TAPAS KUMAR SUKUL vs NATIONAL INSURANCE CO. LTD. & ANR.

Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short, "the Act") is to the order dated 09.06.2010 passed by the State Consumer Disputes Redressal Commission, West Bengal (in short, "the State Commission") in FA No.63/2010. By the impugned order, the State Commission modified the order of the District Forum, allowing the Complainant?s Appeal to the extent of enhancing the compensation to 30,000/- in addition to 10,260/- towards the loss of damage of the vehicle and costs of 10,000/-. The Opposite Parties were directed to pay the said amounts within sixty days from the date of the order, failing which, the amount would attract interest @ 8% p.a., for the period of default.

The facts material to the case are that the Complainant insured his vehicle with the Opposite Party Insurance Company for the period from 02.09.2002 to 01.09.2003 for an amount of 2,00,000/-. The vehicle met with an accident on 23.02.2003 and on the same day, the matter was reported to the Police and case No. 2/03 dated 23.02.2003 was filed. It is averred that the Surveyor of the Insurance Company, one, Mr. Mrinal Paramanik took some photographs and minor repair was made and the vehicle was uplifted from the front and was taken to the Police Station on the same day. On 27.02.2004, some more photographs were taken by the Surveyor at the Police Station and the vehicle was left there without giving any instructions to dismantle the damaged portion of the vehicle. The Motor Vehicles Inspector (Technical) inspected the vehicle and notified the damage of the Deskboard, Chasis, Body-machinery, Engine and other mechanical parts of the vehicle. It is pleaded that the Complainant made several representations to the Second Opposite Party to dismantle the damaged portion of the vehicle for conducting the necessary repairs. It was also informed, in writing, on 08.08.2003 and 09.09.2003, for which, the Second Opposite Party sent a letter on 13.12.2003 asking him to send the requisite bills, cash Memos of the repairing charges of the vehicle. On good faith, the Complainant sent the bills and cash memos which was already repaired to the extent of 82,000/- and corresponded with the Second Opposite Party for further action which needs to be taken to make the vehicle road-worthy.

It is averred that the Second Opposite Party did not send any Surveyor to assess the actual loss, but instead, sent a Voucher dated 14.01.2004 to the Complainant for a sum of 7,300/-. On 19.02.2004 the Complainant returned the Voucher and asked the Second Opposite Party to depute a Surveyor for assessment of the damaged vehicle. The Second Opposite Party sent a letter dated 08.03.2004 acknowledging the letters of the Complainant dated 30.01.2004 and 19.02.2004 and sent the Voucher again for settlement. Dissatisfied, the Complainant wrote a letter to the Branch Manager, Purulia Branch, on 19.02.2003 for appropriate action to be taken. A Legal Notice was issued on 30.08.2004, for which, the Second Opposite Party addressed a letter No.50503/MOT.CL/Purulia/SKC, dated 09.09.2004 to the First Opposite Party to take appropriate action for deputing a Surveyor to reassess the claim as the case was long pending. Receiving no response, on 23.09.2004, the Complainant addressed letter to the Second Opposite Party that he was compelled to start extra repairing works as per the directions of the Motor Mechanic. This letter was also sent by the Second Opposite Party to the First Opposite Party vide reference letter No.150503/PR-12/MOT/CI, dated 29.09.2004 enclosing the Complainant?s letter dated 23.09.2004 for valuable advice. The Complainant thereafter addressed several letters to the Minister Incharge of Transportation, Social Justice & Empowerment Departments of the Governments of West Bengal & India, the District Magistrate, President of RTA Board, Purulia, the Regional Transport Officer/Secretary of RTA Board, Purulia, NGO, BABAMAA, etc. Vexed with the attitude of the Opposite Parties, the Complainant approached the District Forum seeking the following reliefs :-

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Cost of replacing parts, touring and carriage charges, etc. (Anx. 8-1(a-m) Rs.82,000/-

The economic/financial loss for detention of vehicle of staff/owners from dated 23.02.2003 to 3.10.2004 Rs.8,40,000/-

