State Consumer Disputes Redressal Commission
Prtc vs Oic Ltd. on 1 April, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.97 of 2011
Date of Institution: 02.12.2011.
Date of Decision: 01.04.2015.
1. Pepsu Road Transport Corporation, Nabha Road, Patiala
through its Manging Director.
2. Pepsu Road Transport Corporation, Bathinda Depot, through
its General Manager.
.....Complainants.
Versus
1. Oriental Insurance Company Limited, Divisional Office, Bank
Bazaar, Bathinda through the Senior Divisional
Manager/Authorized Representative
2. Oriental Insurance Company Limited, Regional Office, SCO
No.109-110-111, Sector 17-D, Chandigarh-160017 through the
Senior Regional Manager/Authorized Representative.
3. Oriental Insurance Company Limited, Registered and Head
Office, A-25/27, Asaf Ali Road, New Delhi-110002 through the
Chief Managing Director/Authorized Representative.
4. Oriental Insurance Company Limited, MC, D-11 Empire House,
1st Floor, 214, Dr. D.N. Road, Mumbai, through the Divisional
Manager/Authorized Representative.
....Opposite parties
Consumer complaint under Section
17 of Consumer Protection Act, 1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:-
For the complainants : Sh. Balwinder Singh,Advocate For the opposite parties : Sh. Rahul Sharma, Advocate .............................................. Consumer Complaint No.97 of 2011 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint through their Managing Director and General Manager against the OPs under Section 17 of Consumer Protection Act 1986 (in short the Act) on the allegations that Pepsu Road Transport Corporation (PRTC) Patiala, the complainant, has been constituted under Road Transport Corporations Act, 1950. The complainants are the owners of new AC bus bearing registration no.PB-11-AP-8909, engine no.WXH596436, chasis no.JC79GWA0490, Ashok Leyland Model 2010. The above referred bus was comprehensively insured with the OPs, vide certificate-cum-policy no.121100/31/2010/2295 and it was effective from 23.02.2010 to 27.02.2011 for a sum of Rs.27,30,300/- against the premium of Rs.53,987/- with due cover note to indemnify the complainants to the extent of all the losses pertaining to accident by the OPs. The terms and conditions of the policy were never furnished to the complainants by the OPs. On 26.02.2010, the above referred bus, while enroute from Bathinda to Amritsar via Dabwali and back. When the above bus reached Goniana Mandi bye-pass on Jaitu Road Bus Stand, some miscreants set it on fire and damaged it. The complainants suffered loss of Rs.29,42,967/- for this incident created by the rowdy elements. FIR no.25 dated 27.02.2010 was also lodged about this matter at Police Station Nehianwala District Bathinda. Bhupinder Singh, the driver of the bus held valid and Consumer Complaint No.97 of 2011 3 effective driving licence no.RJ-13/DLC/04/31091 dated 10.09.2004 issued by the Licensing Authority Sriganganagar, which was renewed on 23.06.2008 and it was valid from 23.06.2008 to 24.02.2027, even to drive other types of vehicles as well. The complainants also held the valid route permit issued by Regional Transport Authority, Ferozepur from Bathinda to Amritsar via Jaitu for the above bus, which was renewed on 06.11.2014. Due intimation was given to the OPs about the above incident created by the miscreants regarding the damage caused to the bus. Er. Rakesh Kumar Gupta was deputed, as surveyor to assess the loss by the OPs. He conducted the spot survey on 02.03.2010 at the site, as per the advice of the OPs. Vide his letter no.RKG/OIC/8909/222/09- 10 dated 24.05.2010 addressed to complainant no.2, he advised the complainants to submit the claim form duly completed and signed along with the third party loss information along with the documents.
