This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for an order directing the O.Ps. to pay a repairing cost of the vehicle of Rs. 1,84,700/- and Rs.25,000/- for mental pain and agony and Rs.5,000/- as litigation cost from O.Ps. and any other reliefs to the complainant.
The complaint case in short is that the complainants are the resident of Raiganj, Uttar Dinajpur and they are partners of the firm M/s Sudeb Kumar Banarjee. They purchased a vehicle bearing No.WB-73A/8451 duly insured to O.P. No.1 with valid insurance period from 13.04.2012 to 12.04.2013 being policy No.0314033112P300005770. The vehicle developed some problems and was in the garage at Siligurimore of one Dilip Sarkar for repairing. The repairing was going on in the garage when on 06.11.2012 a 10 wheeler truck, No.WB-23C/4154 coming from Siliguri side negligently dashed the vehicle of the petitioner and also dashed against another vehicle, No.WB-59/0641 causing damages to both the vehicle kept standing in the garages for repairing purpose. The owner of the garage informed the matter to Raiganj PS on that day i.e. on 06.011.2012. The partners of complainant firm were outside Raiganj and were not able to give written information in proper time, but submitted information letter to O.P. No.1 on 12.11.2012. A survey was conducted by O.P. No.1 for calculating damages of the vehicle of the petitioner and thereafter the repairing work was resumed. After necessary repair the vehicle was ready to ply on the road and it was informed to the O.P. No.1 in writing on 24.01.2013 with a request to arrange resurvey. The vehicle was resurveyed by O.P. No.1 and as per instruction of the O.P., the vehicle started to ply on the road.
Thereafter, time and again petitioners and their representative visited O.P. No.1 for getting claim for damages, but with no result, even after laps of several months by showing fake excuses and bypassing the petitioners. Petitioners then sent legal notice, but O.Ps. did not take any positive step, therefore this complaint before this Forum. That cause of action arose on and from 26.02.2015 after receiving the legal notice by O.P. Complainants therefore pray for compensation as stated above.
O.P. No.1 and 2 filed written version to contest this case stating inter alia that the case is not maintainable; petitioner has no cause of action and locus stand-i., that, the allegations are false, fictitious and denied by this O.Ps. That, the O.P./ company shall not be liable to pay any compensation for loss and damage while the vehicle was not in transit by road; no compensation for consequential loss, depreciation etc. That the vehicle was parked in a repairing shop in dismantled condition for repair work. Another vehicle was also kept for repair beside the vehicle in question. A third vehicle came and dashed the other vehicle. Consequent to that there may be an impact damage. The photographs taken and the surveyor’s report do not show any sign of such impact. Therefore the company is not liable for ‘consequential loss’. So the company repudiated the claim following the policy condition vide Sec.-1(i) (ix) and Sec-1(2)(a) of the policy. That the company’s investigator also reported no massive or heavy impact on left hand rear side of the vehicle by any other heavy vehicle and hydraulic jack has no accidental impact. O.P. therefore prays for dismissal of the complaint with cost.
To establish their case the complainants have relied upon separate affidavit-in-chief sworn in by them and relied upon some documents, recorded as P.W.1, 2 & 3 respectively. O.Ps. also filed documents but did not adduce any D.W.
DECISIONS WITH REASONS
Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, arguments advanced by the lawyers of both sides, the Ld Forum has come to the findings as follows: -
P.W.-1, Arijit Banarjee registered attorney of the complainant’s firm deposed on behalf all the complainants states the facts of the said accidents and damage of the vehicle and that total estimated cost, labor charge totaling Rs.1,82,700/- incurred for the repair and replacement of parts of the vehicle. So also deposed P.W.-2, Manager of the complainant’s firm as per the version of complaint petition. P.W.-3, a laborer of the motor garage deposed how the accident occurred and the vehicle-in-question was damaged in the impact of the accident. They also deposed that owner of the motor garage informed the incident to the PS after the accident. The copy of FIR dated 06.11.2012 is also filed. From the evidence on record and the documents filed, it is admitted position that the vehicle in question was kept in the garage of Dilip Sarkar at Siligurimore for the purpose of repairing. It is also admitted that the 10 wheeler truck dashed the vehicle of the complainant from behind causing damage to the vehicle and also another vehicle standing beside the same.
From the documents submitted by the parties it appears that the surveyor, Bankim Chandra Ghosh Dastidar received the request of survey on 12.11.2012 and survey was held on 13.11.2012 at the place of the repairer, Golden Auto Traders, Raiganj. In his report dated 15.01.2013 the particular of loss or damage resulted due to the accident was mentioned, that “the hydraulic ram found misaligned/ de-shaped, chassis frame pressed/ misaligned, Rear suspension system de-cambered. Cargo carrying compartment lower frame twisted”. The report stated that total labor charge as per the surveyor’s estimation is Rs.13000/-, Hydraulic Jack Assy. of Rs.74,000/- less 40% depreciation of Rs.29,600/- and less salvage Rs.7400/- and less excess Rs.1500/- and approximate net loss of Rs.48,500/-, as against original estimate was shown Rs.1,14,100/- (including labor charge of Rs.40,900/- plus cost of spare of Rs.73,200/-)
The report of surveyor following re-inspection by the surveyor, Noton Biswas, who conducted survey at the spot at the repairer’s garage, M/s Golden Auto Traders, Raiganj on 19.02.2013. He agreed with the survey report prepared by the previous surveyor, Mr. Bankim Chandra Ghosh Dastidar. The photographs of the repaired vehicle, the final survey report and photographs were tallied with observed details and were found to match point by point. In his report he mentioned replacement of salvage parts Hydraulic Jack Assembly (1 piece) and Barrel/Outer Tube match with final survey photographs. On bill verification surveyor mentioned that, Barrel/ Outer Tube had been repaired. Re-aligning and repairing charges may be allowed Rs.5,500/-. As per verbal enquiry he found that the new replacement value of the same of Rs.30,000/- (approximately).
