OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI-03

                                                                                                 C.C.28/2012

Present:-

1) Md.Sahadat Hussain, A.J.S.         - President

2) Smti Archana Deka Lahkar          - Member

3) Md Jamatul Islam                          - Member

Shri Pramender Kumar                                  -Complainant

S/O- Sri Vikram Kumar

R/O- N.H.Bye Pass Truck Parking,

Biharbari,Beltola,Guwahati-781029

Dist-Kamrup(M),Assam

  -VS-

1) Reliance General Insurance                     -Opp.party

Registered Office-Reliance Centre,19,

Walchand Hirachand Marg,

Ballard Estate,Mumbai-400001

2) The Branch Manager

Reliance General Insurance Co.Ltd.

5^th floor,Anil Plaza,Beside IDBI Bank ,

G.S.Road,Guwahati-781005,Assam

Appearance:

Ld advocate Mr Pramod Kr Bajaj for the complainant and Ld advocate Mr Krishna  Borah for the opp. parties.

Date of argument - 12/07/2018  

Date of judgment - 25/07/2018

JUDGMENT

This is a proceeding U/S- 12 of the Consumer Protection Act, 1986

1. The complaint filed by Shri Pramender Kumar against Reliance General Insurance Co.Ltd.,Mumbai and the Branch Manager, Reliance General Insurance Co.Ltd., G.S.Road ,Guwahati was admitted as a proceeding U/S-12 of the Consumer Protection Act,1986   and notices were  served on all the  opposite parties on  26/03/2013  . Thereafter, the  complainant filed his affidavit on 06/02/2014 and he was cross examined by the opp. party side on 09/08/2016 and thereafter the  opp. party were given several chances but they  have failed to give evidence and accordingly the stage of hearing   evidence is closed vide our order dtd.27/12/2017 and fix the day of 09/02/2018 for filing written argument by the parties but the opp. party side ultimately filed written argument on 05/06/2018  and before that the complainant side filed eritten argument on 09/02/2018   . Thereafter, the day of 27/06/2018 was fixed for oral argument  and on that day the opp. party was found absent without step. On 12/07/2018 , we heard oral argument of Ld advocate Mr P.K. Bajaj for the complainant and of Ld advocate Mr Krishna Borah for the opp. parties  and today , we deliver the judgment  which is as below-

2. The complainant case in brief is that  the complainant had insured his commercial vehicle bearing Registration No-HR 56-4039 with Opp.Party No-2 vide Policy No-1505792334003841 which with a comprehensive  package w.e.f 21/01/2010  to 20/01/2011 with IDV of Rs.9,17,910/-but the said vehicle met with an accident  under Salkocha outpost ,Dist-Dhubri,Assam  on 18/12/2010 at 12:00 PM  and a case was registered by Chapar Police Station vide Chapar P.S Case No-300/10 ,U/S- 279/304(A) IPC and he filed a claim bearing claim No-210127551 to the opp. party and the opp. party deputed surveyor  for assessment of loss for the damaged vehicle .On release of the vehicle by the police it was  parked at Shree Jagdamba Body  Builder ,Near Assam Oil Petrol Pump,Kabitry ,N.H.37, Jogighopa  for  preparation   of estimate and the  body builder issued an estimate of repairing charge as well as list of damages based  on visual inspection  and the said estimate, MVI report , documents of the vehicle such as R/C, Road Permit , Fitness Certificate and   D/L were submitted to the opp. party .The investigator of the opp. party of the said body builder several times and took photographs and directed him to start repairing work verbally and then he started repairing work of the said vehicle and inform the concerned the investigator  time to time  about the progress of repair and the  investigator took photographs of damaged portion of the vehicle and the damaged parts such as dash board , drivers cabin , chasis  ,complete engine, gear box,turbo charger , radiator,fuel pump,inter cooler,wiring harness, front axel etc from time to time as and when  informed by him. After completion  of repairing work he submitted money  receipt and other labour charges for settlement of the claim and the amount becomes Rs.4,41,415/- but the  opp. party informed him that they are ready to give him Rs.61,132/- only and he refused to accept vide letter dtd.23/01/212 and requested them for reassessment of the claim but  the opp. party did not settle his claim as  per his claim  and then he served legal notice  to the opp. parties  asking  them to pay him Rs.4,41,415/- along with interest @18% per annum  and cost of repairing but the opp. party inaction caused harassment , mental agony to  him and for which he prays to this  forum to direct the opp. party to pay Rs 4,41,415   as repairing cost with interest @18% per annum from the lodging claim (interest till filing the complaint Rs.19,863/-) and also to pay Rs.1,00,000/- as  cost of unnecessary harassment and  mental agony  along with cost of the proceeding.

