The brief case of the complainant Sri Ram Avatar Chowkhani who is the authorised representative of M/s Mangalam International Private Limited that he purchased a vehicle make Tata Motors Ltd, Model Tata Indigo GLS bearing Chassis No.60120ZHVZP8501, Engine No.4751SI HVZP82152 having a year of manufacturing 2004 from M/s Abhishek Motors Pvt Ltd, Guwahati and got the allotment of Registration No.AS-01-U/4100 from DTO, Guwahati. After being purchased the vehicle was insured with OPs by paying  necessary premium of Rs.16,152/- and issued cover note No.0484996 dated 13.01.05 covering risk/perils under the Private Car Insurance Package Policy with effect from 13.01.05 to 12.01.06. The policy number was 010028503700. After expiry of the aforesaid policy as per procedure the complainant renewed the policy by paying premium Rs.10,505/- which was before the date of the expiry of policy being  renewal cover note 0574840 dated 07.01.16 and the Insurance Policy Number was

010028503701 being effective from 13.01.06 to 12.01.07. But unfortunately, the aforesaid vehicle was knocked by a Bus No.AS-01/5041 from backside on 21.02.06 at about 12:45 p.m. on the N.H. 37 near Lahoal, P.O. & P.S. Lahoal, Dibrugarh, Assam within the validity period of the aforesaid renewal policy. The complainant without any delay informed about the accident with the Lahoal Police Station. On the above information Lahoal P.S. made a G.D. Entry No.630 dated 21.02.06 and seized the vehicle bearing No. AS-01-U/4100 and towed the vehicle to the Police Station. Meanwhile, the complainant informed to the OPs about the aforesaid accident both verbally as well as in black and white vide his letter dated 22.06.06 and thereby requested OPs to  depute a surveyor to assess the loss sustained by the complainant. After receiving the aforesaid information the OP issued claim form and also appointed OP No.4 U.J. Barman, Surveyor and Assessor to assess the damage of the vehicle. Said OP No.4 surveyor and loss assessor inspected the vehicle on 24.02.06 which was lying in the premises of M/s Gargo Motors, Tinsukia after being towed  from the Police Station and assessed the loss at Rs.68,737/- whereas, M/s Gargo Motors, Tinsukia estimated Rs.2,04,143/- without dismantling the vehicle on condition to impose further additional estimate  of repairing on being based on damage detected after dismantling of the vehicle. The OP No.4 discarded the above estimate and assessed the loss/ damage of the vehicle whimsically at Rs. 68,737/- without giving any importance to the estimate prepared by technical and experienced expert of the authorised dealer M/s Gargo Motors. M/s Gargo Motors, Tinsukia on receipt of the copy of the estimate along with letter dated 07.03.06 sent by OP No.4 immediately reacted and expressed  highly  objection stating that they are not in a position to repair the vehicle at above rate. OP No-4 assessed the loss only on physical outward inspection without considering the estimate of repairing prepared by the technical expert and Skillman of the M/s Gargo Motors. The complainant however, requested OP to appoint another surveyor being technically expert and also an automobile engineer as per norms of the IRDA Acts and Rules. Subsequently, the complainant after being discussed Mr. A. Mitra of OP who asked him not to worry rather permitted to proceed as per estimate of the authorised dealer M/s Gargo Motors and also advised to get the vehicle repaired. As such,  the complainant by issuing a Demand Draft No.057171 dated 17.04.06  drawn at UBI, Tinsukia for  Rs.50,000/-  paid as an advance to get the vehicle repaired in order to save further damage. Thereafter, the claimant made several request to the OP to settle the matter but the OPs kept mum without any reply. OP No-4 neither inspected nor surveyed the vehicle after being dismantled at the Gargo Motors for assessing the actual loss. The OPs are always been silent for the reason best known to them. That the complainant being a businessman and the vehicle being required for his day to day activities wanted to get repaired the vehicle at the earliest possible time and as such, the complainant after being paid the total expenditure of Rs.2,33,311/- released the vehicle  from service station M/s Gargo Motors, Tinsukia by paying through Demand Draft No.057171 dated 17.04.06 as advance paid earlier and Rs.1,50,000/- by Demand Draft No. 059981 dated 30.10.06 drawn on UBI, Dibrugarh Branch and the rest amount was paid in cash on 31.10.06 at the time of delivery of the vehicle. Thereafter, the complainant requested the OPs to settle the claim for Rs.2,34,311/- including the towing charge of Rs.1000/-. The OPs instead of settling the claim of Rs.2,34,311/- sent a letter  to the claimant dated 12.12.06 informing about settling the claim at unreasonable assessment  of Rs.68,737/- as assessed by OP No-4. Complainant made several correspondences with the OPs and finding no positive reply from the OPs served legal notice dated 20.01.07 by registered A/D through B.P. Agarwal, Advocate. The OPs have made a vexatious and prejudiced attempt to settle the claim at Rs.68,737/- against the loss of Rs.2,34,311/- which is not at all satisfactory and convincing to the complainant for which the OPs have committed serious deficiency on service. The act of the OPs were out and out deficiency in service due to their negligence for which the complainant suffered immense loss, torture, harassment and agony. Hence, the complainant filed this case claiming Rs.2,34,311/- for repairing of the vehicle, interest thereon along with incidental expenses of Rs.50,000/- to the business caused to the complainant in hiring  the taxis from time to time, compensation of Rs.1,00,000/- with cost of the litigation etc.

