F I N A L   O R D E R

The petitioner Biswajit Mahanta filed a petition u/s.12 of the Consumer Protection Act for seeking relief.

The fact of the case as revealed from the petition as well as from the evidence is that the complainant is a permanent resident of Raiganj and he is an owner of the vehicle bearing No.WB59A/7075 which was insured with the O.P vide policy No.31350/31/2015/4978. From the petition as well as the evidence it is revealed that the said vehicle on29.03.15 met with an accident at Rupahar, Ghughudanga within the P.S.Raiganj, Dist. Uttar Dinajpur and the said vehicle was an ambulance. After accident the vehicle was taken to the garage M/S. N.S.Automobile situated at Mahananda Para  near Mahananda Sporting Club, P.O. Siliguri, Dist. Darjeeling. The further case of the complainant/petitioner is that the vehicle was totally damaged and he informed the matter of accident immediately to the Insurance Co. On the basis of such information agent of O.P. appeared at the garage and check the damaged vehicle. Before removing of the damaged parts the surveyor told him if the chassis will be found as bent then it will be treated as accident as totally damaged. The further case of the complainant/petitioner is that all the parts was damaged , vehicle was removed and the chassis was also found as bent and the surveyor assured that he will treat the vehicle as totally damaged and the claim will be ascertained accordingly Rs.4,71,526/-. Thereafter, after long time the surveyor told him that the damage could not be treated as totally damage and such cause is not known to the petitioner/complainant. Due to the purported whimsical activities on the part of the surveyor the petitioner is suffering a daily loss of Rs.1500/- which is the only source of income of the petitioner. The cause of action arose on 30.06.15 when the surveyor denied to declare the vehicle as totally damaged. The claimant has claimed Rs.4,71,526/- and to pay compensation of Rs.1,500/- per day from the date of accident till the actual payment and also prayed for garage rent at the rate of Rs.500/- per day .

The petition has been contested by the O.P.Nos.1,2 and 3 by filing the written version jointly denying all the material allegations leveled against the Ins. Co. contending inter alia that the instant case is not maintainable in law and there is no cause of action to file this case against the O.Ps. The suit is bad for estoppels, defect of parties and the case also barred by the law of limitation.

The definite defence case is that after receiving the information the O.P engaged IRDA appointed surveyor namely Asit Ranjan Guha , loss assessor and valuer for preliminary inspection of the vehicle and he completed the preliminary inspection and submitted a report. Thereafter Mr. Dipankar Guha another surveyor was engaged for final inspection to assess the actual loss of the vehicle. The surveyor Mr.Dipankar Guha after inspection assessed the damage caused by the accident and submitted a report on 29.09.15 and assess the loss to the tune of Rs.2,20,266=75. But the complainant did not agree with the said assessment as he claimed total damage of Rs.4,72,526/-. The further defence case is that the complainant is a business man dealing with ambulance business by using the said vehicle in commercial purpose. So, as such he is not entitled to get any relief as prayed for.

During the time of trial the complainant himself was examined as p.w.1 and he was cross examined. No other witness has been examined on behalf of the complainant. On the other hand O.P did not adduce any evidence to their defence. Document was file by the complainant.

Now the point of determination whether the claimant entitled to get the amount as prayed for or any other relief / reliefs.

                                       DECISION WITH REASONS

At the time of argument the Ld. Lawyer for the complainant argued that the damage amount will be Rs.4,71,526/- and the Ins. Co. is liable to pay the same amount as the vehicle was insured with the O.P and the accident took place during the pendency of the policy. On the other hand the Ld. Lawyer of the O.Ps argued that how the Forum will come to a conclusion that the damage was Rs.4,71,526/-. He further argued that before the Forum there is no document to show that the damage will not be Rs.4,71,526/-. It is fact that on perusal of the record it is found that no document has been filed by the claimant to show that the loss assessed to the tune of Rs.4,71,526/-. How the Forum will come to a conclusion that the damage amount will be Rs.4,71,526/-. Unless and until any document is filed by the claimant  mere submission of the claimant  will not be sufficient to hold that the damage was Rs.4,71,526/-. No expert from the garage has been examined by the claimant to prove the damage to the tune of Rs.4,71,526/-. So the claim of Rs.4,71,536 is not at all maintainable.

