State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd., vs Mo. Ramzan Ansari & Anr., on 4 May, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.FA/12/544
Instituted on 29.09.12
The Oriental Insurance Co. Ltd.,
Branch Office, Ambedkar Chowk, Manendragarh,
Ambikapur, Dist. Surguja
Through: Senior Divisional Manager,
Divisional Office, Korba, Main Road,
Post. & Dist. KORBA (C.G.) ... Appellant.
Vs.
1. Mo. Ramzan Ansari, S/o. Shri Nizamuddin Ansari,
R/o. Vill. Ranpurkhurd Takiya, Post-Parsa,
P.S. & Tah.: Ambikapur,
Dist. SURGUJA (C.G.)
2. Branch Manager, Indusind Bank Ltd.,
Branch : Ambikapur, Near Ambedkar Chowk,
P.S. & Tah. Ambikapur,
Dist. SURGUJA (C.G.) ... Respondents.
PRESENT: -
HON'BLE SMT. VEENA MISRA, PRESIDING MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri P.K. Paul, for appellant.
Shri R.K. Bhawnani, for respondent No.1.
Miss Anju Banchore, for respondent No.2.
ORDER
Dated: 04/05/2013 PER: - HON'BLE SMT.VEENA MISRA, PRESIDING MEMBER This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against order dated 21.08.2012 in complaint case no.165/2011 passed by District Consumer Disputes Redressal Forum Surguja, Ambikapur (hereinafter called "District Forum" for short), whereby the complaint was allowed and the OP was directed to pay // 2 // Rs.1,01,578/- to the complainant together with interest from the date of complaint @ 6% p.a. with Rs.3,000/- towards mental harassment and Rs.1,000/- towards cost of litigation. Aggrieved by the order, OP No.1 insurer has preferred the appeal under consideration.
2. In nutshell the facts of the case are that the complainant had purchased a pickup bearing No.U.P. 64 H/5834 after obtaining finance from OP No.2 and the said vehicle was insured with OP No.1 under policy No.192402/31/2011/7714 for the period from 17.09.2010 to 16.09.2011.During subsistence of insurance, the vehicle met with an accident on 13.03.2011. Intimation to the insurer was given and survey was done, but the amount of claim was not paid to the complainant. It was averred in the complaint that on the instruction of OP No.1, the complainant had got the vehicle repaired and had spent Rs.1,65,325/- towards repairs. The complainant had laid claim with all necessary documents, but claim for only Rs.43,500/- was allowed. Hence, the complainant did not accept the said amount and made repeated requests for payment of entire claim amount, which was spent by him in repairing the vehicle. After giving legal notice, complaint before the District Forum was filed claiming Rs.1,65,325/- with interest @12% p.a. and Rs.10,000/- towards mental harassment and Rs.5,000/- towards cost.
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3. OP No.1 resisted the complaint. It was admitted in the written version that the complainant had obtained insurance coverage from OP No.1 for the period between 17.09.2010 to 16.09.2011 and during subsistence of insurance the vehicle had met with an accident. OP No.1 denied all the allegations regarding deficiency in service. It was averred that the complainant himself had failed to comply with the conditions of the policy. He had exaggerated the claim and had got the vehicle repaired without instructions from OP No.1. It was stated that the complainant is not entitled to get any amount from the OP, as he had refused to accept Rs.43,500/-, which was offered by OP No.1 towards claim. It was averred that at the time of accident, the driver did not have valid driving licence and under the circumstances, OP No.1 was not liable for making payment to the complainant.
4. OP No.2 admitted in the written version that the complainant had obtained finance from the said OP for purchasing pickup bearing No.U.P. 64 H/5834 and the complainant had obtained insurance from OP No.1. So, in case of accident, it was the insurer, who was liable for making payment. OP no.2 is the finance company and hence, no cause of action has arisen against the said OP. It was prayed that the complaint be dismissed against OP no.2.
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5. On the basis of evidence available on record, the District Forum had allowed the complaint as noted earlier.
6. During pendency of appeal, the appellant had filed an application under Order 41 Rule 27 of CPC for taking report of Surveyor Shri Ajay Athale on record, as evidence at appellate stage.
7. Arguments on the application heard.
8. Counsel for the appellant submitted that report could not be placed before the District Forum, but is very important for due consideration of the matter. He prayed that the application be allowed and the report be taken on record.
9. Counsel for respondent No.1 opposed the application on the ground that the present appellant had ample opportunity to file the report of the Surveyor Shri Ajay Athale dated 12.06.2011 before the District Forum, but they did not do so, hence the document may not be taken on record and the application be dismissed. However, we feel that the Surveyor report is an important document and is necessary for judicious disposal of controversy between parties. Hence, the application is allowed and the report is taken on record.
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10. Final arguments also heard. Record perused.
11. Counsel for the appellant submitted that the District Forum has passed an erroneous order as it has allowed the entire amount claimed by the complainant without any deduction towards depreciation, access and salvage. He submitted that the report of spotSurveyor, Shri P.K.Agrawal, final Surveyor Shri Ajay Athale and Re Inspection Report of Shri P.K.Agrawal are very important documents for deciding the controversy between the parties, but the District Forum has failed to appreciate the said reports. Learned counsel for appellant submitted that the Surveyor has considered all the material aspects as he is a licenced Surveyor and has assessed the loss to Rs.54,492/-only but as the complainant had not filed bills for Rs.10,992/-, only Rs.43,500/- was payable, but the District Forum has failed to appreciate this fact. Learned counsel for the appellant submitted that the order of the District Forum is not proper, hence, the appeal may be allowed and the order be set aside.
12. Counsel for respondent No.1 supported the impugned order and submitted that the order of the District Forum is proper and no interference therein is called for.
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13. Counsel for respondent No.2 submitted that it is a formal party and complaint against the said respondent was dismissed by the impugned order. Hence, she does not have to submit anything.
14. During the course of arguments, counsel for the appellant placed heavy reliance on the report of the Surveyor, Shri Ajay Athale, but the said report was not filed before the District Forum and could not be considered by it while passing the impugned order. Hence, the order of the District Forum cannot be said to be erroneous, simply on the ground that the amount assessed by the Surveyor was not awarded and instead a higher amount was awarded by the District Forum.
15. In the facts of the case, it appears to be proper to remit the case back to the District Forum for reconsideration on merits. Appellant / insurer is directed to file copy of report of Shri Ajay Athale before the District Forum and after giving due opportunity to the parties, the District Forum is directed to reconsider the matter on merits. With this correction, the appeal is disposed of. Parties are directed to appear before the District Forum on 06.06.2013. No order as to cost.
(Smt. Veena Misra) (V.K. Patil) (Ms. Heena Thakkar)
Presiding Member Member Member
/05/2013 /05/2013 /05/2013