Compensation for deficiency in service and unacceptable mental tension agonying cultural, social, educational and the professional activities relatively Rs.60,000/-

Litigation costs Rs.8,000/-

Total Rs.9,90,000/-

The Opposite Parties contested the case by filing their Written Version and denied all the allegations. It is averred that the Complainant dismantled the vehicle on 22.09.2003 and surveyed the damaged portion of the vehicle and took some photographs. The Insurance Company sent a Voucher for 7,300/- to the Complainant on the basis of the report of the said Surveyor. It is stated that the Complainant informed the Insurance Company about the accident on 25.02.2003 instead of 23.02.2003. The Surveyor, in his letter dated 16.07.2003 informed the Complainant to dismantle the damaged portion of the vehicle, immediately, on or before 21.07.2003. It is stated that the Complainant in his letter dated 13.06.2003 submitted that he would undertake the repairs of the damaged vehicle since the weather conditions and temperature falls within the normal limits. The Insurance Company vide their letters dated 17.07.2003 and 21.07.2003 requested the Complainant for immediately dismantling the damaged portion. It is pleaded that the Complainant had dismantled on 22.09.2003 itself and it is only based on the Surveyor?s photographs and his report that a Voucher for 7,300/- was sent.

The District Forum observed that the damage done due to the accident was not properly assessed by the Competent Authority and the Complainant sustained financial loss due to the accident of the vehicle and had the Opposite Party taken prompt action to settle the matter, the Complainant would not have suffered mental agony. At the same time, it was also observed by the Forum that there is no evidence on record to establish that the Complainant had spent 82,000/- and taking into consideration the material on record, directed the Opposite Parties 1 & 2 to (a) reassess the damaged portion of the vehicle by appointing an independent Technical Expert and make over the losses within sixty days (b) pay 1,50,000/- for detention of the vehicle from 23.02.2003 to 13.10.2004 (c) pay 8,000/- for mental agony and harassment, together with costs of 2,000/-, within 40 days, failing which, it will carry interest @ 8% p.a.

Aggrieved by the said order, the Insurance Company preferred Appeal No. FA/406/A/05 which was allowed and the case was remanded to the District Forum with a direction to fix a date for submission of the report by a Technical Expert by the Insurance Company, for assessing the loss and the District Forum shall consider the question of acceptability of such a report after hearing both the sides and will pass the final judgment thereafter. The amount of 1,50,000/- awarded by the District Forum for detention of the disputed vehicle was set aside.

After remand, the Surveyor of the Opposite Party submitted his report on 19.12.2007, which was not accepted by the Members of the Forum and they requested the RTA to submit a report with regard to the loss of damages of the vehicle in question. The actual damage was not assessed by the RTA and one Mr. C.R. Deb, Chartered Mechanical Engineer submitted his report on 24.08.2009 as per the directions of the Forum. Mr. C.R. Deb was examined on 13.11.2009 and the District Forum observed as follows :- " Now, let us see whether, the said report should be accepted or not. It appears that the said Surveyor is an IRDA approved Surveyor and he conducted the survey in presence of the complainant. On perusal of the evidence of the Surveyor, we find that he has been working with the Insurance Companies for the last 25 years and he was appointed for reassessment of the loss of the damaged vehicle of the complainant. The witness deposes that the vehicle was damaged due to natural wear and tear and that there was no external impact on the engine?. On perusal of the report, we find that during inspection of the said vehicle, the insured reported that he had repaired the vehicle after the survey of one Mr. Mrinal Pramanik. The complainant did not produce salvage of the damaged parts. The Surveyor concluded that the insured had repaired the parts but not replaced. On perusal of Exhibit "K", as well as, the evidence of the Surveyor, we are of the opinion that the report of the Surveyor is exhaustive and proper and it should be accepted. Moreover, the Surveyor assessed the loss to the extent of Rs.10,260/-.

