This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for direction upon O.P./ Insurance Company to pay of Rs.4,00,000/- with interest and for compensation of Rs.1,00,000/- for unnecessary harassment and also Rs.10,000/- for litigation cost.

The case of the complainant in short is that he purchased Ashok Leyland pick up vehicle being registered WB59B/2458 and purchased the Policy for Rs 4,87,350/- and paid Rs 22,720/- as premium  of the vehicle  being No.51300031140100010527 valid from 04.03.15 up to 03.03.2016 of O.P./Ins. Co.  The vehicle met with an accident on 09.07.15 at Chechu More under Malda P.S. Following the accident Malda P.S., case No.280/2015 dt. 09.07.2015 u/s. 279/338/304A of I.P.C. was started. The vehicle was badly damaged and the petitioner incurred Rs 4,00,000/- for repairing of the vehicle . He therefore, filed this case praying the same from O.P/Ins. Co.  O.P/Ins. Co on 13.07.2015 repudiated the claim. Petitioner then on 06.10.15 and 21.12 15  asked for payment from O.P but O.P. refused to pay . The petitioner filed this complaint petition alleging gross negligence and unfair trade practice causing him serious monitory loss and mental pain . Therefore petitioner come up with the petition before this forum with above mentioned prayer.  

O.Ps. appeared and contested the case by filing written version, where they categorically denied the allegations of the complainant. O.P. made a very elaborate written statement assailing the complaint. O.P admits that petitioner was the owner of the said vehicle insured under the policy. That, insured placed the damaged vehicle in the garage for repairing as alleged but he has not submitted cash memo of bill of spare parts replaced and labour charge from the said garage to the O.P./Ins. Co. till date. That, after receiving intimation of the accident O.P/Ins. Co. deputed independent  surveyor Mr. Sujit Kr. Sarrker to assess the loss of the said vehicle. The surveyor assessed the loss of the damaged vehicle at Rs 2,28,140/-. That there is no latches on the part of the O.P to pay the said compensation to the petitioner.

O.P. alleges that the vehicle was for use of good carriage vehicle as per documents and papers of the vehicle . But at the time of alleged accident the driver was carrying some passengers in the said commercial vehicle in contravention to the terms and conditions of the M.V.Act and also of the Policy. For carrying unauthorized passengers in the said vehicle and only on this ground the company repudiated the claim for compensation. That , the petitioner/owner authorized his paid driver Bidyut Roy to drive the vehicle at the time of accident while the driver hold only Light Motor Vehicle driving license and did not hold any light goods carriage motor vehicle license and violated the terms and conditions of M.V.Act and also of Ins. Policy. O.P, therefore prays for dismissal of the case with cost.  

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DECISION WITH REASONS

Petitioner has been examined as P.W.1 . One  Debasis Das, Senior Divisio0nal Manager of O.P/ Ins. Co of Malda Divisional Office   is examined as O.P.W. 1 on behalf of Ins. Company. Petitioner filed documents of the vehicle, copy of Registration Certificate , Policy paper , copy of F.I.R of Malda P.S. Case No.280 of 2015, copy of letter dt. 13.07.2015, claim Form and Tax Invoice.

Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, argument advanced by the lawyers of both sides, the Ld. Forum has come to the findings as follows: -

Petitioner stated in the complaint petition and also deposed as P.W.-1 that the vehicle met with an accident on 09.07.2015 and was badly damaged. He filed documents like Tax Invoice of M/S.Tirupati Steels of Malda giving descriptions of the spare parts, repair or replace , labour charges etc. In cross examination he admits that it was a goods carriage pick up van and after accident surveyor inspected the vehicle following direction of O.P. that he incurred an expenses of Rs 4,00,000/- for repair  but the surveyor only assessed the damage to the tune of Rs  2,34,000/-. That, he is entitled to receive Rs  4,00,000/- and made claim accordingly before the Ins. Co.  Which the company repudiated.

O.P.W Debasis Das admits that petitioner being owner of the vehicle being No. 59B/2458 purchased the policy valid from 04.03.15 to 03.03.16. Therefore the incident of accident which took place on 09.07.15 is within the validity of the Ins. Policy. The copy of F.I.R  and Malda P.S. Case No.280/15 also supplied by the O.P. proves the fact of accident . O.P also supplied the surveyor’s report of Sujit Kr. Sarker dt. 18.02.2016. That original estimate of summary assessment including cost of spare parts, labour charge etc. was Rs.3,00,146/- as against the same the Surveyor assessed cost categorically stated in the survey report including labour charges for repair, the material parts replaced/ repaired less salvage of parts and net loss assessed at `2,28,140/-.

Therefore complainant has been able to prove that the vehicle was damaged following the accident. The Police Case started by Malda P.S. The vehicle was repaired at Malda garage and the report of the surveyor is very much clear  that the petitioner has to incurr expenses for repair of the vehicle. Petitioner therefore filled up the Motor Claim Form giving brief particulars of the accident and the inspection of the vehicle at Tirupati Steels, Malda.  As the vehicle was duly insured with the O.P/ Ins. Co. and the accident occurred during the subsistence of the Policy petitioner is entitled to get the compensation for the damaged vehicle.

The surveyor Sujit Kr. Sarker duly prepared his report after survey. The report of the Surveyor/assessor who was appointed by the O.P/Ins. Co gave an elaborate and descriptive report regarding nature and extent of loss damages and subject to terms and conditions of the Ins. Policy. He verified all the documents, estimate of Tirupati Steels and also took photographs of the damaged vehicle from different angles. The complainant did not give any evidence  showing sufficient grounds to departure from the report of the surveyor.. Therefore, the report should be given due value and weightage as per guidance of Hon’ble  National Commission in its various judgements that unless there are sufficient grounds to make departure from report of surveyor, the report has sufficient evidentiary value as reported in CPR 2015 page 459,(NC), 2015 CPR page 433, (NC)2015 (1) CPR page 274 (NC). The complainant made a claim of Rs,4,00,000/- as compensation for damages. Following the report of surveyor this Forum allow the compensation which the petitioner is entitled to get  from the Ins. Co/O.P which we can safely permit is `2,28,140/- as net loss assessed by the Surveyor . The O.P/Ins. Co. also relied the surveyor report  and we also give due weightage to the same for proper adjudication of the matter.

As the O.P failed to compensate the petitioner even following the net assessed loss of the report of the Surveyor the O.P/Ins. Co. has deficiency in their service in repudiating the claim of compensation on some other grounds. Therefore the petitioner is also entitled to get compensation for harassment and mental pain.

Therefore, we find there is a gross negligence on the part of the O.P/Insurance Company   that it wrongly repudiated the claim by intimating the repudiation showing grounds and reason on some other grounds of violation of terms and conditions of Policy etc . Therefore, the complainant is entitled to relief from O.P./ Insurance Company in the light of our above discussion.

Fees paid is correct. Hence, it is

ORDERED,

That the consumer complaint being No. CC-09/2016 be and the same succeeds on contest but in part.

The O.P/Insurance   Company is directed to pay the sum assessed as net loss of Rs.2,28,140/- against the compensation claim for damages of the vehicle No. WB59B/2458. We direct the O.P/Insurance Company to pay the said amount with interest at the rate of 7% from the date of filing of this case i.e. on 22.01.2016.  Further, we direct the O.P. to pay Rs.5000/- as compensation for harassment and mental pain and Rs. 2000/- as litigation cost. Entire amount be paid within one month from this day, lest interest to be imposed at the rate of 9% per annum till full realization. Let copies of this order be supplied to the parties free of cost.