Assam

Dibrugarh

CC/3/2008

SRI NABIN KUMAR DAS - Complainant(s)

Versus

THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD - Opp.Party(s)

SRI BADRI PD. AGARWALLA

30 Aug 2017

ORDER

The case of the complainant in brief is that he being a registered owner of his motor cycle being Registration No.AS-06-D/9438 insured the motor cycle with OPs vide Policy No.322500/31/4387/2006 with effect from 28-01-06 to 27-01-07 for an amount of Rs.31,000/-. During the validity of the said insurance policy his motorbike met with an accident on 28-11-06 at Lahoal, Dibrugarh. Immediately after the accident he informed to the OPs  on 29-11-06. Meanwhile, the complainant gave his motorcycle to M/s Smart Service Point, Dibrugarh who  assessed  the repairing bill for Rs.20,343/- only. On receipt of the above information the OP appointed a surveyor and loss assessor in order to assess the loss whatsoever  sustained and suffered by the complainant in respect of the said motorcycle accident. The Surveyor and Loss Assessor inspected the motorcycle and assessed the loss and submitted a report to the OPs. The complainant after being surveyed by the OP got his vehicle repaired by M/s Smart Service Point, Dibrugarh and got delivery after being paid Rs.20,343/- as final bill by himself. Thereafter, the complainant submitted his claim form and the bills and cash memos and other paper like  registration certificate, driving licence etc for settlement of the claim. The complainant was eagerly waiting for the settlement of the claim by the OPs but in spite of lapse of a considerable period he did not get any reply from the OP. The complainant made several request but the OPs  are not willing to settle the claim of the complainant. They are keeping mum and silence in the matter of settlement even though one year have been elapsed. Thus the OPs have committed grave and serious deficiency in service specially for their prejudiced, inordinate and unjustified delay in settling the claim with some ulterior motive. The Act of the OPs were out and out deficiency in service due to their negligence for which the complainant suffered immense loss, torture and harassment and agony. Hence, the complainant  claim Rs.20,343/- for the payment made for the repairing of the motorcycle, Rs.50,000/- as compensation for his mental agony, torture and harassment and the cost of the litigation.  

 

     After registering the case, notices were  issued to all  the OPs who contested the case by filing written statement stating inter-alia that the case is not maintainable in law as well as in fact. The OP stated that immediately after getting the claim petition they started their processing and appointed one independent surveyor Er. Nitipratim Dutta of Dibrugarh who inspected the vehicle and submitted his report vide No.NPD/OIC-TSK/MR/07-01 dated 15-03-07. According to his report the vehicle outwardly visible parts which were duly replaced by new ones. During his inspection, it was found that the Petrol Tank, Front Fork, Steeing Cone Kit, Racer Cone Kit T, Visor Housing, Head Light Visor, Front Fender, Speedo Meter, Head Lamp Assy., *Frame Comp. Lower and so on were in damaged condition which were duly fitted/ replaced by new one part. Labour works were also done as necessary and accordingly summarised that the parts allowed by the final surveyor were almost replaced and refitted new parts. But during the final survey the complainant wanted to replace the frame comp. lower parts but it was found that the said part was repaired instead of replace. Further, during investigation at M/s Smart Service Point at T.R. Phukan Road, Dibrugarh for the purpose of verification of  cash memo vide receipt No. NIL dated 08-12-06 submitted by the complainant for his alleged repair of the motorcycle, replied that  the serial number in the cash memo for Rs.19,443/- only used on 13-02-06 would be 0152 but they categorically clarified that the said cash memo used by  them only. Considering the above facts the OP informed the complainant on 02-11-07 by registered post stating the reason of non-entertaining the  claim and the repudiation. The said repudiation of the claim by the OP is neither a deficiency nor negligence as the same was done  after due application of mind for which the OP prayed to dismiss the case  filed against them.

 

  In this case Complainant gave evidence by swearing affidavit and  exhibited as many as 5 (five) documents in support of his case. On the other hand, OP examined one Sri Deleep Kr. Saikia, Divisional Manager, Oriental Insurance Company Limited and exhibited as many as 5 (five) documents to rebut the case of the complainant.

 

      

          DISCUSSION,DECISION AND REASONS THEREOF:

  

           

  Upon going through the evidence, documentary evidence and the written argument advanced by the parties it is found that the complainant is a policy holder of the OP being policy No.322500/31/4387/2006 which is a comprehensive package policy with effect from 28-01-06 to 27-01-07 for a sum assured of Rs.31,000/-. Ext-1 is  the registration certificate of the motor cycle and Ext-2 is the Insurance certificate. Further, it is found that the said motor cycle met with an accident on 28-11-06 near Lahoal, Dibrugarh, during the validity of the aforesaid policy. These facts are admitted by OPs. The complainant immediately after  accident informed the matter to the OPs and brought the motor cycle for repairing at M/s Smart Service Point, Dibrugarh who assessed the repairing bill for an amount of Rs.20,343/-. Ext-3 is the cash memo issued by Smart Service Point dated 08-12-06. The complainant after being repaired submitted all the documents to the OPs for his claim. It is pertinent to mention here that after being informed about the accident to the OPs they appointed one independent surveyor Er. Nitipratim Dutta of Dibrugarh, who thoroughly inspected the vehicle and submitted his report vide No.NPD/OIC-TSK/MR/07-01 dated 15-03-07. Meanwhile, the complainant himself after paying the bill of repairing got the vehicle released from the M/s Smart Service Point.

