West Bengal

Dakshin Dinajpur

CC/12/2018

Sri Satyajit Bhaduri, S/O- Late Kalachand Bhaduri - Complainant(s)

Versus

The Shriram General Insurance Company Ltd. , Raiganj Branch - Opp.Party(s)

Samit Bhowmick

15 Jan 2021

ORDER

The instant case has been initiated by the complainant U/S – 12 of C.P. Act,1986 against the Opposite Parties claiming an amount of Rs. 3,00,000/-  value of the insured vehicle, compensation of Rs. 2,00,000/- and litigation cost.

The fact of the case, in brief, is that the Complainant is the owner of the vehicle (TRUCK) vide Registration No. WB– 61A – 2753, Engine No. HA 6DT121JX 1577650 and Chasis No. MB1CMDJC29EJA1504 which was purchased by the Complainant through Hypothecation from SRIRAM TRANSPORT FINANCE LIMITED i.e. Opposite Parties No. 2 & 3. The said vehicle was duly insured under the Opposite Party No. 1 i.e. SRIRAM GENERAL INSURANCE COMPANY LIMITED vide 10003/31/16/281953 valid for the period from 04.09.2015 to midnight of 03.09.2016. The said vehicle has been duly registered under RTA, Balurghat, Dist. Dakshin Dinajpur. The said vehicle of the Complainant met with an accident on 23.01.2016 at N.H. 512 near Chodomile in Baul area under Balurghat Police Station and Assistant Engineer, Balurghat National High Way Division, Public Works (Roads) Directorate duly intimated the matter in writing before the Inspector-in-Charge Balurghat Police Station on 24.01.2016. Due to the said accident, the vehicle of the Complainant was totally damaged. Accordingly, Balurghat Police Station received the complaint and started a Balurghat P.S. Case No. 48/2016 dared 24.01.2016 under section 279 IPC read with section 3 of PDPP Act and send all the case record before Chief Judicial Magistrate Court and the G.R. Case No. 145/2016 has been registered. The Complainant by virtue of the order of the Ld. Chief Judicial Magistrate Court vide order dated 15.06.2016 got the order for release of the vehicle along with the documents and papers of the vehicle. Thereafter, the said vehicle was remitted before the M/S RAKESH AUTO MOBILES having Office address at Beltala Park Rainagar, P.S. – Balurghat, Dist. – Dakshin Dinajpur for reconstruction of thr body of the said vehicle and the estimated cost has been supplied by the said M/S RAKESH AUTO MOBILE to the tune of Rs. 15,05,000/-. As the vehicle of the Complainant became totally damaged and as the said vehicle was insured under the Opposite Parties and the said vehicle was also hypothecated under the Opposite Parties so, the Complainant duly filed claim before the Insurance Company. But even after submission of the necessary documents before the Opposite Parties, the Complainant has not received any claimed amount from the Insurance Company. On repeated demand by the Complainant, in the month of May 2017, the Opposite Party No. 3 supplied the copy of the statement of SRIRAM TRANSPORT FINANCE LIMITED in connection with the detailed transaction of the hypothecated amount and from the said statement, the Complainant came to know that an amount of Rs.5,00,000/- has been adjusted with the said account and the same has been treated as the claim amount for the damage of the vehicle and directly adjusted with the said loan account of the vehicle without intimating to the Complainant.  The Opposite parties in collusion with each other made this activity in order to deprive the Complainant from his legitimate claim as the vehicle of the Complainant has been totally damaged.

 The Complainant has further stated that the value of the vehicle has been mentioned in the Insurance Policy as Rs. 8,00,000/- and the estimated cost for construction of the vehicle is also too much high. But the Opposite Parties without considering the said factors, has been adjusted less amount than the Complainant is entitled. The Complainant could not reconstruct his vehicle and the same is lying at the Garage since 16.06.2016. Having no alternative the Complainant filed the instant case for relief as prayed of the plaint.

