C.F. CASE No. : CC/09/28
COMPLAINANT : Ashim Ghosh,
S/o Late A.K. Ghosh
Resident of 62, Bireshwar Basu Road
PO + PS. Nabadwip,
Dist. Nadia.
OPPOSITE PARTIES/OPS : 1. The Manager,
United India Insurance Co. Ltd.,
Krishnagar Branch,
P.S. Kotwali,
Dist. Nadia.
: 2. The Manager,
United India Insurance Co. Ltd.,
Divisional Office,
G.T. Road, Palika Bazar,
P.O. & P.S. Burdwan,
Dist. Nadia.
PRESENT : KANAILAL CHAKRABORTY PRESIDENT
: KUMAR MUKHOPADHYAY MEMBER
: SMT SHIBANI BHATTACHARYA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 15th January, 2010
: J U D G M E N T :
In brief, the case of the complainant is that he is the owner of a tanker bearing No. WB-51-3338 which was insured with the OP bearing policy No. 031602/31/07/01/00001181 for the period from 23.09.07 to 22.09.08. It is his further case that on 14.07.08 the said vehicle met an accident within Budbud P.S. when it was plying from Burdwan to Durgapur and in that accident the vehicle was seriously damaged. Accordingly, on the basis of written complaint of one Md. Mustak, a police personnel of Budbud P.S., Case No. 22/2008 was started under section 279 / 338 IPC dtd. 14.07.08 and the vehicle was taken under custody of the police. On 16.07.08 the petitioner informed the OP No. 1 about the accident of the vehicle by writing a letter and submitted all the relevant documents of the vehicle with a request to compensate the damages of the vehicle against the policy, the claim amount being Rs. 1,15,000/-. In the mean time, the complainant got the custody of the vehicle by furnishing a bond and thereafter he placed the vehicle for repairing before M/S HP Engineering Works at Panagarh Bazar, Dist. Burdwan which submitted an estimated cost for repairing Rs. 93,000/- and the petitioner accordingly asked to repair the vehicle. He totally spent Rs. 191,278/- for repairing the vehicle. On the basis of the claim application of this petitioner the OP men inspected the damaged vehicle and a survey report was also prepared which settled the loss of damage at Rs. 27,995/-. This was intimated to the petitioner by the OP on 18.11.08. Against that letter the complainant sent a letter on 25.11.08 asking the OP to explain why maximum amount was deducted against his claim. On 26.02.09 the OP No. 1 sent a letter to this complainant intimating that if the complainant did not submit the voucher within 15 days then it would be presumed that he was not interested in claiming from them and the claim file would be closed. The petitioner submits that the face value of the policy is Rs. 3,50,000/- and he claimed actually Rs. 1,15,000/-. In the mean time the said Engineering Works submitted a supplementary bill amounting Rs. 44,078/-. Besides this, he had to pay Rs. 4,200/- for repairing the cabinet of the vehicle from M/S SN Sharma Body Builders, G.T. Road, Panagarh. He also paid Rs. 8,500/- on 30.08.08 to M/S. HP Engineering Works as labour charges for repairing the vehicle and submitted all the bills and vouchers before the OP. In spite of this the OP did not settle the claim rather intimated the complainant to take Rs. 27,995/- which is not fair at all. So having no other alternative he has filed this case claiming for the reliefs as stated in the petition of complaint.
OP No. 1 & 2 have contested this case by filing a written version, inter alia, stating that the case is not maintainable in its present form and nature. It is their further submission that the complainant filed a claim application stating that the vehicle which was insured under them met with an accident and was damaged and claimed compensation amount of was Rs. 1,15,500/-. This OP appointed a duly qualified surveyor and loss assessor who inspected the vehicle after going to that spot and after completing survey work he submitted his report before this OP stating that the claim amount was assessed at Rs. 27,995/-. The OP intimated this to the complainant by a letter dtd. 18.11.08. Thereafter, the OP sent another letter on 26.02.09 to this petitioner asking him to hand over vouchers within 15 days from the date of receipt of this letter failing which the claim file would be closed which was not at all complied by the complainant. So this OP has no latches nor there is any deficiency in service on his part. Hence the complainant has no cause of action to file this case and the same is liable to be dismissed.
POINTS FOR DECISION
Point No.1: Is the case maintainable in its present form and nature?
Point No.2: Is the complainant entitled to get the reliefs as claimed by him?
