Date of filing:-18/10/2016.
Date of Order:-12/02/2018.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT)
B A R G A R H.
Consumer Complaint No. 42 of 2016.
Sri Surya Kumar Barai S/o Late Rahasa Barai R/o & P.o Katapali, P.s/Tahasil/Dist-Bargarh. ..... ..... ..... ..... ..... Complainant .
- V e r s u s -
The Senior Branch Manager, Oriental Insurance Company Ltd., Bargarh Branch Office, Bargarh At-Canal Avenue, Po/Ps/Tahasil/Dist-Bargarh-768028 ..... ..... ..... ..... ....Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri M.K.Satpathy, Advocate with others Advocates.
For the Opposite Party :- Sri P.K.Mahapatra, Advocate with others Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.12/02/2018. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief fact of the case;-
The Complainant preferred to file the case pertaining to the deficiencies in rendering service caused to him by the Opposite Party along with allegation of unfair trade practice as hereunder.
The case of the Complainant is that he has a tractor and a trolly vide regd No.OR -17-0169 bearing Engine No.39130193H2215 & Chassis No.93H3670733 and got it insured with Company of the Opposite party vide Policy No.345601/31/20515/3275 & 345601/31/2015/3274 for both respectively by paying the required amount of premium and plying with the same, and that during the subsistence of the policy period on Dt.04.12.2014 his said tractor due to the bad road condition in between village Pipalmunda to Katapali all of a sudden capsized and entered in to a pond causing damage in the frontal side and engine of the same, and that the matter was reported before the nearby Bhatli Police station vide S.D. entry No.76 Dt.04.12.2014. And as such the Complainant lifted the same from the said pond and repaired it which cost Rs.70,000/-(Rupees seventy thousand)only.
The further case of the Complainant is that he placed claim form before the Opposite Party with all required documents as asked by them and in response to such claim the Opposite Party offered him an amount of Rs.7,000/-(Rupees seven thousand)only to which he denied and claimed for the total amount but the Opposite Party did not adhered to, thus as per him the Opposite Party has played deficiencies in rendering due service and has played unfair trade practice and as such sent a pleader notice but to no response, as such has preferred to file the case before the Forum claiming an amount of Rs.70,000/-(Rupees seventy thousand)only in lieu of the repair of the Vehicle and Rs. 25,000/-(Rupees twenty five thousand)only in lieu of mental and physical harassment caused by such action of the Opposite Party relying on some following documents as follows
copy of the pleader Notice Dt.16.10.2015.
Postal receipt.
Copy of Insurance Policy.
Fitness certificate.
R.C.Book of the Tractor and trailor.
Copy of S.D.Entry No-76 Dt.14.12.2014.
Copy of Route permit of the Vehicle to substantiate his case.
Having gone through the Complaint, the documents, and on hearing the counsel of the Complainant the case was admitted and notice was served on the Opposite Party and on being noticed they appeared before the Forum and filed their joint version .
The averments made by the Opposite Party in it’s version are all negating the claim of the Complainant under different pretext such as that the complaint is not maintainable in view of the fact that the said vehicle was used for the commercial purpose, as such is being debarred from being a consumer, further as have duly complied with all formalities and have offered him the loss assessed amount of Rs.5,500/-(Rupees five thousand five hundred)only rightly in due time on the basis of the report and assessment made by the authorized Surveyor of the Company as such are not at all deficient in rendering service nor have committed unfair trade practice. In furtherance to it’s averment it has contended that the Opposite Party is not at all deficient in rendering service as it has deputed it’s surveyor and taken up all measure to ascertain the fact and other requirement of the policy immediately after getting information of the incident and has settled the claim by offering the amount as assessed by the authorized surveyor and also has deputed an Advocate namely J.P. Pandia to collect the required documents to verify the genuineness of the documents hence not liable for deficiencies of service nor for unfair trade practice. Furthermore has contended that the bill submitted by the Complainant is not consistent with the damage caused to the vehicle and thus has claimed that the claim made by the Complainant is not as per the report of damage reported by their surveyor as are all inflated bills not in consonance with that of the estimated one and hence has accepted the report of the surveyor and has rightly offered the actual amount of loss caused to the vehicle, hence the case in hand is not maintainable in the present form. Furthermore has contended that while the claim was under active consideration the case is filed by the complainant is not maintainable, in furtherance to it’s contention has taken up the same being a quantum dispute is beyond the jurisdiction of the Forum hence prayed to dismiss with cost. And to substantiate it’s case has relied on the documents as follows .
Xerox copy of the Advocate notice three sheet.
Xerox copy of the bill verification report of advocate Mr Surendra Panda with xerox copy of the bills. (four sheets)
Xerox copy of final survey report of Er.Dhirendra Ku Dash (five sheets)
Xerox copy of D.L. verification report of Advocate Jay Prakash Pandia.(two sheets)
Xerox copy of SD Entry, driving license and other documents of vehicle.(nine sheet)
Xerox copy of the spot survey report of Er. Satya Mohimohan Mahapatra(two sheets)
Xerox copy of repairing estimate & motor claim form.(four sheets)
Xerox copy of insurance policy of the tractor & trolly.(eight sheets)
Xerox copy of claim intimation of Complainant & E-mail of Opposite Party(three sheets)
Xerox copy of the Affidavit of the Complainant.