Next point is to be considered whether there was any assessment by the surveyor or not. On perusal of the record it is found that the surveyor was appointed as it appears from the claim petition and the surveyor assessed the damage to the tune of Rs.2,20,266=75. In this regard the Ld. Lawyer for the O.P argued that the report of the surveyor has significant value unless it is proved otherwise. In this regard the Ld. Lawyer for the O.P refers the case law reported in (I) 2015 CPJ page 255 N.C and another case law reported in 2013(2) CPR 1995 N.C. On perusal of the case law it is found that the surveyor report as to the valuation has significant. The Ld. Lawyer for the complainant argued that the surveyor report has not been exhibited, how Forum will come to a conclusion that the value assessed at Rs.2,20,266=75. But on perusal of the W.V it is found that in para 12 of the W.V it has been clearly stated that the surveyor assessed to the tune of Rs.2,20,266=75. So, the claimant had the knowledge about the assessment of the valuation of damage by the surveyor. The claimant did not adduce any evidence to rebut the report submitted by the valuer as regard to the valuation of damage . So, in such circumstances and in in view of the case laws the Forum has nothing to do but to accept the report submitted by the surveyor  as regard to the loss of damage to the tune of Rs.2,20,266=75. It is fact that the assessment value was made on 25.09.15. By this time the cost of materials has been enhanced. The enhance value is assesses over the assessment of the surveyor at the rate of 20% in total from the date of report till to date. So, the value comes to Rs.44,053=35 and the claimant is entitled to get Rs.2,20,266=75 + Rs.44,053=35 = Rs.2,64,320=00.

Next point argued by the Ld. Lawyer for the O.P is that the claimant is not entitled to get any compensation as because as yet the vehicle has not been repaired. How the Forum will give the amount. It is fact that the vehicle has  not been as yet repaired and it is lying in the garage. As and when it is found that the vehicle met with an accident and the vluer assessed the damage and the vehicle has not yet been repaired for want of money as stated by the Ld. Lawyer of the claimant. In such circumstances it will be just and proper to give direction to the complainant to make necessary repair  of the vehicle  to the amount of Rs.2,64,320=00 as awarded. After the repair of the vehicle  the complainant will submit the bills to the office of the O.P and thereafter the O.P will issue the account payee cheque to the complainant. The claimant is not entitled to get any garage rent on the basis of per day as because no document has been filed by the complainant that the vehicle was laying in the garage.

In the W.V it has been mentioned that the vehicle is used for the commercial purpose, but in this regard there is no cross examination on behalf of the O.P to the complainant that the vehicle is used for commercial purpose. So on the basis of such fact it is found that the vehicle was not used for commercial purpose. The claimant is also entitled to get compensation to the tune of Rs.10,000/-.

Fees paid are correct.

Hence, it is

ORDERED,

That the instant consumer complaint being No. CC - 23/2016 be and the same is allowed on contest but without any cost.

The claimant gets Rs.2,64,320/- as damage cost of the vehicle. Besides that he is entitled to get Rs.10,000/- as compensation. The O.P Nos.1,2 & 3 are directed to issue the account payee cheques of Rs.2,64,320/- and Rs.10,000/-  after repair of the vehicle, the complainant will submit the bills to the office of the O.P No.1. and the O.P. No.1 after physical verification of the repairing work of the vehicle by any competent staff will issue the account payee cheques of Rs.2,64,320/- and Rs.10,000/- within one month from the date of submission of the bill after repair failing which it will carry interest at the rate of 5% per annum from the date of filing of this case till payment. In case of default of payment the complainant is at liberty to file the execution case as per law.

It is to be mentioned that the complainant will take necessary steps for repairing of the vehicle within one and half month from the date of this order failing which the claimant will not entitled to get any interest.  

Let a copy of this order be given to the parties free of cost.