In view of the direction of the Hon?ble State Commission, we are of the opinion that the report of the Surveyor should be accepted and the complainant is entitled to get the loss of the damaged vehicle to the extent of Rs.10,260/- only and that will meet the ends of justice. It appears that the complainant has been awaiting long to get relief. Considering the facts and circumstances of the case, we are of the opinion that the complainant should get Rs.8,000/- towards mental agony and harassment and Rs.2,000/- towards litigation costs. We are of the opinion that the case should be decreed in part".

The District Forum vide its order dated 18.12.2009 directed the Opposite Parties ? Insurance Company to pay 10,260/- towards the loss of the damage of the vehicle, 8,000/- towards mental agony and 2,000/- towards costs, within 30 days, failing which, the amount would attract interest @ 8% p.a.

Aggrieved by the said order, the Complainant preferred an Appeal No. FA/63/2010 before the State Commission, which, vide its order dated 09.06.2010 allowed the Appeal in part and enhanced the compensation to 30,000/-, in addition to the litigation costs of 10,000/- and 10,260/- towards loss incurred on the damaged vehicle.

Dissatisfied with the said order, the Complainant preferred this Revision Petition.

Both the sides filed their Written Submissions.

The Revision Petitioner/Complainant submitted that the Survey Report dated 24.08.2009 of Mr. C.R. Deb does not explain the basis on which the total loss was assessed at 10,260/-. In his report, it is stated that there is no impact on the basis of the engine due to collision with the trailer at the front and dashing with a halted truck behind. The Opponent vehicle might have dashed the cowl assembly and damaged the front grill centre bonnet, side bonnet and the cowl structure, but the impact did not extended or transmitted to the Radiator fan and engine. The Surveyor concluded that the front of the cowl assembly of the structure had sustained repairable damages. It is argued that there was no proper calculations and explanation furnished by the Surveyor on the basis of which he had arrived at 10,260/-.

The District Forum observed that the Complainant did not produce the salvage of the damaged portion and, therefore, the Surveyor concluded that the insurer had repaired the portion but had not replaced the same. It was argued by the Learned Counsel for the Petitioner that both the fora below have relied upon the report dated 28.09.2004 which is vague and without any basis.

The Learned Counsel for the Insurance Company submitted that as per Report dated 24.08.2009 of Mr. C.R. Deb, Chartered Mechanical Engineer, at clause (9) ? Assessment of the Report, "Engine & Chassis did not suffer any impact on the chassis and engine due to collision with the trailer at the front and dashing with a halted truck standing behind. Under the condition Insurer?s liability for the loss, in my opinion, is 10,260/- only subject to production of salvage parts" and accordingly, the Insurance Company was not liable to pay anything beyond the actual damage to the vehicle. It was argued that in his cross-examination, the independent Technical Expert, Mr. C.R. Deb, who was appointed by the District Forum had clearly stated that the vehicle was damaged due to natural wear and tear and that there was no external impact on the engine and Insured had repaired the parts and not replaced. The Counsel further argued that on 29.04.2004, the Complainant submitted the "Quotation" of "Bengal Motor Repairing works of 22,450/- to the Insurance Company, despite the letters dated 01.07.2003 and 21.07.2003, sent by the Insurance Company, asking the petitioner to show any further damage of the vehicle, if any, due to the said accident. Thereafter only, the Surveyor, after completion of his survey, assessed the loss and submitted his report and on the basis of report, the Insurance Company had issued a Voucher of 7,300/- to the Petitioner as full and final settlement. The Insurance Company submitted that the Complainant/petitioner herein deliberately abandoned the vehicle in subject matter at the garage at first and then dismantled the vehicle later on even after getting it repaired only with a view to extract maximum compensation amount from the respondents in the name of loss of earnings from his self-employment.

The brief point that falls for consideration is, whether, the Complainant is entitled for the reliefs prayed for in the Complaint and if the assessment made by the Surveyor was justified?. The contention of the Complainant that the First Surveyor Mr. Mrinal Paramanik did not inform him is substantiated by Mr. Paramanik?s own deposition before the District Forum that he did not serve any notice to the Complainant and that the survey was done in the Complainant?s absence.

