West Bengal

Siliguri

29/S/2012

SRI RANJAN KUNDU, - Complainant(s)

Versus

THE MANAGER(P.S. EARTHMOVERS PVT. LTD.). - Opp.Party(s)

12 Aug 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 29/S/2012.       DATED : 12.08.2015.

                

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS              : SMT. PRATITI  BHATTACHARJEE &

                                                              SRI PABITRA MAJUMDAR.

 

COMPLAINANT                1.         SRI RANJAN KUNDU,

Resident of Prakash Nagar, (South Part),

Dabgram, Bhaktinagar, Siliguri – 734 001.

 

O.Ps.                     1.         THE MANAGER,

P.S. Earthmovers Pvt. Ltd.,

(Authorised Dealer of Telcon Constructive

Solution), 258/2, Nivedita Road,

(Opposite Janaki Medical Hall),

Pradhan Nagar, P.O. & P.S.- Pradhan Nagar,

Siliguri – 734 003.

 

2.         THE MANAGER,

United India Insurance Company Limited,       

Third Floor, Indian Mutual Building,

N.R. Square, Bangalore – 560 002.

 

3.         THE BRANCH MANAGER,

Telco Construction Equipment Co. Ltd.,

Nibra South, Near Ankurhati (C. Post),

P.O.- Domjur, N.H. 6, Mumbai Road,

Dist.- Howrah, PIN – 711 409.

 

4.         THE DIVISIONAL MANAGER,

United India Insurance Company Limited, 

Divisional Office, Hill Cart Road, P.O. & P.S.-

Siliguri, PIN- 734 001, Dist.- Darjeeling.

 

5.         THE BRANCH MANAGER,

            United India Insurance Company Limited, 

Siliguri Branch Office, Hill Cart Road,

P.O. & P.S.- Siliguri.

 

                                                                                                                                                                      

FOR THE COMPLAINANT         : Sri Abhisek Sengupta, Advocate.

FOR THE OP Nos.1 & 3                 : Sri Rajat Das, Advocate.

FOR THE OP No. 2, 4 & 5              : Sri Kanak Lal Kundu, Advocate.

­­­­­­­­­­­­­­­­­­­­­­­­­________________________________________________________________________________________________________________________________________________

 

 

 

Contd…..P/2

-:2:-

 

 

J U D G E M E N T

 

 

 

Mr. Biswanth De, Hon’ble President

 

 

The complainant’s case succinctly reproduced in a précised form is that the complainant purchased TATA-315E Hydraulic loader with 1.0 cum Loader Bucket bearing chasing No.315E1009, Engine No.KZY855762, Registration No.WB 71A 2896 purchased from OP No.1.  The cost of the vehicle is 18,50,000/-.  The insurance was arranged by United India Insurance Co. Ltd. vide Master Policy No.500400/44/10/07/30000069 dated 31.05.2011 to 29.05.2012. 

On 01.12.2011 the aforesaid vehicle suffered accident while working at the site of M/s Karunamoyee Enterprises situated at Nayakaman, P.S.- Kurseong.  The above describe vehicle got completely damaged and the driver was injured, FIR was made in Kurseong P.S. on 02.11.2011 and a police case was started vide M. A. Case No.22/2011.

The matter was informed to OP No.1 on 03.12.2011.  At that time the complainant was prevented by OP No.1 not to deliver the letter of complaint including accident and damage to the OP No.1 and induced the complainant to get the said letter addressed to OP No.2 to the officials of OP No.1 i.e., the complainant due to ill advice of OP No.1 did not file the complaint regarding damage to OP No.2.  The complainant personally visited the office of OP No.4 & 5 and informed the matter of complaint and handed over to OP No.1. 

Moreover, the aforesaid letter received by the OP No.1 on 02.12.2011 was confirmed by sending an e-mail communication to the complainant stating that they have received the photographs of the subject accident vehicle along with the service report and they forwarded to the good office of the OP No.2.  This information was sent by Amitava Guha of OP No.1.  So, the complaint shows that the fact of accident and the fact of complaint was communicated by the complainant to the OP No.1 who thereby transmitted the report of accident and photocopies and other relevant papers to the OP No.2/Insurance Company.  Thereafter, the

 

Contd…..P/3

-:3:-

 

 

complainant has moved the office of the OPs, but returned with no benefit. 