3. The pleading of the Opp.Party No-1 & 2 in brief is that the complaint is not maintainable .It is barred by principles of estoppel waver  and acquiescence ; it is bad for misjoinder and nonjoinder of necessary parties . It has no cause of action; it is filed  harrasive ,malafide and baseless allegations . The  complainant did not comply with requirement necessary  for  settling his claim inspite of several request made by them for production   of the required documents . The  complainant had not carefully co-operated  with the surveyor for settlement of the  claim. They settled the claim only after receiving the survey report ; but the complainant rejected the same  without giving good grounds and as such there  is no deficiency o0f service attrubutable to them and therefore they cannot be  held liable to pay any compensation  . They follow  the standard procedures  and rules of the company in processing the claim and the claim was settled only after receiving the surveyor report and  for such reason they couldnot be blamed  as it was acting bonafide as per the terms and conditions of the policy . Thereis no deficiency  attrubutable to them for such reason and hence the complaint is liable to be dismissed.
4. We have perused the pleading  as well as evidence of the parties . We have also perused argument of both sides ld counsels .It transpires to us that both the parties admit that the vehicle of the  complainant (Registration No-HR 564039 ) which  was insured  with Reliance General Insurance Co.Ltd (Opp.Party No-1) had met with an accident over highway under Salkocha outpost ,Dist-Dhubri, Assam  on 18/12/2010 and  sustained substantial damage and the complainant repaired the said vehicle  from his own purse at Jagdamba Body Builders , Kabaitari  (Dist-Bongaigaon) and filed claim to the opp. parties praying for reimbursing him the cost of repairing of the said vehicle after the accident amounting to Rs.4,41,415/- and said claim was registered by the opp. party vide Claim No-2101257551 and opp. party also deputed a surveyor to assess the loss suffered  by the complainant due to damage of the vehicle in the said accident and the said surveyor investigated the said vehicle and submitted report to the opp. parties.
5. The complainant states that he spent Rs.4.41,415/- in repairing the said vehicle and he submitted all relevant cashmemoes to the opp party to facilitated  them to dispose of his claim  . The opp. party side  admits that  the complainant filed cashmemoes to the tune of Rs.4,41,415/- but they deny such huge amount of expenditure made by the complainant. The opp. party admits that  they settle the claim on the basis of  report of the surveyor but they are not disclosing what is the settled amount . However, the  complainant states that the opp. party had been ready to make a payment of Rs . 61, 132/-This vrsion of complainant is not denied by the opp. party side .Thus it is held to have been prove that against the claim of Rs.4,41,415/- the opp. party offered  payment of Rs.61,132/- only. Now moot question is that how the opp. party calculated the loss of the complainant at Rs.61,132/- That opp. party has not adduce any evidence as to calculation  of said amount nor they filed the survey report before this forum. Hence , this forum can not hold  that the opp. party calculated loss at Rs.61,132/- on the basis of the survey report, rather we hold that the surveyor assess the loss at some other amount which exceeds  their offer to the complainant and that is why they had not submitted the survey report in this proceeding and adduce evidence in support of their case.
6. After perusing  the evidence of the complainant it is found that in the examination in chief the complainant states that he has paid Rs. 4,41,415/- to the garage (Shree Jagdamba Body  Builder) as repairing charge and Ext-3(1) to 3(11) are the money receipts and cashmemoes  of said repairing charge but in cross examination he states that the repairing charge is Rs.2,50,000/- . We have perused Ext-3(1) to 3(13) and it is found that Ext-3(1) was issued by East India Agencies on 28/01/2011 which is about to purchasing certain parts and Ext-3(2) was issued by M/S Kamrup Motors on 29/01/2011 which is about  purchasing of some parts and again Ext-3(3) is also issued by M/S Kamrup Motors on the same day which is about purchasing