State Consumer Disputes Redressal Commission
Tata Aig General Insurance Co. Ltd. vs Mr. Dharamjeet Singh on 30 September, 2024
FA. NO./588/2019 D.O.D.: 30.09.2024
TATA AIG VS. MR. DHARAMJEET SINGH
IN THE DELHI STATE CONSUMER DISPUTESREDRESSAL
COMMISSION
Date of Institution: 17.10.2019
Date of hearing: 31.07.2024
Date of Decision: 30.09.2024
FIRST APPEAL NO.-588/2019
IN THE MATTER OF
TATA AIG GENERAL INSURANCE CO. LTD.,
THROUGH ITS AUTHORIZED REPRESENTATIVE,
PENINSULA BUSINESS PARK,
TOWER A, 15TH FLOOR,
G.K. MARG, LOWER PAREL,
MUMBAI-400 013.
(Through: Mr. Anuj Chauhan, Advocate)
...Appellant
VERSUS
MR. DHARAMJEET SINGH,
A-191, HARIT VIHAR, SANT NAGAR,
BURARI, DELHI-110084.
ALSO AT:
H. NO. 51 GALI NO.2,
A-1 EXTN. SANT NAGAR,
BURARI, DELHI-110084.
(Through: Mr. Rahul Lal Akhriya, Advocate)
...Respondent
DISMISSED PAGE 1 OF 8
FA. NO./588/2019 D.O.D.: 30.09.2024
TATA AIG VS. MR. DHARAMJEET SINGH
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Ms. Saloni Dwary, counsel for the Appellant.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are as under:
"...The complainant got his truck bearing No. HR-55-Q- 6357 insured with OP for the period from 13.07.2013 to 12.07.2014 on premium of Rs.38247/- against the Insured Declared Value(IDV) to the tune of Rs. 15,00,000/-(Fifteen Lacs only). Unfortunately the aforesaid truck met with an accident when it was heading to Hyderabad (Andhra Pradesh) and dashed against a tree thus badly damaged. After accident the truck was taken to Delhi for repair to M/s Garud Auto Parts Pvt. Ltd. which is authorized service centre of Ashok Leyland at G.T. Karnal Road Delhi. The OP was duly informed about the damage and its surveyor inspected the said vehicle at M/s Garud Auto Repair Workshop. It is further stated by complainant that M/s Garud Auto Parts Pvt. Ltd made an estimate no. 000185 dated 09.02.2014 of Rs 13,35.906.98 for the damage repar of said truck. However, OP neither sanctioned any amount towards repair of truck not declared the vehicle an a total loss because the damage to the truck was obviously more than75% of the total insured declared value The said truck is still lying at M/s Garud Auto Parts Pvt. Ltd. for want of its repairs. Since the vehicle is a commercial one. The complainant has been suffering financial losses in business and mental agony since accident. The complainant served. OP with legal notice but of no avail. Hence the present DISMISSED PAGE 2 OF 8 FA. NO./588/2019 D.O.D.: 30.09.2024 TATA AIG VS. MR. DHARAMJEET SINGH complaint with prayer for an award of Rs. 15,00,000/- and compensation."
2. The District Commission after taking into consideration the material available on record passed the order dated 26.08.2019, whereby it held as under:
"...5. In the instant case the only controversy is as to whether the surveyor report has to be considered for assessment of repair loss of the complainant or the estimate of repair given by the workshop should prevail. The counsel for complainant relied upon authority report in 2011 STPL 20588NC[111(2011)CPJ 90 (NC)] case titled Shambhu Nath Bal Mukund Vs New India Assurance Co. Ltd. held as under:-
First Appeal No. 225 of 2004 against order dated 15.04.2004 in complaint No. 184 of 2001 of State Commission, Uttar Pradesh, Lucknow- Decided on 31.05.2011.
