This appeal is directed against the final order dated 21/06/2019 delivered by Ld. DCDRF, Siliguri in CC No. 46of 2016.

The fact of the case is nut shell is that the respondent of this case as complainant registered a consumer complaint on 03/05/2016 to the effect that the complainant purchased a motor vehicle policy from the Opposite Party, SBI General Insurance being policy no. 0000000000865105 in respect of his vehicle being registration No. NL-01G-8358, engine no. 11C63109042, Chassis No. Mat 466375B3C07368, model No. TATA LPT 3118 manufactured by TATA Motors. The period of Insurance of the said policy stood from 30.03.2013 to 29.03 2014 (midnight) with vehicle IDV (insured declared value) of Rs. 16,93,000/- which is mentioned in the policy certificate dated. 29.03.2013 issued to the complainant. That on 07.12.2013 the said vehicle on its way to Agartala on reaching at Puriang village, NH-44 the driver lost control over his vehicle and to avoid collision with one truck had gone to road side deep drain and as a result of that the vehicle of the complainant caused heavy damage with various parts of it including cabin, dash board, gear box etc. and to that effect complainant lodged a written complaint on 4the basis of which Mawryngkneng P.S. noted GDE No. 170/2013 dated. 10.12.2013. The matter of accident was informed to OP-insurance company by the complainant and OP appointed a surveyor and loss assessor.

Mr. J.P Guha who assessed the damage and advised complainant to repair the vehicle from any garage at his own cost and assured him that the complainant would get all the expenses very soon. Complainant got repairs of his vehicle from several garages and spend Rs.6,39,481/- from his pocket as the vehicle is the only source of income of the complainant for running his livelihood from the earning of the vehicle. After that the insurance company days after days asked the complainant for documents and complainant sent those documents to the OP. On 20.08.2014 the OP-insurance company informed the complainant that they have settled the complainant's claim and offered him Rs. 1,10,250/- and complainant refused the offer as well as requested the OP for re assessment of claim. Next on 07.11.2014, the OP repudiated the claim of the complainant, hence, this case with the prayers for directing the Op to pay to the complainant Rs. 6,39,481/- along with interest thereon and for another sum of Rs. 25,000/- as compensation and for direction upon the OP to pay further sum of Rs. 50,000/- for deficiency in service and Rs. 30,000/- for mental agony and harassment and also Rs. 15,000/- for unfair trade practice and lastly another Rs. 15,000/- as cost of litigation.

As against this application of the complainant the OP SBI Insurance Company Ltd. filed written version denying almost all the allegations as ventilated in the petition of complaint stating inter alia that the surveyor Mr. J.B. Guha denied in respect of any permission given by him to the complainant to carry to repair works of the vehicle at any garage at the choice of the complainant and the OP came to learn through his surveyor that the concerned manager of the garage mainly M/s Auto Fit Industries also denied that complainant had spent Rs. 6,39,481/- for repair works as claimed and it is also learnt from the surveyor that M/s Auto Fit  Industries stated that they have raised a single bill vide bill no. 001878 dated. 25.02.2014 for an amount of Rs. 2,73,291/- and the receipt payment by the said garage was the single money receipt bearing no. 246 in respect of the repairing works of the vehicle in question in this case being no. NL-01/G-8358 which includes multiple payments against the repairs charge from the complainant/owner prior to date of accident and moreover in support of the bill for the sum of Rs. 2,73,291/-  and that was not preserved by the said garage authority and thus the verbal statement of the said manager as per written version as stated found not convincing and not trust worthy. It is admitted in the written version that OP has withdrawn the offer given to the complainant of Rs. 1,10,250/- as full and final settlement by its letter  dated. 07.11.2014 and thus the OP has rightly  repudiated the claim of the complainant and ultimately OP has prayed for dismissal of this case.

Ld. Forum on the basis of documentary evidence furnished both sides and on hearing the arguments had delivered the final order.

Being aggrieved with the decision and order of Ld. DCDRF, Siliguri this appeal was registered on the grounds that the order of Ld. Forum and its observation has gone against the law and facts and the impugned order suffers  irregularity, erroneous and not vested in law.

