Assam

Dibrugarh

CC/25/2013

SRI ROBIN BUKALSARIA - Complainant(s)

Versus

THE ORIENTAL INSURANCE COMPANY LTD, GOVT. OF INDIA UNDERTAKING. - Opp.Party(s)

SRI SURYA SINGHANIA

13 Mar 2023

ORDER

          The case of the complainant in brief is that he purchased one JCB in the month of March, 2009 for earning his livelihood. Regd. No. of the JCB was AR-13-3123 and the said JCB was duly insured with the O.P. No.1 i.e. , the Oriental Insurance Company Ltd., Dibrugarh Branch vide policy No.322100/31/2009/4827 valid from 09.03.2009 to 08.03.2010. The aforesaid JCB was financed by Indusind Bank Ltd.,Dibrugarh. On 09.04.2009 at about 3:15 P.M.  the brand new JCB of the complainant was going to the camp at Longding area under Tirap District, Arunachal Pradesh and on the way while the driver of the JCB was trying to give side to some persons coming from the opposite side suddenly the JCB slipped and feel down about 150 feet below from the road level and sustained heavy damage and the driver of the JCB died on the spot. The Complainant informed the O.P. about the accident on 10.04.2009 and one surveyor of the O.P. surveyed the accident spot and thereafter the complainant vide his letter dtd. 13.4.2009 informed the O.P.No.2 and submitted necessary documents and requested the O.P. No.2 to make arrangement to pull up the said JCB as soon as possible to avoid further damage. The O.P. No.2 vide letter dtd.21.04.2009 asked the complainant to submit filled up claim form together with documents and accordingly the complainant submitted the same.

            Thereafter the complainant vide his letter dtd. 18.05.2009 informed the O.P. No.2 that as the JCB had fallen about 150 feet down from road level and the position of the JCB is presently such that it is not possible to lift the JCB from the spot and hence requested the O.P.No.2 to survey the JCB at the spot of accident and lateron one P. Adhikari, a Surveyor appointed by O.P. No.2 surveyed the vehicle and the JCB was lifted from the accident spot and was sent to Ojha Earth Movers, Tinsukia for repairing. As per bills of M/s Ojha Earth Movers the estimated cost of repairing was Rs.8,46,892.50 only. The complainant made the payment to M/s Ojha Earth Movers.

            The O.P. No.2 thereafter vide letter dtd. 27.11.2009 informed the complainant that his claim was approved for Rs.2,00,000/- only by the Regional Office enclosing disbursement vouchers in duplicate to be duly signed by the complainant and the financer for issuance of claim cheque. The complainant although signed the disbursement voucher but not as a full and final settlement of his claim on 30.01.2010 and sent the same to the O.P. No.2. In the month of March, 2010 the O.P. No.1 informed the complainant that the  competent authority has approved his claim to the tune of Rs.4,30,000/- only as full and final settlement and sent the disbursement voucher for the balance amount of Rs.2,30,000/- to be duly signed by the complainant. The complainant did not agree with the amount of Rs. 4,30,000/- as full and final settlement and returned the disbursement voucher without signing it. The complainant vide his letter dtd. 23.06.2010 requested the Regional Manager of O.P. No.1 at Guwahati requesting him to reconsider his claim and to settle his claim at Rs.8,46,892.00. But the O.P. did not reconsider his claim and the complainant approached the Insurance Ombudsmen vide his letter dtd. 12.08.2010 for settlement of his claim. The Insurance Ombudsmen thereafter vide letter dtd. 12.03.2011 allowed the claim of the complainant and directed him to submit his bills and vouchers to the O.P. No.1 for reconsideration of his claim. The O.Ps were also directed to make assessment of the claim of the complainant on receipt of bills/vouchers and make necessary payment. Accordingly, the complainant submitted all the relevant documents as directed by the Insurance Ombudsmen to the O.P. No.2. Even after that the OPs informed the complainant vide letter dtd. 21.09.2011 that there is no scope of further review/enhancement of the claimed amount above Rs.4,30,000/-. Having no other alternative the complainant filed this complaint claiming following relief-

1. Rs.6,46,893.50 (Rs.8,46,892.50 – Rs.2,00,000.00) being the amount spent for repairing the JCB after deducting a sum of Rs.2,00,000.00 already paid by the O.P.
2. Rs.1,00,000/- being the amount expended on lifting and towing the JCB from the accident spot.
3. Rs.50,000/- being the compensation for mental agony and harassment.
4. Interest @ 18% p.a. from 09.04.2009 till filing the claim petition.
5. Pendent lite and future interest @ 18% p.a. till recovery.
6. Rs.10,000/- towards the cost of litigation.