Consumer Protection Act; 1986 Sections 2(1),(g),14(1)(d), 21(a)(ii)- Insurance-Policy Covering any loss to stock-Heavy rains- stock damaged surveyor appointed-Recommended payment of only 1/3 of assessed loss full and final settlement of complainant- Dismissed by State Commission Civil Appeal before supreme Court- matter remanded back to State Commission Insurance Company had agreed to issued insurance policy only after satisfying the nature of structure-suitability of pits where damage is caused is of no question-Surveyor was not justified in making any deduction from net assessed loss on strength of cause factors-Claim ought to have settled as per assessment.
Counsel for OP on the other hand, drew our attention to the authority reported in I(2017) CPJ 529(NC) case titled DISMISSED PAGE 3 OF 8 FA. NO./588/2019 D.O.D.: 30.09.2024 TATA AIG VS. MR. DHARAMJEET SINGH Ashish Kumar Jaiswal Vs ICICI Lombard General Insurance wherein it was held:
Consumer Protection Act, 1986- Sections 2(1)(6), 14(1)(4),21(0) Insurance Accident of vehicle Surveyor appointed Loss assessed Non- settlement of claim- Alleged deficiency in service District Forum allowed complaint State Commission dismissed appeal Hence revision No specific shortcomings of surveyor report was his only reliable document which is to be considered for setting Insurance claim Petitioner failed to put forward any cogent reason to dispute surveyor report-Impugned order upheld.
Now the question arises as to whether report of Surveyor which was not controverted by the complainant in the complaint should be accepted or not. The authority titled Ashish Kr. Jain (Supra) lays down that when no specific short comings of surveyor report have been pointed out by complainant, the surveyor report should be accepted. Further The Hon'ble National Commission reported in 2010 in CTJ 147(CP) Oriental Insurance Co. Ltd. Vs. Mehar Chand held as under:
"An Insurance Surveyor being an expert is required to give reasons for disallowing or partly allowing the claim preferred by an insured Insurance- Deficiency in service Consumer Protection Act, 1986 Sec 2(11)G- Sec(1) (0) Motor vehicle insured for Rs. 4,50,000/- damaged in an accident- claiming Rs. 94,651/- approved by insurer based on Surveyor's Report Declined by complainant- Complaint to Distt. Forum Rs. 3,20,000/- with interest of 16% and compensation of Rs 15000/- Looking into consent letter of complainant and estimate prepared by surveyor, insurer was directed to pay Rs, 98,204.349% Upon appeal by complainant, State Commission increased amount to DISMISSED PAGE 4 OF 8 FA. NO./588/2019 D.O.D.: 30.09.2024 TATA AIG VS. MR. DHARAMJEET SINGH Rs. 2.20,669.71 after allowing 10% depreciation on the estimated amount Revision petition filed OP- Held no reason given by surveyor for not accepting the estimate prepared by complainant Surveyor being expert in the filed is expected to give reasons for disallowing or partly allowing the claim. Consent given on the basis of such report is in-fact no consent. Impugned order not interfered with Revision dismissed."
6. The analysis of all the authorities cited at bar by the counsel for parties, leads us to only one conclusion that the Survey report be accepted if not challenged/ controverter by the complainant it has also come on record that report of surveyor shall be accepted only if he has assigned good reasons for departing from the estimate prepared by the workshop. we have carefully gone through the surveyor report. Unfortunately the report does not record even a single reason why the surveyor disagreed with the estimate of the complainant. The report has also not pointed out any terms and conditions where under the surveyor refused the repair rates. Therefore, we feel that this Surveyor Report is wholly arbitrary and whimsical.
