w w w . L a w y e r S e r v i c e s . i n


M/s. Sneha Construction Co. (P) Ltd., Rep. by its authorised representative, Amitava Goswami v/s HDFC Ergo General Insurance Co. Ltd.

    Complaint Case No. 149 of 2016
    Decided On, 28 October 2022
    At, West Bengal State Consumer Disputes Redressal Commission Kolkata
    By, THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, PRESIDING MEMBER & THE HONOURABLE MR. SUBHRA SANKAR BHATTA
    By, JUDICIAL MEMBER
    For the Complainant: Samrat Das, Advocate. For the Opp. Party: Debojit Dutta, Rahul Kumar Dey, Advocates.


Judgment Text
Shyamal Kumar Ghosh, Presiding Member

The instant consumer case was filed by the complainant against the opposite party/Insurance company praying for disbursement of the claim amount of Rs. 20,37,818/-, compensation, litigation cost etc. which are clearly reflected in the petition of complaint.

The synopsis of the case is that the complainant was a registered owner of one BMW vehicle being no WB-74-S-8714. The said vehicle was purchased by the complainant after obtaining a loan. The entire loan amount was duly paid by him within the stipulated period of time. Subsequently the hypothecation of the said vehicle was removed from the registration certificate. The fact is that the said vehicle was insured with the opposite party under private car package policy being no – 2311200610179001000 along with IVD amounting to Rs. 13,50,000/- and that particular policy was valid from 12/11/2014 to 11/11/2015. On 03/07/2015 the Sri Debabrata Roy, director of the company met with an accident at Fatapukur, Jalpaiguir at about 5.15 pm. The vehicle was sent to the authorized service centre for necessary repairing and the said service centre estimated the repairing cost of Rs. 20,37,818/- only. The aforesaid vehicle was kept in the parking space of OSL Prestige Private Ltd, Kolkata for which the complainant was bound to bear the parking fees @ Rs. 250/- per day till 20/01/2016. The complainant in the mean time intimated the event of accident to the opposite party insurance company on 10/07/2015 through Toll Free number and the op/insurance company registered the said claim being Motor Claim no – C230015041863 and advised the complainant to submit the claim in Motor Accident Claim Format. The complainant submitted the claim form along with necessary requisites at the office of the opposite party on 24/09/2015. The complainant waited for considerable period of time but no fruitful reply came from the end of the opposite party/insurance company. The opposite party tried to avoid its liability of making payment to the complainant against the motor claim on several pretext which was not expected from any insurance company. On 03/12/2015 the complainant sent a legal notice to the opposite party requesting for payment of claim of the complainant. But in reply the opposite party through the letter on 07/01/2016 requested the complainant to arrange re-inspection and to furnish repair bills. As per requirement, the complainant intimated the op all information through email letter dated 15/01/2016. The op acknowledged the same on 15/01/2016 and 18/01/2016 respectively. But surprisingly on 25/01/2016 the op repudiated the aforesaid claim of the complainant and declared NO CLAIM due to non-submission of the relevant documents and papers. Having no other alternative the complainant knocked at the door of this Commission for getting proper relief/reliefs as prayed for.

The opposite party/insurance company contested this case by filing written version stating inter alia that the policy is admitted. The said policy was valid from 12/11/2014 to 11/11/2015. The op submitted that the complainant prayed for a sum of Rs. 20,37,818/- for repairing charges of the said vehicle but the IDV of the said vehicle was settled at Rs. 13,50,000/- only.

By filing written version the opposite party further submitted that after intimation of the claim, they had immediately appointed licensed independent surveyor Shashi Dhar Gautam for preliminary inspection of the said car. Accordingly such surveyor being entrusted with the job had duly inspected the said car.

Opposite party also added that it is the settled principle of law that in any circumstances, their liability should not be crossed the amount of IDV. After following the said terms and conditions of the policy of insurance itself, this opposite party has got no liability to reimburse consequential loss. It is specifically submitted that neither the complainant submitted the proof of repairing expenses of the vehicle nor allowed the opposite party or surveyor appointed by them to finally inspect the said vehicle. The actual fact is that till date the said vehicle was not repaired and as such the complainant failed to submit the repairing expenses bill till date at the office of the opposite party/insurance company. The present complaint/petition was filed at a pre mature stage and thus it is liable to be dismissed as not maintainable. The opposite party on several occasions requested the complainant through various letters to submit the proof of repairing expenses but the complainant did not comply with the said requests. Therefore, the opposite party had no other alternative but to close the claim of the complainant due to non-submission of necessary papers. The opposite party also urged for delay intimation (after 10 days from the event) causing gross violation of the terms and conditions of the insurance policy from the end of the complainant. There is no gross negligence and deficiency in service on the part of the opposite party/insurance company. Hence the opposite party prayed for dismissal of the complaint petition with exemplary cost.

In course of final hearing ld. counsel appearing for the complainant submitted more or less same statements contained in the petition of the complaint and in addition to that the ld counsel also argued that the matter was very old one and as such ld counsel prayed for granting proper relief/reliefs in favour of the complainant.

