State Consumer Disputes Redressal Commission
Oriental Insurance vs Rohit on 3 December, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal Case No. : 318 of 2012 Date of Institution : 19.09.2012 Date of Decision : 03.12.2012 The Oriental Insurance Company Limited, Regional Office, SCO No.109-111, Sector 17-D, Chandigarh, through its Manager. --Appellant Versus Rohit Kaushal S/o Dr. Gopal Singh Kaushal, r/o H.No.7-A, Navodaya Vidalya Campus, Sector 25W, Chandigarh, presently resident of H.No.1101, Phase X, Mohali (Pb.) --Respondent Appeal U/s 15 of Consumer Protection Act, 1986 BEFORE: JUSTICE SHAM SUNDER(Retd), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Present:
Sh. G.S.Ahluwalia, Advocate for the appellant.
Sh. Rajesh Kumar Sharma, Advocate for the respondent PER JUSTICE SHAM SUNDER(Retd), PRESIDENT This appeal is directed against the order dated 27.8.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint of the complainant(now respondent) and directed the Opposite Party as under ;
To pay the Insured Declared Value of Rs.1,90,000/- (Annexure C-1 & R-1) to the complainant treating his claim as Total Loss. The salvage shall be taken over/remain with the Opposite Party. The Opposite Party is also directed to pay compensation of Rs.50,000/- for causing inconvenience, mental & physical harassment to the complainant, apart from paying litigation cost of Rs.15,000/-.
This order be complied with by the Opposite Party within a period of 30 days from the date of receipt of copy of this order, failing which it shall be liable to pay the above awarded amount of Rs.2,40,000/- (Rs.1,90,000/- + 50,000/-) along with interest @12% p.a. from the date of filing this complaint i.e. 24.04.2012 till its actual payment, besides paying litigation costs, as aforesaid.
2. The facts, in brief, are that the complainant, being the owner of Maruti Alto LX Car bearing registration No.CH-01-AA-4704,Model 2008 got it insured, with the Opposite Party, for the Insured Declared Value of Rs.1,90,000/-, for the period from 20.1.2011 to 19.1.2012. The said car met with an accident, on the night intervening 6th & 7th May, 2011 and was badly damaged. DDR was lodged with Police Post Bhungar, P.S.Nariana ( Punjab). On the basis of instructions of the Opposite Party, the vehicle was brought to Chandigarh. The complainant got the estimate of repairs from M/s Chitosho Motors, Mohali to the tune of Rs.3,18,710/- and submitted all the relevant documents to the Opposite Party. The Opposite Party appointed a surveyor, who submitted the survey report. The Opposite Party, thereafter, passed the claim of the complainant to the tune of Rs.1,16,245/-. It was stated that the amount assessed by the surveyor was completely unjustified as the same was not based on any data and material. The complainant wrote a letter dated 19.3.2012, to the Opposite Party, with a request to appoint any other surveyor, so that the claim could be settled, in a justified manner, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed by him.
