Date of Filing: 21-12-2016 Date of Final Order: 22-09-2017
Smt. Runa Ganguly, Member,
This is a case before this Forum U/S 12 of the C.P. Act 1986. The factual matrix of the case as can be gathered from the case record is that the Complainant is a registered owner of a vehicle, Model-Chevrolet Beat-L.T. bearing No. WB-70C/9174. The vehicle of the Complainant has been duly insured with National Insurance Company Ltd. bearing policy No. 153901/31/14 6100007641 valid on and from 04.02.2015 to 03.02.2016. Unfortunately, the said vehicle met with an accident on 28.09.2015 with collision by a loaded van when it was parking mode near his residence and was damaged partly. The Complainant preferred a claim on 01.10.2015 to the Insurance Company i.e. the O.P. No.2 as the accident happened within the policy period. Thereafter, as per advice of the O.P. No.2 the Complainant made contact with the O.P. No.1, an authorized service centre for repairing his damaged vehicle and deposited Rs.20,000/- for that purpose. The O.P. No.1 after observation told the Complainant that it will take some time as some essential parts of the vehicle are not available to him. Thereafter, the Complainant handed over the vehicle to the O.P. No.1 for repairing. The O.P. No.1 after repairing the said vehicle issued a bill of Rs. 57,331/- in favour of the Complainant as repairing cost. The Complainant preferred a claim to the O.P. No.2 with the said bill but the O.P. No.2 asked the Complainant to submit a genuine bill with an endorsement ‘’Received in full’’. In that situation the Complainant again contacted O.P. No.1 for obtaining the genuine bill and for this the Complainant bound to pay rest amount of total repairing cost. After that the O.P. No.1 supplied a bill for Rs. 58453/- of Kayson Motors i.e. O.P. No. 3 though the Complainant repaired his vehicle through the O.P. No.1. The O.P. No.1 assured the complainant that this bill of kayson Motor is essential to get Insurance claim. The Complainant then submitted the said bill No. R000168 dated 10.12.2015 of Kayson Motor to the O.P. No.2 in connection with his claim. Thereafter, one fine morning the O.P. No.2 by a letter dated 10.12.2016 informed the Complainant that the O.P. No.3 never issued any bill in favour of the complainant. Thus, the O.P. No.2 denied settling his claim on the basis of the said bill. Besides, the O.P. No.2 on 07.03.2016 paid Rs.12,225/- as Insurance Claim in his account. By not satisfying, the Complainant made a request to the O.P. No.2 vide a letter dated 22.03.2016 for re-verification of his claim but to no good for which the Complainant filed a petition before the A/D Consumer Affairs and Fair Business Practice for mediation. On 05.08.2016 both parties appeared before the Mediation Table and it has been decided there that the O.P. No. 1 shall return the entire received amount to the Complainant. On the same day the O.P. No. 1 paid Rs. 20,000/- to the Complainant and assured that he will pay the rest amount in three equal installments. Thereafter, the O.P. No.1 only paid Rs. 11,400/- but did not pay the rest amount. Thus, finding no other alternative the Complainant filed this present case before this Forum seeking redress and relief as incorporated in the prayer portion of the Complainant.
In the present case in hand the O.P. No. 2&3 are contested the case by filing their W/V. The O.P. No. 1 did not appear before this Forum despite receiving the notice for which this case proceeded with ex-parte against the O.P. No. 1. The O.P. No. 2 by filing W/V contending inter-alia that the case is not maintainable against this O.P. This O.P. contended that the Complainant is not a consumer of this O.P. It is admitted fact that this O.P. issued a private Car Package Insurance Policy/certificate bearing No. 153901/31/14 6100007641 for the period from 04.02.2015 to 03.02.2016 for the vehicle bearing Registration No. WB-70C/9174 of the Complainant. The Complainant being the insured of the above vehicle lodged an own damaged claim before Branch manager of Insurance company for accidental benefit of his damaged vehicle. The Complainant submitted a bill of Kayson Motor bearing No.R000168 dated10.12.2015 along with claim Form but after proper investigation for verification and genuineness of said Bill/Retail Invoice it was established that the said bill has not been issued by the Kayson Motor, i.e. O.P. No. 3 for which the O.P. No. 2 denied to settle the claim in view of the said bill. The surveyor of this O.P. also assessed the loss of the Complainant with a tune of Rs. 12,520/- only and that was informed to the Complainant on 07.03.2016. The Complainant received the amount without any objection and thus, the O.P. No. 2 closed the claim file of the Complainant. By putting all this, the O.P. claimed that it has no deficiency in service and prayed for dismissal of this case against this O.P.
The O.P. no. 3 in its turn by filing W/V contested the case contending inter-alia that the present case is not maintainable before this Forum. This answering O.P. did not comment against the allegation upon the O.P. No. 1&2 as labeled by the Complainant. The main contention of this O.P. is that an Invoice bearing No. R000168 dated 10.12.2015 for Rs. 58,453/- has not been issued by the O.P. No. 3 in favour of the Complainant. This O.P. further contended that the allegation of the Complainant that the O.Ps in connivance with each other has cheated the Complainant is absolutely false, fabricated and concocted and denied by this O.P. Further contention of this O.P. is that the present Complainant only for illegal gain has filed the present case against the O.P. No. 3 as such, the O.P. No. 3 is duty bound to take proper legal action against the complainant as well as the O.P. No.1. This complaint also not supported by any affidavit for which this complaint liable to be dismissed with exemplary cost.
In the light of the contentions of the parties, the following points necessarily came up for consideration for proper adjudication.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumers as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Perused the entire documents in the record and also heard the argument as advanced by the Ld. Agents of the Complainant and contested O.Ps at a length. Peruse also the Evidence on affidavit; W/Ar. of the parties along with original documents.
