FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The instant case is filed by the complainant U/s 12 of CP Act, 1986 against the OP Insurance Company. The fact of the case is in brief is that the complainant is the owner of the TATA vehicle luxury bus bearing registration No. WB 51A-8336 having engine No. 31G84120854 and chassis No. MAT412177D0H08480 and year of manufacturing is 2013. The complainant filed the photocopy of RC Book as annexure “A” along with the petition of complaint.
It is further stated that vehicle in question is insured with OP-1 under the policy being No. 0807043115P112200391 which is period from 16.01.2016 to 15.01.2017. The insured declared value of vehicle is Rs. 23,75,000/- only ( Rupees Twenty Three Lacs Seventy Five Thousand only) which the complainant has obtained by paying premium of a sum of Rs. 59,377/- . The photocopy of insured certificate has been annexed as annexure “B”.
It is further stated by the complainant that the vehicle in question met an accident on the way from Purulia to Nabadip on 04.01.2017 under Barjora PS within district Bakura for which the complainant lodged FIR No. 02/2017 under Barjora PS, GD No. 181 dated 05.01.2017 (annexure “C”) . The complainant also informed the matter of accident to the OP-1 vide letter dated 05.01.2017 for necessary action. The photocopy of which has annexed as annexure “D” herewith. Thereafter, the complainant brought the damaged vehicle for repairing in the garage of “ Tarama Body Builders ” at Krishnanagar , Sachin Sen Road, Radha Nagar, near TB Tower, District - Nadia. From the said garage for repairing the damage the complainant obtained an estimate of Rs. 1,67,700/- only which he handed over along with claim form to the Manager of OP-1 with request to appoint a surveyor to survey the vehicle, but the Manager, OP-2 received the letter of request and the estimate (annexure - E). Thereafter, the OP-1 appointed one Mr. M. K. Choudhary to survey and asses the loss of damaged vehicle. The surveyor made an inspection of the vehicle and verbally ordered to repair the damaged vehicle but he did not assess the loss and asked the complainant that loss would be assessed at post repairing inspection of the vehicle. Accordingly, after repairing the vehicle the complainant went to the OP-1 and requested him to send the surveyor to assess the loss then surveyor re-inspect the vehicle and demanded the original bills of parts/accessories for Rs. 46,650/- only which the complainant handed over him without any proper receipt and without any photocopy thereof. The surveyor asked to meet him after 3-4 days but he did not assess the loss on the plea of busyness. The complainant then without any other alternative compelled to approach the OPs 1 and 2 to lodge the complaint against surveyor but they assured him that they would solve the problem very shortly. Then the surveyor supplied a photocopy of assessment sheet which was totally illegible. Then the complainant made contact with the Branch Manger on 01.03.2017 at about 10.35 AM and put him the photocopy of the assessment sheet submitted by the surveyor but the OP-1 started to misbehave with the complainant and stated that till then they did not receive any survey report and asked the complainant to submit bill and cash memo for settlement of claim annexure “F”.
Thereafter, the complainant submitted the cost and labour bill dated 16.01.2016 of Rs. 92,000/- with towing bill for Rs. 10,500/- to the OP-1 but after few months the OP-1 stated over phone to the complainant to replace the labour bill because that exceed the amount assed by the surveyor asked him to submit a fresh bill of Rs. 83,500/- only. The complainant again submitted a fresh bill on 22.08.2017 but after laps of considerable period, he got the letter sent by the OP-1 on 14.11.2017 with comment that they closed the claim file of the complainant wanting required document/papers and also stated that the complainant has withdrawn the claim by giving his consent through his letter
dated 01.05.2017.
It is the claim of the complainant that he spent a sum of Rs. 1,49,150/- for the repairing work of damage vehicle which is insured by the OPs 1 and 2 but the OP- 1 and 2 illegally closed his claim. Hence, without having any other alternative, he filed the case against the OPs with a prayer to give direction of the OPs for paying a sum of Rs. 1,49,150/- to the complainant either jointly or severally along with interest 12 % p.a. and also give direction to them to pay compensation of Rs. 75,000/- only to the complainant for harassment, mental agony and financial loss along with cost of Rs. 35,000/-.
The OPs 1 and 2 have contested the claim application by filing a WV denying all the materials allegations levelled against them. It is the case of the answering OPs that the complainant has no cause of action to file this case and the case is suffering from mis-joinder of parties and non-joinder of necessary parties. It is also the case of the OPs that this forum has no pecuniary jurisdiction to entertain this case because the insured/complainant declared the clause of insurance policy is of Rs. 23,75,000/- which is beyond the pecuniary jurisdiction of the forum i.e. Rs 20,00,000/-. It is admitted by the OPs in their WV that the complainant obtained the package policy is called “Motor Policy” bearing No. 0307043115P112200391 for the vehicle in question bearing No. WB 51A/8336 for the period on and from 16.01.2016 to 15.01.2017. It is also admitted by the OPs that on 05.01.2017 during subsistence of said policy they received the intimation from the complainant regarding damaged vehicle in question arising out of road traffic accident which took place on 04.01.2017.