After registering the case notices were issued to all the OPs to which all the OPs submitted their   written statement together stating inter -alia that the case is not maintainable in law as well as in fact. The OP denies that there was any deficiency of service on the part of OP in rendering insurance service to the complainant. The OP has not committed any irregularity and illegality  while settling the claim. They followed all the procedure and rules of the Company in processing the claim of the complainant.  The OPs proceeded the claim of all fairness and utmost good faith on the basis of assessment at Rs.68,737/- made by the surveyor. But the complainant has failed to prove that the claim should have been settled for more than 68,737/-. Further, the OPs are not liable for any consequential loss under general exclusion clause of the policy. The policy taken by the complainant bearing No.010028503700 was a private car package policy and the same was subject to various terms and condition contained in the  policy. The policy also subject to a table of depreciation of parts  replaced as printed in the policy. The policy is also subjected of a compulsory of excess of Rs.500/- only. But vehicle was two years old at the time of accident and as per standard terms of the policy said vehicle was subjected to a depreciation of 10% for metallic item, 50% for rubber item in case of partial damage claims. The policy  is also subject to the condition No.3 as per which if the vehicle suffers from partial loss the liability of the company shall not exceed the actual and reasonable cost of repair  or  replacement of parts lost or damage subject to depreciation as per limit specified. The OP further stated that in the present case the complainant did not agree to the option of repairing the body shell although it was a case of repairing because the body shell of the vehicle did not suffer a total damage. It would be apparent from the physical evidence of the photograph that the damage suffered by the vehicle in rear parts where it was hit  is a very minor damage and it certainly is not a case which warrants/ merits  a total replacement of the body shell. But the complainant did not agree to a settlement of repairing basis despite sincere  efforts to the OPs. When complainant lodged the claim for damages suffered by the said vehicle  in the alleged accident on 21.02.06,  the OP took immediate step and appointed surveyor and also taken step, so that, the claim was process with fairness after giving ample opportunity to the complainant to enable a settlement of the claim. But the adamant attitude and non-cooperation of the complainant did not allow that to happen. The OPs offered to settle the claim as per assessment of the loss made by technically qualified surveyor but the same was rejected by the complainant. The claim could not be settled due to refusal of the complaint to accept and offer of settlement as per assessment made by a competent  surveyor. It is therefore, cannot be said that  there was any deficiency of service by the OP. The surveyor i.e. OP No-4 is a duly licensed surveyor and assessor by IRDA and the claim of the complainant was duly assessed at Rs.68,737/- and the difference appeared between the assessment of the surveyor and the claim of the complainant are due to – (a) application of depreciation , (b) application of compulsory excess , (c) Unauthorised repair carried out by the complainant, (d) Unreasonable insistence on replacement of parts which have been recommended for repair by the expert surveyor. The claim of the complainant is inexorbitant and not reasonable and therefore, there is no deficiency in service on the part of OP for which OP prayed to dismiss the case of the complainant with cost.

In this case complainant gave evidence by swearing affidavit and exhibited as many as  43 (forty three) documents in support of his  case. On the other hand, the OPs have examined one witness  and exhibited one document to rebut the case of the complainant.

In this case OPs have submitted their written argument whereas complainant has neither  submitted any written argument not submitted oral argument.

