West Bengal

Paschim Midnapore

CC/79/2016

Sri Manish Mishra - Complainant(s)

Versus

United India Insurance Co.Ltd. - Opp.Party(s)

Asim Kumar Dutta

28 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President

 And

Mrs. Debi Sengupta, Member

   

Complaint Case No. 79/2016

 

             Sri  Manish Mishra, S/o Late Jokhan Mishra, vill. & P.O. Satbankura, P.S. Garhbeta,

             District - Paschim Medinipur. …………..………..……Complainant.

                                                                              Vs.

             United India Insurance Co. Ltd., notice to be served, Divisional Manager, Medinipur                      

             Divisional Office, at Battala, P.O. Medinipur, P.S. Kotwali, Dist. Paschim Medinipur,

             PIN-721101....……….….Opp. Party.

                                                    

              For the Complainant: Mr.  Asim Kumar Dutta, Advocate.

              For the O.P.               : Mr. Ashok Kumar Paul, Advocate.

 

Decided on: -28/12/2016

                               

ORDER

                          Bibekananda Pramanik, President-This is an application under section 12 of C.P. Act, filed by the complainant Manish Mishra against the opposite party-United India Insurance Co. Ltd.

                        Briefly stated, the case of the complainant is as follows

                        The complainant is a permanent resident of Satbankura within the jurisdiction of this Forum and the opposite party carries on business of insurance policy having it’s divisional office within the jurisdiction of this Forum.  The complainant purchased a truck bearing no.WB 33C/4664 for his self employment and he also got his said truck insured with the opposite party-Insurance Company, vide policy no.035082/31/14/01/00006694 having it’s validity period from 29/12/2014 to  mid-night on 28/12/2015.  Unfortunately on 19/09/2015, the said truck at the time of transportation

Contd……………………..P/2

 

( 2 )

 met with a road traffic accident under Kanksa Police Station within the jurisdiction of District Bankura.  The complainant then lodged a G.D. vide Kanksa P.S. G.D. entry no.1022 dated 21/09/2015 and he also informed the said matter regarding accident of the vehicle in the office of the opposite party over telephone as well as in writing.  After getting information regarding the accident, Branch Manager of the opposite                       party-Insurance Company engaged a spot surveyor named Mr. Samir Bit and the complainant paid his professional fees i.e. conveyance charges and other charges for spot survey and the said surveyor received such payment under receipt.  After such spot survey, the complainant submitted damage estimate and claim form i.e. damage estimate of Rs.11,71,810/- as per advice of the spot surveyor and the opposite party also received the same.  After depositing all papers and all estimate before the office of the opposite party-Insurance Company, the complainant repaired the damaged vehicle in a authorized garage of TATA name Kusum Enterprise at Chandrakona Road in the district of Paschim Medinipur.  Said Kusum Enterprise thoroughly repaired the damaged vehicle and the complainant paid Rs.8,42,000/- and Kusum Enterprise  issued final bill to the complainant.  Thereafter the complainant deposited all such money receipts in the office of the opposite party. After receiving all papers about repairing of the damaged vehicle, the opposite party-Insurance Company engaged a surveyor-cum-loss assessor named Avijit Majumdar who thoroughly investigated the damaged vehicle and assessed labour charge of Rs.86,000/- and other charges and also mentioned damaged spare parts as per price list only 41in numbers.  The said surveyor submitted his report within time but the opposite party-Insurance Company did not settle the claim as per demand of the complainant and they intentionally withheld the genuine claim of the complainant.  Thereafter the complainant sent a representation to the opposite party on 17/05/2016. Opposite party received the same within time and on 25/05/2016, they sent a mail to the complainant stating that they approved the claim only at Rs.6,16,100/- on repairing basis.  It is alleged that the opposite party did not settle the claim as per repairing value with labour charges. Complainant thereafter sent a mail on 26/05/2016 to the O.P. stating that the total repairing value of the damaged vehicle is Rs.8,42,000/-, carrying charge Rs.7,300/-, spot survey charge of  Rs.1625 and lead bill of Rs.3,300/- and  complainant also informed the opposite party that it is not possible for him to accept the settlement of claim.  Opposite party received the said mail but did not pay any heed to settle the genuine claim of the complainant.  Hence the complaint, praying for directing the opposite party-Insurance Company’s to pay Rs.8,54,225/- towards repairing cost of the damaged vehicle and litigation cost of Rs.50,000/-.   

Contd……………………..P/3

 

( 3 )

                  The opposite party-Insurance Company has contested this case by filling a  written objection.

