insured is Rs.3,83,214.

          But considering the Insurance Policy, it is found that under any circumstances complainant cannot claim any damages more than the sum insured and in the present case as per policy sum insured is Rs.3,83,214/-.  So, it is clear that complainant cannot claim more than sum insured.  From Annexure-4, it is clear that on 06.06.2011 complainant reported the intimation about the accident of the said vehicle mentioning his Insurance Policy number and for taking necessary action and for claim settlement and compensation and that was received by the Divisional Manager, National Insurance Company Office and no doubt motor claim form and other materials were also submitted by the complainant after that.  After considering the above materials it is found that though the complainant intimated about the accident on the next day from the date of accident to the op and on the very date to the police officer, insurance company did not depute any surveyor to assess the loss or damage of the vehicle.  Now the op has been trying to establish that the complainant failed to produce any surveyor’s report related to loss or damage in respect of the accident of the insured vehicle.

          But most interesting factor is that complainant as insured driver sustained injury, then he was hospitalized at Ruby General Hospital for treatment and matter was informed to the op, but op did not depute surveyor to assess the loss and it is no doubt laches on the part of the op and it is no doubt negligence and deficiency on the part of the op and for non-production of surveyor’s report, complainant is not liable, but it is the complete laches and unfair trade practice on the part of the op.  So ground for repudiating the claim of the complainant for non-submission of the surveyor’s report is completely baseless and without any foundation.

          Now the most interesting factor is that the value of the car was Rs.3,83,214/- whereas RD Motors Pvt. Ltd. as dealers of TATA Motors submitted estimation report for repairing the same which is Rs.6,61,978/-.  So, it is clear that the value of the car is Rs.3,83,214/- whereas repairing cost is more high than that of the valuation of the car.  It indicates that RD Motors Pvt. Ltd. is a dishonest company and no doubt their estimation report is fabricated and in fact RD Motors is an authorized dealer of the TATA Motors, but he is one of the thief companies who are running such business and for which really op did not rely upon such estimation report.  Whatever it may be, we have gathered that op ought to have appointed surveyor for assessing loss and that was not done by the op and for which op was at fault for repudiating the claim and considering the present situation and laches on the part of the op, we are directing the op to immediately settle the claim treating repudiation as invalid and without any foundation and to give such relief to the complainant within 45 days from the date of this order and if it is not done within 45 days in that case op shall have to refund Rs.3,00,000/- to the complainant as repairing cost of the vehicle and if op refutes or is found reluctant to comply that order in that case op shall be imposed penalty of Rs.50,000/- for adopting unfair trade practice and if it is collected, same shall be deposited to this Forum by the op.

          Thus the complaint succeeds in part.

          Hence, it is

                                                                ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- in part.

          Op is hereby directed to consider the claim of the complainant after appointing surveyor and to release such amount which shall be decided by the surveyor as assessed loss for such accident and shall have to handover to the complainant within 45 days from the date of this order and if op fails to comply that order in that case for adopting unfair trade practice, op shall have to deposit punitive damages to the extent of Rs. 50,000/- and if op fails to comply the above order within 45 days, in that case, op shall have to pay Rs.3,00,000/- as compensation only to the complainant treating as repayment cost of the vehicle.

          Op is directed to comply the order very strictly within 45 days, otherwise they shall have to face penal consequences and other matters as per spirit of this order.