DISCUSSION, DECISION AND REASONS THEREOF :

          Upon going through the evidence  of both the parties it is found that there is no dispute between both the parties regarding policy bearing No.0100285037 which is a private car package policy for a sum of Rs.3,49,300/- as insured Declared Value and the premium of the vehicle was calculated on the IDV thereof.  Further, it is also admitted fact  that the vehicle bearing No.AS-01-U/4100 met an accident on 21.02.06 at about 12:45 p.m. in N.H. 37 near Lahoal Police Station. After the accident the complainant without any delay informed the Lahoal Police Station and also informed that Bus No.AS-01/5041 knocked the vehicle of the complainant. Accordingly, Lahoal P.S. registered a case vide GDE No.630 dated 21.02.06.  Ext-10 is the FIR. The vehicle was  towed from the place of accident to the Police Station and an amount of Rs.1000/- was paid for towing the vehicle through the Ext-11. The vehicle was also inspected by the MVI of Dibrugarh DTO. Ext-13 is the report of DTO. After the accident the complainant also  informed the matter to the OPs without any delay in black and white vide letter dated 22.06.06 and Ext-14 is the said letter. On the request of the complainant the OPs issued the necessary intimation cum preliminary claim form and also appointed OP No.4 Sri Upam J. Barman as surveyor and loss assessor for the survey and assessment of loss. Ext-15 is the copy of the said intimation cum preliminary claim form. It is also admittedly clear that OP No.4 the surveyor and loss assessor assessed the loss at Rs.69,932/- and submitted its report on 31.08.06 which was assessed as per terms and condition of the policy. However, the complainant did not accept the said value of the surveyor and loss assessor.

          It is seen from the evidence of the complainant that he towed the vehicle to the premises of the Gargo Motors, Tinsukia, an authorised sales and service station and intended to get his vehicle repaired there. The Gargo Motors, Tinsukia estimated Rs.2,04,143/- without dismantling the said vehicle on superficial technical inspection, subject to the condition that the additional estimate of repairing may be added if any found after dismantling the vehicle. From the evidence of complainant it is  also found that the OP No.4 did not consider the estimate so prepared by the technical experienced expert of the authorised dealer M/s Gargo Motors, Tinsukia and assessed the loss of the vehicle on 24.02.06 on the basis of outward physical inspection. Ext-17 is the assessment report of OP No-4. The assessment made by OP No.4 in Ext-17 was not accepted by Gargo Motors and replied that it would be not possible to repair the vehicle as per his loss assessment report by Ext-18.  Considering the repairing of the vehicle at the earliest possible time which was most significant for the complainant made an advance of Rs.50,000/- by Demand Draft No.057171 dated 17.04.06 as an advance to get the vehicle repaired in order to save further damage due to heat, rain as well as garage halting charge vide Ext-22. The complainant made several correspondence with OP No.1,2,3 to settle his claim as early as possible so that he can get the delivery of the repared vehicle. But the OP remain silent in this matter and kept mum for the reason best known to them. The complainant also requested OPs to resurvey the vehicle and assessed the loss by a technical expert like automobile engineer because OP No.4 was not an automobile engineer to assess the lost but the OP did not comply the same. Complainant being disappointed and frustrated got the vehicle repaired from the authorised sales and service station M/s Gargo Motors, Tinsukia by paying total expenditure of Rs.2,33,311/- through Demand Draft No.057171 dated 17.04.06 for Rs.50,000/- which he paid in advance earlier and vide Demand Draft No.059981 dated 30.10.06 for Rs.1,50,000/- and rest of the amount paid in cash on 31.10.06 at the time of delivery of the vehicle. Ext.28,29,30,31 are the copies of final bill, money receipt copy of Demand Draft etc. After getting delivery of the vehicle the complainant submitted the photocopies of the  necessary bill of final repairing for Rs.2,33,311/- and intimated that  the original shall be submitted to them at the time of final settlement of the claim.

        Now the point to be considered whether the total expenditure of Rs.2,34,311/- including Rs.1000/- as towing charge to the Lahoal Police Station from the place of accident was justified and genuine claim of the complainant ?

        In this respect learned counsel for the OP in their written argument submitted that the policy taken by the complainant is a comprehensive package of private car and the same is subject to the various terms, condition and endorsement and exclusion stated in the policy. The policy is also subjected to a compulsory excess of Rs.500/- only as per Annexure-A. The IDV of the vehicle was Rs.4,36,614/- as per Insurance Policy. The vehicle was a two years old vehicle at the time of accident. As such, as per standard terms of the policy the said vehicle was subject to a depreciation of 10% for metallic item and 50% for rubber item in case of partial damage claim. The exclusion clause forming a part of the policy excludes payment of consequential loss. The policy is  subject to a condition as Condition No-3 and as per condition No.3 if the vehicle suffer partial damage the liability of the company shall not exceed actual and reasonable cost of repair and replacement of parts damage subject to the  depreciation as per limit specified.  It is clear from the wording of the condition No.3 that selection of the mode and method of indemnification is the prerogative of the insurer and the insured cannot as a matter  of  right under the policy, demand the particular mode of indemnification. In this case the complainant did not agree  to the option of repairing of the body shell although it was a case of repairing because the body shell of the vehicle did not suffer a total damage. He submitted that from apparent view of the photograph the damage suffered by the vehicle in the rear part where it was hit is a very minor damage and it certainly is not a case which warrant total replacement of the body shell.