            Notice was duly served upon the opposite Parties and after receiving the notice, the Opposite Parties appeared before this commission and filed their written version. The Opposite Party No. 1 has filed separate written version where as the Opposite Parties No. 2 & 3 have filed joint written version.

            By filing written version, the Opposite Party No. 1 has denied   the material allegation as mentioned in the plaint. The Opposite Party No.1 has further submitted that the Complainant has been issued Passenger Carrying Commercial Vehicle Package Policy No. 10003/31/16/281353 covering the vehicle Car bearing its Registration No. WB - 16A/ 2753 for the period from04.09.2015 to 03.09.2016. The Policy of Insurance has been issued subject to the terms and conditions and the exceptions enumerated in the Policy of Insurance. The date of alleged incident is 23.01.2016. Any claim cannot be settled without considering Survey Report, validity of the documents of the vehicles and validity of the driving license of the driver. The Opposite Party No. 1 has paid the amount of Rs. 5,00,000/- towards repair charges as assessed and recommended by the Surveyor Mr. BANKIM CHANDRA GHOSH DASTIDAR appointed by the Opposite Parties to the financer of the Insured vehicle. The amount of Rs.5,00,000/- has been paid towards repair charges is full and final amount towards settlement. There is no deficiency in service on the part of the Opposite Party. The instant case has been filed for illegal gain. Hence, the present case is liable to be dismissed with compensatory cost of Rs. 10,000/-.

            The Opposite Parties No. 1 & 2 have filed a single written version denying all the material allegation as mentioned in the plaint. The Opposite Parties No. 1 & 2 have submitted that the Opposite Parties No. 1&2 are the finance company and there is no directly connection with the Opposite Party No.1.The Opposite Party No.1 is an Insurance Company and he is dealing in Insurance business and has separate identity and separate establishment. The Opposite Parties No.1&2 have admitted that the Complainant took a vehicle loan from these Opposite Parties in the year 2015 for Rs.6,80.000/- only and the total loan amount will be payable by 43 nos. monthly installment of Rs. 10,08,694/-. After taking loan the Complainant did not paid monthly installment in due time and he was the usual defaulter for payment of outstanding loan dues. Therefore, in the year 2016 the incident was taken place and the Complainant totally block the payment of loan amount to these Opposite Parties. The several reminder was sent to the Complainant for payment of the outstanding loan amount, but the Complainant did not turn up. Thereafter, The Opposite Party No.1 settled the claim for Rs.5,00,000/- and as per contract the Opposite Party No.1 sent the settled amount on consent of the Complainant. After disbursement of the settlement amount to the Opposite Parties No.2&3, the Opposite Party No.1 informed to the Complainant about this matter. Thereafter, neither the Complainant nor the Opposite Party No.1 made contact with these Opposite Parties about the settled amount and refund of the damage claim amount settled by the Opposite Party No.1. The Complainant is bound to pay the outstanding loan amount lying with these Opposite Parties in respect of the vehicle loan being No. RAIGJ0509050001, dated 07.09.2015. At present, the Complainant is bound to pay the outstanding loan amount of Rs.2,38,734 /- plus interest to these Opposite Parties. There is no latches and negligent on the part of these Opposite Parties so, the instant case is liable to be dismissed.

             To prove his case, the complainant has filed

 (i) The certificate of Registration and permit, Fitness certificate and Tax Invoice of the vehicle No. WB 61A 2753 ( 4 pages )

 (ii) The Insurance Policy of the vehicle No. WB 61A 2753.

 (iii) Certified copies of formal part of FIR, Complaint before Balurghat P.S., Seizure List and Charge Sheet, Final Report in c/w GR Case No. 145/2016 ( 13 pages )

 ( iv )  Provisional Estimate for vehicle No. WB 61A – 2753

 ( v )  Loan statement of the vehicle No. WB 61A – 2753 

        

     On the other hand, the Opposite Party No.1 has filed the following documents in support of his defense  

         ( I )  Surveyor Report ( 6 pages ) 

         ( ii ) Statement of Loan Account ( 5 pages )   

          The Opposite Parties No. 2 & 3 have failed to file any document in support of their defense.   