Point No.3: Is the complainant become able to prove his case?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint along with the written version and the annexed documents filed by the parties it is available on record that the complainant, Sri Ashim Ghosh is the owner of a tanker being No. WB-51-3338 which was insured with the OP under policy No. 031602/31/07/01/00001181 for the period from 23.09.07 to 22.09.07 and the insured amount was Rs. 3,50,000/-. This is not also denied by the OP. It is the further contention of the complainant that on 14.07.08 the vehicle fell in an accident at Budbud when it was plying from Burdwan to Durgapur and at this accident the vehicle was seriously damaged. Thereafter, he placed the damaged vehicle for repair before M/s. HP Engineering Works, Panagarh Bazar which gave him an estimate of Rs. 93,000/- to repair the same. He in total spent Rs. 1,91,278/- for the repair of the vehicle, but the OP by a surveyor assessed the loss of damage for Rs. 27,995/- which is not a proper one. Besides this, he submitted claim application for settlement of his claim before the OP who arbitrarily settled the claim for Rs. 27,995/-. So this case is filed. Now the question is how much amount the complainant is entitled to get? From the submission of the OP and the written version filed by him it is available that the vehicle which was insured under them was damaged due to an accident. The OP appointed a surveyor who submitted a report that the complainant was only entitled to get the amount of Rs. 27,995/- which was assessed by the surveyor. The complainant has claimed Rs. 1,91,278/- in this case as repairing charge of the damaged vehicle, but in the claim form vide 'Annexure – 3’ he has submitted an estimate on charge at Rs. 1,15,500/-. He has also filed the estimate given by the M/s. HP Engineering Works along with the receipts by which he actually purchased the spare parts for repair of the vehicle. He has also filed other documents showing labour charge and repairing of cabin, show-case board and bumper repairing etc. On a careful examination of all these documents we find that he spent actually Rs. 27,634/- + Rs. 16,444/- for the purpose of spare parts, Rs. 16,500/- for repair of show-case board, bumper opening, repairing and resetting along with labour charge including material, Rs. 4,200/- for repairing of cabin and refilling including material and labour charge, Rs. 2,500/- for carrying charge of the vehicle from Budbud to Panagarh by a break-down van and Rs. 8,500/- as labour charge paid to M/s. HP Engineering Works which repaired the damaged vehicle. Thus, in total he spent Rs. 75,778/- for repair of the vehicle. On the other hand, OP submits that this complainant is only entitled to get Rs. 27,995/- as per report of the surveyor. We have carefully gone through the report of the surveyor and find that it is not a complete one and this assessment is not a correct one as price of all the materials / parts which the complainant had to purchase are not mentioned in the list of the surveyor. Besides this, surveyor has deducted 10% of the amount as depreciation cost which we hold is not a proper one as the vehicle fell in an accident only within 10 months since the date of purchase. So considering the report of the surveyor and the purchase receipts filed by the complainant, our considered view is that the complainant has spent Rs. 75,778/- for repairing of the damaged vehicle which he is entitled to get though he has stated in his complaint that he spent Rs. 1,91,278/- which is not supported by any cogent document. The complainant has also claimed Rs. 3,50,000/- i.e., the insured amount as the accident took place within 10 months since the date of insure. In this connection ld. lawyer for the complainant has relied upon a decision of the Hon’ble National Commission in 2 (1993) CPJ 143 wherein the Hon’ble National Commission held “The accidental vehicle should be treated as total loss and the insurance co. should pay the insured amount less the scrap value”. On a careful perusal of the ruling we find that in the instant case the complainant cannot claim any benefit or relief on this ruling as in the instant case the vehicle was not totally damaged and it was not sold as a scrap. Rather we find that the vehicle was repaired within a short time at a cost of Rs. 75,778/- and the vehicle is still in running condition. There is no whisper in the petition of complaint to that extent that the vehicle was totally damaged. So considering the facts of this case our considered view is that this complainant is not at all entitled to get the insured amount as claimed by him. Therefore, after a careful consideration of all the facts along with the annexed documents and after hearing the arguments advanced by the ld. lawyer for the parties our considered view is that the complainant has become able to prove his case that the vehicle was damaged at an accident caused on 14.07.08. From the documents filed by the complainant it is established that he spent Rs. 75,778/- for repair of the vehicle. So he is entitled to get this amount. Besides this he is also entitled to get Rs. 5,000/- as compensation from the OP who did not settle his claim properly. He is also entitled to get Rs. 5,000/- as litigation cost in this case. Thus, he is entitled to get Rs. 85,778/-. In result the case succeeds.
Hence,
Ordered,
That the case, CC/09/28 be and the same is decreed on contest against the OP No. 1 & 2. The complainant is entitled to get Rs. 75,778/- as repairing cost of his vehicle + Rs. 5,000/- as compensation + Rs. 5,000/- as litigation cost, i.e., in total he is entitled to get Rs. 85,778/-. The OPs are jointly or severally directed to pay the decretal amount to this complainant within one month since this date of passing this order in default the complainant is entitled to get interest @ 9% per annum upon the decretal amount since this date till the date of realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