Ld. counsel also appearing for the opposite party/insurance company submitted their views clearly enshrined in the written version. In addition to that the ld counsel also argued that the petition of complaint is suffered from want of pecuniary jurisdiction as the IDV of the vehicle has been settled at Rs. 13,50,000/- only. The matter is guided by the old Act 1986 and as per provision of the said Act the instant petition of complaint should be filed by the complainant before the appropriate District Forum (now District Commission) instead of State Commission. Section 11 of the Act provides that subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complainants where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs. For that reasons the ld. counsel prayed for dismissal of the petition of complaint with cost.

We have heard the ld counsels for both sides at length and in full.

Argument has been completed.

We have also perused material on record meticulously.

Now we try to untie the following issues in order to provide proper justice to the parties:-

It is very apparent from the record that the instant consumer case has been filed before the Commission on 08/04/2016 and as such the instant matter has been guided by the old Act, 1986. Section 11 of the said Act clearly connotes that subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs. Here, in the instant case the Complainant prayed for disbursement of claim amount of Rs. 20,37,818 only and also for payment a sum of Rs.50,000/- only towards compensation. So, it is very clear to us that the claim amount exceeded the amount of rupees twenty lakhs. Therefore, as per aforesaid provision there was no bar at the behest of the complainant to file his / her petition of complaint before the State Commission when the claim amount already exceeded Rs. 20 lakh and on the said ground the complainant did not make any wrong, , erroror mistake in filing the instant petition of complaint before the State Commission. Accordingly, the instant issue is thus decided as per above observations.

We have meticulously perused the policy certificate being no – 2311 2006 1017 9001 000 in respect of vehicle being no – WB-74-S-8714 issued by the opposite party HDFC ERGO General Insurance company Limited. This policy reveals that it is a private car package policy valid from 12/11/2014 to 11/11/2015 with the IDV amounting to Rs. 13,50,000/- only. The name of the insured M/S – Snehha Construction Private Ltd has been figured in the instant policy certificate and the insured regularly paid the actual premium as per agreed policy terms and conditions.

The petition of complaint and claim form both reveal that Sri Debabrata Roy met with an accident on 03/07/2015 at about 5.15 pm and the car was skidded and fell into the road side pond due to sudden hard brake as a drunken man unexpectedly came in front of the said vehicle while crossing the road. It is admitted that the said event was occurred during the policy period. Though there is no GD entry or lodging any FIR in the concerned police station yet in brief notes of argument, the opposite party/insurance company stated the followings:-

The complainant, in his petition of complaint, clearly stated that the service centre after examination of the said vehicle gave an estimation of the repairing charges amounting to Rs. 20,37,818/- only. We have meticulously perused the said service quotation filed at the behest of the complainant wherefrom it appears that there are no mentioning of policy number and the name of the insurance company. Moreover the said document does not bear any signature of any competent person engaged in authorised service centre. In this respect the total event causes a doubt in our mind and as such we hold that the said document has no evidentiary value at all in the eye of law.

Whereas we have perused another document relating to Motor Final Survey Report dated 19/09/2015 issued by DIVYANG SURVEYORS & VALUERS PVT LTD. The said document clearly indicates the aforesaid policy number, name of the insurer and the insured person, the particulars of the vehicle being no – WB74S-8714,particulars of the drivers, particulars of accident, cause and nature of accident, name of the various parts of the vehicle, nature of damages etc. After inspection of the said vehicle said concerned assessed the loss amounting to Rs. 6,14,772.50/- only. It is the settle principle of law that in the package policy, it is the duty of the insurance company to reimburse the loss of the vehicle in all issues. In this respect we can rely upon a remarkable decision of GURSHINDER SINGH VS SHRIRAM GENERAL INSURANCE COMPANY LTD AND ANOTHER, wherein the HON’BLE APEX COURT concurred with the view of OM PRAKASH VS RELIANCE GENERAL INSURANCE AND ANOTHER and held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.

Under such circumstances, we are agreed to accept the said report wherein the loss has already been assessed at Rs. 6,14,772.50 only. We are also agreed to accept the same as we think that the said document has much evident

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iary value in order to meet the proper justice to the parties. Considering all aspects from all angles and keeping in mind the present position of law and regard being had to above referred case laws and submission of the ld. counsels for both sides, we are of the opinion that the instant consumer case is maintainable. Accordingly, the instant consumer case stands allowed on contest against the opposite party/insurance company with cost. Hence Ordered That the opposite party/insurance company is hereby directed to pay Rs. 6,14,772.50/- (six lakh fourteen thousand seven hundred seventy two and fifty paisa only) to the complainant within 45 days from the date of this order. The opposite party/insurance company is further directed to pay cost of Rs. 5,000/- (five thousand only) to the complainant within the aforesaid stipulated period of time in default the whole awarded amount shall carry interest @ 8% pa till full realization. The complainant is at liberty to put the order in execution in case of non-compliance of order by the opposite party/insurance company. As per above view the instant consumer case stands disposed of. Note accordingly.
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