3. The Opposite Party, in its written version, pleaded that the District Forum at Chandigarh had got no territorial jurisdiction, to entertain and decide the complaint, as the Policy was obtained from the Divisional Office at Mohali ; the accident took place in the area of Hoshiarpur in the State of Punjab, and the intimation of accident was given at Hoshiarpur, as also the survey of the damaged car was conducted at Hoshiarpur. It was admitted that the complainant, being the owner of the car, in question, got the same insured for the Insured Declared Value of Rs1,90,000/- for the period from 20.1.2011 to 19.1.2012. It was stated that after the accident, and, on receipt of intimation, from the complainants, the Hoshiarpur Office of the Opposite Party, deputed a Surveyor, for preliminary survey, who submitted his report dated 28.5.2011. It was further stated that the complainant submitted the estimate of repairs of M/s Hoshiarpur Automobiles Annexure R-4 to the tune of Rs.2,74,591/- The Opposite Party deputed M/s M.L.Mehta & Co. as a surveyor, who after conducting survey submitted his report on 13.1.2012 Annexure R-5. It was further stated that without getting the vehicle repaired from M/s Hoshiarpur Automobiles, the complainant took it to M/s Chittosho Motor, Mohali and then submitted another estimate of Rs.3,18,710/- dated 13.11.2011 Annexure R-7. It was further stated that the claim of the complainant was, however, approved in the sum of Rs.1,16,245/- vide letter dated 25.1.2012. It was further stated that the complainant was adamant, on the settlement of his claim, on Total Loss Basis, which was not possible, as per the terms & conditions of the Insurance Policy. It was denied that the vehicle was totally damaged. It was further stated that the vehicle could be considered as Total Loss, only when the liability of the insurer on repair basis exceeded 75% of the Insured Declared Value. It was further stated that the request of the complainant for the appointment of second surveyor, could not be legally allowed. It was denied that there was any deficiency, in rendering service, on the part of the Opposite Party, or it indulged into unfair trade practice. The remaining averments were denied, being wrong.
4. The parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order.
6.. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
7. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellant, submitted that the District Forum at Chandigarh had no territorial jurisdiction as the Policy was taken from the Divisional Office at Mohali and the accident took place in the area of Hoshiarpur. He further submitted that once M/s Hoshiarpur Automobiles submitted the estimate of repairs, in respect of the damaged car, and the surveyor was appointed, who assessed the loss to the tune of Rs.1,20,744.20 and, ultimately, the same was approved by the Insurance Company at Rs.1,16,245/-, the question of appointing the second surveyor did not at all arise. He further submitted that the District Forum was wrong in awarding the amount considering that it was a case of total loss. He further submitted that even the compensation which was granted by the District Forum was highly excessive. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/complainant submitted that since the claim was approved by the Oriental Insurance Company, Regional Office, Sector-17, Chandigarh, the District Forum, at Chandigarh had got territorial jurisdiction to entertain and decide the complaint. He further submitted that Annexure R5 report of the surveyor could not be said to be reliable document, as reasons were not assigned by him, as to how he made deductions, under various heads vis- a- vis the estimate of repairs, submitted by M/s Hoshiarpur Automobiles. He further submitted that even M/s Chittosho Motors, Mohali, assessed the loss to the tune of Rs.3,18,710/-. He further submitted that the order of the District Forum being legal and valid, is liable to be upheld. .
10. Coming to the territorial jurisdiction of the District Forum, it may be stated here that, no doubt, the Policy was taken from the Mohali office and the accident took place in the area of Hoshiarpur, in the State of Punjab, yet the claim was approved by the Regional Office of Oriental Insurance Company, Sector-17, Chandigarh. It means that a part of cause of action arose to the complainant, at Chandigarh. In these circumstances, the District Forum at Chandigarh had the territorial jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Party, in the written version, that the District Forum, at Chandigarh, had no territorial jurisdiction to entertain and decide the complaint, therefore, being devoid of merit, must fail and the same stands rejected.
11. Admittedly the vehicle, in question, belonging to the complainant was insured with the Opposite Party, for the Insured Declared Value of Rs.1,90,000/- , for the period from 20.1.2011 to 19.1.2012 .
There is also, no dispute, that the same met with an accident, in the area of Hoshiarpur. The local surveyor of Hoshiarpur was directed to survey the damaged vehicle. The damaged vehicle was taken to M/s Hoshiarpur Automobiles and estimate of repairs was submitted by it, in the sum of Rs.2,79,367/-. M/s M.L.Mehtra & Co. Surveyors & Loss Assessors was appointed as surveyor . The surveyor inspected the vehicle and also went through the repair estimate submitted by M/s Hoshiarpur Automobiles and came to the conclusion that the vehicle could not be declared as total loss since the repair/replacement cost did not exceed 75% of Insured Declared Value of Rs.1,90,000/-. Against the estimated repairs, to the tune of Rs.2,79,367.44, the surveyor assessed the amount of Rs.1,20,744.62. As per Section I of the terms and conditions of the Policy, 50% deduction for depreciation was made on all rubber/nylon/plastic parts, tyres, tubes, batteries and air bags which were damaged in the accident, by the surveyor. As per Section I(4) of the terms and conditions of the Policy, 15% deduction for depreciation on the metal parts, which were damaged in the accident, was made. Similarly deductions under other various heads were also made by the surveyor.
