State Consumer Disputes Redressal Commission
Divisional Manager, United India ... vs Dr. Anjana Jha on 18 August, 2011
Daily Order
STATE CONSUMER DISPUTES REDRESSAL COMMISSION BIHAR, PATNA RAJY AAYOG (First. Floor), R. Block Rd. No.-2, Patna-800001 First Appeal No. A/393/2007 (Arisen out of Order Dated null in Case No. of District None) 1. DM, PRANAY KUMAR, UNITED INDIA INSURANCE CO. LTD BHAGALPUR BEFORE: HONABLE MR. JUSTICE SUBASH CHANDRA JHA PRESIDENT HON'ABLE MRS. RENU SINHA MEMBER PRESENT: ORDER
Date of order: 18-08-2011
RENU SINHA, MEMBER
The present appeal is directed against the order dated 17-05-2007 passed by the District Consumer Disputes Redressal Forum, Bhagalpur (hereinafter to be referred to as District Forum) in Consumer Complaint No. 230/2005 wherein the complaint was allowed and the appellant was directed to pay the total repair amount of Rs. 25,711/- with interest of 9% per annum and Rs. 1000/- as the litigation cost within four weeks of the issuance of the order.
2. The complainant-respondent case in brief is that the respondent- Dr. Anjana Jha, who was the owner of Marui Car bearing registration No. BR 10B 6720, was insured with the appellant- United India Insurance Company, met with an accident on being dashed by thela loaded with pipes near Bhola Nath Bridge on 02-07-2005. The appellant-Insurance Company were informed by the respondent of the accident of the said vehicle. The appellant-Insurance Company deputed a surveyor on 06-05-2005, who inspected the said vehicle on 07-05-2005 for the assessment of the loss and thereafter, the vehicle was sent to Rudra Automobile, Bhagalpur, authorized dealer for repairing.
3. On the basis of the inspection of the vehicle, the surveyor assessed the loss of the damage occurred to the right side of the vehicle only for Rs. 6,880/- vide its report dated 25-08-2005.
4. Meanwhile, the respondent got the car repaired at a total cost of Rs. 25,711/- for that the bills were submitted to the appellant-Insurance Company to enable settlement of her claim. However, the claim of the respondent was not settled inspite of follow ups and fulfilling of all legal formalities by the respondent-Dr. Anjana Jha. The difference of the payment compelled the respondent to file a case in the concerned District Forum for the deficiency in service and claimed for Rs. 25,711/- as repair cost, Rs. 25,000/- as compensation and Rs. 2500/- as cost.
5. The appellant contested the matter in the District Forum and denied all the allegation made by the respondent. It was submitted by the appellant-O.P.- Insurance Company that respondents claim for the alleged damage was for the damage at the right side of the vehicle, occurred in the accident under the policy, not pertaining before the accident and on the basis of that it was assessed to the tune of Rs. 6,880/- and the loss voucher was sent to the respondent, which was not accepted and the respondent filed the complaint in the District Forum for the deficiency in service and claimed for Rs. 25,711/- against the total repair bill of the vehicle.
6. The learned District Forum, upon considering the case of both the sides and the materials on record and on the basis of cash memo of Rs. 25,711/- found the damage to that extent and directed the appellant-Insurance Company to pay the amount with interest and litigation cost to the respondent.
7. Being aggrieved and dissatisfied with the order of the District Forum, the appellant-United India Insurance Company has come in appeal for the ground that the District Forum has failed to consider the report of the surveyor, which is mandatory as per the Insurance Act and it is also accepted by the National Commission and the Hon'ble State Commission in its various decision. It is submitted that on the basis of cash memo of Rs. 25,711/- the District Forum failed to appreciate that the insurance coverage to indemnify the loss was for the actual damage sustained in the accident not before.
8. The appellant has filed a supplementary affidavit stating therein that the driver of the vehicle, Kapil Mandal was holding fake driving license at that moment of accident on which the claim of the respondent cannot be considered on merit. The appellant submitted that a verification report of driving license by the Divisional Officer (Admn), Insurance Company of being fake as it existed in the name of other person. In this regard, the appellant has relied upon a judgement of the Hon'ble Supreme Court reported in SC (2007) 8 SC 698 wherein the claim was rejected on the ground of fake or forged driving license.
9. The respondent has filed written notes of argument and has contended that the Insurance Company had sent the voucher for Rs. 6,880/- on 24-11-2005 to the respondent while the complaint was pending in the District Forum. It is also submitted by the respondent that the surveyor report is not tenable in view of the fact that any impact on one place of the body had a ripple effect on the other parts of the body of the vehicle. As such, the loss assessed by the surveyor only for right side of the body is arbitrary and biased. The respondent has also relied upon a judgement reported in (2009) 8 SCC 507 in support of her case. The respondent has supported the observation on which the order passed by the District Forum in holding the appellant for deficiency in providing service. The respondent's entitlement to the compensation. Therefore, it is prayed not to be interfered.
10. Heard the learned counsel of the respective parties and perused the materials available on record.
11. There is no dispute that the Maruti Car bearing No. BR 10B 6720 of the respondent-Dr. Anjana Jha met with an accident on being dashed by Thela on 02-07-2005 within a valid period of insurance, which was covered comprehensively by the appellant-Insurance Company.
12. It is also not in dispute that the appellant-Insurance Company was bound to pay the charges of the repair sustained in the accident as per the policy.
13. Now, the main question of consideration arises here is that whether the amount assessed by the surveyor in his report to the tune of Rs. 6,880/- is sustainable or not.
14. It is true that the surveyor's report is an important piece of document in settling the claim and has to be relied upon, unless it is proved by some cogent and reliable evidence.
15. We have examined the survey report and the assessment of loss done by the surveyor. In the present case we find that the surveyor's report clearly indicates the direct damage of the car on its other side was also in existence, it is therefore not clear that the damage on the other side was due to the accident or pertains to before accident.
16. The surveyor only assessed the loss, which was affected directly to the body of the vehicle but there was no mention in the report of the consequential damages of the car due to the impact of the accident, therefore, the survey report is not comprehensive.
17. In view of the surveyor's assessment of the vehicle almost a week of the accident, we feel that surveyor report for the other side of the car may not be truly reflected.
18. In view of the aforesaid discussion, we find that the bills submitted by the respondent to the Insurance Company for the repair of the said vehicle after the accident seems to be genuine.
19. The plea has been taken by the appellant on the point of forged driving license of the driver, on the basis of a report of Divisional Officer (Admn.). This document is being filed by the appellant-Insurance Company at the later stage of the hearing, we, therefore, find that the document cannot be considered here as a piece of evidence, which was not raised or examined by the District Forum. We are of the opinion that the appellant has failed to prove negligence of the driver.
20. In the light of the aforesaid observation, we do not find any error or infirmity in the impugned order of the learned District Forum and the appeal fails to succeed.
21. In the result, the order of the District Forum is upheld and the appeal stands dismissed. [HONABLE MR. JUSTICE SUBASH CHANDRA JHA] PRESIDENT [HON'ABLE MRS. RENU SINHA] MEMBER