Complainants submit documents of Golden Auto Traders estimate dated 07.11.2012 for spare parts of the damaged vehicle like Hydraulic Ram, Rear Spring Leaf Set, Rear Wheel Inner Bearing and Outer Bearing, Rear Hub and Axel, Wheel Ring etc. and labour charge of Rs.34,900/- totaling an estimate of Rs.1,27,800/-. He also filed documents showing payment of labour charge for repairing vehicle amounting to Rs.22,000/- on 25.06.2013. The cash memo of Sona Wheels Private Limited dated 21.03.2013 for the spears namely Hydraulic Ram Cylinder costing at Rs.82,160/-. These documents bills etc. are indicating repairs done over the damaged vehicle and it necessarily carries more credibility in favour of the complainants. The evidence of P.W.-1, 2 and 3 supported by affidavit narrating the fact also proves that vehicle was damaged in that accident on 06.11.2012.
However the O.P. company repudiated the claim on the basis of grounds shown in the survey report of surveyor, Binoy Kumar dated 29.07.2013. That as per cause of accident reported by surveyor that the insured vehicle was struck on left hand rear side by a truck by a good speed and the report of final surveyor that Hydraulic Jack was broken with foundation support frame twisted, but Mr. Kumar Found “there is no mark of any dent on left hand rear corner of the vehicle which is seen in intact good condition. No sign of Hydraulic Jack broken, he opined there is no massive or heavy impact on left hand rear side by any other heavy vehicle and that Hydraulic Jack has no accidental impact. That in his opinion above loss appears manipulated and beyond acceptability”.
It is settled principle of law that surveyor’s report has significant substantial evidentiary value, unless it proves otherwise showing strong reasons to scrub the report. Assessment of loss by surveyor is a pre-requisite as basis or foundation for payment of settlement of claim of Rs.20,000/- and above. Both the surveyors, who inspected the vehicle immediately after the accident and re-inspection after necessary repair of the vehicle, brought sufficient material on record in support of claim of petitioner. Both the surveyors found damaged in Hydraulic Ram and at the rear left portion. Both the surveyors in their reports clearly indicate item wise damage caused to the vehicle as also cost of repairs.
But the final survey report of Surveyor, Binoy Kumar whom the loss appears to be manipulated never came forward to depose in this case as to why his opinion varies from other two surveyors. O.P. company failed to produce any witness to discard the claim with this survey report dated 29.07.2013, which O.P. relied upon. No plausible reason has been shown to prove that the claim was excessive and manipulated. In such circumstances, this Forum holds that the surveyors’ reports by Mr. Bankim Chandra Ghosh Dastidar on 15.01.2013 and Mr. Noton Biswas on 21.03.2013 should be the basis for calculation of loss and for payment of settlement of claim of the petitioner.
The Forum can come to the conclusion from the oral and documentary evidence on record that petitioner has been able to prove that the vehicle-in-question was damaged following the impact of dash by a heavy vehicle in the garage on 06.11.2012 causing damage badly to the Hydraulic Ram and rear portion of the vehicle which necessitates the necessary repairs and replacements. It is also proved that the incident occurred during the valid period of the insurance policy. Therefore the O.P. insurance company cannot repudiate the claim of the petitioner/ firm.
From the above discussion on perusal of evidence on record and scrutiny of the documents, bills vouchers submitted by the complainant showing cost of repairing and in consultation with the surveyors’ reports after the incident and the survey report of re-inspection of the vehicle after necessary repair, this Forum comes to the conclusion that the petitioner/ firm are entitled to receive a claim amount of approximate net loss of Rs.48,500/- as cost of Hydraulic Ram and cost of aligning of chassis frame and rear suspension system with labour charges as estimated in the surveyor’s report on 15.01.2013. Moreover, the surveyor’s report dated 21.03.2013 after re-inspection by the surveyor and as suggested after bill verification that re-aligning and repairing charges of barrel/ outer tube costing Rs.5,500/- and value of barrel Rs. 30,000/- (approx totaling Rs.35,500/-), which the petitioners are also entitled to receive as minimum amount, which this Forum cannot deny to the petitioner/ firm. Therefore petitioners are entitled to receive Rs.48,500/- plus Rs.35,500/- totaling Rs.84,000/- towards their claim from O.P. insurance company for the damaged vehicle. The petitioners are also entitled to receive compensation for mental harassment and pain which the petitioners have to suffer for unnecessary repudiation of their claim by the insurance company. This Forum finds that if a sum of Rs.5,000/- is granted in favour of petitioners for such compensation will not be insufficient. The petitioners are also entitled to realize litigation cost from the O.P. insurance company to the tune of Rs.3,000/-. With this observation the complaint petition is disposed of in part in favour of complainants.
Fees paid are correct.
Hence, it is
ORDERED,
That the consumer complaint being No. CC-39/2015 be and the same is allowed on contest against the O.P. United India Insurance Company Limited.
The O.P., insurance company is directed to pay the awarded total sum of Rs.92,000/- (Rupees Ninety Two Thousand) only to the complainants/ firm within one month of passing of this order, otherwise complainants are at liberty to proceed with the law.
Let copies of this order be supplied to the parties free of cost.
