Sri Ranjan Ray, Ld. Member       

FINAL ORDER/ JUDGEMENT

This complaint U/S 11 and 12 of C.P. Act, 1986 was initially filed against the Opposite Party (O.P.)- 1) The Oriental Insurance Company Ltd., Malhotra Tower, Pradhan Nagar, P.O. & P.S.- Pradhan Nagar, Dist.- Darjeeling, Pin Code- 734003 and 2) M/S Deep Body Builders, Shaktigar Road, No. 06, Opposite Gouriomatth, Burdwan Road, P.O. & P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001 who contested the case by filing Written Version (W.V.).

The brief fact of complaint as per the complainant is as follows-

Due to her old age the complainant authorized her husband, Sri Nripendra Nath Sarkar, being her attorney by executing Power of Attorney on 12.04.2017 to look after and deal with the vehicle in all respect including court and legal proceedings.

The complainant is the registered owner of the vehicle (Bus WT 18) being No. W.B. 73A 7304 and having a motor insurance policy being No. 313205/31/2018/000004 of the O.P. No.1 which was valid from 11.10.2016 to 10.10.2017. The husband of the complainant is a retired Army personal and out of his retirement benefit he purchased the said vehicle. The said bus was only the source of income to the complainant’s family and the complainant authorized her son, Palash Sarkar, to drive the vehicle who had a valid driving license being No. W.B. 7320090021595 for their livelihood purpose. On 10.04.2017 the said vehicle (bus) met with an accident and a police case was started on the next day being Mtg P.S. Case No. 202/17, dated 11.04.2017 and the said vehicle was taken to the police station and intimation of this incident was given to the O.P. No.1. The vehicle was repaired before the O.P. No.2 under claim No. 313205/31/2018/000004 after taking an estimate from them and paid Rs. 85,580/- (Rupees Eighty Five Thousand Five Hundred and Eighty) only for repairing purpose in addition to other regular expenses. The O.P. No.1 was ready to pay Rs. 16, 100/- (Rupees Sixteen Thousand) only to the complainant against her claim and intimated the complainant on 20.04.2018 that no further payment enhancement would be made against the surveyor’s report for the complainant’s said claim purpose. Finding no other alternative the complainant lodged this case.     

The prayers of complainant are as follows :

1. To pass an order directing the O.P. No.1 to pay Rs. 85,580/- (Rupees Eighty Five Thousand Five Hundred and Eighty) only for repairing of the bus for damage.
2. To pass an order directing the O.P. No.1 to pay Rs. 2,50,000/- (Rupees Two Lakhs and Fifty Thousand) only against mental agony and financial loss since from 29.06.2011 when the vehicle met with an accident till today.
3. Any other relief/ reliefs as the Hon’ble Commission may deem fit and proper.

                             List of Documents filed by the complainant:

1. Photocopy of Registration Certificate and Insurance Cover Note. (Annex. A & B)
2. Photocopy of Power of Attorney. (Annex. C)
3. Photocopy of Authorized Letter and Driving License. (Annex. D and E)
4. Photocopy of intimation to the O.P. No.1. (Annex. F)
5. Photocopy of the estimate. (Annex. G)
6. Photocopy of the final Bill of Rs. 86,580/- (Rupees Eighty Five Thousand Five Hundred and Eighty) only and Consent Letter issued by the O.P. No.1. (Annex. H and I)
7. Photocopy of the letter dated 20.04.2018. (Annex. J)

On behalf of the Opposite Party (O.P.)- 1) The Oriental Insurance Company Ltd., Malhotra Tower, Pradhan Nagar, P.O. & P.S.- Pradhan Nagar, Dist.- Darjeeling, Pin Code- 734003 and 2) M/S Deep Body Builders, Shaktigar Road, No. 06, Opposite Gouriomatth, Burdwan Road, P.O. & P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001 who contested the case by filing W.V. and as per their W.V.s the case is as follows.   