It is further stated by the contesting opposite parties that immediately after getting the intimation they appointed one licences surveyor of IRDA namely Sri Partha Samaddar to make a spot survey of the damage vehicle and subsequently, one Sri Mirnal Kanti Choudhary, license surveyor of IRDA , was appointed to took final survey of the loss and he submitted the final motor survey report dated 20.02.2017 on 01.03.2017 to the OPs and assess the loss of Rs. 62,000/- . The survey report is annexed as P-3.
It is further stated by the OPs that the complainant placed the claim of estimate of Rs. 1,67,700/- as cost of repairing of damage vehicle in question on 05.01.2017 issued by one Gopal Biswas, Prop. of Tarama Body Builder , Krishnanagar, Nadia which is annexed as annexure “P4 and P5”.
It is further stated that the complainant submitted a labour charges bill of the repairing of said vehicle dated 16.07.2017 alleged issued by Gopal Biswas, the prop. Tarama Body Builder and stated that he received a sum of Rs. 92,000/- in total as repairing charge. On receipt of said bill dated 16.01.2017 of Rs. 92,000/- the OPs engaged one Sri Subhash Chandra Das, investigator for verification of said document including the money receipt of Rs. 92,000/- and it is found that the money receipt is filed by the complainant is fake document because said Gopal Biswas stated in writing dated 12.11.2017 that the signature in the money receipt is not his signature which is annexed as annexure “P7 and P8”. Hence, the OPs repudiated the claim of the complainant vide letter dated 14.11.2017.
It is further stated by the OPs that both the insured and insurer are bound by terms and condition of the policy but the complainant filed the fake documents and by such way he violated the terms and conditions of the policy. Thus, he is not entitled to give the relief as prayed for because he did not come before the forum with clean hand.
Hence, the petition of complaint as filed by the complainant is liable to be dismissed with cost.
In view of the above facts and circumstances, it has to be decided by this forum:-
- Whether the case is maintainable in its present form and law?
2. Has the complainant any cause of action to file the case?
3. Is the complainant a consumer?
4. Are the OPs service providers?
5. If so is there any deficiency in service on their part?
6. Is the complainant entitled to get relief as prayer for?
7. To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons.
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
From the materials on record, it appears that the complainant has filed this case on 05.12.2018 U/s 13 of the CP Act, 1986 along with a mis-application No. 327/2018 with a liberty to proceed the case against the OP-1 who is residing outside the jurisdiction of this forum. The prayer was considered and allowed by this forum vide order dated 05.12.2018 and the case was admitted. It is also revealed that the cause of action of this case arose on 04.01.2017 on which date the complainant placed the claim before the OP Insurance Co. Then it was continuous process when the said claim was repudiated by the OP Insurance Co. and then the case is filed on 05.12.2018, from which it is crystal clear that the complainant has filed this case well within the limitation period.
It is agitated by the OP Insurance co. in their WV as well as in their written argument and oral argument that this commission has got no pecuniary jurisdiction to try this case because the valuation of policy is of Rs. 23,75,000/- only and at that point of time limitation of pecuniary jurisdiction of district forum was of Rs. 20,00,000/- but on scrutiny of materials on record, it appears that the subject matter is the claim in respect of repairing expenditure of the vehicle in question being registration No. WB 51A-8336 having engine No. 31G84120854 and chasiss No. MAT 412177DOH08480 so, pecuniary jurisdiction of the subject matter of this case is considered in respect of valuation of insured vehicle not the insurance policy. From the documents as we got it from the certificate of registration No. of the vehicle in question as mentioned above (annexure-A). It is clearly shown that the valuation of the vehicle in question is/was of Rs. 14,25,800/- which is/was well within the pecuniary jurisdiction of this forum and the argument or statement as made by the contesting OPs has no basis at all and the same is not accepted by this forum.
So, in view of discussion made above, this forum is of view that it has territorial as well as pecuniary jurisdiction to try this case. Hence, considering the position of law, this commission is opined that the case is well maintainable in the eye of law.
Admittedly, the complainant insured the vehicle in question and it is also admitted fact that on 04.01.2017 he placed the claim for replacing cost of the damaged vehicle caused by a road accident and that was repudiated by the OP Insurance Co. So, cause of action arose on and from 04.01.2017 which is/was a continuing process and considering the bundle of facts and circumstances, this forum is of view that the complainant has sufficient cause of action to file this case.
It has already been motioned in so many times that admittedly the complainant insured the vehicle in question to the OP-1 Insurance Co. which is valid from the period on and from 16.01.2016 to 15.01.2017 covering the risk of vehicle No. WB 51A/8336 and the valuation of the policy was of Rs. 23,75,000/- . The alleged accident took place on 04.01.2017 on the way to Nabadip to Purulia under Barjora PS. within the district of Bakura. It is also admitted fact that the complainant immediately after the accident lodged FIR at Barjora PS (annexure-C) and also informed the matter to OP Insurance Co. vide letter dated 05.01.2017 (annexure-D). So, as and when the complainant purchased the policy on payment of proper premium from the OP Insurance Co. since then the consumer and service provider relationship between the complainant and OPs 1 and 2 established beyond all doubts and when the matter has been admitted by the OP then this forum has no hesitation to hold the view that undoubtedly, the complainant is a consumer within the ambit of CP Act, 1986 and the OPs 1 and 2 are the service provider. If that be so, let us see whether there was any deficiency in service on the part of the contesting OPs as alleged by the complainant.