Point No.1.
Admittedly, the Complainant is the owner of a vehicle bearing No. WB-70-C-9174 and the same is insured with the O.P. No. 2 vide policy No.153901/31/14 6100007641. The O.P. No. 1 is the authorized service centre of the vehicle in question. Thus, the relation between the Complainant and the O.P. No.1&2, so established from the record, we are convinced to hold that the Complainant is the Consumer of the above O.Ps u/s 2(1)(d)(ii) of the C.P. Act, 1986.
Point No. 2.
The Offices or place of business of the O.P. No. 1&2 are situated at Cooch Behar i.e. within the territorial jurisdiction of this Forum. Moreover, the complaint value of Rs.99,600/- with other relief which is far less than the prescribed limit.
Hence, this Forum has the pecuniary jurisdiction as well the territorial jurisdiction to entertain the present complaint.
Point No. 3 & 4.
Both the points are taken up together for the sake of brevity and convenience.
It is the case of the Complainant that the insured vehicle of the Complainant met with an accident within the policy period and resultantly the said vehicle damaged partially. Accordingly, the Complainant preferred a claim to the O.P. No.2 i.e. Insurance Company with a bill supplied by the O.P. No. 1 issued by the O.P. No. 3 Annexure- 04.
The Insurance Company settled the claim of the Complainant with Rs.12,525/ as per surveyor report. The Complainant paid total Rs. 58,453/- to the O.P. NO. 1 as repairing cost of the damaged vehicle but the O.P. No. 1 handed over a Bill to the Complainant allegedly issued by the O.P. No. 3. The Complainant claimed for total amount before the A/D, Consumer Affairs and Fair Business Practice. By not getting the total amount the present case has been filed by the Complainant before this Forum.
On meticulous scrutiny of the case record, it appears that Mediation has been held on 05.08.2016 wherein it is decided that the O.P. No. 1 will return the entire amount as he received from the Complainant. It is pertinent to mention that the O.P. No. 1 paid Rs. 20,000/- on the same day. It has been also decided that the O.P. No. 1 make payment of Rs.34,000/- by three equal installments to the Complainant Annexure-08. As per said decision the O.P. No.1 make payment of Rs. 11,333/- to the Complainant but the rest amount has not been paid till filing of this case. As per decision held at the Mediation Table it is crystal clear that the total liability has been fixed upon the O.P. No.1 and there is no liability upon the O.P. No. 2&3. Only the O.P. No. 1 is liable to make payment as settled in the mediation table denied the issuance No. R000168 dated 10/12/2015.
On perusal the documents made available in the record it appears that the Insurance Company has settled the claim as per Survey report, the complainant received the said amount and made a representation for re-verification. On perusal Annexure “A”, the Survey report of Tax Invoice Verification; filed by the O.P. NO. 2 it is crystal clear that the O.P. No. 3 did not issue Retail Invoice No. R000168 dated 10.12.2015 in favour of the Complainant. On the basis of the said report the O.P. No. 2 did not consider the said invoice as supplied by the O.P. No. 1 with any ill motive to the Complainant. The O.P. No. 2 settled the claim of the Complainant as per surveyor report, Annexure-F as and when it is already settled that the Surveyor report has significant value- 2015 CJ 956 (NC). The Ld. Agent for the O.P. No.2 has filed another Ruling of Hon’ble National Commission where in also it is decided that Report of Surveyor is to get due weightage [2015 CJ 401 (NC)]. Thus, this O.P. No.2 has no deficiency in service and further allegation of the Complainant against the O.P. No.2 has no justification and not in our consideration.
On perusal the complaint petition as well as the Evidence on affidavit of the Complainant it appears that there is no allegation against the O.P. No. 3. It is also on record that the O.P. No. 3 in no way is connected with the present dispute more so, when it is established and admitted by the rest O.Ps that the O.P. No. 3 did not issue any Bill in favour of the Complainant. Thus, no deficiency in service has been arise against this O.P. During the course of argument the Ld. Agent for the O.P. No. 3 vehemently argued that this case be dismissed against the O.P. No.3 as the Complainant frivolously has filed this case against this O.P. It is pertinent to mention that no liability has been fixed upon the O.P. No. 3 in the Mediation, held on 05.08.2016.
The O.P. No. 1 badly failed to comply the decision, taken by the A/D, CA & FBP. It is also evident that the O.P. No. 1 received the amount from the Complainant cleverly and did not return the full amount even after decision has been taken at the time of Mediation as such; deficiency in service of the O.P. No. 1 is established. The O.P. No. 1 did not come before this Forum despite receiving the notice which seems to us that he has nothing to challenge in the case. Thus, the allegations against the O.P. No. 1remain unchallenged.
In the light of the above observation we are constrained to hold that this case is liable to be dismissed against the O.P. No.2 & 3 and be allowed against the O.P. No.1 along with cost. The O.P. NO. 1 may be directed to make payment of Rs. 22,600/- to the Complainant along with Rs.10,000/- as compensation for deficiency in service and Rs.10,000/- as litigation cost.
Fees paid are correct.
Hence,
It is Ordered,
That the present case CC/117/2016 be and the same is allowed Ex-parte against the O.P. No.1 with cost of Rs.10,000/- and dismissed on contest against the O.P. Nos.2 & 3 without any cost.
The O.P. No. 1 is directed to make payment of Rs. 22,600/- to the Complainant along with Rs.10,000/- as compensation for deficiency in service within 45 days from the date of this order failing which the O.P. No.1 shall have to pay Rs.50/- for each day’s delay and the amount so accumulated shall be deposited in the Consumer Legal aid Account.
Let plain copy of this order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action as per rules. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
