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WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA
Dipa Sen (Maity), Presiding Member and Subhra Sankar Bhatta, Judicial Member
Br. Manager, The New India
Assurance Co. Ltd. and Anr. – Appellants
versus
Sankar Shaw and Anr. – Respondents
First Appeal No.A/304/2019
(Arisen out of Order Dated 26/02/2019 in Case No. Complaint Case No. CC/191/2016 of District Hooghly)
Decided on 15.9.2023
Consumer Protection Act, 1986 – Section 15[Consumer Protection Act, 2019 – Section 41] – Appeal – Services – Insurance – Entitlement for IDV – On Non-Standard basis - It is crystal clear from the Insurance Policy that the insured declared value of the vehicle in question was Rs.4,17,200/- . According to the Respondent/Complainant he is certainly entitled to get the IDV of the insured vehicle amounting to Rs.4,17,200/- treating the claim as constructive total loss. It is apparent that the Surveyor of the Insurance Company inspected the vehicle in question and settled the claim of repair to the tune of Rs.2,08.030/- - No explanation has come from the end of the Appellant/Insurance Company for such huge difference in assessing the cost of repair. The Respondent/Complainant did not adduce cogent evidence to rebut the Surveyor‘s report. Interestingly, the Surveyor did not disclose the reason for not accepting the estimate approved by the Service Centre of TCS Motors – Thus, the Respondent/Complainant is entitled to get 75% of the IDV i.e. Rs.4,17,200/- on non-standard basis. In our considered opinion 75% of IDV on non-standard basis will be just and proper - It is to be borne in mind that the Respondent/Complainant is not at all entitled to get the total IDV amount due to the damage caused in the said accident. Moreover, both the Surveyor/Loss Assessor of the Appellant/ Insurance Company and the estimate of the TCS Motors go to indicate that the vehicle in question can be repaired – Thus, question of awarding the total IDV amount cannot be and should not be allowed as the value of the damaged vehicle – Appeal allowed. [Paras 15 to 18].
Result: Appeal allowed.
ORDER
Subhra Sankar Bhatta, Judicial Member—Ld. Counsel appearing for the Appellants is present.
2. Today is fixed for passing ex parte judgment and order.
3. The appeal is taken up for delivery of ex parte judgment and order.
4. Considered the submissions advanced by the Ld. Counsel for the Appellants/The New India Assurance Company Limited on 22.08.2023.
5. Seen the brief notes of arguments and other materials available on record including the impugned judgment and order passed by the District Consumer Disputes Redressal Forum, Hooghly at Chinsurah on 26th February, 2019 in connection with consumer complaint case no. CC/191/2016.
6. The Branch Manager, The New India Assurance Company Limited, Serampore Branch office and the Divisional Manager, New India Assurance Company Limited, Chinsurah Division as Appellants have preferred the present appeal against the Respondents viz. 1) Sri Sankar Kumar Shaw and 2) Mr. Manik Lal Das (who were the Complainant and OP No. 3 in the complaint case) under Section 15 of the Consumer Protection Act, 1986 challenging the impugned judgment and order passed by the District Commission on 26th February, 2019 in complaint case no. CC/191/2016 whereby Ld. District Commission was pleased to allow the complaint case on contest against the OP with a litigation cost of Rs.10,000/- to be paid by the OP nos. 1 & 2. The OP nos. 1 & 2 are directed to pay a sum of Rs. 4,17,200/- i.e. IDV of the damaged vehicle including interest @8% thereon from the date of filing the complaint till realization. At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account. Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information & necessary action.
7. Being aggrieved by and dissatisfied with the above judgment and order of the District Commission the OP Nos. 1 and 2 as Appellants have preferred the present appeal on various grounds as canvassed in the memorandum of appeal. It has been contended that the impugned order of the Ld. District Commission is erroneous and contrary to law; that the Ld. Commission below failed to understand that there was a huge difference between the estimate of repair and assessment and awarded the total loss; that the observation of the Ld. Commission below is bad in law since all the surveyors have accredited by IRDA who are mostly conversant with the insurance terms conditions and clauses towards assessing the loss pursuant to the policy; that the Ld. Commission below failed to observe that the estimate of repair may increase or decrease after removal and dismantling and consequently the estimate of repair can never be changed; that the Ld. Commission below did not observe the job sheet of the repairer duly signed by the customer which speaks much less quantity of replaced item and other costs; that the Ld. Commission below did not also observe that due to non-cooperation on the part of the Complainant no repair works was done and as such Complainant is not entitled to any amount towards reimbursement; that the Ld. Commission below failed to observe that no cost has been incurred by the Complainant towards the repair of the vehicle in question; that the Complainant is not entitled to get any insurance coverage under the insurance policy in question. On all such grounds the Appellants have prayed for allowing the present appeal after setting aside the impugned judgment and order.
8. It reveals from the case record that Respondent no. 1 entered appearance in the case by filing vokalatnama on 23rd July, 2019 vide order no. 2. Subsequently, Respondent no. 1 did not turn up to contest the appeal. Similarly, service of notice was duly served upon Respondent no. 2 but he did not also turn up. Resultantly,
Damaged Vehicle - Question of awarding the total IDV amount cannot be and should not be allowed as the value of the damaged vehicle.
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