7. Keeping in view the discussion stated above we are of the opinion that it would meet the ends of justice if we accept the estimate of Rs. 13,35,906.98 with 25% deduction towards depreciation. We award Rs. 10,01,930.23 We also award Rs. 10,000/- as compensation for harassment, mental agony and litigation expenses."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant/Opposite Party has preferred the present appeal contending that the District Commission has erred in establishing deficiency on the part of Appellant. Further, the counsel submitted that there was no deficiency of service on the part of Appellant as the assessment made by the surveyor was acceptable as no contrary evidence or report has been filed on record by the DISMISSED PAGE 5 OF 8 FA. NO./588/2019 D.O.D.: 30.09.2024 TATA AIG VS. MR. DHARAMJEET SINGH Respondent to establish any flaws in the survey report. Lastly, the counsel submitted that there was no deficiency of service on the part of Appellant. Pressing the aforesaid submissions, the Appellant prayed for setting aside the impugned order.
4. Notice of the present Appeal was issued to the Respondent, however, despite multiple opportunities, the Respondent has failed to file the reply to the present Appeal.
5. The written submissions on behalf of the Appellant are on record, wherein it reiterated the facts mentioned in the present appeal. Further, the written submissions have not been filed by the Respondent till date.
6. We have perused the material available on record and heard the counsel for the Appellant.
7. The main question for consideration before us is whether the District Commission has erred in establishing deficiency of service on the part of Appellant.
8. To comment on this issue, we deem it appropriate to refer to the case of National Insurance Company Ltd. Vs. Hareshwar Enterprises (P) Ltd. & Ors. reported in 2021(226) AIC 179, wherein the Apex court has held as under:
"11. In the said decision, it is no doubt held that though the assessment of loss by an approved surveyor is a prerequisite for payment or settlement of the claim, the surveyor report is not the last and final word. It is not that sacrosanct that it cannot be departed from and it is not conclusive. The approved surveyor's report may be the basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured. On the said DISMISSED PAGE 6 OF 8 FA. NO./588/2019 D.O.D.: 30.09.2024 TATA AIG VS. MR. DHARAMJEET SINGH proposition, we are certain that there can be no quarrel. The surveyor's report certainly can be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyor's report."
9. Perusal of the above settled law reflects that the surveyor report is not sacrosanct and conclusive but it can certainly be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyor's report.
10. On perusal of record before us, it is noted that the surveyor in his report dated 11.08.2014 has observed that the net adjusted loss value after deducting the depreciation, salvage value and compulsory excess clause which turns out to be Rs. 4,68,878/-. On the other hand, we find that the Respondent has filed an estimate bearing no. 000185 dated 09.02.2014 from the authorized service center of Ashok Leyland wherein the estimate for the repairs was turn out to be Rs. 13,35,906/-, however, the surveyor Mr. N. L. Sharma & Associates has failed to assess the claim on the basis of estimate made out by the authorized service center. Moreover, the Appellant before the District Commission as well as before this Commission has failed to show any explanation towards the assessment and deductions made by the surveyor in its report dated 11.08.2014.
11. Lastly, we find that the Appellant had tried to settle the aforementioned claim and offered an amount of Rs. 2,80,000/- for the loss caused due to the said accident, however, the Respondent never accepted the said offer which is justified on the part of the Respondent as the authorized service center has duly assessed the claim to the tune of Rs. 13,35,906/- and in our considered view, the Appellant had arbitrarily and unjustifiably tried to settle the claim of the Respondent and the Respondent is not bound to settle his claim.
DISMISSED PAGE 7 OF 8
FA. NO./588/2019 D.O.D.: 30.09.2024
TATA AIG VS. MR. DHARAMJEET SINGH
12. Furthermore, it is observed that the District Commission correctly and justifiably deducted 25% from the total assessed amount as depreciation. Therefore, we are in agreement with the reasons given by the District Commission and fail to find any cause or reason to reverse the findings of the District Commission.
13. Consequently, we uphold the order dated 26.08.2019 passed by the District Consumer Disputes Redressal Commission (West), 150-151, Community Centre, C-Block, Janak Puri, New Delhi.
14. Resultantly, the present Appeal stands dismissed with no order as to costs.
15. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
16. FDR, if any, be released in favour of the Respondent.
17. The Judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
18. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
30.09.2024 LR-AJ DISMISSED PAGE 8 OF 8