After registering the case notices were issued to all the O.Ps.  who contested the case and submitted their W/S stating interalia that the case is not maintainable under law as well as on facts. Both the parties submitted their evidences in affidavit and written arguments at length as well.

            In their W/S the OPs admitted the validity of the insurance coverage of vehicle of the complainant at the relevant time of accident. They submitted that the allegation made in para 10 of the complaint petition against Shri Pradeep Adhikari, the Surveyor of Insurer are serious allegations that he had demanded a commission for settlement of the claim of the complainant are totally false and denied. That the OPs in their W/S admitted that they never raised any dispute and denied the claim of the complainant and on the basis of the assessment report prepared by their appointed surveyor the claim was settled at Rs.4,30,000/- and partly a sum of Rs.2,00,000/- was paid to the Financer, i.e. Indusind Bank and refused to accept the balance amount. They claim that the bills submitted for Rs.8,46,892.50 of M/s Ojha Earth Movers for repairing and replacement of necessary accessories are not genuine and correct as per the replacement of the damaged accessories some parts were fitted or placed in the alleged JCB damaged as claim in the bill, the quantity also shown much more than actual use. Moreover, M/S Ojha Earth Movers had also not helped or cooperated with the surveyor to produce or give the duplicate copies of the bills of repairing and replacement of the parts on his request and as such the claim made in the bill are beyond the actual repairing charges etc. to which the complainant is not at all entitled. They denied their deficiency in service and negligence as alleged by the complainant. The OPs submitted that the Insurance Ombudsmen referred and directed the OPs to reconsider and reconcile of the case after verifying the bills within 30 days but no order was made for payment of the claim of Rs.8,46,892.50 as demanded and after going through the bills and vouchers the OPs did not find any room for reconsideration of the claim to enhance/review.

            They claim that the complaint is barred by time and filed this case for wrongful gain for which the claim be dismissed with heavy cost.

                                                            Decision and Reason th ereof

            The complainant in support of his complaint has submitted the evidence of two witness, i.e. his own and one Shri Raktim Ranjan Borkataky. In his evidence in affidavit the complainant stated that he purchased one JCB (bearing Regd. No.AR-13/3123) in the month of March, 2009 for earning his livelihood. He exhibited the Registration Certificate of the JCB as Ext. 1. The said JCB was duly insured with the OP No.1 vide policy No.322100/31/2009/4827 valid from 09.03.2009 to 08.03.2010. Ext. 1(A) is the copy of the insurance policy. The JCB was financed by Indusind Bank Ltd., Dibrugarh and Ext. 2 is copy of statement of accounts issued by the same bank.

On 09.04.2009 at about 3:15 P.M. while the brand new JCB of the complainant  was going to the camp at Longding area under Tirap District, Arunachal Pradesh and on the way while the driver of the JCB was trying to give side to some persons coming from the opposite side suddenly the JCB slipped and feel down about 150 feet below from the road level and sustained heavy damage and the driver of the JCB died on the spot.

The Complainant informed the O.P. about the accident on 10.04.2009 and one surveyor of the O.P. surveyed the accident spot and thereafter the complainant vide his letter dtd. 13.4.2009 informed the O.P.No.2 and submitted necessary documents and requested the O.P. No.2 to make arrangement to pull up the said JCB as soon as possible to avoid further damage. The O.P. No.2 vide letter dtd.21.04.2009 asked the complainant to submit filled up claim form together with documents and accordingly the complainant submitted the same.

Ext. 3 is the copy of letter dtd. 13.04.2009 of the complainant sent to the OP No.2 with receipt endorsement of the OPs. Ext. 3(1) is the signature of the complainant. Ext. 4 is the copy of the letter of the complainant dtd. 13.04.2009 and Ext. 4(1) is his signature. Ext. 5 is the letter of the OP No.2 dtd. 21.04.2009.

Thereafter the complainant vide his letter dtd. 18.05.2009 informed the O.P. No.2 that as the JCB had fallen about 150 feet down from road level and the position of the JCB is presently such that it is not possible to lift the JCB from the spot and hence requested the O.P.No.2 to survey the JCB at the spot of accident and lateron one P. Adhikari, a Surveyor appointed by O.P. No.2 surveyed the vehicle and the JCB was lifted from the accident spot and was sent to Ojha Earth Movers, Tinsukia for repairing. As per bills of M/s Ojha Earth Movers the estimated cost of repairing was Rs.8,46,892.50 only. The complainant made the payment to M/s Ojha Earth Movers. Ext. 6 is the letter of the complainant dtd. 18.5.2009.