In this regard, the respective complaint is that after the accident the vehicle in question was damaged and the complainant brought the vehicle to a repairing shop or garage under the name and style “Tarama Body Builders” situated at Krishnanagar , Sachin Sen Road, Radha Nagar, near TV Tower, Nadia and he got the repairing estimate of the damage vehicle of a sum of Rs. 1,67,700/- only. After getting the estimate , the complainant handed over the same to the Manager of the OP-1 with a request to appoint a surveyor for ascertaining the damage and loss. From the evidence on record and also from the written argument of the OPs, it appears that after getting the intimation they appointed Sri Partha Sammadar licence surveyor of IRDA for making a spot survey of the damaged of vehicle in question and one Mirnal Kanti Choudhary as licensed surveyor of IRDA was also appointed to assess the cost of final survey of loss. Said Mirnal Kanti Choudhary submitted the final motor survey report on 01.03.2017 assessing the net loss of Rs. 62,000/-. But from the evidence of the complainant, we have got that the prop. “Tarama Body Builders” received Rs. 92,000/- with towing of Rs. 10,500/- in total and a sum of Rs. 46,650/- was paid for the parts and accessories of the damaged vehicle. In total the complainant spent approximately of Rs 1,49,150/- towards repairing cost of the said vehicle and then they placed the claim to OP Insurance Co. But the OP Insurance Co. asked him to submit a fresh bill of Rs. 83,500/- on the plea that the surveyors assessment of loss is less than the claim of the complainant. The complainant placed the fresh bill along with the required document in spite of the same the OP repudiated the claim of the complainant on the plea that bill has shown by the complainant issued by the “Tarama Body Builders” on 16.08.2017 is fake one because the prop. of “Tarama Body Builders” namely Gopal Biswas stated that he did not put his signature in the document dated 16.01.2017 (A-1), annexure P-6 & P-7 but on a close scrutiny of both the signature of Gopal Biswas by this forum, it appears that both the signature are of same person ie Gopal Biswas more over the OP-1 Insurance Co. though the alleged Insurance Co. prop. “Tarama Body Builder” on the document dated 16.01.2017 (A-1), annexure P-6 & P-7 but did not take proper step to look that the handwriting of both the signature is not of the same person. Moreover, the OP Insurance Co. received the surveyor report from his appointed person by keeping the complainant in dark . The photocopy of the report as supplied by the surveyor to the complainant was not legible and the complaint could not be able to read the same. Hence, under such circumstances, it can be held that the OP Insurance Co. tried to deprive the complainant since insception from his legitimate claim. In support of their say, the OP-2 has cited a case law is of by the Apex Court in case between Vikaram Greetech (one) Ltd. and Anr. vs. New India Insurance Ltd. Co. on 01.04.2009 in Civil Appeal No. 2080/2002 have careful gone through the observation of the Apex Court and found that the facts of the case is something different from the instant case and it has no application in respect of the facts and circumstances of the instant case.
It has already been observed by the forum in its above made discussion that the OP insurance Co. was trying to deprive the complainant from his legitimate claim and repudiated the claim with malafide intention by that act, the contesting OPs caused harassment negligence, mental pain and agony and financial loss to the complainant which is amounting to deficiency in service on their part. Such conduct of the OPs cannot be indulged by any court of law because CP Act is a beneficial legislature and it is meant for giving speedy relief to the consumers to save the intense of the consumer. . From the clutch of the dishonest OPs to whom the complainant/consumer paid for getting service but the OPs being the service provider intentionally cheat the complainant/consumer and put him in mental pain and financial loss as well as harassment for such conduct of the OPs which is considered by this forum as deficiency in service. They should get any compensation to the complainant.
In view of discussion made above, it is opined by the forum that the complainant by giving cogent evidence and supportive document could be able to prove the case against the OPs 1 and 2 beyond all reasonable doubts and is entitled to get relief as prayed for.
All the points are thus, considered and decided in favour of the complainant.
The case is properly stamped.
Hence,
Ordered
The case be and the same is decreed on contest against the OPs 1 and 2 with cost of Rs. 1,000/-.
The complainant do get the decree as prayed for.
The OPs 1 and 2 are hereby directed to pay a sum of Rs. 1,49,150/- only to the complainant either jointly or severally with interest @ 9 % p.a. on the amount within 45 days from the date of order.
The OPs 1 and 2 are further directed to pay compensation of Rs. 50,000/- only to the complainant for mental pain, agony, harassment and financial loss along with litigation cost of Rs. 10,000/- within 45 days from the date of this order.
If the OPs 1 and 2 are failed to comply the decree within stipulated period then the complainant will be at liberty to execute the same through the court.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the Commission for perusal of the party.
