( Delivered on 23/01/2019)

Per Smt. Jayshree Yengal, Hon’ble Member

1. This appeal challenges the order dated 29/3/2006, passed by the District Consumer Forum, Chandrapur, partly allowing the consumer complaint bearing No. CC/71/2005 and thereby directing the opposite party (OP)/insurance company appellant herein to pay the complainant Rs. 1,71,500/- towards the insurance claim with 9 percent per annum interest from  1/1/2005 till its realization & the OP to pay Rs. 1,000/- more towards litigation expense &  the OP/insurance company to retain salvage of the accidented  vehicle. It is further directed that the  complainant and M/s Laxmi Auto, the servicing center to render full cooperation to the insurance company & the insurance company to comply the aforesaid directions of the impugned order within 15 days from the receipt of the same  and in case of default, the insurance claim would bear 15 percent per annum interest till its realization.
2. The respondent Mr. Shaikh Jamil Shaikh Jalil is referred as complainant and appellant Oriental Insurance  Company Ltd. Chandrapur through its Manager is referred as OP for the sake of convenience. This appeal was filed before the State Commission at Mumbai on 16/06/2006. It came to be transferred to this Circuit Bench of the State Commission at Nagpur  The same was dismissed in default by order dated 29/10/2012. The appeal was restored by order passed by the Hon’ble National Consumer Disputes Redressal Commission dated 25/8/2017 and the appeal bearing No. A/06/899 was restored and taken up on board. Notices were issued to both the parties. Appellant/insurance company filed its appearance through advocate Mr. W.G. Paunikar. The notice issued to the respondent however was returned unserved with postal endorsement ‘expired’ The legal heir of the deceased respondent were brought on record  after being served with notice by paper publication on 18/1/2018. Counsel of both the parties filed written notes of arguments.
3. The facts in brief as set out by the complainant in his consumer complaint are as under.

1. The original complainant Mr.Shaikh Jamil Shaikh Jalil had purchased a minidoor pick up van bearing registration No. MH-34/M-2983  from Laxmi Motors in the year 2004. He insured the said vehicle with the OP for the period from 20/7/2004 to 19/7/2005, by paying the required premium. The insured vehicle met with an accident on 28/8/2004 that is during the period of insurance on Murtijapur to Daryapur road. The insured vehicle was heavily damaged due to that accident. The complainant immediately informed the OP /insurance company about the accident. The complainant also requested the insurance company to appoint a surveyor and assessor  to assess the loss of the insured vehicle. The insurance company appointed one Mr. Madanmohan R. Tiwari, who conducted the  survey of the vehicle on spot on 30/8/2004.
2. The complainant requested the insurance company to settle his claim. The insurance company assured the complainant that the claim would be paid on total loss basis as the survey report had recorded that the vehicle was totally damaged. The OP also directed the complainant to bring the vehicle to Chandrapur from the spot of accident. The complainant therefore brought the accidented vehicle to Chandrapur on 15/9/2004, for which he incurred an expenses of Rs. 5,000/-.
3. The insurance company again conducted the survey of the accidented vehicle at the showroom of Laxmi Motors as per the direction of the insurance company.  The complainant submitted the estimate for repairs issued by Laxmi Motors to the insurance company on 16/9/2004. The Laxmi Motors by letter dated 2/11/2004 had informed the insurance company that the chassis of the insured vehicle had got bent and is not repairable and needs to be replaced.
4. The OP/insurance company inspite of the survey report  failed to settle the claim of the complainant. Therefore the complainant issued a legal notice on 18/3/2005. It is the  contention of the complainant that he had availed loan from Cholamandalam Finance Company for purchase of the vehicle  and he is required to repay the same by regular installments. The complainant is deprived of source of earnings due to the accident of the vehicle. The complainant is subjected to additional penal interest as OP has failed to settle the insurance claim.
5. The complainant therefore alleging deficiency in service filed a consumer complaint and sought for directions for payment of  Rs. 1,70,000/- towards the sum assured under the policy, the insurance company to pay Rs. 1,50,000/- as compensation for mental harassment and business loss for the deficiency in service rendered by the OP. The complainant in his complaint has sought for the above mentioned payment with 18 percent per annum interest.