some parts and Ext-3(4) is issued by Saraf Motor Works on 29/01/2011 which is repairing charge and Ext-3(5) is cashmemo issued by Moga Diesels ,Guwahati about purchasing some parts , and Ext-3(6) issued by Kamrup Motors on 19/04/2011 about purchasing of certain parts and Ext-3(7) is cashmemo issued by Kamrup Motor on 15/03/2011 and Ext-3(8) cashmemo issued by M/S Kamrup Motors on 19/04/2011 about purchasing certain  motor parts and Ext-3(9) , a cashmemo issued by Kohli & Sons ,Guwahati on 19/04/2011 and Ext-3(10) a money receipt issued by Kohli & Sons on 19/04/2011 and Ext-3(11) a money  receipt issued by  Shree Jagdamba Body  Builders to  the tune of Rs.2,50,000/- as charge of repairing the vehicle which is undated one. In this case, the complainant side has not examined the authors of the cashmemoes and bills from Ext-3(1) to 3(11) and as such it must be  said that,  the authenticity  and genuineness of those documents is not established. The complainant in his evidence states that , the repair was done in Shree Jagdamba Body  Builder, Kabaitary , Bongaigaon , but he has not submitted analytical bill of repairing charge from Shree Jagdamba Body  Builder and submits only one undated money  receipt to the tune of Rs.2,50,000/- as repairing charge .Hence, Ext-3(11) is not supported by any analytical bill and on that ground the said money receipt cannot be accepted  as genuine one . Secondly, in evidence the complainant,  in nowhere states that , he purchased spare parts from M/S East India Agency  ,Guwahati ,M/S Kamrup Motors , Guwahati, M/S Saraf Motor Works , Guwahati , M/S Moga Diesels, Guwahati, M/S Kohli & Sons,Guwahati nor he tried to prove those cashmemoes of purchasing spare parts by examining issuing  authority of said cashmemoes and bills. He  also not examined the issuing authority of Ext-3(11) . In  such situation we cannot hold that these documents ranging from Ext-3(1) to 3(11) are genuine documents and these documents supports the claim of the complainant that he has spent Rs.4,41,415/- in repairing his vehicle after the accident. Thus we hold that the complainant also has failed to establish  that he spent Rs.4,41,415/- in repairing his vehicle after the accident . The opp. party side  admits that they offered Rs. 61,113/- againt the claim of the complainant which the complainant refused to accept. The complainant has also not furnished any photographs or documentary evidence as to extent of damage of his vehicle after the accident although it is their burden to prove it . Hence, the extent of damage sustained by the vehicle in the said accident as claimed by the complainant, stands not exhibited . So, in  such  situation  we must hold that the vehicle of the complainant had sustained damage to some extent which is not in consonance of the extent of damage claimed by the complainant . Therefore , we are constraint to hold  that, the vehicle of the complainant sustained minor damage in the said accident which does not warrant expenditure of Rs.4,41,415/- in repairing said damage . Therefore, we hold that the offer of Rs.61,132/- as loss suffered by the complainant in  result of the said accident is a justified offer . It is found that the opp. party has not issued any cheque /bank draft of that amount to the complainant, although it is their duty to send a  cheque amounting to Rs.61,132/-.
7. Summing up our discussion, we hold that, the complaint has only partial merit but not full merit  and the complainant is entitled to Rs.61,132/- from the opp. party against his claim of Rs. 4,41,415/- .Hence,  the complaint is partially  allowed and opp. parties  are directed to pay Rs.61,132/- to the complainant as loss suffered  by him  in result of the said accident along with interest @6% per annum from the date of  filing of this complaint (14/05/2012) and Rs.10,000/- as cost of the proceeding . They are directed to pay the awarded amounts  within 45 days, in default, other amounts shall also carry interest at the same rate.

        Given under our hands  and seal  today on this 25^th  July ,2018.

               (SmtArchanaDekaLahkar)                  (Md.Jamatul Islam)            (Md.SahadatHussain)                                                                                              Member                                            Member                            President