It is further case of the complainant reflected in para-12 is that all OPs tried to settle the dispute, but reasons of failure is not shown in the petition.  The OP Nos.1 2 having dominant position over the complainant are not making heed to the complainant’s claim.  It is further alleges that the parties are in collusion with each other are depriving complainant’s claim in different pretext causing huge loss, injury due to deprivation the mental pain, agony, harassment. 

The complainant issued notice on 24.03.2012, but no reply has been received.  All efforts were in vain when under compelling the circumstances, the complainant has approached before this Forum with prayer as laid down in para-18 of the complaint.  So, the case of action as per confirmation was on 31.06.2011, when the vehicle was met with an accident on 01.12.2011. 

OP Nos. 1 & 3 filed written version denying all the materials allegations as raised by the complainant and stated that they have nothing to do with the claim and that the claim does not fall in contractual obligation of OP Nos.1 & 3.  So, question of mediation on any point of time does not arise.  It is also stated by OP Nos.1 & 3 in para-14 that certainly it is obligation of the OP No.2 only to deal with the matter. 

OP No.2, 4 & 5 filed written version denying all the materials allegations as raised by the complainant.  The contentions of OP Nos.4 & 5 is that they have been impleaded as an unnecessary parties because insurance policy have been issued by the OP No.2.  It is also contended that OP No.2 had appointed an IRDA approved licensed independent surveyor Mr. Utpal Dutta.  The said surveyor had carried out the survey and submitted his report on 02.01.2012.  As per letter he has assessed the loss on repair basis at Rs.10,94,330/- and on total loss basis at Rs.10,65,000/-.  But later on due to change of circumstances, the surveyor assessed loss on repair basis at Rs.8,43,000/- and the

 

 

Contd…..P/4

-:4:-

 

 

complainant was informed by the surveyor to carry out the necessary repair and submit final bills, but the complainant has not sent final bill receipt to the OP No.2 and the OP No.2 did not even receive any of the documents from the insured/complainant till date and thereafter the claim of the complainant cannot be settled.

So, from the elaborate and lengthy averments of OP No.2, the brief fact and circumstances that the insurance company did not give the cost of repairing reasons is that they did not get final bill or voucher from the complainant. 

 

The complainant has filed the following documents :-

1.       Photocopy of the Certificate of Registration dated 11.07.2011.

2.       Photocopy of the Insurance Certificate.

3.       Photocopy of the Insured Particulars details dated 31.10.2011.

4.       Photocopy of the Order Acceptance Letter dated 10.06.2911.

5.       Photocopy of the Tax Invoice dated 10.06.2011.

6.       Photocopy of the letter dated 10.06.2011.

7.       Photocopy of the Authorisation letter to Driver of the vehicle.

8.       Photocopy of the Work Order of M/s Karunamoyee Enterprises dated 15.08.2011.

9.       Photocopy of the letter of communication from Srei Equipment Finance Pvt. Ltd. dated 02.07.2011.

10.     Photocopy of the Sales Quotation dated 02.12.2011.

11.     Photocopy of the Estimate of Overhauling Charges of the M/C dated 15.12.2011.

12.     Photocopy of the Service Report dated 01.12.2011.

13.     Photocopy of the e-mail communication from Amitava Guha of P.S. Earthmovers Pvt. Ltd. dated 02.12.2011. 

14.     Photocopy of the letter of Communication to OP No.1 dated 03.12.2011.

15.     Photocopy of the letter of communication to OP No.2 dated 03.12.2011.

 

Contd…..P/5

-:5:-

 

 

16.     Photocopy of the F.I.R.

17.     Photocopy of the Seizure List vide M.A. Case No.22/2011 dated 03.12.2011.

18.     Photocopy of the Zimma Nama vide M.A. Case No.22/2011 dated 03.12.2011.

19.     Photocopy of the Release Order by Kurseong P.S. dated 03.12.11.

20.     Photocopy of the Quotation of parts dated 24.01.2012.

21.     Photocopy of the Quotation of parts dated 24.01.2012.

22.     Photocopy of the Service Charge Quotation dated 24.01.2012 for Overhauling Charges.

23.     Photocopy of the Service Charge Quotation dated 24.01.2012 for Engine Overhauling Charges. 

24.     Photocopy of the Service Charge Quotation dated 24.01.2012 for Engine Overhauling Charges. 

25.     Photocopy of the Surveyor Report dated 30.01.2012.

26.     Photocopy of the Surveyor Report dated 27.02.2012.

27.     Photocopy of the Certificate of Parts & Service Estimate dated 29.02.2012. 

28.     Photocopy of the Estimate for spare parts dated 02.03.2012.

29.     Photocopy of the Lawyer’s Notice dated 24.03.2012.

30.     Photocopy of the Postal Receipts of the Lawyer’s Notice.

31.     Photocopy of the Reply letter dated 27.03.2012.    

 