The M.V. Report on 30.12.2005 addressed a letter to the Complainant regarding inspection of M.V. Inspection (NT) on 29.12.2005, which reads as follows :-

Government of West Bengal

Office of the District Magistrate, Purulia.

Motor Vehicle Department .

Memo No. 2126 (b)/MV, Purulia

To,

Sri Tapas Kumar Sukul,

S/O Sri Nitya Gopal Sukul,

Lakshmi Villa, Nimtard,

P.O. P.S. and District Purulia,

(Owner of the Maxi No. WB 55/1840)

Sir,

This is to inform you after inspection of the M.V.I.(NT) on dated 29.12.2005 of your unrepaired part assembled refitted vehicle No. N WB 55/1840 Maxi in condition not up to the mark lying idle at Sahebband (Road Side) purulia incurred due to accident of dated 23.02.2003 since.

At the time of inspection of the leaf assy, stg., system, brake system, glass, bouynets(new), illegible...., radiator etc... loosely assembled, the pipes, angles, of Deskboard, and Body frontal and rear structures found cracked, broken, broken seats and fittings were refitted to the vehicle without repairings any in the conditions, not up to the mark.

At the time of inspection, the seized/damaged engine could not be tested and started due to no fuel, etc....so it was not possible to ascertain about the internal a spare parts were working properly or not.

At the time of inspection, found that the both the long member of chassis frames in between the engines Rr cross member and G.B. cross member were found cracked/ damaged completely but partly welded holding the structural damages of Sedy, Deskboard , etc. of the accidental Maxi, without any repairings necessary done. Sd/-".

The assessment report dated 08.03.2008 of R.H. Automobiles Pvt. Ltd., the Authorized Commercial Dealer, reads as follows :- " We, being the authorized commercial vehicle Dealer of the manufacturer TATA Motor Limited here at Purulia and having inspected the accidential damaged Maxi Bus No. WB-55-1840 said above lying idle, standing unrepaired completely at opened Sahaband roadside place at the requests of the Insured, do hereby submit the assessment report of the damages and loss occurring to the Maxi bus in dispute by our Competent Technical Expert / Surveyor as per the terms and conditions of the Insurance Policy made in accordance to the Insurance Act and M.V. Acts by the Insurer with insured, and we shall also undertake the preparation of the Survey Report and the Repairing works of the Maxi Bus at the satisfaction of the Insurer & Insured and as per the Order of the Hon. State Commission, WB, and the Hon. District Forum, Purulia in due course.

A) In fact, that both the long membrance of the chassis pair were broken just behind the engine damaged and several other portion of these long membrance were damaged at different places. So, the broken chassis pair have to be completely removed from the Body and assessed and dismantled and accordingly as per requisition thereafter repairmen of the chassis pair must be carried on or if required complete both pair of chassis have to be replaced wholly, caused due to said accident. Note1) The broken chassis pair was insured on absolute good condition.

2) The Surveyor Mr. Mrinal Paramanik and the Insured submitted photos of completely broken both chassis pair just behind the damaged engine supported by iron jact/wooden block.

3) The Surveyor Mr. Mrinal Paramanik submitted in his Survey Report for repair of both long membrances (2 & 3) proof caused to accident.

We are the authorized service centre of commercial vehicles of the TATA Motors capable of survey, assess and repair the overall damages caused due to the accident internally and externally as per the terms and conditions of the Insurance Policy made by the Insured with the Insurer and the Insurance Act, 1938, M.V. Act, 1988 by our well experienced professional and technical Experts / Surveyors and also in accordance to the orders of the Hon. State Commission (WB) and Hon. District Forum, Purulia, and also at the entire satisfaction of the Insured and Insurer in accordance to law. So, being the authorized Commercial Vehicle Dealer and inspecting the unrepaired Maxi Bus said, we have the pleasure to supply the Estimate of the loss occurring to the Maxi Bus in dispute till and shall further supply supplement assessed estimate after dismantling the overall damages caused due to accident in due course".