The brief fact of the Written Version (W.V.) and Written Notes of Argument (W.N.A.) filed by the O.P. No.1 (The Oriental Insurance Company Ltd.) is as follows-

In their W.V., the O.P. No.1 submitted that the complainant is not a consumer of the O.P. No.1 as such this case is not maintainable against the O.P. No.1. The O.P. No.1 also argued that on 13.04.2018 he received a letter from the complainant regarding the alleged accident and on the basis of this letter he appointed its licensed Surveyor and Loss Assessor, Mr. Venon Ivan Maynard Dillen, to survey and investigate the said matter and also to assess the loss and damage of the alleged vehicle (Bus bearing No.WB-73A 7304) which was involved in the said accident according to the terms and conditions of the policy. After appointment, the said surveyor contacted the with the complainant and her husband over telephone for accompanying him to survey over the matter and to assess the loss on spot survey at Matigara Police Station but the complainant or her husband could not give their time with the surveyor. The concerned surveyor went to the Matigara Police Station and surveyed and investigated the matter thoroughly, took all measures, assessed the extent of damage/ loss of the alleged vehicle in presence of the duty office and on 03.07.2017 submitted a detailed report, i.e., Motor (Preliminary) Survey Report) to the O.P. No.1. Then, on 25.06.2017 the complainant sent information about the change of garage and intimated that the said vehicle was then in the repair workshop of O.P. No.2. Thereafter, under the instruction of O.P. No.1, final survey was made by the Surveyor and Loss Assessor, Mr. Kaushik Adhikary. At the time of his visit, the second surveyor noticed that the alleged vehicle dismantled completely prior visit which was a violation of the terms and conditions of the policy and as such the alleged accidental damage could not be ascertained finally. However, the second surveyor had to assess the consistent damage on the basis of preliminary report and it was found that the estimated damages other than the damages as mentioned were not consistent with the accident and those estimated damages were mere pre-existing one. Therefore, the second surveyor had assessed the loss/ damage on the basis of preliminary report and on physical inspection of the vehicle in post- dismantled condition and submitted his report, i.e., Motor (Preliminary) Survey Report).

On 21.03.2018, the complainant issued a letter to the O.P. No.1 stating that the complainant came to learn from her confidential source that her claim amount was only Rs. 17,000/- (Rupees Seventeen Thousand) only whereas the complainant spent near about Rs. 85,000/- (Rupees Eighty Five Lakhs) only and based on this ground, she requested the O.P. No.1 to rectify her claim. On the basis of that letter the O.P. No.1 forthwith forwarded the representation of the complainant to the surveyor and requested him to reconsider the matter regarding any possibility to enhance his assessment but in response to that letter the surveyor intimated the O.P. No.1 that he had again check his assessment and there was no possibility to enhance such claim.

The complainant had made overall repair of her said vehicle in all respect as per her own choice and desire which includes  pre- existing repairs and replacement of parts of whole body and the said repairs and replacement is also beyond the limit as well as the terms of the consent letter of the O.P. No.1. As such, the O.P. No.1 was not liable to pay all such expenses according to the terms and conditions of the policy. Therefore, on 20.04.2018 the O.P. No.1 issued a letter to the complainant stating the aforesaid facts and requested her to accept the claim amount on the basis of surveyor’s assessment within 7 days, failing which her claim would be closed as “No Claim” but the complainant did not turn up.

List of documents filed by the O.P. No.1:

1. Copy of Motor (Preliminary) Survey Report, dated 03.07.2017 (Annex. 1)
2. Copy of letter issued by the complainant to the O.P. No.1 regarding the change of garage. (Annex. 2)
3. Copy of Motor (Final) Survey Report, dated 08.02.2018, submitted by the Surveyor, Kaushik Adhikary. (Annex. 3)
4. Copy of letter issued by the complainant to the O.P. No.1regarding re- survey. (Annex. 3A)
5. Copy of Motor (Re- Inspection) Survey Report, dated 18.02.2018 submitted by the Surveyor, Mr. Satadal Saha Chowdhury. (Annex. 3B)
6. Copy of letter, dated 21.03.2018 issued by the complainant to the O.P. No.1 requesting to rectify her claim. (Annex. 4)
7. Copy of letter, dated 26.03.2018 issued by the O.P. No.1 to the Surveyor forwarding representation of complainant. (Annex. 5)
8. Copy of reply from the Surveyor regarding enhancement of claim of the complainant. (Annex. 6)
9. Copy of letter, dated 20.04.2018 issued by the O.P. No.1 requesting the complainant to accept her claim.      