Having gone through the pleadings of both of the Parties and their respective supporting documents, the written and oral arguments advanced by their respective counsels to that affects the following points need to be examined to adjudicate the case .
Whether the case is maintainable in it’s present form ?
Whether there is any Deficiencies in rendering service and un-fair trade Practice on the part of the Opposite Party ?
Whether the Complainant is entitled for any relief ?
While we took the matter in to our close observation it came to our notice with regard to the question of maintainability of the case, we found that the Opposite Party has admitted the case of the Complainant that the vehicle in question is duly insured with them on receipt of the required premium amount and as has taken all initiative to settle the claim but for the discrepancy in the amount spent by the Complainant in repairing the same with that of the survey and assessment made by the surveyor the cause of action of the case arose to which, we shall deal with later on while will be dealing with the second point for determination and now so far the allegation made by the Opposite Party that since the vehicle in question was used for commercial purpose, is not coming under the purview of the Consumer to which in our view though the vehicle was being used for commercial purpose to earn his livelihood as submitted by the counsel for the Complainant at the time of argument further the vehicle as has been insured by paying due premium to indemnify the loss if occurred due to any accident but not to use the insurance policy for any commercial purpose hence such a plea of the Opposite Party is not tenable which has been fortified by the Honorable National Consumer Disputes Commission in it’s reported decision in 2005(1)CPR 1. Hence in our view is expressed in affirmative in favor of the Complainant.
Secondly with regard to the question as to whether the Opposite Party is deficient in giving service thereby causing unfair trade practice. It reveals from the materials available in the record during the subsistence of the policy period the accident has occurred and the Complainant has repaired the vehicle in the garage and has filed the receipt of the garages against his payment to the same, to which the Opposite Party has objected on the ground that the same amount of the claim is inflated in view of the report of the surveyor but on comparative revelation the estimate and repair work done by an experienced mechanic can not be brushed aside only because of the inconsistency in the report of the surveyor furthermore the argument made by the counsels for the Opposite Party that though the estimate was made by one garage namely Gaju Garage but later on some bills of garages have been filed which creates a cloud of doubt, in our view is not acceptable in view of the fact as per the Complainant that though the estimate has been given by the Gaju Garage but all the necessary equipments for all the repair work could not be taken up in that particular Garage hence has also taken the help of the other garage which can be considered in view of the natural Justice and so far as the report of the surveyor is concerned the theoretical assessment cannot be taken up in absolute with that of the practical aspect of the work undertaken by the experienced labor because at the time of practical dismantling or repair, at times it may lead to some diversion causing hike of expenses which of our such view has been supported by many authoritarian in different time, and from the report of the surveyor it seems to be a superfluous one as has not assigned any reason in detail as to why such a huge deduction in all against the billing amount and as the Opposite Party has offered an amount of Rs. 5,500/-(Rupees five thousand five hundred)only against the claim amount of Rs. 70,000/-(Rupees seventy thousand)only in as much as is completely silent about any alternative service centre is there from their own. And also it has come to our notice, the report of the Advocate entrusted by the Opposite Party namely Surendra Kumar Panda wherein in his such report has confirmed the bill issued by the Shyam Battery Care, Gaju Garage and Vijaya Enterprises, hence in our considerate view such assessment of the Surveyor is arbitrary and is not acceptable which it’self tantamount to deficiencies of service and also unfair trade practice and can also be deduced as of repudiation of the claim, and the argument advanced by the learned counsel for the Opposite Party in his support with the citation of the Honorable National Commission reported in the year 2008 (3) CPR is not similar with the present case and specifically because there is no ambiguity in the case, is not applicable in furtherance to his case also has filed a catena of Judgments of various Higher Court but as are not similar with the case in hand, we did not feel it necessary to go into the details and to discuss on those citation as such our view is expressed in affirmative in favor of the Complainant.
Thirdly as we have already expressed our views after discussing the case in detail in our foregoing paragraph, in affirmative to the case of the Complainant. Now it can be safely answered that the Complainant is entitled to the claim but with certain modification of the claim amount. Hence order follows.
O R D E R.
Hence the Opposite Party is directed to pay an amount of Rs.63,500/- (Rupees sixty three thousand)only toward repair expenses of the tractor and trailer with interest @ 6% (six percent) per annum from the date of filing of this case till the date of Order and Rs.5,000/-(Rupees five thousand)only in lieu of the compensation against mental and physical harassment and litigation expenses, within thirty days of receipt of the order in default the total awarded amount would carry interest @ 9% (nine percent) per annum till actual realization of the total amount.
Accordingly the Complaint is allowed against the Opposite Party and the same is Pronounced in the open Forum to-day on Dt.12.02.2018, and the case is disposed off.
Typed to my dictation
and corrected by me.
(Sri Krishna Prasad Mishra)
P r e s i d e n t. I agree
(Ajanta Subhadarsinee)
M e m b e r (w)
