FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER.
This is a complaint case u/s 12 of the CP Act, 1986. The brief facts of the case is that the Complainants Sri Kaushik Nath Majumder being the owner of the Bus No. WB 73A-4788 had a package policy under policy no. 0307043116P107813785 in force with the OP for the period from 15.09.2016 to 14.09.2017. The vehicle met an accident on 12.07.2017 near Raiganj on the way to Siliguri. The accident was recorded in Raiganj PS under GDE No. 574 dated 13.07.2017. The accident was reported to the OP over phone for necessary action. On verbal instruction of the OP the complainant submitted claim with Estimate of Repair along with all requisites on 24.07.2017. The appointed Surveyor Sri Sapan Kapoor did not make himself available on the date fixed in the repairer’s garage. The Surveyor did not perform his duties properly and reported false report to the OP. The complainant submitted the facts to the OP and requested the OP to take action against the Surveyor and to appoint another Surveyor. Surveyor admitted his lapses and was warned by the OP for his wrong doing and was asked by the OP to submit a fresh report. The surveyor gave verbal work order to make the vehicle roadworthy condition. The repairer made the vehicle road worthy on or about 08.09.2017. The OP was accordingly informed to send surveyor for inspection. The surveyor paid a visit to the repairer’s garage on 11.09.2017 and took relevant photographs. But he did not assess the loss of damage. The complainant submits that he has spent Rs.3,84,121.60 for repairing the vehicle. Details have been submitted through annexure. The surveyor submitted ex parte report to the OP after 65 days without assessing the loss . The surveyor informed the complainant by Regd. Letter dated 25.11.2017 after re inspection of the Vehicle. The surveyor did not clarify the delay for late submission of the report nor he was asked by the OP for such delay.
As per terms and conditions of the policy the claim is to be settled within 90 days from the date of submission of all documents whereas the Insurer’s surveyor hold the report for more than 90 days. The OP did not settle the claim till date nor gave any written permission to ply the vehicle on road for which the complainant is suffering loss of Rs.3500/- per day. The complainant finally sent legal notice dated 02.05.2018 to the OP to settle the claim. This time also the result is zero. Finding no other way the complainant has approached the Forum for relief with the prayer as mentioned in the petition.
The OP has filed WV contending inter alia that the complaint petition is misconceived, purposive and suppression of facts and not maintainable either in facts or in law. The OP has denied all allegations made against the Surveyor. The OP states that the surveyor assessed the loss and submitted his report dated 20.12.2017 mentioning the total loss amounting to Rs.55,736/-. So many anomalies, discrepancies were noticed by the surveyor which was duly informed to the complainant vide letter dated 25.11. 2017. The complainant could not give proper reply. The complainant did not produce original money receipt showing payment of the repairing and replacing parts of the damaged vehicle. More over the repairing shop ‘M/S Haque Auto Engineering Works ‘ is not the authorized service Centre of Tata Motors. The OPs state that the claim could not be settled due to non availability of the original money receipt. The amount claimed is highly excessive, inflated and exaggerated. The OP is liable to pay the amount only which has been assessed by the surveyor as per the terms and conditions of the Policy.
Points for Determination
On the pleading of parties the following points have necessarily come up for determination.
- Whether the OPs have got deficiency in service.
- Whether the OPs are indulging unfair trade practice.
- Whether the Complainant is entitled for the relief/reliefs as prayed for.
Decision with Reasons
Points Nos. 1 to 3 :-
All the points are taken up together for the sake of convenience and brevity in discussion.
Complainant and the OPs have tendered their Evidence on Affidavit. Both have replied to the questionnaire set forth by their adversaries. Both have submitted their BNAs also.
We have travelled over all the documents placed on record.
