State Consumer Disputes Redressal Commission
Smt. Shweta Jaiswal vs United India Insurance Co. Ltd. on 21 November, 2022
Appeal No. Smt. Shweta Jaiswal 21.11.2022
59 of 2013 Vs.
United India Insurance Co. Ltd.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 25.03.2013
Date of Final Hearing: 10.11.2022
Date of Pronouncement: 21.11.2022
First Appeal No. 59 / 2013
Smt. Shweta Jaiswal W/o Sh. Sandesh Jaiswal
R/o G-134 Race Course, Dehradun
(Through: Sh. R.S. Bajwa, Advocate)
.....Appellant
VERSUS
United India Insurance Company Limited
Rajendra Complex, 2 Church Road, Saharanpur, Uttara Pradesh
Through Manager
(Through: Sh. J.K. Jain & Sh. Vaibhav Jain, Advocates)
.....Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against the judgment and order dated 29.01.2013 passed by the learned District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in consumer complaint No. 27 of 2012 styled as Smt. Shweta Jaiswal Vs. United India Insurance Co. Ltd., whereby and wherein the learned District Commission has disallowed the complaint.1
Appeal No. Smt. Shweta Jaiswal 21.11.2022
59 of 2013 Vs.
United India Insurance Co. Ltd.
2. The facts giving rise to the present appeal, in brief, are as such that the complaint was filed on behalf of the appellant (in short "complainant") alleging that her owned vehicle bearing registration No. UA07-9720 Maruti Suzuki 800 was insured with the insurance company - respondent with policy No. 0082800/31/12/01/0000/3622. Unfortunately, the aforesaid vehicle met with an accident on 25.04.2011 while coming from Haridwar to Dehradun highway near Motichoor, Raiwala Jungle. The occurrence was immediately informed to the insurance company - respondent and the insured vehicle was towed away from the spot to the workshop by the recovery van to the Kocher Motors, Haridwar Road, Dehradun; the complainant has paid Rs. 2,500/- to the recovery van. The company has also deputed its surveyor to inspect and to assess the loss occurred to the insured vehicle. The insured vehicle was repaired by the Kocher Motors workshop and the complainant has incurred Rs. 42,255/- and Rs. 2,500/- as toing charges to the recovery van, but the insurance company - respondent has forwarded claim voucher alongwith receipt of Rs. 11,280/- on dated 15.11.2011, which was very less and not according to the actual loss to the insured vehicle, hence it was returned by the complainant to the insurance company - respondent. The insurance company has committed deficiency in service while not accepting her claim in total as per the actual expenses incurred and adopted unfair trade practice.
3. The insurance company - respondent in its written statement has averred in preliminary objections that the main dispute of the complaint is that the opposite party has intended to pay only Rs. 11,280/- as insured amount for the loss occurred to the insured vehicle in place of Rs. 42,225/, therefore, the dispute is of only regarding the quantum and the District Commission is not competent to entertain the said dispute.2
Appeal No. Smt. Shweta Jaiswal 21.11.2022
59 of 2013 Vs.
United India Insurance Co. Ltd.
4. After hearing both the parties and after perusing the record, the learned District Commission passed the impugned judgment on 29.01.2013 wherein it is held as under:-
";g ifjokn miHkksDs rk laj{k.k vf/kfu;e dh /kkjk&12 ds vUrxZr foi{kh dEiuh ds fo:) fujLr fd;k tkrk gSA nksuksa i{k viuk&viuk okn O;; Lo;a ogu djsaxsA"
5. On having been aggrieved by the aforesaid judgment and order of the District Commission, the appellant - complainant has preferred the present appeal contending that in the survey report, the surveyor has opined in his report that the accident is possible and the damages seem to be genuine and admissible. It is further averred that the surveyor has not mentioned on page No. 3 of his report whether the parts are to be repaired or replaced, therefore, the surveyor submitted his incomplete report; the District Commission has failed to appreciate that the insurance company - respondent has submitted incomplete report of the surveyor, so that accordingly things may be manipulated. In the appeal it is further pleaded that the District Commission has failed to appreciate that the insurance company - respondent has sent a discharge voucher for Rs. 11,280/- only and no payment whatsoever has been made to the complainant, but while deciding the complaint by holding that the present dispute pertains to the quantum the complaint, so the same cannot be lying in the District Commission and did not even take care of the fact that the amount admitted by the insurance company - respondent has even not paid to the complainant. It is further averred that the complainant was not given time to file objections against the surveyor report and the District Commission has failed to appreciate that the complainant was an old and regular customer of the insurance company - respondent and has never taken any claim from the insurance company - respondent; she was enjoying a 3 Appeal No. Smt. Shweta Jaiswal 21.11.2022 59 of 2013 Vs. United India Insurance Co. Ltd.
privilege of 50% No Claim Bonus and is still having insurance coverage from the insurance company - respondent, but the insurance company - respondent has declined her legal and genuine claim. It is further averred in the appeal that the District Commission has even failed to appreciate that when bonafides of the insured are so high, if without her fault any unfortunate event has taken place and the insured vehicle sustains loss even then insured is made to run pillar to post to get her genuine claim and further incur expenses to get the genuine amount which she has incurred in getting the vehicle repaired; the insurance company - respondent has misrepresented before the Commission below by adopting pick and choose method even in filing the evidence. Thus, the balance of convenience and equity is in favour of complainant. Therefore, the impugned judgment passed by the District Commission is against the facts, law and evidence and is liable to be set aside; accordingly the appeal should be allowed.