The report of the surveyor is a very significant document, and cannot be lightly discarded, until and unless cogent and convincing evidence is produced by the complainant to rebut the same. No challenge to the report Annexure R1 of M/s M.L.Mehta & Co. was made by the complainant by way of leading cogent and convincing evidence. The District Forum, no doubt, held that the surveyor did not point out the basis, on which, he differed from the estimated cost of repairs, and what were the grounds for assessing the amount less than 50% cost of repairs, given by an authorized dealer. It may be stated here, that such findings of the District Forum, do not appear to be correct. The report of the surveyor is detailed one. Necessary deductions for depreciation, as stated above, were made by the surveyor strictly, in accordance with the terms and conditions of the Policy and not arbitrarily. Under these circumstances, it could not be said that the surveyor, without any basis or reasons, assessed the amount of loss less than 50% of the estimated repairs. The findings of the District Forum, to the effect, that the surveyor without any basis assessed the loss less than 50% of the estimate of repairs, are not correct. The surveyor could not go beyond the terms and conditions of the Policy. Under these circumstances, the loss assessed by the surveyor could be said to be justified. The findings of the District Forum, that the complainant was entitled to the Insured Declared Value to the tune of Rs.1,90,000/-, on the basis that the vehicle was a total loss, therefore, being not based on the correct appreciation of evidence are required to be reversed. On the other hand, it is held that the claim of the complainant which was approved by the Opposite Party, to the tune of Rs.1,16,245/- i.e. Rs.1,20,244.62 assessed by the surveyor minus Rs.4000/- as value of the salvage, is correct. The complainant is, thus, entitled to a sum of Rs.1,16,245, on account of the damage caused to the vehicle.
12. Now, coming to the amount of compensation, awarded by the District Forum, it may be stated here, that the same is also on the higher side. The estimate of repairs of M/s Hoshiarpur Automobiles Annexure R4 was submitted on 17.5.2011. The report Annexure R5 was submitted by the surveyor on 13.1.2012. The surveyor was required to submit his report at the most within a period of six months, from the date of lodging the claim. Undue delay was caused by the surveyor, in finalizing the claim of the complainant. Under these circumstances, mental agony and physical harassment was caused to the complainant. The compensation must commensurate with the facts and circumstances of the case. It should neither be excessive, nor too low.
In the instant case, in our considered opinion, if the compensation is reduced to Rs.25,000/- that would meet the ends of justice. The same is accordingly reduced to Rs.25,000/-.
13. No other point, was urged, by the Counsel for the parties.
14. For the reasons recorded above, the appeal is partly accepted, with no order as to costs, and the order of the District Forum is modified in the following manner ;
(i) The appellant/Opposite Party shall pay a sum of Rs.1,16,245/- , the amount approved by it, on the basis of the report of the Surveyor, for damage caused to the insured vehicle of the complainant, instead of Rs.1,90,000/- awarded by the District Forum.
(ii) The appellant/Opposite Party shall pay compensation in the sum of Rs.25,000/- , on account of mental agony and physical harassment instead of Rs.50,000/-, awarded by the District Forum.
(iii) The other reliefs granted, and directions given, by the District Forum, shall remain intact.
15. Certified Copies of this order be sent to the parties, free of charge.
16. The file be consigned to the Record Room.
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Pronounced.
(Justice Sham Sunder)(Retd) December 3,2012 President.
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(Neena Sandhu) Member Js