The brief fact of the Written Version (W.V.) filed by the O.P. No.2 (M/S Deep Body Builders) is as follows-

As per the W.V., filed by the O.P. No.2, the complainant is the registered owner of the vehicle being No. W.B. 73A 7304 ((Bus WT 18)) and having a motor insurance policy of the O.P. No.1 which was valid from 11.10.2016 to 10.10.2017. The said vehicle (bus) was the source of income to the complainant’s family and such she authorized her son, Palash Sarkar, to drive the vehicle. The income of the said bus was the only earning source of the complainant as her husband is a retired Army personal and out of the retirement benefit purchased the for their livelihood. The O.P. No.2 also added that the said bus met with an accident on 10^th April, 2017 and a police case was started on the next day being Mtg. P.S. Case No. 202/17, dated 11.04.2017 and the bus was taken to the police station and intimation regarding the incident was given to the O.P. No.1 on 13.11.2017. The bus was repaired by the O.P. No.2 against Rs. 85,500/- (Rupees Eighty Five Thousand and Five Hundred) only and before repairing the O.P. No.2 had given estimate and the estimate and bills were handed over to the complainant.      

Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, Written Version and documents filed by the parties the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

DECISION WITH REASONS:-

          All the points are taken up together for consideration and decision.

Seen and perused the complaint petition and Written Version (W.V.) filed by the parties which are supported by the affidavit, documents filed by the parties. We are also heard arguments of both the parties in full length.

The complainant resides in P.O.- Gosaipur, P.S.- Bagdogra, Dist.- Darjeeling and the O.P. No.1 is carrying his business in P.O. & P.S.- Pradhan Nagar, Dist.- Darjeeling and the O.P. No.2 is too carrying his business at P.O. & P.S.- Siliguri, Dist.- Darjeeling. Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consume Protection Act, 1986 and Consumer Protection Act- 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P not only through his Written Deposition but also by producing documents.

In this case, the complainant is the registered owner of the vehicle (Bus WT 18) being No. W.B. 73A 7304 and having a motor insurance policy being No. 313205/31/2018/000004 of the O.P. No.1 which was valid from 11.10.2016 to 10.10.2017. The husband of the complainant is a retired Army personal and out of his retirement benefit he purchased the said vehicle. The said bus was only the source of income to the complainant’s family and the complainant authorized her son, Palash Sarkar, to drive the vehicle who had a valid driving license being No. W.B. 7320090021595 for their livelihood purpose. On 10.04.2017 the said vehicle (bus) met with an accident and a police case was started u/s 279/ 338 of IPC on the next day being Mtg P.S. Case No. 202/17, dated 11.04.2017 and the said vehicle was taken to the police station and intimation of this incident was given to the O.P. No.1. The vehicle was repaired before the O.P. No.2 under claim No. 313205/31/2018/000004 after taking an estimate from them and paid Rs. 85, 580/- (Rupees Eighty Five Thousand Five Hundred and Eighty) only for repairing purpose in addition to other regular expenses. The O.P. No.1 was ready to pay Rs. 16, 100/- (Rupees Sixteen Thousand) only to the complainant against her claim and intimated the complainant on 20.04.2018 that no further payment enhancement would be made against the surveyor’s report for the complainant’s said claim purpose. Finding no other alternative the complainant lodged this case.

