ORDER

(Passed on 08 /09/2021)

PER SHRI.ATUL D.ALSI, PRESIDENT.

            The complainant has filed this complaint U/s 12 of the Consumer Protection Act, 1986 against repudiation of partial own damage insurance claim of Rs.39,000/- and praying for allowing full claim alongwith 18% interest and further claiming compensation and  cost of proceeding.

2.       The facts in short giving rise to this petition are that the complainant owned Ford Figo car bearing No.MH-34, AA- 2285  was insured with the OP Insurance Company for the period from 4/8/2016  to 3/8/2017 against IDV of

Rs.2,26,080/- by paying premium of Rs.8,959/-. On 10/4/2017, while the vehicle was being driven by the brother of the complainant, due to a big stone lying on the road, the driver lost the control over the car and it dashed to the mileston and roadmetal stock by the side of the road. In the accident, it sustained damages. Thereafter the vehicle was toed and brought for repairs to the authorized service centre of Ford Figo at Chandrapur on 13/4/2017. The OP appointed a surveyor, who inspected the vehicle in absence of the complainant and submitted report to the OP. He estimated the repair charges of Rs.92,750/- . However, after repairs, the final bill was of Rs.60,512/-. But the OP insurance company has paid partial claim of Rs.20,000/- towards own damage and refused to pay the balance amount of Rs.39,000/- for the reason that as per the surveyor’s report, the impact of accident does not warrantee the damages sustained. Being aggrieved by the same, the complainant has filed this complaint.

3.       The complaint is admitted and notices was served on the OP. The OP filed its reply and thereby denied allegations against it and submitted that the partial claim of Rs.20,000/- was sanctioned as per facts and circumstances of the accident as observed by the independent Surveyor Mr.Manish Tiwari vide his survey report dated 15/6/2017 towards full and final settlement of claim. the complainant . The complainant had challenged this partial settlement before the Ombudsman, who has rejected his claim. Once the complainants opts for ombudsman and his claim is decided by the ombudsman, the Fora has no jurisdiction to entertain the petition. Therefore the present petition is not maintainable as principal of resjudicata Sec.11 of Civil Procedure Code,1908 applies. Therefore the petition deserves to be dismissed with cost.

4.       Counsel for the complainant argued that the OP failed to settle the full insurance claim of the complainant as per actual bill of repairs and rejection of claim of Rs.39,000/- for the reason that the some of the damages doesn’t relates to the accrual of accident.

5.         Counsel for the OPs Adv.M.K.Deshpande argued that as the claim has been already decided by the ombudsman in appeal, the Forum has no jurisdiction  to entertain the same.  He further argued that as per the report of indipendent Surveyor Mr.Manish Tiwari  dated 15/6/2017, the amount of insurance claim is payable upto Rs.20,000/- only and, therefore, the amount of claim was sanctioned accordingly as full and final settlement of the claim and when the complainant agitated the partial payment before the Ombudsman, he also found the claim as justified needing no interference.  Hence on both these counts the complaint deserves to be dismissed with cost.

                                                          REASONING

6.         At the outset, the dispute raised by the OP regarding maintainability of the complaint needs to be adverted to. As per the OP, when the claim has been already decided by the ombudsman in appeal, the Forum has no jurisdiction to entertain the same. However, in light of an array of cases decided by Hon’ble apex court and Hon’ble National Commission, the position in this regard is well settled.  The “Ombudsman” is an authority and not a court and as such, the award passed by the ombudsman does not attract the principal of resjudicata while agitating the dispute before the competent court. Hence the complaint is not vitiated by the principal of resjudicata and this Forum has jurisdiction to entertain the same. Hence the issue is answered accordingly.

7.         As far as rejection of partial claim by the OP insurance company is concerned, as per  opinion report filed by the OP vide list of documents dated 19/8/2019 at Exh.8, the second surveyor who was appointed with due consent of both the parties and as per the survey report of Mr.Manish tiwari who is also the first investigator, an assessment of loss payable of quantified at Rs.22,678/- by rejecting remaining insurance claim which is not payable under the Insurance Act.  The surveyor is an expert person in mechanical field and he is an impartial person. The opinion of surveyor is binding on both the parties unless and until some serious anomaly in the report is proved by the party feeling aggrieved.  In the case in hand, no such anomaly is proved by the complainant. Therefore the rejection of partial claim of Rs.39,000/- by the OP as per the surveyor report does not amount to deficiency in service. Hence the petition has no merit and it deserves to be dismissed. Hence the order..

Final order

1. The Complaint is dismissed.

2. Both the parties to bear their own cost.

3 Copy of the order be furnished to both the parties free of cost.