The appeal was admitted in due course and notice was sent to the respondent(complainant) who recorded the presence through Ld. Advocate. But after the COVID pandemic, the respondent never came to contest the appeal.

So, this Commission was compelled to dispose of the appeal on its merit after hearing only the appellate side.

Ld. Advocate Mr. C. Chakraborty and A. Rai has conducted the hearing on behalf of appellant and furnished WNA.

Decision with reason

Ld. Advocate of the appellant, at the time of his argument, mentioned that the Complainant/Respondent was disqualified to claim the benefit of the insurance policy for failure to comply with mandatory provision as laid down in the terms and condition of the Insurance policy. The policy condition in page no. 9 point no. 2 of the Insurance Policy states that "No admission offer promise payment or indemnity shall be made or given by or on behalf of the insured without the written consent of the company which shall be entitled if it so desire to take over and conduct in the name of the insured for the defence settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or otherwise and shall have full discretion in the conduct of any proceeding or in the settlement of any claim and the insured shall give all such information and assistance as the company may require". Therefore, it is totally false and fabricated that the survey of the Appellant/Opposite Party of the Insurance Company Mr. J.B. Guha gave the assurance to the Respondent complainant to repair his vehicle being carried out from any garage at the cost of the company. The opposite party company constantly disagreed to the said plea of the respondent as the surveyor has no authority to give permission to proceed with the repair vehicle without the written consent of the company before survey photograph of assessment of loss.

The concerned manager of the garage M/S Auto Fit Industry expressed his inability to produce his documentary support in respect of the receipt of amount  vide money receipt bearing no. 246 dated 25.02.2014 which he submitted that he has not preserved the said copy of the bill so the statement of the manager was found unconvincing and not trust worthy.

It is also submitted that the Respondent/complainant failed to bring any witnesses in support of payment of bill to the said garage authority as because the said bill of the repairing charges is false and fabricated.

The single bill vide bill no. 001879 dated 25th February, 2014 for the amount of Rs. 2,73,291/ in question in respect of the repairing work of the vehicle is not supported by any bills/vouchers for purchasing damaged parts or portions of the said vehicle as alleged for replacement

After going through the pleadings and documents of both sides before the Ld. Forum, it appears hat there in no documentary evidence on the part of the respondent (complainant) to hold that the insurance company or its, agent surveyor Mr. Guha has given the permission to the respondent to go on the repairing work of the vehicle at his own instance before assessment of loss and cost of repair work by the surveyor.

The respondent relied upon a bill of repair cost issued by the private garage owner dated 25/02/2014. But in support of authenticity of the bill, neither the respondent, nor the garage authority could place any cogent evidence to hold that the respondent has actually paid the repairing cost of the vehicle to the tune of Rs. 2,73,291/-.

The appellant company through surveyor estimated the cost of repair to the tune of Rs. 1,10,250/- which was not accepted by the respondent though in terms and condition of insurance policies, the respondent had no other alternative but to accept the said amount as repairing cost unless contrary is proved.

So, the insurance company (appellant) had no latches to meet up the obligations rested upon the company in insurance agreement.

Therefore, the findings and observations of the Ld. Forum in adjudication of the dispute appeared to be misconceived against the law.

On the other hand, the appellant still has the obligation to pay Rs.1,10,250/- as repair cost to the respondent.

   Hence, it is ordered

That the appeal be and the same is partly allowed on merit without cost. The order of Ld. DCDRF, Siliguri, dated 21.06.2019 in CC No. 46 of 2016 in modified to the effect that the appellant would pay Rs. 1,10,250/- to the respondent as repairing cost of the insured vehicle in stead of Rs. 2,73,241/-, alongwith interest @6% P.A. since 20.08.2014 within 45 days.

The order of Ld. Forum in respect of compensation to the tune of Rs. 30,000/- would have to be paid by the appellant to the respondent is hereby rescinded.

Let a copy of order be supplied to the parties of appeal free of cost and the same to be communicated to the Ld. DCDRF, Siliguri.