R.H. Automobiles has assessed the net amount as 2,30,892/- which includes the following :-

Sl. Part No. Description Qty. Price Vat % Amount

265124200102 Assy.Engine Mounting Rear 1 140/- 4 140/-

264124100109 Assy.Engine Mounting Front (RH) 1 280/- 4 280/-

264124100110 Assy.Engine Mounting Front (LH) 1 280/- 4 280/-

265125400113 Assy.Clutch Pressure Plate 240 dia 1 2,450/- 4 2,450/-

265125200125 Assy. Clutch Disc. 24 dia 1 2,000/- 4 2,000/-

265125605107 Clutch release bearing 1 1,000/- 4 1,000/-

7 265125600107 Assy. release fork with ball pin. 1 250/- 4 250/-

270531000110 Assy. Frame 407 1 45,800/- 4 45,800/-

265131408266 Support gear box mounting 2 620/- 4 1,240/-

270532100112 Assy.first leaf with bushes 2 5,500/- 4 11,000/-

270532107120 Second leaf 2 3,400/- 4 6,800/-

265132204204 U Clamp 4 38/- 4 152/-

265132600121 Assy. Rear shock absorber 1 1,400/- 4 2,800/-

265133800106 Tie rod Assy. 1 2,100/- 4 2,100/-

265141100127 Syb. Assy. Cross 1 340/- 4 340/-

270546600101 Assy.Drag link 1 1,500/- 4 1,500/-

253450100225 Assy. Radiator 1 8,700/- 4 8,700/-

265167102306 Wind shield glass 1 4,350/- 4 4,350/-

265167106303 Rubber Mould 1 605/- 4 605/-

265167102504 Key frofile 1 70/- 4 70/-

265168900147 Assy. Dash board complete 1 3,215/- 4 3,215/-

265188700122 Assy. Bonnet centre front 1 3,020/- 4 3,020/-

Labour charges

Cabin Denting & Painting including gas cutting and welding 13,000/-

Chassis frame change after removing cabin and load body and other parts. 5,000/-

Front glass lifting 1,000/-

Engine overhauling 2,500/-

Clutch and gear box overhauling 800/-

6 Body repairing including materials 80,000/-

All sheets repairing 25,000/-

Electrical work with materials 4,500/-

Twining charge 1,000/-

Total Labour 1,32,800/-

Total Net Amount 2,30,892/-

Additional estimate will be given after dismantling the vehicle. Sd/- (Works Manager)".

The report of Mr. C.R. Deb, Chartered Mechanical Engineer relied upon by the State Commission is dated 24.08.2009 and reads as follows :- 8. Report: In accordance with the directions of the Hon?ble DCDRF, Purulia I had been to the repairers workshop, at Purulia on 10.06.2009 & examined the vehicle under reference in presence of the Insured. I noted the damages detailed herein below: Physical inspection shows the status of damages as follows. During inspection of the said vehicle the Insured reported that he had repaired the vehicle after the Surveyor Mr. Paramanik had completed the survey & assessment. He did not produce salvage of the damaged parts. So, it may be concluded that Insured had repaired the parts but not replaced. It shows that the parts which he had repaired sustained deformation/dents within the scope of repair and need not demand replacement. Cowl Assembly:

Front portion of the cowl assembly that is the bonnet, fenders, front grill & front panel cover the radiator assembly, fan & engine fixed on the chassis arranged serially from the front to rear. Insured?s vehicle collided with a trailer coming from the opposite direction. Diameter of the front wheel of the trailer is bigger than that of I.V. As a result the height of the bumper & chassis of I V is lower than that of the trailer. Under the conditions, there is no chance of collision between the chassis & bumper of these vehicles. Opponent vehicle might have dashed the cowl assembly & damaged the front grill, centre bonnet, side bonnet & the cowl structure, but the impact did not extended/ transmitted to the Radiator, fan & engine. Moreover the radiator & fan fitted in front of the engine were found not damaged. It shows that the engine did not get any impact from the opponent vehicle. Besides the engine mounting brackets & mounting pads of the said vehicle were not affected.