         In view of the above mentioned facts, the following points are cropped up for consideration   

       POINTS FOR CONSIDERATION 

        

          1.  Whether the Complainant is a consumer to the Opposite Parties?

      2. Whether there is any deficiency in service on the part of the Opposite parties?

      3.  Whether the Complainant is entitled to get any relief/reliefs as prayed for? 

 

                                       DECISION  WITH  REASONS

         

                   We have heard argument by Ld. Advocate for the Complainant and the Opposite Parties at length. We have gone through the examination-in-chief filed by the Complainant and the Opposite Party No. 1, written arguments filed by both the parties and the written questionnaires filed by the Opposite Party No. 1 and answers filed by the Complainant.           

           At the time of argument Ld. advocate for the Complainant narrated the fact of the case as mentioned in the plaint and notes of written argument and submitted that the documents filed by the Complainant proved his case so, he is entitled to get relief as prayed in the plaint.

          On the other hand, Ld. Advocate for the Opposite Party No.1 also narrated his defense case as mentioned in the written version and written notes of argument and submitted that the instant case has been filed for the purpose of illegal gain so, the instant case is liable to be dismissed.   

        Ld. Advocate for the Opposite Parties No.2 & 3 also narrated their defense case as mentioned in the written version and submitted that the Complainant is not entitled to get any relief from them so, the case filed by the Complainant is liable to be dismissed.

                Now, let us discuss all the points one by one. 

Point No. 1   

           On perusal of materials on record, it appears that the Opposite Party No.1 has admitted in his written version as well as in written notes of argument that the Complainant was a Policy holder of his Company against vehicle No. WB 61-A/ 2753.  It further appears that the said vehicle was also hypothecated under the Opposite Parties No. 2 & 3. If this be the so, then it is clear that the Complainant is a consumer to the Opposite Party No.1 in view of section 2 of the Consumer Protection Act, 1986.      

             Accordingly, this point is decided in favour of the Complainant.  

Point Nos. 2 & 3 

         

                Both these points are taken up together for discussion for the sake of convenience and brevity.  

            On careful scrutiny of the four corners of the case record it appears that the Complainant took a vehicle loan from the Opposite Parties No.2 & 3 in the year 2015 for Rs.6,80,000/- only and the total loan amount will be payable by 43 nos. of monthly installments of Rs.10,08,694/-. It is also an admitted fact that the Complainant is a Policy holder of Opposite Party No.1against the vehicle No. WB-61A/2753. The said vehicle was duly insured under the Opposite Party No.1 vide Insurance Policy No.10003/31/16/281953 and valid for the period from 04.09.2015 to midnight of 03.09.2016. Thereafter, the said vehicle met with an accident on 23.01.2016. It also appears that due to the accident a G.R case 145/2016 was started under section279 IPC read with section 3 of PDPP Act and the said accident was duly informed to all the Opposite Parties. When the Complainant got released the said vehicle by the order of the court, he remitted the vehicle before the M/S RAKESH AUTO MOBILES under P.S. Balurghat for reconstruction of the body of the said vehicle and the estimated cost supplied by the said M/S RAKESH AUTO MOBILES was to the tune of Rs.15,05,000/- because the said vehicle was fully damaged. Thereafter, the Complainant filed claim before the Opposite Party No.1. It further appears that after getting the news of accident, the Opposite Party No.1 appointed a surveyor and as per report of the surveyor, the total cost estimated for reconstruction of the damaged vehicle was Rs.5,08,275/- so, the Opposite Party No.1 paid an amount of Rs.5,00,000/- to the Opposite Parties No.2 & 3 who adjusted the said amount to the loan account of the Complainant. The said matter was informed to the Complainant in the month of May 2017, by the Opposite Party No.3 by supplying a copy of the statement of transaction of the hypothecated amount wherein it was reflected that an amount of Rs.5,00,000/- has been adjusted in the loan account of the Complainant.  