M/s Spheros Motherson Thermal System Ltd, A-6, Sector-2, Noida, vide their letter no.SPH/PUN/10/129 dated 08.03.2010, meanwhile intimated the result of their inspection of HVAC unit of the said bus to complainant no.2, certifying that bus has been completely damaged and was beyond any repair. Vide letter no.830 dated 11.03.2010, from the General Manager (Purchase), PRTC Patiala to the complainant no.2 regarding the total cost, which worked out to Rs.26,62,278.88 paise. It also advised to check it from the Controller Finance and Accounts regarding the expenses incurred on the Consumer Complaint No.97 of 2011 4 insurance and registration etc. The complainant then sent letter to OP no.4, requesting to examine the total damaged bus and to settle the claim worth Rs.27,30,300/-. The complainants submitted their motor claim form dated 31.03.2010 duly filled in with the claiming amount of Rs.27,30,300/- regarding the total loss of the bus to the OPs through DTDC courier receipt no.Z11032702 dated 31.03.2010. The complainant no.2, vide letter no.608 dated 13.04.2010 addressed to OP no.1 was requested to send a surveyor to conduct the final survey of the bus and to settle it at the earliest. Vide letter no.896-897 dated 30.04.2010, the complainant intimated the Chief Accountant Officer, PRTC Patiala that Sh. K. Bikram had come from Delhi to Bathinda Depot for inspecting the damaged bus. Item-wise estimate of the prevailing price of the engine and chasis for his further necessary action and all the documents available at the Bathinda Depot were duly provided to him. S.S. Bhavan, Head- service of M/s JCBL, vide reference no.SVR/PRTC/25 dated 29.05.2010, forwarded the quotation/estimate of the body to complainant no.1, which worked out to Rs.11,73,279/-.Vide letter no.2154 dated 28.06.2010. The complainant no.2 communicated to Ram Bahadur Singh surveyor to conduct the final survey on 29.04.2010 at Bathinda Depot and the documents were duly forwarded to him through Trackon Courier, vide receipt no.183596550. The complainant no.2, vide letter no.2279 dated 05.07.2010, intimated OP no.4 that the spot survey has been Consumer Complaint No.97 of 2011 5 conducted by Er. Rakesh Kumar Gupta and the final survey conducted by Ram Bahadur Singh surveyor on 29.04.2010. OP no.4 was personally requested to look into the matter for further action. The bus in question was completely burnt and was beyond repairs, vide copy of the undated mail, received through Susan Methew, Asst. Manager, SVC MRO 2, stating that the survey report of Ram Bahadur Singh has been received, assessing the loss on repair basis and to get the vehicle repaired and submit the bills of repairs and payment receipts at the earliest. Various correspondences followed between the parties from time to time in this regard as well. Aggrieved by the response of the OPs, assessing the loss on repair basis only and to get the repair of the bus and to submit the bills of repairs and payment receipts at the earliest, instead of providing the total loss claim of the bus in question. The complainants served legal notice upon the OPs through their counsel Sh. Jasjit Pal Singh Brar, Advocate, District Courts Bathinda, but to no effect. The complainants have contended in the complaint that it was a case of total loss of the bus and hence, the OPs are bound to pay the total loss claim, as per the insurance declared value of the bus in the insurance claim. The complainants have, thus, prayed for the direction to OPs to pay the amount of Rs.29,42,967/- along with interest to the complainants for the total loss of bus and Rs.25,00,000/- for monetary loss, Rs.5,00,000/- as compensation for mental harassment and Rs.22,000/- as costs of litigation. Consumer Complaint No.97 of 2011 6
2. Upon notice, OPs appeared and filed joint written reply and contested the complaint of the complainants vehemently. It was averred in the preliminary objections by the OPs that the insured's declared value of the vehicle was Rs.27,30,300/-. There is no dispute regarding the factum of the accident of the bus in this case. Similarly, the fact was also not in dispute that it was set on fire by some miscreants and hence suffered the damage therein. It was also not disputed by the OPs, that Rakesh Kumar Gupta, the surveyor was deputed on intimation of loss by the complainants of the bus and he submitted report dated 08.07.2010. The OPs pleaded that Ram Bahadur Singh, B.Sc. (Engg.), FISA surveyor and loss assessor was appointed as the main surveyor and he submitted his final report dated 30.09.2010. The said surveyor took the quotation/estimate furnished by M/s JCBL, Ambala-Chandigarh Road Lalru, who are the reputed and recognized body builders and are renowned throughout India in their field. This surveyor assessed the loss of Rs.11,83,210/- on the repair basis. Since the estimated amount of repairs is less than 50% of the insured declared value of the bus in question. The OPs decided to settle the claim on repair basis only and hence called upon the complainants to get the bus in question repaired. However, the complainants have not agreed thereto. As per condition no.4 of the terms and conditions of the Insurance Contract, which provides as under:
Consumer Complaint No.97 of 2011 7
"the Insurance Company may at its own option repair, reinstate or replace the vehicle or part thereof and/or its accessories or make payment in cash the amount of loss or damage but the liability of the company shall not exceed:
(a) for total loss/constructive total loss of the vehicle- the Insured's Declared Value (IDV) of the vehicle (including accessories thereon) as specified in the Schedule less the value of the work.