Chassis frame:

The long members were found welded in three positions, but no bending or twisting was observed on the them. It indicates that there was no impact on the bumper/chassis front of the Insured?s vehicle. The front cross member was not affected. It is also to be noted that the chassis frame of the Insured vehicle at the front is about 10" down the level of the chassis frame of the opponent vehicle. Cooling system:

Radiator assy., fan & water pump were found not effected. Old radiator, assembly, fan & water pump were found fitted to the vehicle".

The aforesaid assessment of 10,260/- is apparently, on the face of record, without any break-up or reasoning. Mr. C.R. Deb in his Cross-Examination deposed that the crack in the chassis, seen by him, is not due to accident; that the vehicle was damaged due to natural wear and tear; and that he neither started nor tested the engine. This inspection was done on 10.06.2009, six years after the accident, on 23.02.2003 and there is a finding that the salvage of the damaged parts was not produced.

The report of Mr. C.R. Deb, evidences that there was a crack in the chassis and that cowl assembly was affected and needed repairing, replacement and that the insured repaired these parts. As against this, R.H. Automobiles Pvt. Ltd., on 03.02.2010 certified as follows :- "To Whomsoever it may concern. In my opinion that both the right hand member and the GB of the left member of both Chassis pairs just behind the seized / damage engine are found completely cracked, bend/twisted and must be replaced absolutely for the safety and security of the commercial registered and insured passenger carriers TATA 407 MAX-BUS Number WB-55-1840 caused due to accident only on dated 23.02.2003".

Even the report of the First Surveyor, MVI (T) and Technical personnel of Tata Motors confirmed that the damaged body, Deskboard, mechanical and other structures occurred due to accident. So it can be construed that the assessment of natural wear and tear by Mr. C.R. Deb is without any basis.

The Complainant prays for replacement of the cracked and damaged chassis which is necessary for the safety of the passengers; the loss of earnings incurred due to not dismantling the engine and assessing the damage and the delay which has incurred till certified to the fit by MVI (T). The MVI (T) in his inspection report concluded that the vehicle met with an accident; at the time of inspection, found that the both long member of chassis part was welded in between engine, RC, Cross member and S.B. Cross member and accident happened in the month of February in the year 2003.

When the documentary evidence filed established that there was an accident, the chassis was cracked, there were other parts to be replaced, the State Commission has wrongly relied upon on Mr.C.R.Deb?s report which has concluded the loss as 10,260/-, without any substantial basis. It is pertinent to note that the Opposite Party did not prefer any Revision Petition.

Keeping in view the report of the M.V.I., certifying that there was an accident in the Month of February, 2003, the Estimate of R.H. Automobiles Pvt. Ltd., the Authorised Commercial Dealer of the subject vehicle, amounting to 2,30,892/-, their certificate that the chassis behind the damaged engine is completely cracked, twisted and must be replaced absolutely for the safety and security of the passengers, an amount of 60,000/- is considered just and equitable, which includes 45,800/- estimated towards assembly frame and other minor repairs. This amount is in addition to 10,260/- awarded by the State Commission. I also find it a fit case to award an amount of 1,00,000/- for the loss of earnings, delay and inconvenience caused to the Complainant.

In the result, this Revision Petition is allowed in part and the order of the State Commission is modified enhancing the compensation awarded from 30,000/- to 1,00,000/- and the damages awarded to 60,000/-, in addition to 10,260/-, together with costs of 15,000/- to be paid within four weeks from the date of receipt of copy of this order, failing which, the amounts will carry interest @ 9% p.a., from the date of filing of the Complaint, till the date of realization.

Before parting with the case, I place on record my appreciation for the valuable assistance rendered by Ms. A. Subhashini, the Learned Amicus Curiae. She may be paid a sum of 10,000/- as out of pocket expenses, if not already paid, from Consumer Legal Aid Account for the assistance rendered by her to this Commission.