Counsel for:

The Complainant: ShriAnup Jena & Associate, Advocate

The Opposite Party No.1: Shri S.K.Panda , Advocate.

The Opposite Party No.2: Self

                                            JUDGEMENT

Shri A.K.Patra,President:

1. The captioned consumer complaint is filed by the complainant named above interalia alleging deficiency in service  & unfair trade practice on the part of O.ps for non release of insurance benefit claimed on account of the damages sustained  to his insured vehicle in a road accident dt. 20.03.2022  while insurance was in force.
2. The complainant seeks for an order directing the OP 1(one) to release Rs 10, 00,000/ and prayed for all other equitable relief(s).
3. The facts as stated in the complaint petition and emerged from the documents attached there with are that, the complainant is a registered Owner of one TATA LPT 909 Ex 36 (Goods Vehicle) vide Reg. No. OD  K 5551 and got it insured with OP 1 / The Oriental  Insurance Co. Ltd vide policy No.346001/31/2022/1555 for the period from 19.02.2022 to 18.02.2023.Unfortunately said  vehicle met with an accident on dt.20.03.2022 causing damaged to the insured vehicle . On the next date the matter was reported  before the Kasinagar Police Station vide S.D Entry No 07 dt.21.03.2022 .The  complainant has informed the insurance company regarding damages sustained in the said accident and that, on being advised the damaged vehicle was shifted to OP 2 for repairing .The Surveyor was deputed by the OP1 / Insurer who verified the vehicle &  submitted the  primary report estimating the cost of Rs 6,10,208 towards  repairing of the damaged vehicle  before the OP1/Insurer for approval on 29.03.2022.Again on 15.04.2022 the OP 2(two)  and the complainant informed the OP 1 / Insurer regarding the escalation of spare part price and further submitted a supplementary estimated survey report as per new price amounting to Rs 707649/-and accordingly the OP1/inswurence company  given order to the OP 2 to start repairing works and accordingly vehicle got repaired .On dt.  29.07.2022 the OP 2 submitted the final invoice of Rs.7,07,649/- to the OP 1/Insurance Company  but the Op 1/insurance company without any basis paid Rs. 4,88,231 only against the final invoice of Rs.7,07,649/-It is further submitted that, the complainant again on 01.08.2022 submitted the final bill before the OP 1 & request  for payment which has not been responded for which the complainant forced to pay the differential amount of Rs. 2,19,418/- to the OP 2 from his pocket and took delivery of the vehicle. As per the  insurance agreement the ops are duty bound to pay service to the consumer/complainant but several request for realizing of said differential amount of Rs. 2,19,418  is not responded by the OP 1/Insurance Company  hence this complaint 
4. The O.P 1/Insurance Company appeared through their Learned counsel Sri. S.K.Panda and file their written version denying the complaint allegation on all its material particular. However, insurance was valid at the time of accident, alleged accident caused damage to the vehicle is not disputed. It is submitted that , the O.P 1/Insurance Company   has never  advised to shift the vehicle to the show room of OP 2 for repair and that, the complainant has never submitted any final invoice of Rs.7,07,649/- to O.P 1/Insurance Company. It is further submitted that,, OP  1/insurance company had promptly deputed surveyor and   as per estimate submitted by the complainant the surveyor assessed the loss @ Rs 5,00,000/- and accordingly  Rs. 4,88,231/- is paid after adjustment of GST .The O.P 1/Insurance Company has filed the true copy of final survey report for perusal and proper decision of this case and prayed to dismissed the complaint with cost as this complaint  has no merits.
5. The Op 2 (two) submitted his written version containing there in that, as per verification of surveyor, they have given estimate of Rs.6,10,208/- against the parts cost including repairing charges but due to escalation of spare parts again they have produced a new estimate invoice of Rs. 7,07,649/- to the petitioner &  O.P 1/Insurance Company and that, abide the approval amount of OP 1 (one ) / Insurance Company  @ Rs.4,88,231/- the petitioner deposited the balance amount of Rs. 2,19,418/- against the invoice amount Rs.7,07,649/- and taken the vehicle from service yard .So  O.P 1/Insurance Company is liable to settle the amount .The OP 2 is no way related or involved in any transaction between the complainant &  the O.P 1/Insurance Company .The petitioner has falsely dragged the OP 2(two)  in this case without any cause or justification ,hence complaint against the OP 2 (two) is  to be dismissed with cost .