(b) For partial losses, i.e. losses other than Total Loss Constructive Total Loss of the vehicle- actual and reasonable costs to repair and/or replacement of parts lost/damaged subject to depreciation as per limits specified."
The OPs further pleaded that the vehicle could be made roadworthy for carrying out repairs and hence, there is no requirement of declaration of the vehicle, as a case of total loss. The spot surveyor, the final surveyor Ram Bahadur as well as M/s JCBL found that the bus could be repaired for making it roadworthy and hence the plea for total loss, as propounded by the complainant, is not acceptable. The complaint of the complainants was resisted even on merits by the OPs. The rest of the factual background of the case is not disputed in this case nor it has been disputed by the OPs in the written reply. The OPs have seriously disputed the contention of the complainants that this is a case of total loss of the vehicle, rather they pleaded that as per the survey report of Ram Bahadur Singh surveyor and of M/s JCBL, the vehicle could be repaired and hence Consumer Complaint No.97 of 2011 8 the claim is liable to be settled on repair basis only. The OPs stuck on this point in written reply that they are ready to settle the claim on repair basis for Rs.11,83,210/-, which is on the basis of correct analysis by the surveyor from all aspects. The OPs prayed for dismissal of the complaint.
3. The complainant tendered in evidence affidavit of Maninderjit Singh Hundal, G.M., PRTC Bathinda as Ex.C/A along with documents Ex.C/1 to Ex.C/25 and closed the evidence. As against it, the OPs tendered in evidence affidavit of Ram Avtar, Deputy Manager (Legal) Ex.RW/A along with documents Ex.R-1 to Ex.R-3 and closed its evidence thereafter.
4. We have heard the learned counsel for the parties and have also examined the record of the case. We find that this fact is not disputed between the parties that bus in question was insured with the OPs. Ex.C/3, the Motor Insurance Certificate cum Policy Schedule may be referred to in this regard along with its terms and conditions. This point is also not in dispute between the parties that complainants are the owners of the bus and they got it insured with the OPs against the insurance premium. This point is also not in controversy between the parties that the bus was enroute and reached Goniana Mandi bye-pass on Jaitu Road Bus stand, where it was set on fire by some miscreants on the said date. Similarly, this point is also not a contentious one between the parties that F.I.R. Consumer Complaint No.97 of 2011 9 no.25 dated 27.02.2010 was lodged at police station Nehianwala District Bathinda about this incident of setting the bus on fire by the miscreants. There is also no dispute about this point in this case with regard to the valid driving licence of Bhupinder Singh driver of the bus or with regard to the route permit or fitness certificate of the bus.