                  Denying and disputing the case of the complainant, it is the specific case of the opposite party, as made out in paragraph-7 of the written objection, that from  the averments made in the petition of complaint  it will not be evident that the opposite party took prompt action over the matter by appointing the spot surveyor and after repairing of the damaged vehicle they also appointed a final surveyor who after considering all bills and vouchers, submitted by the complainant, has assessed the loss at Rs.6,16,000/- and on receipt of the same the opposite party intimated to the complainant and as such there is no deficiency in service on the part of the opposite party.  It is stated that the complainant intentionally has delayed the matter by not accepting the settled claim amount from the opposite party and by referring the matter to this Forum.  It is stated that it is the settled principle of law that the Insurance Company is to be guided as per survey report regarding settlement of claim and the opposite party has got no discretionary power over the matter and in case the complainant is dissatisfied with the survey report he has to challenge it before the competent authority.  It is therefore prayed by the opposite party that the petition of complaint may be rejected with cost.

                                                                 Points for decision

1)Is the case maintainable in it’s present form and prayer ?

2)Has the opposite party any deficiency in service for settling the claim of the complainant ?

3)Is the complainant entitled to get the reliefs, as sought for ?

Decision with reasons

           For the sake of convenience and brevity, all the above points are taken up together for consideration.

          At the very outset, it is to be stated here that in this case neither the complainant nor the opposite party adduced any evidence, either oral or documentary, but they have relied upon some documents, so filed by them which have not been admitted in evidence in accordance with law.  It is also to be mentioned here with although the complainant filed a written examination-in-chief  supported by affidavit but subsequently the complainant ‘not pressed’ the said affidavit and by filing a petition on 16/12/2016, the complainant stated that he will not adduce any evidence in this case.  Similarly, opposite party also did not adduce any evidence.  Be that as it may, we find from the respective pleadings of the parties that the following facts are undisputed

Contd……………………..P/4

 

 

( 4 )

           The complainant is the owner of a truck bearing no.WB 33C/4664 and he insured his said vehicle with the opposite party-Insurance Company vide policy no.035082/31/14/01/00006694 having it’s validity period with effect from 29/12/2014 to the  mid-night on 28/12/2015. The said truck of the complainant met with a road traffic accident on 19/09/2015 and  a G.D. regarding such occurrence was made at Kanksa Police Station vide Kanksa P.S. G.D. entry no.1022 dated 21/09/2015 and he also informed the said matter regarding accident of the vehicle in the office of the opposite party. After getting such information, the opposite party-Insurance Company engaged a spot surveyor named Mr. Samir Bit. After such spot survey, the complainant submitted damage estimate and claim form i.e. damage estimate of Rs.11,71,810/- as per advice of the spot surveyor and the opposite party also received the same.  After depositing all papers and damage estimate before the office of the opposite party-Insurance Company, the complainant got his vehicle repaired in an authorized service centre of TATA Motors name Kusum Enterprise at Chandrakona Road.  According to the complainant, Kusum Enterprise thoroughly repaired the damaged vehicle and the complainant paid Rs.8,42,000/- to  Kusum Enterprise  who issued final bill after thorough repairing of the vehicle.  Further according to the complainant, he deposited all such money receipt in the office of the opposite party and thereafter the opposite party engaged a surveyor-cum-loss assessor named Avijit Majumdar, who thoroughly investigated the damaged vehicle.

           It is alleged by the complainant that although the said surveyor submitted his report within time but the opposite party-Insurance Company did not settle the claim as per demand of the complainant and they intentionally withheld the claim of the complainant.                                             

           Complainant admits that on 25/05/2016, the opposite party sent a mail about settlement of his claim and approved Rs.6,16,100/- on repairing basis.  The grievance of the complainant is that the opposite party did not settle the claim as per repairing value with labour charges and therefore the complainant refused to accept the said sum of Rs.6,16,100/-.

                   As against this, it is the case of the opposite party that from the petition of complaint, it will not be evident that the opposite party took prompt action over the matter by appointing a spot surveyor and after repairing of the damaged vehicle, they also appointed a final surveyor and the said surveyor after considering of all bills and vouchers, submitted by the complainant, assessed the loss at Rs.6,16,100/- and they also intimated  the same to the complainant but the complainant has intentionally  delayed the matter by not accepting the claim amount from the opposite party.  The opposite party therefore claimed that they have no deficiency in service in settling the claim of insurance of the complainant.

