Date of filing :11.5.2018
Judgment : Dt.31.12.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Pradeep Kumar Dhara alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely M/s Royal Sundaram.
Case of the Complainant, in short, is that he is the owner in respect of a vehicle No.WB 02 AA 4959. At the time of purchase of the vehicle, insurance was done through OP namely M/s Royal Sundaram against payment of Rs.50,420/-. The policy bears No.VPC0847192000100. OP received the said premium of Rs.50,420/- as first party basis covering of liabilities of the car. The policy came into force from 21.6.2017 for a period of one year lapsing on 20.6.2018. During the validity of the said policy, said vehicle of the Complainant met with an accident, whereby front portion of the vehicle including bumper was damaged. So, the Complainant appraised the matter to the OP through its agent and he was assured that the same would be entertained by the Company. At the time of inception of the policy the vehicle was thoroughly checked and nothing was found wrong or damaged. The Complainant was never appraised regarding any damage or wrong at the time of inspection or thereafter. So, the Complainant made claim for the damage caused to the vehicle due to the accident. But the same was refused by the OP vide their letter dt.26.2.2018 stating that the damages to the vehicle were pre-existing. The vehicle for its necessary job was sent to Audi Workshop, Taratala on 10.2.2018, where the car was left stranded for more than 40 days. Inspection was already done by the OP but they did not send any signal (work order) with the Audi Workshop and as such repairing of the vehicle could not be undertaken by the said garage. As the genuine claim of the Complainant was refused, the present complaint has been filed by the Complainant praying for directing the OP to pay total amount of Rs.15,70,000/- with interest @ 12% p.a., Complainant h as claimed Rs.3,50,000/- as cost of repairing, financial loss Rs.5,50,000/- and for mental agony Rs.6,70,000/-.
Complainant has annexed with the complaint petition – Xerox of the certificate and insurance policy issued by the OP, letter dt.6.3.2018, 5.3.2018, 26.2.2018, two letters dt.14.3.2018, letter denying the claim and the letter dt.13.3.2018 sent by the OP.
OP has contested the case by filing written version denying and disputing the allegations. It is contended specifically that the Complainant lodged a claim with respect of alleged accident to the subject insured car and the OP duly appointed a licensed Surveyor to assess the loss and damage to the vehicle. Since the policy has been renewed after break in insurance, the vehicle had been pre-inspected prior to policy inception. In the pre-inspection report it has been stated by the Surveyor that the damages namely – (1) Fender LH – Minor dent, (2) Front show/bonnet – Minor dent and (3) Rear Bumper – Dot dent, were found in the vehicle. So the Surveyor found that since damages claimed were pre-existing the policy inception, OP had no liability in respect of the damage and thus the same was intimated to the Complainant refusing the claim. So, the OP has prayed for dismissal of the case.
OP has also filed certain documents i.e. policy, the claim application submitted by the Complainant, the vehicle inspection report dt.19.6.2017 along with copy of the photocopies and copy of survey and loss assessment report.
During the course of the trial, both parties have filed their respective affidavit-in-chief, followed by filing of questionnaire and reply thereto. Ultimately, argument has been advanced by both the parties. OP has relied upon a decision reported in 2000 (10) Supreme Court case at page 19 in support of the argument that the survey report has to be taken into consideration.
So, the following points require determination:
- Whether there has been any deficiency in service on the part of the OP?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
It is claimed by the Complainant that the vehicle bearing registration No.WB02AA4959 was insured with the OP for a period from 21.6.2017 to till 20.6.2018 and he had paid the premium of Rs.50,420/-. It is further claimed by him that during the validity period of the said insurance the said vehicle met with an accident whereby it got damaged in front portion of the vehicle including bumper. The Complainant has filed copy of the policy, the OP has also filed copy of the policy wherefrom it appears that the said vehicle was insured during the said period as claimed by the Complainant and the insured sum was Rs.15,00,000/-. Even though no document of accident has been filed by the Complainant, but the copy of the claim form filed before the OP does reflect that the Complainant filed the same before the OP narrating the accident that while returning from Roy Chak Front a car stopped suddenly in front of his car, he took left turn and hit with a big stone on the front left side and at the same time an auto hit the rear side of the vehicle.
On a careful scrutiny of the written version filed by the OP, it appears that they have mainly contended that the refusal of claim was made only because the damages as noted in the vehicle by the surveyor appointed by the OP was pre-existing damages. So, the only point for consideration is that whether the damages in the car were pre-existing or it was allegedly due to the accident on 8.2.2018 as claimed by the Complainant. It is true that the OP has filed inspection report showing that an inspection was done on 19.6.2017, wherefrom it appears that front show/bonnet had a minor dent, fender LH had minor dent and rear bumper had dot dent. It is claimed by the OP that the said inspection of the vehicle was held because the policy was taken after a break. But, in this context, it may be pertinent to point out that the OP has not filed any document showing that the said inspection report was sent to the Complainant along with the policy. It is specifically stated by the Complainant that he was not informed any such damages in the vehicle at the time of inception of the policy. So, the OP has to establish by the cogent evidence that the Complainant was in knowledge of the said damages allegedly noted by the OP on 19.6.2017 before the inception of the policy. It may also be mentioned here that on a careful perusal of the survey and loss assessment report the pre-existing damages has been stated also in front bumper. But the inspection report dt.19.6.2017 does not reflect any such dent in the front bumper. It is specifically stated in the said inspection report that front bumper was intact. So, if the same is accepted then the assessment of the surveyor that the damage in the front bumper was also pre-existing, belies. Since before this Forum OP has not filed any document in order to substantiate that the said alleged inspection report before the inception of the policy was sent to the Complainant, an inference can be drawn that the same is an afterthought. So, in such a situation, the refusal of the claim by the OP is not justified and thus Complainant is entitled to the cost of repairing.
In the said survey of loss assessment report of the OP, surveyor has assessed Rs.1,55,940/- as gross assessment and Rs.1,53,940/- as net assessment value. Complainant h as claimed the cost of repairing Rs.3,50,000/- But, in order to support his claim that an amount of Rs.3,50,000/- was paid towards repairing, no document has been filed by the Complainant. It has been stated during the evidence that when the repairing was not done at the cost of the OP, the Complainant got it repaired because he could not keep the vehicle stranded at the said garage as he would have to pay the rent. So, the Complainant ought to have filed documents showing payment made by him towards the said cost of repairing. But for the reason, best known to the Complainant, he has not filed any such document. So, in absence of any document, on consideration of survey and loss assessment report of the OP, in our view Rs.2,00,000/- towards the cost of repairing would be justified. No document has been filed explaining or assessing the huge amount of Rs.5,50,000/- and Rs.6,70,000/- claimed by the Complainant as financial loss and compensation towards mental agony. So, in the given situation of this case, an amount of Rs.40,000/- only as compensation or harassment would be justified.
It will not be out of place to mention here that the ruling cited by the OP reported in 2000(10) SC19 will not be applicable in the given situation of this case, as the report of the surveyor regarding survey and loss assessment has already considered as discussed above. In the said case law even though said report was in the record but was not taken into consideration and was not adverted.
Hence it is
ordered
CC/248/2018 is allowed on contest. OP is directed to pay Rs.2,00,000/- towards repairing cost to the Complainant within two months from this date. They are further directed to pay compensation of Rs.40,000/- and litigation cost of Rs.10,000/- within the aforesaid period of two months, in default, the entire sum shall carry interest @ 9% p.a. till realisation.