In this case, the O.P. No.1 submitted that the complainant is not a consumer of the O.P. No.1 as such this case is not maintainable against the O.P. No.1. The O.P. No.1 also argued that on 13.04.2018 he received a letter from the complainant regarding the alleged accident and on the basis of this letter he appointed its licensed Surveyor and Loss Assessor, Mr. Venon Ivan Maynard Dillen, to survey and investigate the said matter and also to assess the loss and damage of the alleged vehicle (Bus bearing No.WB-73A 7304) which was involved in the said accident according to the terms and conditions of the policy. After appointment, the said surveyor contacted the with the complainant and her husband over telephone for accompanying him to survey over the matter and to assess the loss on spot survey at Matigara Police Station but the complainant or her husband could not give their time with the surveyor. The concerned surveyor went to the Matigara Police Station and surveyed and investigated the matter thoroughly, took all measures, assessed the extent of damage/ loss of the alleged vehicle in presence of the duty office and on 03.07.2017 submitted a detailed report, i.e., Motor (Preliminary) Survey Report) to the O.P. No.1. Then, on 25.06.2017 the complainant sent information about the change of garage and intimated that the said vehicle was then in the repair workshop of O.P. No.2. Thereafter, under the instruction of O.P. No.1, final survey was made by the Surveyor and Loss Assessor, Mr. Kaushik Adhikary. At the time of his visit, the second surveyor noticed that the alleged vehicle dismantled completely prior to his visit which was a violation of the terms and conditions of the policy and as such the alleged accidental damage could not be ascertained finally. However, the second surveyor had to assess the consistent damage on the basis of preliminary report and it was found that the estimated damages other than the damages as mentioned were not consistent with the accident and those estimated damages were mere pre-existing one. Therefore, the second surveyor had assessed the loss/ damage on the basis of preliminary report and on physical inspection of the vehicle in post- dismantled condition and submitted his report, i.e., Motor (Preliminary) Survey Report).

On 21.03.2018, the complainant issued a letter to the O.P. No.1 stating that the complainant came to learn from her confidential source that her claim amount was only Rs. 17,000/- (Rupees Seventeen Thousand) only whereas the complainant spent near about Rs. 85,000/- (Rupees Eighty Five Lakhs) only and based on this ground, she requested the O.P. No.1 to rectify her claim. On the basis of that letter the O.P. No.1 forthwith forwarded the representation of the complainant to the surveyor and requested him to reconsider the matter regarding any possibility to enhance his assessment but in response to that letter the surveyor intimated the O.P. No.1 that he had again check his assessment and there was no possibility to enhance such claim.

The complainant had made overall repair of her said vehicle in all respect as per her own choice and desire which includes  pre- existing repairs and replacement of parts of whole body and the said repairs and replacement is also beyond the limit as well as the terms of the consent letter of the O.P. No.1. As such, the O.P. No.1 was not liable to pay all such expenses according to the terms and conditions of the policy. Therefore, on 20.04.2018 the O.P. No.1 issued a letter to the complainant stating the aforesaid facts and requested her to accept the claim amount on the basis of surveyor’s assessment within 7 days, failing which her claim would be closed as “No Claim” but the complainant did not turn up.

In this case, the O.P. No.2 submitted that the complainant is the registered owner of the vehicle being No. W.B. 73A 7304 ((Bus WT 18)) and having a motor insurance policy of the O.P. No.1 which was valid from 11.10.2016 to 10.10.2017. The said vehicle (bus) was the source of income to the complainant’s family and such she authorized her son, Palash Sarkar, to drive the vehicle. The income of the said bus was the only earning source of the complainant as her husband is a retired Army personal and out of the retirement benefit purchased the for their livelihood. The O.P. No.2 also added that the said bus met with an accident on 10^th April, 2017 and a police case was started on the next day being Mtg. P.S. Case No. 202/17, dated 11.04.2017 and the bus was taken to the police station and intimation regarding the incident was given to the O.P. No.1 on 13.11.2017. The bus was repaired by the O.P. No.2 against Rs. 85,500/- (Rupees Eighty Five Thousand and Five Hundred) only and before repairing the O.P. No.2 had given estimate and the estimate and bills were handed over to the complainant.