Contd……………………..P/5

 

( 5 )

                     So the facts remain admitted that after the complainant submitted his claim of insurance, the opposite party-Insurance Company at first deputed a spot surveyor and after repairing of the damaged vehicle,  they also deputed another surveyor-cum-loss assessor, who after considering all bills and vouchers regarding repairing of the damaged vehicle, so submitted by the complainant, assessed the loss at Rs.6,16,100/- but the complainant refused to accept the said amount. By filing the present complaint, the complainant has claimed that he is entitled to the repairing cost of Rs.8,42,000/- apart from carriage  charge, spot survey charge and lead bill.  In support of his case, the complainant has filed all such bills and vouchers and the opposite party has also filed the final survey report, so submitted by Avijit Majumdar, surveyor-cum-loss assessor.

                   Relying upon a ruling of the Hon’ble Supreme Court passed in Civil Appeal no.3253-2002 reported in 2016 (1) CPR 434 (SC), ld. lawyer for the complainant submitted that in the said ruling Hon’ble Supreme Court has been pleased to hold that “Although assessment of loss by approved Surveyor is a pre-requisite for payment or settlement of claim but Surveyor’s report is not the last and final word.  It is not that sacrosanct that it cannot be departed from ; it is not conclusive. Approved Surveyor’s report may be basis or foundation for settlement of a claim by insurer in respect of loss suffered by insured but surely such report is neither binding upon insurer nor insured”.  As against this, Ld. Lawyer for the opposite party has argued that mere submission of bills of repairing cost of the vehicle does not mean that whatever amount is claimed shall be finally accepted for payment by the Insurance Company.  He further submitted that Surveyor’s report is an important piece of evidence and those reports remained unrebutted and the complainant did not lead any evidence to discard the Surveyor’s report.  Ld. lawyer for the O.P.  further submitted that mere production of  bills and estimates cannot be the basis for discarding the reports of the Surveyor.  In support of such contention, ld. lawyer for the opposite party-Insurance Company referred two rulings of the Hon’ble N.C.D.R.C. reported in II (2011) CPJ 255 (NC) and IV (2011) CPJ 458 (NC).  We have gone through the aforesaid rulings of the Hon’ble Supreme Court as well as of the Hon’ble National Commission and found that it has been repeatedly held by the Hon’ble N.C.D.R.C. as well as Hon’ble Supreme Court that report submitted by the Surveyor is an important piece of evidence, which can be displaced by leading some cogent evidence to prove the contrary.  In the case before the Hon’ble Supreme Court as referred by the complainant, we find that in that case, the complainant had filed affidavit of the persons from whom the spare parts were purchased, repair work was done and charges paid to them, But herein the present case, the complainant did not file  affidavit of the persons

Contd……………………..P/6

 

( 6 )

 from whom spare parts were purchased and by whom repairing works of the damaged vehicle was done.  In fact, the complainant adduced no sort of evidence of himself as well as of the persons from whom such spare parts were purchased and by whom the repairing work was done.  So mere production of  bills or estimate cannot be the basis for discarding the report of the Surveyor, who was appointed by the opposite party-Insurance Company in accordance with the requirement of law as provided in Section 64-UM (2) of the Insurance Act, 1938.  Since the complainant has adduced no sort of evidence to discard the reports of the licenced Surveyor’s or to make out any case as to why the Surveyor’s report should be rejected,  so the said decision of the Hon’ble Supreme Court, as relied upon by the complainant, is of no help to the complainant in the present facts and circumstances of the case.  On the contrary, the decisions of the Hon’ble N.C.D.R.C., so referred by the opposite party, are more applicable in the present facts and circumstances of this case.  Since the Survey reports submitted by the Surveyor’s of the opposite party remained unrebutted in this case, so the Surveyor’s report of the opposite party is to be accepted.  It appears that on basis of the said Survey report of Sri Abhijit Majumdar, Survey/loss assessor, the opposite party-Insurance Company has admittedly settled the claim at Rs.6,16,100/- and the opposite party also intimated the same to the complainant but it is the complainant who refused to accept the said amount.

                 In the above facts and circumstances of the case, we are of the view that there is no deficiency in service on the part of the opposite party-Insurance Company in settling the claim of insurance in question.

                 The petition of complaint is therefore liable to be dismissed.

                All the points are accordingly disposed.

                In the result, the complaint case fails.   

                                                  Hence, it is,

                                                    Ordered,

                                                     that the complaint case no.79/2016 is  dismissed on contest but in the circumstances without cost.  However the complainant is at liberty to accept the settled claim amount of Rs.6,16,100/-, as offered by the O.P.-Insurance Company.

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

             Dictated and Corrected by me

                         Sd/-B. Pramanik.                 Sd/- D. Sengupta.                         Sd/-B. Pramanik. 

                              President                                 Member                                       President

                                                                                                                              District Forum

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