 

  On perusal of the survey report i.e. Ext. ‘A’ submitted by OP dated 15-03-07 it is informed  that -

 

“ DETAILS OF SPARES

The undersigned thoroughly inspected the vehicle outwardly visible parts which were replaced by new ones. During my inspection, I had found that the Petrol Tank, Front Fork, Steeing Cone Kit, Racer Cone Kit T, Visor Housing, Head Light Visor, Front Fender, Speedo Meter, Head Lamp Assy., *Frame Comp. Lower and so on were  in damaged condition which are now duly fitted/replaced by new one part. Labour works were also done as necessary. It can be summarised that the parts allowed by the final surveyor were almost replaced and refitted new parts.

 

*During the final survey the Insured wanted to replace the Frame Comp. Lower part. But it is now known to me that, the said part was repaired instead of replace. ”

 

 

    Thereafter, the OP made an investigation for the purpose of verification of cash memos vide receipt No. NIL dated 08-12-06 submitted by the complainant.  The M/s Smart Service Point replied that the serial number in the  cash memo of Rs.19443/- only used on 13-12-06 which would be serial number 0152 and categorically clarified that the cash memo used by them only. Ext-‘B’ is the said cash memo dated 08-12-06. Further, M/s Smart Service Point also clarified vide Ext-‘C’ and ‘D’ that the above cash memo was used by them only.

 

     From the evidence of the OP it is found that they have repudiated the claim of the complainant on the basis of Ext-‘C’ and ‘D’ presuming that M/s Smart Service Point has refused to confirm the cash memos and as such, the OP have refused to settle the claim against such documents and repudiated the claim by misunderstanding the Ext-‘C’ and ‘D’ vide Ext-‘E’.

 

     The ground assigned by the OPs in their evidence is not at all acceptable because the OP in their evidence stated that “M/s Smart Service Point... replied that Sl. No. in the cash memo for Rs.19443/- (nineteen thousand four hundred and forty three only) used on 13-02-06 would be 0152 but they categorically clarified that the cash memo used by them only.”  Ext-‘B’ is the said receipt No. NIL dated 08-12-06. Now I like to reproduce the letter dated 16-06-07 and 24-09-07 issued by M/s Smart Service Point which reproduce as below.

  

     “It is inform you that we have not put the Sl. No. in the cash memo for Rs.19443/- (nineteen thousand four hundred and forty three only)  used on 13-12-06. The Sl. No. of the ‘Cash Memo’ will be 0152.

 

     Further, the said cash memo for Rs.19443/- used by us which may please be noted.”

 

     The above letter is misinterpreted by the OPs. M/s Smart Service Point admitted that they have not put serial no. in the cash memo for Rs.19443/- but they have not denied that the complainant has not paid Rs.19443/- vide the above cash memo. M/s Smart Service Point admitted that they used the said cash memo on 13-12-06 and not 13-02-06 as wrongly quoted in the evidence of the OP and according to M/s Smart Service Point, the serial no. of the cash memo would have been 0152. M/s Smart Service Point has also confirmed that they have used the said cash memo for Rs.19443/-. The manager of the M/s Smart Service Point did not deny that Rs.19443/- was not paid by the complainant. Under the circumstances, it cannot be affirmed that the complainant has not paid Rs.19443/- to M/s Smart Service Point vide Ext-3. Ext-3 submitted by the complainant and Ext-‘B’ submitted by the OP are one and same copy of the cash memo through which the complainant made the payment to M/s Smart Service Point. The complainant after due survey and inspection of the said motor cycle by the surveyor got his motor cycle repaired by the  said M/s Smart Service Point and incurred considerable amount of Rs.20,343/- including the labour charge, which. The OPs failed to rebut.

 

     Besides, from the perusal of the Ext-‘A’ survey report the surveyor admitted that he found Petrol Tank, Front Fork, Steeing Cone Kit, Racer Cone Kit T, Visor Housing, Head Light Visor, Front Fender, Speedo Meter, Head Lamp Assy., *Frame Comp. Lower and so on were damaged condition and found those were duly fitted, replaced by new parts and labour works were also done. He also affirmed that the parts allowed by the final surveyor were almost  replaced and fitted new parts. From the above report of the surveyor it appears clear that all the parts which were allowed by the  final surveyor were replaced by fitting new parts but in the footnote  he stated that at the final survey the complainant wanted to replace the frame comp. lower part but it came to his knowledge that  said part was repaired instead of replace. However, this fact was not proved by the OP either by evidence or by any documents and accordingly it appears that the complainant  has replaced all the parts allowed by the final surveyor.

 

      In view of the foregoing discussion and decision after considering the fact and evidence this Forum comes to an unassailable conclusion that evidence disclosed by DW-1 has failed to rebut and impair the evidence led by PW-1 as regard to the manipulation of documents by the complainant and the OPs have misinterpreted the documents i.e. Ext-‘C’ and ‘D’. The unimpaired testimony of PW-1 and the plea which has been taken by the OP is highly contradictory and inconsistent with regard to the liability of the OP. The complainant immediately after completion of repairing the motor cycle submitted all the relevant documents, bills, cash memos to the OPs. But the OPs have neglected to settle the claim of the complainant for which he suffered mental harassment and tension and had to move from post to pillar for no fault of him.

 

      Considering the above fact and evidence led by PW-1 both oral and documentary evidence has been able to establish the material of deficiency in service and illegal trade practice committed by OP as defined U/s 12 of the C.P. Act. As such, all the OPs are held jointly and severally liable for the negligence and the deficiency in service committed by them. Accordingly, this Forum doth order the OPs to pay a sum of Rs.20,343/- to the complainant for the repairing charge of the motorcycle  with interest @ 9% per annum from the date of filing of this case. The OPs are also directed to pay Rs.5000/- as compensation for deficiency in service, mental agony, torture and harassment. Further, OPs are directed to pay cost of Rs.1000/- for filing the instant case. All the above order shall be complied within one month from the date of this judgment.

Furnish copy of this judgment to the OPs for compliance.