Judgment:
B.A. Shaikh, Presiding Member:
1. This appeal is preferred against the order dated 20/01/2009 passed in CC No. 220/2008 by Additional District Consumer Forum, Nagpur by which the said complaint has been partly allowed.
2. The case of the complainant as set out in the complaint is brief is that he is the owner of the car which was insured by him by taking policy from the opposite party (for short O.P.). The sum assured was Rs.5,66,772/-. The period of the policy was from 13/03/2007 to 12/03/2008. The said vehicle met with an accident during the period of validity of the policy i.e. 24/01/2008. Therefore, it was damaged. The complainant after incurred total expenses Rs.1,40,540/- for repairing of that vehicle. Therefore, he submitted claim proposal along with papers to the O.P. claiming the said amount. However, the O.P. without any knowledge to him accepted the claim of Rs. 74,911/- and directly paid that amount to the Grace Toyota Company which repaired the vehicle. Therefore, the complainant claimed remaining amount Rs.60,100/- with interest from the O.P. by filing the complaint. He also claimed compensation on account of mental harassment and cost of the complaint from O.P.
3. The O.P. filed its written version and resisted the complaint. It admitted that the car in question insured with it and it met with an accident during the period of validity of the policy. It also admitted that the sum assured was Rs.5,66,772/-. It also admitted that the car was repaired by the complainant and submitted claim proposal. It submitted that it appointed surveyor namely Mr. Prashant K. Davkar who assessed the loss after due inspection of the vehicle Rs.74,911/- as per terms and conditions of the policy. It paid said amount to the Garage who repaired the car namely Grace Toyota towards the claim of the insurance. He therefore, submitted that the complainant is not entitled to any more amount and hence, it submitted that complaint may be dismissed.
4. The Forum below found that the O.P. No. 2 did not appear despite of service of notice to it and therefore, it proceede exparte against the O.P. No.2.
5. The Forum below after considering the evidence brought on record, came to the conclusion that the complainant incurred expenses of Rs.1,40,540/- as per invoice submitted by him but O.P. granted the claim to the extent of Rs.74,911/- without any basis and without any inspection directly paid that amount to the repairer i.e. Grace Toyota Company towards full and final settlement of its claim. It therefore, held that it amount to deficiency in service provided by the O.P. to the complainant. It therefore, directed the O.P. under impugned order to pay to the complainant remaining amount of Rs. 60,100/- and also to pay amount of cost Rs.5,000/- as compensation towards mental harassment and Rs.2,000/- towards cost of the complaint within 30 days on receipt of that order. It also directed, in case of default the said amount shall carry interest 9% p.a. from the date of that order till its realization.
6. Feeling aggrieved by the said order, the original O.P. has preferred this appeal. The respondent remained absent though duly served with notice. Therefore, this Commission proceeded exparte against him as per order dated 27/11/2012. The learned Advocate of the appellant has filed his written notes of argument and we have also heard him today and produced the paper placed before us by the appellant.
7. The learned Advocate of the appellant during the course of argument has drawn our attention to the report of surveyor which has produced before the Forum below. He submitted that the said report of the surveyor is specific and in detail and it shows that as to why the loss is assessed by the surveyor and it also shows that loss of Rs.74,911/- is assessed as per the terms and conditions of the policy. He also submitted that the Forum below did not consider the said report and granted remaining amount of Rs.60,100/- only on the basis of invoices submitted by the complainant. He also submitted that no loss can be compensate which is occurred in respect of damage to plastic and nylon part and the Forum below did not consider the depreciation value while granting the full claim. He thus submitted that when the amount of Rs.74,911/- has been paid as per the surveyors report, there was no reason for granting more compensation to the complainant. He thus argued that as appellant granted Rs.74,911/- on the basis of the inspection report of the surveyor, it does not amount to deficiency in service on the part of the appellant. Thus, he requested that the impugned order may be set aside as it is illegal.
8. After careful perusal of the surveyors report, we find that the surveyor has rightly assessed the loss of Rs.74,911/- which is based on the terms and conditions of the policy. The surveyor in his report has given in detail each and every part as per invoices given by the complainant. He also opined lastly that the final assessed amount for the vehicle is Rs.74,911/- only.
9. The Forum below did not given any reason as to why the surveyors report is incorrect and cannot be accepted in toto. The observation is not correct that the amount of Rs.74,911/- is assessed without any basis. We find that the said amount is based on the report of the surveyor giving all the details.
10. Moreover, the Advocate of the appellant rightly submitted that the amount paid to the repairer cannot paid to complainant when the policy was cashless and it is not the specific case of the complainant that no such payment directly can be made to the repairer.
11. Thus we hold that the Forum below has erred in holding that the appellant provided deficient in service to the respondent. We find that the claim of the complainant has been rightly considered by the appellant on the basis of the surveyors report and hence, the impugned order is not legal, correct and proper and it deserves to be set aside.
Hence, we proceed to pass the following order.
ORDER
i. Appeal is allowed.
ii. The impugned order dated 20/01/2009 passed by the Additional District Consumer Forum, Nagpur in Consumer Complaint No. 220/2008 is set aside. The complaint is dismissed.
iii. No order as to cost in appeal.
iv. Copy of order be supplied to the parties.