5. The core point of controversy in this case is as to whether the bus in question is a case of total loss or it is repairable on the basis of the surveyor's report. The controversy between the parties is restricted specifically to this point as to whether this loss to the bus is a case of total loss or it is a repairable loss only. We have to decide this controversy between the parties on the basis of evidence on the file. The pleadings of both the parties have been carefully examined by us on the record. Similarly, the affidavits placed on record by both the sides, in support of their pleadings, have also been considered by us. We have examined the affidavit of Maninderjit Singh Hundal, the General Manager of PRTC Bathinda Depot, vide Ex.C/A on the record. We have also considered the affidavit of Ram Avtar, the Deputy Manager of Oriental Insurance Company Ltd., vide Ex.RW/A on the record in this case. The complainant is the owner of the bus, vide Ex.C/1, the registration certificate on the record. Certificate of fitness of bus is Ex.C/2 on the record and copy of insurance policy Ex.C/3 is also on the record. Ex.C/4 is the copy of FIR on the record. Copy of driving licence of Consumer Complaint No.97 of 2011 10 Bhupinder Singh driver is Ex.C/5 on the record. Ex.C/6 is the copy of permit of the bus on the record. Reminder regarding demanding the certain documents from the complainants by Er.Rakesh Kumar Gupta, who was initially deputed by the OPs to make spot inspection, is Ex.C/7 on the record. The documents were supplied and the correspondence followed between the parties thereto and reference may be made on the record to Ex.C/8 to C/11. The motor claim form submitted by the complainants is Ex.C/12 and Ex.C/12A. Ex.C/13 is the letter addressed to the OPs for conducting the final survey through surveyor at the earliest on the record. Ex.C/14 to Ex.C/17, are the various correspondence between the complainants and the OPs regarding the supply of documents to the surveyor. The complainants wrote letter to the OPs, vide C/18 dated 04.08.2010 for settlement of the claim on the basis of total loss of the vehicle. Legal notice was served upon the OPs in this regard, which is Ex.C-24.
6. On the other hand, the OPs stoutly relied upon their pleadings, as well as affidavit of Ram Avtar, Deputy Manager of the OPs. The OPs took the stand that the claim is not payable as a case of total loss, but it is payable on repair basis only, as per the surveyor's report and OPs are ready to give the loss of repair of the bus to the extent of Rs.11,83,210/-, as finalized by the surveyor. The OPs also submitted that as per the contract of insurance particularly condition no.4 thereof, vide Ex.R-3, the OPs are ready to give the Consumer Complaint No.97 of 2011 11 claim on the repair basis of the bus and they can also seek the repair of the bus under the contract of insurance. The entire controversy between the parties is confined to this point as to whether the report of the surveyor Sh. Ram Bahadur Singh Ex.R-2 has to be accepted in this case or not. Undoubtedly, the report of the surveyor is not conclusive, yet it is a valuable piece of evidence. The surveyor is appointed under Section 64 UM of Insurance Act and his appointment is statutory. The report of surveyor is generally to be accepted as correct, as he is an expert witness in this matter, unless there are strong and sufficient circumstances to rebut it. We have carefully gone through the report of surveyor Ram Bahadur Singh on the record, vide Ex.R-2. The surveyor analyzed each of the item of the bus and took the quotation thereof and finally came to the conclusion that the claim is payable on repair basis only and he found the claim payable to the complainant on repair basis to the extent of Rs.11,83,210/-. The report of the surveyor is binding on the Consumer Fora unless there are contrary circumstances/evidence to rebut it on the file. The surveyor is a qualified person and he took the help of the quotations as well and then reached the conclusion that it is not a case of total loss, but it is case of repairable loss only and finally recorded the observations that the loss payable to the complainants is of Rs.11,83,210/-. The onus is on the complainant to prove, as to on what basis the report of the surveyor is to be discarded out of the consideration in this case. The complainants Consumer Complaint No.97 of 2011 12 relied upon affidavit of Maninderjit Singh Hundal, General Manager of the complainant. There is no expert evidence led on record by the complainants to rebut this report of the surveyor