4. The OP/insurance company resisted the complaint by filing  written version and denied all the adverse allegations of the complainant. The OP/insurance company has specifically submitted in its written version that the complainant was informed to proceed with the repairs of the vehicle as per assessment made by the surveyor and to produce the repaired vehicle for inspection along with bills of the repairs and replacement of parts as allowed by the surveyor. The  complainant did not comply the said directions and filed a false claim against the insurance company. The complainant cannot claim the insurance claim in cash without actually repairing the vehicle. The insurance company is ready and willing to pay the repairing charges as per terms and condition of the policy. The insurance company/OP therefore denied to have rendered any deficiency in service and sought for dismissal of the complaint as frivolous.
5. The Forum after hearing both the sides and considering the evidence adduced by both the parties, partly allowed the complaint as aforesaid. The Forum by the impugned order has allowed the insured declared value( IDV) value of the insured vehicle and specifically held that the insurance company has rendered deficiency in service and adopted unfair trade practice by not deciding the claim of the complainant in pursuance of the terms and conditions of the policy.
6. Being aggrieved by the said order, the insurance company/OP has preferred this appeal and challenged the same mainly on the ground that the Forum by the impugned order has allowed the insurance claim on total loss basis. However the case in hand is that of  “ Partial Loss’ Such total loss can be allowed only in case where the cost of repairs of the vehicle exceeds 75 percent of IDV. Mere estimation of loss cannot be considered as assessed loss. The Forum by allowing the IDV value of the insured vehicle has therefore erred in law and therefore the impugned order deserves to be quashed and set aside.
7. We heard advocate Mr. W.G. Paunikar for the appellant and advocate Mr. Pandhare for the respondent and perused copy of impugned order. We also perused written notes of arguments filed by both the parties. We further perused copies  of the complaint, written version and the documents filed on record.
8. The insurance policy and its terms and conditions are not disputed. The Private and Confidential survey report dated 19/10/2004, of the surveyor Mr. P.D. Tatawar is filed on record in which the final assessment is assessed at Rs. 1,00,699/-. In the same report, the original estimate of repairs is recorded at Rs. 1,67,242/- and the actual assessment by the surveyor is Rs. 1,00,699/- In the same report the surveyor has noted the damages as under:-

“ Cabin distorted and misaligned. W.S. Glass broken and it’s frame misaligned.

Front pillars buckled/twisted. Roof panel deshaped.

Rear wall deshaped. Flooring at R/S deshaped/wrinkled. Inner, skirting and reinforcement panels deshaped.

Instrument panel misaligned. Front show panel pressed/deshaped.

Load body both planks caved and bent. Mounting brackets sheared off.

Chassis frame deflected and misaligned.

Rear body all base channel twisted & it’s flooring buldged out.

Chassis both long member(box channel type) found bent near rear wheel for repair it required cutting of channel, aligning and rewelding which will reduce the strength & hence to repair the same is not reccomded by manufactures.

Trailing arm RH bent. Front fork misaligned.

Crank case found cracked.

The vehicle inspected in detail after stripping of complete chassis and dismantling of damaged parts.”

9. It clearly reflects that the damage sustained by the vehicle is due to the accident and the surveyor has also accepted and observed the same. The insurance company has nowhere proved by  cogent evidence as to why there is a glaring difference between the estimated loss and assessed loss. Therefore we find that the estimated loss needs to be considered and it being more than 75 percent of the IDV value, the IDV value of the vehicle is  to be allowed. We find no irregularity and illegality in the impugned order and the appeal deserves to be dismissed being devoid of merits. For the foregoing reason, we pass the following order.

ORDER

1. The appeal is dismissed.
2. The impugned order dated  29/3/2006, passed by the District Consumer Forum, Chandrapur in consumer complaint bearing No. 71/2005 is confirmed.
3. No order as to cost in appeal.
4. Copy of order be furnished to both parties, free of cost.