OP Nos.2, 4 & 5 have filed the following documents :-

1.       Xerox copy of Certificate of Insurance valid from 31.10.2011 to 30.10.2012.

2.       Survey report dated 02.01.2012. 

3.       Addendum report dated 30.01.2012.

4.       Addendum report dated 05.03.2012. 

5.       Letter dated 11.04.2012 issued by the OP No.2 to Mr. Abhishek Sengupta, Advocate of the complainant.

6.       Office Note of the OP No.2 dated 10.05.2012.

7.       Office letter dated 16.07.2012 issued by OP No.2.   

Contd…..P/6

-:6:-

 

 

Points for consideration

 

1.       Whether the complainant has succeeded to prove his case ?

2.       If so, is the complainant entitled to get compensation as per Section 14 of The Consumer Protection Act ?

 

Decision with reason

 

Complainant has field evidence in chief on oath.

OP No.2, 4 & 5 have filed evidence in chief on oath. 

OP Nos.1 & 3 have filed evidence in chief on oath.

 

In evidence-in-chief, the complainant has stated his allegation in the petition that accident took place.  Vehicle was repaired.  Claim was given to OP No.2 via OP No.1, but the all OPs are playing the game to deprive the complainant of his right to get claim as per insurance act.  OP No.1 has filed examination-in-chief. 

The examination-in-chief filed by OP Nos.1 & 3 stated in para 5 that “settlement issued of any damage and settlement or disbursement of sum completely depend upon the contract between the insurer and the insured and in this regard our company, whose status is mere manufacturer of the machine has nothing to deal to any accident whatsoever”.

OP No.1 in his separate affidavit stated that he had no responsibilities and responsibility lies on the insurance company. 

OP Nos.2, 4 & 5 in para 10 the main contention of the OP No.2 is that “the surveyor in his report has assessed the loss based on the quotation submitted by the dealer and the claim settlement could not be finalized since the OP No.2 has not yet received the final bills and receipts for having carried out the repairs basis on the quotation submitted by the dealer”.

So, from the averments of the OP No.2, it appears that a repairing has been done on the quotation submitted by the dealer.  The dealer is obviously known to OP No.2 because all dealings in purchase of the vehicle and factum of insurance.

Contd…..P/7

-:7:-

 

 

On the other hand, the complainant stated that OP No.1 informed him regarding transmission of all documents to OP No.2 (it is in record i.e., in statement of OP No.1 and complainant.

The factum of incident is not denied. 

Factum of repairing is not denied by any person.

Even quotation submitted by the dealer is impliedly submitted by the Insurance Company.  With this instant FIR was lodged.  So, it cannot be stated that no such incident at all took place.  In this case main question is whether the complainant purchased the vehicle legally, whether the vehicle was insured, whether the vehicle suffered accident.

During the curse of summary trial, OP Nos.1, 2, 3 4 & 5 all have gathered pages of documents and affidavits one after another.  All the parties are contesting in a full manner. 

Very peculiar the main astonishing feature of the case is that Insurance Company is fully aware about the accident and insured of the vehicle.  But only on ground of some papers which they had opportunity to call from either from the dealer or from the repairing centre.  But that has not been directly done.  Moreover the surveyor submitted report for two times.  First report dated 30.01.2012 loss is Rs.12,00,000/- on repair basis and on total loss at Rs.10,15,000/-.  Thus the OP No.2 as per again surveyor’s report dated 05.03.2012, the assessed loss was Rs.8,43,081/-.  Accordingly, the examination-in-chief of OP No.2 at page 2 para-9 last portion shows their indecision and fluctuation of calculation regarding payment of compensation money.  In a word it varies from Rs.12,00,000/- to Rs.8,00,000/- of repairing cost.  As per report dated 05.03.2012 the cost is Rs.8,43,081/-, as per dated 30.01.2012 cost is Rs.12,00,000/- on repairing basis.  Telco dealer after revision submitted cost of Rs.9,88,826/-. 