       Learned counsel for the OP further submitted that the OPs without hesitation timely took all the steps and appointed surveyor and the claim was  processed with all fairness after giving ample opportunities to the complainant  to enable the settlement of the claim but due to adamant attitude and non-cooperation by the complainant the claim could not be settled. The assessment of the vehicle was assessed  by technically qualified person, Sri U.J.Barman who is licensed by IRDA for doing survey of automobile damage and as such, the claim of the complainant  was settled on the basis of survey report submitted by the surveyor. However, the apparent difference between the assessment of the surveyor and the claim of the complainant are due to mainly - (a) application of depreciation, (b) application of compulsory excess, (c)unauthorised repair carried out by the complainant and (d) unreasonable insistence of replacement of part which have been recommended for repair by the expert surveyor. The OP processing the claim of the complainant following the standard procedure and rules of the company. The claim was processed with all fairness observing utmost good faith and after giving many opportunities to the complainant to submit the requirement papers and necessary representation for settlement of the claim. Hence, there was no deficiency in service on the part of OP whereas, the complainant tried to achieve the wrongful gain from the OPs. Therefore, the complainant has failed to prove this case.

        In view of the above foregoing submission and after considering the fact and evidence and the documents submitted by both the parties it is found that  the Bus No.AS-01/5041 knocked the vehicle AS-01-U/4100 and as per MVI report it is found that the vehicle sustained damage i.e. body shell with rear bumper, head light, grill, bonnet, number plate, front wind shill, glass, fuel tank, mudguard , rear seat, rear wheel ring, silencer, rear window glass and glass and frame, rear body badly damaged with alignment etc. the photo of the damage body of the vehicle has not been exhibited by any of the party. From perusal of the Ext.16 the estimated bill of the Gargo Motors, it is found that the company have changed the whole body shell without door at the cost of Rs.1,21,220/- and other parts of the vehicle which costed an amount to Rs.2,33311/- including labour charge. There is no other document as could be produced by the complainant.

         Admittedly, it is clear that the vehicle was two years old at the time of accident.  As per standard terms of the policy the said vehicle was subject to depreciation of 10% for metallic item and 50% for rubber item in case of partial damage claim. The policy is also subject to the condition No.3 as per which if the vehicle  suffer a partial loss the liability of the company shall not exceed actual and reasonable cost of repair or replacement of the parts damaged subject to depreciation as per limit specified above. Complainant is also not allowed unauthorised repairs and replace the parts at his will. Further, it is to be mentioned here that  the insured cannot as a matter of right under the demand a particular mode of indemnification. It is found from the Ext.16 i.e. MVI report that rear body of the vehicle was badly damaged with alignment. But it does not mean that whole body shell shall be replaced by the complainant. Neither parties have exhibited any document i.e. evidence of photograph that the damage suffered by the vehicle. As per evidence of the OP the rear parts of the body was damaged but it was not huge damage. It was a minor damage.  Anyway it is found from the Ext-14  that rear body was badly damaged with alignment. It could not be ascertained without seeing the damage whether whole body shell was to be replaced. In this case both the parties have  failed to show any evidence.

       Apart from these the Forum observed that  the  replacement of whole body shell had been recommended by the expert of Gargo Motors for which, whole body shell  was replaced on the advice of the expert but before that the complainant  had to consult with the OP before replacing the whole body to consider whether it was really required to replace. However replacement of the whole body shell cannot be ascertained without going through the damage of the vehicle. Besides, considering the policy condition of depreciation of value of two years old car i.e. 10% for metallic item and 50% for rubber item have to be considered which was not done at the time of estimating the bill. The complainant should have not been adamant and non-cooperative while settling the claim and the OPs should have also made negotiation with the complainant and come to amicable settlement and settled the claim of the complainant.

           In view of the conclusion arrived at, this Forum comes to the conclusion that there are some prima facie material of deficiency of service by the OPs by not settling the claim with negotiation of the complainant and complainant also became adamant  which resulted non-settlement of the claim.

                        Under the circumstances as stated above it is clear that both the parties are negligent and as such, the C.P. Act provides for                         correcting the shortcoming in the service or goods provided by  way of awarding compensation or other means specified in                         the provision 14 (d), the Forum comes to the conclusion that there is deficiency in service and the  loss suffered by the                               complainant for the reason discussed above for not settling the claim and thereby the OPs may be imposed a consolidated                           compensation of Rs.1,50,000/- along with interest @ 9% per annum from the date of filing  this case till realisation. All                             the above amount shall be paid to the complainant through this Forum within two months from the date of this judgment.                           Furnish copy of this judgment to OPs for compliance.