          Now, the burning question is that whether the settlement was done with the consent of the Complainant? 

         Here, the Opposite Party No.1 has filed a questionnaire and the Complainant has answered the questions asked in the questionnaire. 

In question no.4  the Opposite Party No.1 asked the Complainant that your accidental vehicle was surveyed in presence of you by the surveyor Sri Bankim Chandra Ghosh Dastidar? 

    The answer of the Complainant is yes .

 In question no.5  the Opposite Party No.1 asked the Complainant that Are you made any complain to insurer about the survey report ? .

          The answer of the Complainant is I have not received any survey report and for said reason I could not made any written Complaint to insurer about the survey report .

            Here, from the survey report it appears that survey was done on16.02.2016 in presence of the Complainant and the instant case has been filed on 25.01.2018. It also appears that the Opposite Party No.1 filed the said survey report on 12.07.2019 before the Commission. But it is strange enough as to why the complainant did not file any objection against the survey report during the pendency of the case or after filing the survey report during the pendency of the case. Again, what prohibited the Complainant to appoint another surveyor on his behalf, if the survey done by the surveyor (appointed by the Opposite Party No.1) and his report was not correct. Here, we think that simplicitor stating that the report of surveyor is not correct, is not enough to believe the case of the Complainant.

 Here, we would like to mention the observation held by National Consumer Disputes Redressal Commission in Wilson Home Appliances Vs New India Assurance Co. Ltd., First Appeal No. 959 of 2015, decided on 10.12.2020  to the effect that  Investigation and survey by an insurance company are fundamental in determining the amount payable to the insured. It has been also observed that an insurance company is duty bound to appoint its surveyor in accordance with the provisions of the Insurance Act,1938. A survey can not be disregarded or dismissed without cogent reason.  So, it can be said that the survey report of the surveyor, appointed by the Opposite No.1 is not dis-believable.

              Further, it is the allegation of the Complainant that the insurance company never invited the Complainant before settling the claim of the Complainant and nor stated the reason behind the less amount of compensation i.e. Rs.5,00,000/- . On the other hand, it is stated by the Opposite Party No.1 that after receiving the report of the surveyor, he settled the claim of Rs. 5,00,000/- on consent with the Complainant. However, the contention of the Complainant and the Opposite Party No.1 in this regard is nothing but oath Vs oath. It is according to law that whenever a vehicle owner takes loan against any vehicle and which is due on the date of accident, then financial company is entitled to receive the compensation amount, who provides loan to the Complainant. It also appears that the Opposite Party No.1 paid Rs.5,00,000/- to the loan account of the Complainant prior to filing of Charge Sheet on 07.07.2017 before Ld. Chief Judicial Magistrate, Balurghat Court.

           Further, it is alleged by the Complainant that the repair charges of the damaged vehicle Rs. 5,00,000/- is estimated very less by the surveyor. The said vehicle was insured at Rs. 8,00,000/- so, the rest amount of Rs.3,00,000/- to be compensated to the Complainant.

          Now, from the certificate of registration of the vehicle it appears that the vehicle was registered on 11.03.2010 and the accident was occurred on 23.01.2016. In other words, it can be said that at the time of accident the vehicle was seven years old. If this be the so, then it is quite proper that the charge of the repairing or value of the vehicle cannot be estimated as new one. Thus, we opine that the repairing charges of Rs.5,00,000/- estimated by the surveyor is correct and appropriate.

            In view of the above mentioned discussions, it has been established that the Complainant is consumer to the Opposite Parties but there is no deficiency in service on the part of the Opposite Parties. So, the Complainant is not entitled to get relief as prayed for.

   Hence, both these points are decided in favour of the Opposite Parties.

Accordingly, the case fails 

 

 

Hence, it is

                                                             

                                                              O R D E R E D

           

              That the Consumer Case No. 12 of 2018 is dismissed on contest but without cost. 

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