In this instant case, copy of the insurance policy submitted by the complainant being Policy No. 313205/31/2018/000004 for her vehicle and the validity period of the policy was from 11.10.2016 to 10.10.2017. The Insured’s Declared Value (IDV) of the said vehicle was Rs. 2, 20, 000/- (Rupees Two Lakhs and Twenty Thousand) only having a premium amount of Rs. 33, 746/- (Rupees Thirty Three Thousand Seven Hundred and Forty Six) only. On 10.04.2017 the said vehicle was met with an accident. The complainant submitted her claim before the O.P. No.1 and the O.P. No.1 also accepted the same.  Hence, this Commission does not hesitate to hold that the complainant is a very much consumer in this instant case.

From the evidence of the O.P. No.1, it is very much clear that the insurance company has knowledge of this accident and after satisfying the fact they engaged a Surveyor from their end by following the guideline issued by the Govt. / I.R.D.A. It is also clear that on 25.06.2017 the complainant intimated the O.P. No.1 regarding the change of garage/ workshop where she placed her vehicle for second time repairing. The surveyor namely Kaushik Adhukary, appointed by the O.P. No.1, submitted his Survey Report by mentioning the cost of damage of the alleged vehicle but with his Survey Report, no such supporting bills of O.P. No.2 were submitted by the surveyor in support of his Loss Assessment sheet. At the time of perusing the documents, it was observed that there was a discrepancy between the item wise amount between the Cost Assessment sheet filed by the Surveyor and the Cash Memo of O.P. No.2 which was filed by the complainant. Here, the O.P. No.1 and his appointed Surveyor failed to clarify the reasons for this omission. The O.P. No. also did not file any expert’s opinion in support of this omission.

So, as per the above discussion, this Commission has no doubt that there was a deficiency of services from the part of the O.P. In this instant case, the Commission allowed the claim only on non standard basis and not heisted to hold that the complainant is entitled to get 75% of the settled amount with the O.P. No.1 (The Oriental Insurance Company Ltd.), i.e., 75% of Rs. 85,580/- (Rupees Eighty Five Thousand Five Hundred and Eighty) only, which stands Rs. 64,185/- (Rupees Sixty Four Thousand One Hundred and Eighty Five) only. The complainant also entitled to get Rs. 5, 000/- (Rupees Five Thousand) only for mental pain and agony and Rs. 5, 000/- (Rupees Five Thousand) only litigation cost. The O.P. is directed to deposit Rs. 5, 000/- (Rupees Five Thousand) only in the Legal Aid Account of this Commission. No interest is awarded in this case as there has been no delay on the part of the O.P. No.1 (The Oriental Insurance Company Ltd.).

Hence, it is,

O R D E R E D

That the Consumer Case No. 65/ 2018 be and same is allowed on contest against the O.P. No.1 (The Oriental Insurance Company Ltd.). 

The O.P. No.1 (The Oriental Insurance Company Ltd.) is directed to pay Rs. 64, 185/- (Rupees Sixty Four Thousand One Hundred and Eighty Five) only to the complainant for her claim, Rs. 5, 000/- (Rupees Five Thousand) only for mental pain and agony and Rs. 5, 000/- (Rupees Five Thousand) only for litigation cost. The total payable amount is Rs. 74, 185 /- (Rupees Seventy Four Thousand One Hundred and Eighty Five) only and the O.P. No.1 is directed to pay this amount to the complainant by issuing an account payee cheque within 45 days (Forty Five days) from the date of this order, i.e., from 27.06.2024 failing which the complainant will be entitled to get a simple interest of 6 % per annum from the date of filing of this case, i.e., from 25/06/2018 till the realization of entire amount. The O.P. No.1 is directed to deposit Rs. 5,000/- (Rupees Five Thousand) only in the Legal Aid Account of this Commission within 45 days (Forty Five days) from the date of this order, i.e., from 27.06.2024.

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.