6. Heard. Peruse the material on record. We have our thoughtful consideration to the submission of rival parties.
7. After perusal of the complaint petition, written version and all the documents relied on by both the parties placed in the record, the points for consideration before this Commission is whether the complainant is entitled for insurance benefits as claimed there under the alleged insurance policy on account of damages sustained to his insured vehicle in a road accident dt. 20.03.2022 and whether the Ops have deficient in service for non release of   claim of the complainant?
8. Here, we may observe that, insured vehicle got damaged in an accident causing loss to the insured /complainant and that ,insurance as on date of loss was in force and that, claimed amount of Rs. 4,88,231/- is paid after adjustment of GST as per the surveyor assessment of loss @ Rs 5,00,000/- is not disputed .
9. The complainant has claimed that, the OP 2 on  29.07.2022 has submitted the final invoice of Rs @ Rs. 7,07,649/ to the OP 1/Insurance Company   for approval which was not considered by the OP 1/Insurance Company for which he was forced to pay the differential amount of Rs.2,19,418 to the OP 2 but we found  no  cogent evidence is  adduced by the complainant in this regard rather the loss as assessed @ Rs. 5,00,000/- by  the surveyor and  accordingly  Rs. 4,88,231/- is released  after adjustment of GST is not disputed, Said surveyor report  placed on the record  by the OP 1/Insurance Company remain unchallenged. No cogent evidence is adduced to hold that said amount Rs. 4,88,231/- is received by the complainant  with protest.
10. The Learned counsel for the OP. No 1/insurance Company draws our attention over the surveyor report upon which the O.p 1 /insurer have specifically relied for settlement of the claim of the complainant remain undisputed.
11. Law is well settled that, report submitted by the surveyor is an important piece of evidence and has to be given due weight, though it is not sacrosanct and can be ignore, provided there is cogent evidence otherwise
12. Relying  on the judgment of the Hon’ble Supreme Court passed in Sri Vankatesware Syndicate Vrs. Oriental Insurance Company Ltd.(2009)8 SCC 507 and Khatema Fibres Ltd. Vrs. New India Insurance Company Ltd.(2021) SCC  818 ,we are of the opinion that, the un-disputed surveyor  report dt 04.08.2022 placed on the record to the extent of the facts of the assessment of loss @ Rs. 5,00,000/-  is to be given due importance.
13. As per Sec. 38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
14. Neither the complainant nor the his supporting OP 2 is examined. No evidence on affidavit as prescribed in C.P. Act 2019 is adduced by either the complainant or the Op 2. The photo copy of documents filed by the complainant as per list along with his complainant petition without  authenticated by fundamental evidence that, the photo copy is in fact a true copy of the original may not be accepted as evidence,(Reliance may placed on the ratio of judgement of Honourable Supreme Court in M.Chandra Vrs. M. Thangamuthu & another ,reported in 2010(ii) CLR (SC) 746 :(2010) 9 SCC 712 ) .Here the  complainant has failed to adduce any cogent evidence  as prescribed under5 C.P.Act  2019 to substantiate his claim.
15. Law is well settled that, complainant is to prove deficiency in service as alleged against the Ops but here the complainant failed to prove his entitlement to get release of the claimed  differential amount of Rs. 2,19,418/from the OP1/Insurance Company and also failed to prove any negligence or deficiency of service on the part of the Ops.
16. Based on above facts & circumstances and settled principle of law, we are of the opinion that this complaint sans merits. Hence, dismissed against the OPs on contest. However, no order as to cost.

   Dictated and corrected by me

Sd/-

            President

                        I   agree.

   Sd/-                                        

Member                                    

             Pronounced in open Commission today  on this   7^th September 2023 under the seal and signature of this Commission. The pending application if any is also disposed off accordingly. Complainant could not be decided on time in want of quorum.

            Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.