Heard learned counsel for both sides.

2.      This is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   Learned counsel for the appellant submitted that the appellant/complainant being owner of Innova vehicle bearing Registration No.OR-23D-2222 insured the vehicle with the OP for the period from 19.11.2011 to 18.11.2012. Complainant alleged inter alia that during currency of the policy, the vehicle met accident on 29.4.2012 while going from Puri to Bhubaneswar. Thereafter, complainant made complaint and the surveyor was deputed. It is stated that the OP insurance company sent the vehicle to authorized service centre where estimate was made at Rs.2,61,670/- for repairing but the OP settled the claim for Rs.13,032/- to which the complainant objected. Being aggrieved with the settlement, complainant filed the complaint.

4.      Learned counsel for the appellant further submitted that OP filed written version stating that after receiving the complaint they have made survey through a competent surveyor to settle the claim. So the surveyor has found the loss to the extent of Rs.13,032/- and accordingly, the settled the amount was offered but the complainant did not receive the same. Since the OP has performed their duty appropriately, there is no deficiency of service on their part.

5.      Learned District Forum after hearing both parties dismissed the complaint on the ground stated therein.

6.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by dismissing the complaint without giving weightage to the material produced by both parties. According to him, the complainant has produced the estimate for Rs.2,61,670/- by receiving the same from the concerned Service Centre. But the learned District Forum has not discussed about the same at all. Learned District Forum ought to have evaluated the estimate produced by the complainant because the complainant is duty bound to prove the deficiency of service of the OP.

7.      Learned counsel for the appellant submitted that with regard to losses surveyor has not filed any evidence on affidavit to prove his report. According to him even had learned District Forum relied upon the surveyor’s report, it could have allowed the complaint but the complaint has been dismissed by the learned District Forum.

8.      Learned counsel for the appellant further submitted that the impugned order being illegal and improper for not having discussed the materials on record is liable to be set aside by allowing the appeal.

9.      Learned counsel for the respondent submitted that the complainant has not adduced any evidence and the surveyor has surveyed the spot and the vehicle time to time and thereby computed losses with all expertise. So she submitted that the surveyor’s report cannot be found faulty and the complainant has not led any evidence to make it also wrong or false. She submitted that since the surveyor has given report in accordance with law but the complainant has not accepted the settled amount, there is no cause of action to file the case. According to her, the impugned order of the learned District Forum is appropriate and correct, it should be confirmed.

10.    Considered the submission of learned counsel for     respective parties and perused the DFR including the impugned order.

11.    Complainant is required to prove his case by showing that the deficiency of service lies with the OP.

12.    It is admitted fact that the complainant has insured the vehicle with the OP and during currency of the policy the vehicle met accident. That apart the complainant has also produced the copy of the estimates by receiving the same from the concerned Service Centre. The estimate runs to Rs.2,61,670/-. However, it is well settled in law that the surveyor’s report in absence of any other evidence should be considered to settle the claim. In fact the report of the surveyor Er.Dillip Kumar Mohanty has clearly stated in the following manner:-

“xxx   xxx   xxx

Summary of the Assessment

Original Estimate :-                                                  Assessed for :-

01, Total labour            Rs.  44,850.00                Total labour      Rs.  14,032.00

       charges                                                             charges       

02.Total cost of  spares Rs.1,03,671.00             Total cost of spare   Nil

                                                                                  parts adjusted

 03. Suppl.labour charge    Rs.  Nil                      after applying due

  04. Suppl.Spare parts       Rs. Nil                       depreciation. _______________

                                         ______________                                     Rs.14,032.00

TOTAL                             Rs.1,48,521.00              Less policy excess Rs.1,000.00

                                                                                  Less salvage value Rs. Nil

                                                                          _____________

                                                                   (Approx) Net loss  Rs.13,032.00”

There are remarks given by the surveyor which has nothing to the assessment already made above.

13.    The aforesaid calculation of the surveyor only shows the loss at Rs.13,032/- but the said report does not show on what basis the estimate made in the left side has been assessed in the right side of the assessment in a very less amount. Percentage of depreciation is not mentioned in the report itself. It is only stated by the learned counsel for the respondent that the vehicle has been lightly damaged and the same has been repaired with denting and panting. But the particulars of the parts and labour charges have been noted by the surveyor. However, the estimate amount he has noted at Rs.1,48,521/-. When the losses has not been clearly made available by the surveyor, the original estimate as noted by him as Rs.1,48,521/- should be accepted as claim amount. When the surveyor’s report is silent about many aspects as discussed, it can be said that the OP has not performed the service without any deficiency. The learned District Forum has also not considered the matter with all sorts of materials on record. Therefore, the conclusion of the learned District Forum is not correct too. Hence, the impugned order of the learned District Forum is set aside. The  complaint is allowed in part. The OP is directed to pay Rs.1,48,521/- to the complainant within 45 days failing which it will carry interest at the rate of 12% per annum from the date of this order till the date of payment.

            DFR be sent back forthwith.

            Supply free copy of this order to the respective parties.