Facts remain that accident of the vehicle took place during the period when the policy was in force. So the insured complainant is entitled for the admissible relief as per the terms and conditions of the policy. The plea taken by the OPs for repairing the vehicle in the garage which is not an authorized one of Tata Motors is not found relevant as the OPs could not produce any document in support of their contention to nullify the claim. They could have issued letters to the insured restricting him not to repair the vehicle in the said garage. They have not done anything in this regard. So repairing of vehicle in a garage which is not authorized by Tata Motors is not yielding any result in favour of the OPs. As per the terms and conditions of the policy Surveyor was appointed and after observing necessary formalities final report dated 20.12.2017 of the surveyor was accordingly submitted. The surveyor sent a registered letter dated 25.11.2017 mentioning the irregularities observed by the surveyor to the complainant which appears to be not replied by the complainant.
Now let us come to the main point. As per the report of the surveyor the insured is entitled to reimbursement of Rs.55736/- The complainant being the insured claimed Rs.3,84,121.60 for such repair. The OP on oath has stated with documents that the complainant was served letters dated 06.06.2018 and 26.09.2018 directing him to submit original cash memos/money receipts of parts and labour bill in respect of such repair within 15 days. But the said letters were not replied by the complainant even after due acknowledgement. The reason for not replying those letter remains unknown. The complainant is silent over the issue. Now let us go through the admission / non admission of the complainant against the questionnaire of the OP.
Question No. 12. Even after acknowledgement of reminder letters dated 06.06.2018 & 26.09.2018 , you have not submitted the cash memo & original money receipts showing [payment of the repairing and replacing parts of the damaged vehicle. State the reasons for non production of the documents demanded.
Answer : This is matter of record and I further say that all cash memos and bills were taken by the surveyor Swapan Kapoor at the time of final survey to compare the price of parts which did not returned me.
Question No.17 : The claim could not be settled due to non availability of the original money receipts / cash memos for which you are solely liable.
Answer : I deny your allegation.
The answer of the complainant in respect of Q. No. 17 is not supported by any documentary proof. Neither he replied those letters of the OP nor he produced any document showing handing over of the original cash memos and bills to the surveyor. Moreover, there is no mention of the above facts in the complaint petition nor in the evidence on oath of the complainant. The seriousness of submission of the original cash memos / bills of repair on the part of the complainant is found absent. More over we have perused the evidence of the surveyor wherein there is no whisper of receiving any original cash memos/ bills from the complainant. So the complainant’s reply is based on self made story and not acceptable to us. However , the OP under Question No. 20 has admitted as follows in respect of reimbursement of claim. : “ This OP is liable to pay the amount only which has been assessed by the surveyor as per the policy terms and conditions.”
In view of the above observations we are of the view that the OP could have settled the claim as per the surveyor’s report or could have rejected the claim on the ground of non submission of documents as per the terms and conditions of the policy. As per IRDA (Protection of Policy holders’ Interests) Regulations, 2017 claims to be settled within one month from the date of submission of Final Survey Report. Here the surveyor has submitted report on 20.12.2017. So the claim could be settled within 20.01.2018 based on the Final Survey Report. But the OP neither settled the claim nor rejected the same. So on that count they can not be escaped from the statutory liability. Deficiency of service and /or Unfair Trade Practice on the part of the OPs to that respect is accordingly established.
As such the complainant has been able to prove his case in part.
Thus all the points are answered accordingly.
In the result, the Complaint succeeds in part.
Hence,
Ordered
That the Complaint case be and the same is allowed on contest against the OPs with the following directions.
- The OPs are directed to pay the sum of Rs.55,736/- to the complainants with simple interest at the rate of6 percent from the date of 20.01.2018 till its realization .
- The OPs are also directed to pay a litigation cost of Rs.5000/- to the Complainants.
- The above orders are to be complied with by the OPs within a period 30 days from the date of the order else the Complainant will be at liberty to put the order in execution as per rules.
Order be communicated to the Complainant as per rules and the judgment be uploaded forthwith on the website of the Commission for perusal of the parties.