In this case, after filing this case in the year 2012 and on 17.05.2012 has prayed the damage amount as laid down in para 18. 

During the evidence-in-chief, and written statement there is no

 

Contd…..P/8

 

-:8:-

 

 

denial of OP No.2 regarding the insurance amount.  The complainant has prayed insurance claim amounting Rs.10,15,000/-. 

From the admission of OPs in para-9 last portion OP No.2 had determined himself the cost as led therein.  Accordingly, the complainant’s case is well proved by the material placed by the complainant as well as OPs.

The complainant is entitled to get compensation of course insurance amount and others prayer. 

In this case the Insurance Company did not pay the insurance amount as well as cost of repairing the vehicle. 

Owner is entitled to get the cost of repairing the vehicle, which as per evidence hereinabove Rs.10,15,000/-. 

The Insurance Company ought to have take sufficient step to help the owner of the vehicle, but the Insurance Company did not extent their hand to help the complainant in repairing his vehicle for which the complainant has filed this case.  The complainant is entitled to get compensation for this amounting to Rs.50,000/-. 

There is no evidence to show that complainant has suffered loss.  Accordingly, the prayer of loss is not considered without any available data. 

Accordingly, after considering the case and facts this Forum is of opinion that the case succeeds and the complainant is entitled to get Rs.10,15,000/- being the insurance amount and Rs.50,000/- for compensation. 

The case has been instituted on 13.04.2012 and today is 12.08.2015 i.e., over three years.  So, the complainant is entitled to get interest of the above sum @ 9% per annum from the date of appearance of OPs i.e., 19.07.2012 till date of full realization. 

As per provision of Section 14 (d) runs as follows :- “to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party”.

 

Contd…..P/9

-:9:-

 

 

It appears that the OPs have delayed the case by taking different pleas and shifting responsibilities on each other.  There had been enough time and opportunity to ameliorate the suffering of the complainant outside the Forum.  But the omission on the part of the OP No.2 mainly compelled the complainant to approach before this Forum.  Accordingly, this Forum is of opinion that some amount should be granted in favour of the complainant to be given by the OP No.2 as punitive damages because the vehicle was left inaction in the garage, for which the complainant did not earn money. 

It is pertinent to note that insurance company has come only existence only for the help of the person consumer who suffered by accident and it is obligatory duty of the Insurance Company to help that injured person.  But the Insurance Company did not do this rather they have tried to shift their responsibilities to each other causing delaying the complainant and suffering the complainant. 

This Forum thinks that that Rs.2,00,000/- should be given by the OP No.2 as punitive damage for his negligence and deficiency of work to the common people. 

In the result, the case succeeds.

Hence, it is

                    O R D E R E D

that the Consumer Case No.29/S/2012 be, and the same is hereby allowed on contest against OP Nos.2, 4 & 5, and the case is dismissed as against OP Nos.1 & 3.    

The complainant is entitled to get Rs.10,15,000/- being the insurance amount from the OP Nos.2, 4 & 5.

The complainant is also entitled to get Rs.50,000/- for compensation towards mental pain, agony and harassment from the OP Nos.2, 4 & 5.

The complainant is also entitled to get interest @ 9% per annum from the date of appearance of OPs i.e., 19.07.2012 till date of full realization.

Contd…..P/10

 

-:10:-

 

 

The complainant is also entitled to get Rs.2,00,000/- as punitive damage for negligence and deficiency of work to the common people from the OP Nos.2, 4 & 5. 

The OP Nos.2, 4 & 5, who are jointly and severally liable, are directed to pay Rs.10,15,000/- by issuing an account payee cheque in the name of the complainant, being the insurance amount, within 45 days of this order. 

The OP Nos.2, 4 & 5, who are jointly and severally liable, are directed to pay Rs.50,000/- by issuing an account payee cheque in the name of the complainant, for mental pain, agony and harassment of the complainant within 45 days of this order.

The OP Nos.2, 4 & 5, who are jointly and severally liable, are directed to pay interest @ 9% per annum from the date of appearance of OPs i.e., 19.07.2012 till date of full realization, within 45 days of this order.

The OP Nos.2, 4 & 5, who are jointly and severally liable, are directed to pay Rs.2,00,000/- by issuing an account payee cheque in the name of the complainant, as punitive damage for negligence and deficiency of work to the common people, within 45 days of this order.    

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

 -Member-                     -Member-                         -President-