In para 10 of his evidence in affidavit the complainant deposed that the surveyor Mr. Pradeep Adhikari deputed by the OP No.2 demanded 10% of the total claim amount from him for processing the claim and several times misbehaved the complainant. The complainant informed the matter to the Regional Manager of OP No.1 at Guwahati vide letter dtd. 19.08.2009. Ext. 7 is that letter.

M/s Ojha Earth Movers, Tinsukia prepared bills for the works undertaken by them for repairing the JCB from time to time as given in detail by the complainant in para 11 of his evidence in affidavit. M/s Ojha Earth Movers estimated the cost of repairing, including all at Rs. 8,46,892.50 only. Ext. 8(1) to Ext. 8(6) are the copies of bills of M/s Ojha Earth Movers.

The complainant himself paid the amount of Rs.8,46,892.50 to M/s Ojha Earth Movers and thereafter submitted the payment receipt to the O.P. No.2 vide his letter dtd. 14.09.2009. Ext. 9 is the copy of the letter dtd. 14.09.2009 and Ext. 9(1) to Ext.9(5) are five Nos. of bill payment receipts of Ojha Earth Movers.

The O.P. No.2 vide their letter dtd. 27.11.2009 informed the complainant that the Regional Office of the OPs has approved the claim at Rs.2,00,000/- only and enclosed a disbursement voucher in duplicate to be signed by the complainant and the financer for issuance of claim cheque. The complainant had signed the disbursement voucher but not as full and final settlement of his claim on 30.01.2010 and sent the same to OP No.2. Ext.10 is the letter of OP No.2 dtd. 27.11.2009. Ext. 11 is the copy of disbursement voucher duly signed by the complainant. Thereafter vide letter dtd. 16.04.2010 the OP No.1 informed the complainant that the competent authority has approved his claim at Rs.4,30,000/- as full and final settlement and sent a disbursement voucher for the balance amount of Rs.2,30,000/- to be duly signed by the complainant. The complainant not agreeing with the amount returned the disbursement voucher without his signature to the OP. Ext. 12 is the letter dtd. 16.04.2010 of the O.P. No.1. Ext.13 is the copy of disbursement voucher. The complainant vide his letter dtd. 23.06.2010 approached the Regional Manager of OP No.1 to reconsider his claim and to pay a total sum of Rs.8,46,892.50 in place of Rs.4,30,000/-, which was approved by the OPs. Ext. 14 is the copy of complainant’s letter dtd. 23.06.2010.

On 12.08.2010 the complainant referred the matter to Insurance Ombudsmen. Ext. 15 is the copy of letter dtd. 12.08.2010 and the Insurance Ombudsmen asked the complaint to submit the claim in prescribed format and the complainant submitted the same on 07.09.2010. Ext. 16 is the letter of the Insurance Ombudsmen and Ext.17 is the copy of claim submitted by the complainant.

As claimed by the complainant in his evidence, the Insurance Ombudsmen vide its letter dtd. 12.03.2011 allowed the claim of the complainant and directed him to submit all bills and vouchers to the OPs for reconsideration of his claim. Ext.18 is the copy of that letter. Accordingly, the complainant submitted all relevant documents before the OP No.2 on 21.04.2011. Ext. 19 is the copy of the letter of the complainant. The Financer of the complainant, Indusind Bank vide their letter dtd. 21.05.2011 and 28.06.2011 requested the OPs for early settlement of the claim of the complainant. Ext. 20 and Ext.21  are the letters of Indusind Bank.

In para 23 of his evidence in affidavit the complainant stated that the OP No.2 vide letter dtd. 21.09.2011 informed the complainant that there is no scope of further review/enhancement of the claim amount as the claim is already adequately indemnified at Rs.4,30,000/- as full and final settlement. Ext. 25 is the copy of the letter dtd. 21.09.2011 of the OP No.2 and Ext. 26 is the disbursement voucher for Rs.2,30,000/-.

In spite of repeated request and demand for reconsideration of his claim by the complainant, the OPs paid a deaf ear to the request made by the complainant and hence the complainant has knocked at the door of the Forum. The complainant claims that the OPs had assessed his claim at Rs.4,30,000/- but did not show the basis for the same and therefore the OPs are liable to pay the full amount spent on the repairing of the JCB after deducting a sum of Rs.2,00,000/- already paid. The complainant filed this complaint claiming the following relief :

1. Rs.6,46,893.50 (Rs.8,46,892.50 – Rs.2,00,000.00) being the amount spent for repairing the JCB after deducting a sum of Rs.2,00,000.00 already paid by the O.P.
2. Rs.1,00,000/- being the amount expended on lifting and towing the JCB from the accident spot.
3. Rs.50,000/- being the compensation for mental agony and harassment.
4. Interest @ 18% p.a. from 09.04.2009 till filing the claim petition.
5. Pendent lite and future interest @ 18% p.a. till recovery.
6. Rs.10,000/- towards the cost of litigation.

