The petitioner Mukesh Jha filed a petition u/s.12 of the Consumer Protection Act for seeking relief.

The fact of the case as revealed from the petition as well as from the evidence is that the complainant Mukesh Jha is an employee under the Govt. of West Bengal as well as the owner of Maruti Suzuki Zen Estilo car bearing registration No.UP14DZ/9547 and the said vehicle was insured with the United India Insurance Co. Ltd. vide policy No.1009043115P1032406990 issued by the office of O.P.No.1. It has been further stated in the petition that the complainant is now posted as Addl. Treasury Officer under the jurisdiction of District Magistrate, Uttar Dinajpur. From the petition it is found that the complainant on 25.09.2015 was coming from Kolkata to Raiganj with his family members to join his duty by his own Maruti Suzuki Zen Estilo through N.H.34. At that time the road was full of ditches and the date was raining day for which there was a heavy water logging on the road. The car of the complainant fall into the ditch and as a result of which the functioning of the car was stopped at the place when they were about to get upon the Farakka Barrage.  The complainant immediately calls Speed Wheel Maruti Suzuki Authorize Service Centre situated at H.C.C.Colony, Farakka, P.O.Nabarun, Dist. Murshidabad, West Bengal at about 6.30 p.m. The authority of Speed Wheel Service Centre responded that it was a Sunday. The shop was closed and due to heavy rain it is not possible to bring the car to the Service Centre. As the place was highly protected area it was not allowed to park the non functioning car over the Farakka Barrage Bridge. The C.I.S.F Jawans and passengers of the other cars were unable to pass as because the car of the complainant causes the terrific traffic jam. Thereafter the C.I.S.F. Jawans and other passengers of other vehicles help to get the car to park at the side of the road after coming down of the Barrage. On 26.09.2015 at about 11 a.m. Speed Wheel Authorities came and they pulled the car and brought it to the Speed Wheel Authorized Service Centre. From the petition it is found that the complainant visited the office of United India Insurance Co. Ltd at Farakka Branch and they appointed a surveyor namely Bankim Ghosh Dastidar. From the petition it is also found that the car in question was in speed wheel authorize Maruti Service Centre  for four months and the total expenditure was Rs.67,713/-. But on 15.04.2016 the United India Insurance Co. Ltd. informed that the complainant is entitled to get Rs.19,516/- as compensation for the repair of the vehicle. The damage assess by the surveyor was not satisfactory, as such the complainant filed the instant case for compensation of Rs.47,857/- and other reliefs.

The petition has been contested by the O.P. by filing the written version denying all the material allegations leveled against him contending inter alia that the petition is not maintainable as per law. The O.P /United India Insurance Co. Ltd. never denied to pay the petitioner as per terms and condition of the policy. The petitioner demanded the higher amount which is against the law and terms and condition of the insurance policy. The further defence case is that the surveyor Sri Bankim Ghosh Dastidar assessed the claim and on the basis of such report the Insurance Co. is willing to pay Rs.15,516/-. The further defence case is that the amount of damage as assessed by the assessor was informed to the complainant. But the complainant did not raise any objection about the loss of assess as assessed by the surveyor. So, considering the facts and circumstances the claim of Rs.47857/- is not at all maintainable. Hence, it is to be rejected.

During the course of trial the complainant Mukesh Jha himself was examined as P.W.1 and he has examined Sri Satya Deo Singh as P.W.2 and Subhasis Dutta  as P.W.3. On the other hand the insurance Co. adduced Sri Bankim Ghosh Dastidar as O.P.W.1.

Now the point for determination whether the claimant is entitled to get compensation as prayed for or not. 

                                       DECISION WITH REASONS

It is not disputed that the petitioner/complainant is the owner of the vehicle in question and the vehicle was insured with the O.P.No.1 at the time of incident and complainant had a valid driving license at the time of incident. Now the cordial question comes as to the point of damage. In order to assess the damage the complainant has examined P.W.2 Satya Deo Singh who is the proprietor of Speed Wheel Service Centre at Farakka. From his evidence it is found that the vehicle was repaired at his service centre  and repaired the vehicle at the cost of Rs.67,630/-. In this regard the Ld.lawyer of the O.Ps submitted that P.W.2 is not a technical man and it is not possible for him to say which parts were damaged due to the fall into the ditch which is fully rain water. But from the evidence it is found that P.W.2 is the proprietor of the Service Centre and receipt was issued from his establishment and the original voucher has been proved. So, the evidence of p.w.2 cannot be disbelieved on the ground that he is not at all a technical man. P.W.3 is a Motor vehicle technical Inspector. He has stated about when the vehicle will be ceased or not. But he is not stated anything about the amount of damage.

 On the other hand the Ld. Lawyer of the O.P. submitted that the report of a surveyor is a vital document and the Forum will rely upon the surveyor’s report unless and until it is rebutted by any convincing evidence. In this regard the Ld.lawyer for the O.P refers a citation as reported in IV (2006) CPJ 84 NC. On perusal of the case law it is found that the report of a surveyor is an important piece of document and the evidence which cannot be brush aside without a sufficient reasoning. It is the actual fact that the report of surveyor is a strong piece of evidence regarding the assessment of damage. But from the cross examination that “ I cannot say why the insured Mukesh Jha used the items besides my report , he is the best person to say” about it. From the report of the surveyor it is found that insured Mukesh Jha used items besides the report mentioned in the report. But there is no cross examination of p.w.1  as to the effect that he used the parts which was not at all damage. The O.P should have cross examined the p.w.1 in this point  but nothing has done by the O.P. Even, no suggestion was given that the items beside the report was used in the vehicle for the beautification of the vehicle. So, in such circumstances the Forum will have to the point the amount of those parts which were fixed in the vehicle. But actual amount was not coming before the Forum. So, in such circumstances it will be just and proper to assess the loss of the actual amount claimed by the petitioner and the value assess by the surveyor. So, by calculation it comes to Rs.47,857/- + 19,815/- which is equivalent to Rs.33,686/- taking the mean value of the claim and the damage assess by the surveyor. Besides that the claimant is also entitled to get Rs.7,000/- for harassment and Rs.4,000/- for litigation cost.. So total amount comes to Rs.45,686/-. Thus the case is disposed of.

It is very peculiar to state that the incident took place within the jurisdiction of Farakka and the Divisional Office of the O.P is situated at Malda. According to Sec.11 of C.P.Act the jurisdiction of the Forum would be either at Farakka or Malda as because the cause of action arose within the jurisdiction of Malda  as the Divisional Office  is situated at Malda. But nowhere in the W.V it has been stated that this Forum has no territorial jurisdiction to try this matter. Only it has been stated that this case is not maintainable in law. But the matter of objection as regard to the jurisdiction is to be specifically stated in the W.V, but nothing has stated in the W.V in this regard. Even, at the time of argument no such argument was raised by the Ld. Lawyer of the O.P.                         

Fees paid are correct.

Hence, it is

ORDERED,

That the instant consumer complaint being No. CC - 78/2016 be and the same is allowed on contest but without any cost.

The complainant gets Rs.45,686/- as repairing expenses, harassment and litigation cost. O.Ps are directed to pay the amount to the complainant by an account payee cheque within one month from the date of this order failing which it will carry interest at the rate of 5% per annum from the date of filing of this case till recovery. If the amount is not paid within the time as mentioned, the complainant will have the liberty to execute the order as per law.

Let a copy of this order be supplied to the parties free of cost.