Ex.R-2. We have carefully examined the documents placed on record by the complainant. The complainants relied upon the letter of Er. Rakesh Kumar Gupta Ex.C/7, but he has not finalized the claim at that time and only verified the facts preliminarily on the spot. The complainants also relied upon Ex.C/9 regarding the price of the bus in question. We have also carefully examined the documents Ex.C/10 to Ex.C/23 on the record, as relied upon by the complainants. They are the correspondence letters, which took place between the parties or between some other persons. Ex.C/15 is the quotation/estimate only. Even the surveyor relied upon quotation/estimate in his report Ex.R-2 in coming to the conclusion that it is not a case of total loss of the bus. The complainants are required to rebut the report of the surveyor as not correct. We have not come across any contrary expert evidence led on record by the complainants to the effect that report of the surveyor Ram Bahadur Singh is not credible. The Consumer Forum generally relies upon the report of surveyor unless it is rebutted by the cogent contrary evidence on the record. We have come to this conclusion that complainants remained un-successful in refuting the report of surveyor Ram Bahadur Singh Ex.R-2 on the record. The surveyor has come to the conclusion after examining the matter that it is a Consumer Complaint No.97 of 2011 13 case of loss on repair basis only and not a case of total loss of the bus and, thus, he found compensation payable to the complainants of this insurance to the extent of Rs.11,83,210/- only.
7. The complainants have further prayed that the compensation of Rs.5,00,000/- be awarded to them for mental harassment. The complainant is a corporate body and it is not a natural person. The Apex Court has held in case Sikka Papers Ltd. Vs. National Insurance Co. Ltd. and Ors. reported in 2009 AIR (SC) 2834 that damages for mental harassment - who can claim- only natural person and not corporate entity, who can claim damages for mental harassment. On the basis of law laid down by the Apex Court in the above referred authority, we negative the contention of the complainants that it being a corporate body, is also entitled to the compensation of Rs.5,00,000/- for the mental harassment.
8. The counsel for the complainants referred to law laid down by the Apex Court in case New India Assurance Co. Ltd. vs. Pradeep Kumar reported in 2009 (IV)CPJ-46 (SC) that surveyor's report is not last and final word - it may be basis for settlement of claim, but neither binding upon insurer nor insured. We have already concluded this point by holding that the report of surveyor is not conclusive yet it has to be rebutted to be wrong by the contending party. The Apex Court has also held in case United India Insurance Co. Ltd. and others vs. Roshan Lal Oil Mills Ltd. and others Consumer Complaint No.97 of 2011 14 reported in 2000(10)SCC-19 that surveyor is appointed in terms of Section 64-UM(2) of Insurance Act. Surveyor giving detailed amount of factors on the basis of which they reached conclusion that no loss or damage caused on account of fire. There should be strong evidence to refute it. We are unable to lay our hands on any evidence led by the complainants on the record, which could prove the report of the surveyor Ram Bahadur Singh Ex.R-2 as unreliable and wrong. Consequently, we rely upon the report of surveyor Ex.R-2, which has proved that the loss of the vehicle is not a case of total loss and it is a loss of less than 50% of the value of the insurance declared value of the vehicle. The surveyor, thus, found the case to be a case of repairable one only and found the payable amount of compensation of Rs.11,83,210/-.
9. In the light of our above discussion, we accept the complaint of the complainants and direct the OPs to pay the amount of Rs.11,83,210/- to the complainants along with interest @8% p.a. thereupon, from the date of filing the complaint till its actual payment and we also further award the amount of Rs.20,000/-, as costs of litigation to be payable to the complainants within 45 days from the date of receipt of certified copy of order, failing which, the complainants can get it recovered from the OPs in accordance with law. The complaint filed by the complainants is, thus, accepted to this extent against OPs, as referred to above.
Consumer Complaint No.97 of 2011 15
10. Arguments in this complaint were heard on 25.03.2015 and the order was reserved. Now the order be communicated to the parties.
11. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER April 1, 2015.
(MM)