    CW-2 Shri Raktim Ranjan Borkataky was an employee of M/s Ojha Earth Movers (a unit of Ojha Automobiles Pvt. Ltd.) authorized dealer of JCB India Ltd. since 2009. In his evidence in affidavit CW-2 Raktim Ranjan Borkataky supports the claim of the complainant that he placed the damaged JCB for repairing before Ojha Earth Mover, Tinsukia and the JCB was accordingly repaired by Ojha Earth Movers and submitted bill for Rs.8.46,892.50 and after repairing the complainant took delivery of the repaired JCB after clearing the bills of M/s Ojha Earth Movers.

      In this particular case from the side of the Opposite Party, evidence of Shri Padmeswar Chetia, Administrative Officer of Oriental Insurance Company Ltd, Dibrugarh Branch in the form of affidavit has been submitted. From perusal of his evidence it is observed that there is nothing in his/their evidence except a ditto of their W/S filed in this case earlier. However, the OP has submitted the following exhibits in their support.

1. Ext. –A-1 is the report of the surveyor and Ext. A-2 is addendum report.
2. Ext.- B is the report of Ombudsmen Insurance .
3. Ext.-C  is report of the Regional Office of the OP at Guwahati.

The complainant in this case instead of filing written argument had submitted oral argument on 30.05.2017 and 30.04.2022. The OP filed their written argument on 20.04.2017. Gone thoroughly through the written argument of the OPs.

Points for Decision

1. Whether the complainant is a consumer under the provisions of Consumer Protection Act.
2. Whether the OPs are liable for negligence and deficient service towards their customers as alleged.
3. Whether the complainant is legally entitled to get the reliefs claimed by himself in his complaint.

Points Decided

1. From the complaint petition and from the documents and exhibits filed along with the complaint it is well evident that the complainant is a consumer under the provisions of Consumer Protection Act, 1986 and this fact is not denied by the OP in their W/S, evidence or in the argument.

 

2. Perusing the documents filed along with the complaint as annexures/Exhibits this Commission comes to a conclusion that the OPs are liable for deficient and negligent service in arriving at a reasonable quantum of compensation claimed by the complainant.

 

3. From the above discussions this Commission arrives at a conclusion that the complainant is entitled to get the reliefs under the Consumer Protection Act but not as he claims in his complaint petition. The OP never raised any dispute denying the claim of the complainant, the only question of controversy is regarding the quantum of compensation/assessment of the loss suffered by the complainant and the quantum of assessment made by the OP.

            The O.P. Insurance Co. in their W/S and in their evidence in affidavit claimed that the bills submitted by the complainant for repairing and replacement of accessories are not genuine and correct and the quantity also shown much more than actual use. But the O.P. failed to prove their claim in this regard. Moreover they have failed to show the basis of assessing the claim of the complainant at Rs.4,30,000/- only and the ground on what basis they denied review/enhancement of the assessment amount after getting the direction from the Insurance Ombudsmen. It is pertinent to quote here that Honourable Punjab & Haryana High Court in the case of New India Assurance Company Ltd. versus Smti. Usha Yadav & others 2008(3) R.C.R. (Civil) III expressed its anguish and observed

             "It seems that the Insurance Companies are only interested in earning the premiums, which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance Companies make the effected people to fight for getting their genuine claims."

            In the light of all above discussions and observation this Commission directs the O.P. Oriental Insurance Company Ltd.  to pay to the complainant -

1. Rs,6,46,894/-(Rupees six lakh forty six thousand eight hundred ninety four)only being the amount spent for repairing the JCB with 7% interest p.a. w.e.f. 20.09.2013 till payment of the amount awarded.
2. Rs. 20,000/- (Rupees twenty thousand)only for mental agony and harassment.
3. Rs. 10,000/- (Rupees ten thousand)only as cost of litigation.

            All the above mentioned amount be deposited into the credit of this Commission by the O.P. within 30 days from receipt of this judgement.

            Send copy of this judgement to the O.P. for compliance.

            The instant C.C. No.25/13 is accordingly disposed of on contest.