6. Learned counsel for the insurance company - respondent has stated that as per the cited case law as narrated in the body of the judgment, the dispute between the parties is only for quantum and as per the cited case law, such matter is not entertainable in the consumer forum / commission.
7. We have heard both sides and perused the record available before us.
8. We have also perused the impugned judgment wherein at page No. 3, it is mentioned that:-
"fulansg ifjokfnuh us foi{kh ds fo:) dsoy foi{kh dEiuh }kjk LohÑr Dyse dks vi;kZIr gksus ds dkj.k gh ifjokn çLrqr gSA vr% çLrqr ifjokn ek= Quantum of compensation ds lUnHkZ esa gSA foi{kh dEiuh ds 4 Appeal No. Smt. Shweta Jaiswal 21.11.2022 59 of 2013 Vs. United India Insurance Co. Ltd.
çfrfuf/k }kjk vius dFkuksa ds lanHkZ esa fuEufyf[kr rhu fof/k O;oLFkk;sa çLrqr dh x;h%& 1- III (2008) CPJ 93 (NC) National Consumer Disputes Redressal Commission, New Delhi;
Champalal Verma Versus Oriental Insurance Co. Ltd., 2- III (2009) CPJ 98 Rajasthan State Consumer Disputes Redressal Commission, Jaipur; Rakesh Industries Versus New India Insurance Co. Ltd.
&
3- IV (2009) CPJ 213 Orissa State Consumer
Disputes Redressal Commission, Cuttak;
National Insurance Co. Ltd. Versus Gouri
Shankar Agarwalla & Ors.
geus mijksDr fof/k O;oLFkkvksa dk voyksdu fd;kA mijksDr rhuksa fof/k O;oLFkkvksa esa ekuuh; jk'Vªh; vk;ksx ,oa jkT; vk;ksxksa us Li'V "kCnksa esa dgk gS fd] tgka i{kksa ds e/; dsoy Quantum dk fookn gks] rks ml fLFkfr esa ftyk Qksje dks ,sls fookn lquus dk vf/kdkj ugha gS] vkSj ifjoknh nhokuh U;k;ky; ;k vkbZ vkj Mh ;
vkfcZVsª"ku ds e/; viuk fookn lqy>k ldrk gSA mijksDr fof/k O;oLFkk;sa orZeku okn ds rF;ksa ij iw.kZ rjg ls ykxw gksrh gSaA"
9. In the contrary, the learned counsel for the appellant - complainant has submitted a cited case law of the Hon'ble Supreme Court "Sigma Diagnostics Ltd. Vs. United India Insurance Co. Ltd., III (2009) CPJ 75 (SC), wherein the Hon'ble Supreme Court has held that:-
5 Appeal No. Smt. Shweta Jaiswal 21.11.2022
59 of 2013 Vs.
United India Insurance Co. Ltd.
"The Punjab State Consumer Disputes Redressal Commission (for short, "the State Commission") partly allowed the complaint of the appellant and directed the respondents to pay compensation to the extent of 50% of the price of the equipment, namely, Megalix Cat X-ray Tube along with customs duty of the newly purchased equipment plus other amounts admissible under the policy, if any. The State Commission also awarded 9% interest on the amount of compensation for the period commencing 16.08.2005 till the date of payment and costs of Rs. 5,000/-. Against the order of the State Commission, both the parties preferred appeals. By the impugned order, the National Consumer Disputes Redressal Commission (for short "the National Commission") dismissed the appeals by observing that it should not entertain the first appeals relating to quantum of dispute anymore and the complainant should be given liberty to approach the civil court for enhancement of compensation in case parties fail to take steps for arbitration within six weeks.
In our opinion, the view taken by the National Commission on the maintainability of the appeals preferred by the parties against the order of the State Commission is clearly erroneous. When the complaint was disposed of on merits, the National Commission was duty bound to decide the appeals on merits. Its failure to do so has resulted in manifest injustice."
6 Appeal No. Smt. Shweta Jaiswal 21.11.2022
59 of 2013 Vs.
United India Insurance Co. Ltd.
10. In our view, the said case law is fully applicable to the case in hand. So that the case is maintainable and is entertainable in the consumer Court. It is pertinent to mention that the insurance company has never sent any draft of Rs. 11,280/- to the complainant.
11. Vide paper No. 25 to 26 of the appeal record, the insurance company
- respondent has not made the payment of Rs. 11,280/- to the complainant, only claim voucher was sent to the complainant. It is an admitted fact that the claimant was the owner of the registered vehicle Maruti Suzuki 800 bearing registration No. UA07-9720. It is also not disputed that on the date of accident, i.e. 25.04.2011, the insured vehicle was insured with the insurance company - respondent. It is also admitted that the proper information was immediately given to the insurance company - respondent about the accident after the occurrence. It is also not disputed that the company has deputed its surveyor to inspect the insured vehicle and to assess the loss to the insured vehicle, thereupon the surveyor report was submitted whereby the surveyor has assessed the loss to the insured vehicle to the tune of Rs. 11,280/-. It is also an admitted fact that the claim voucher of Rs. 11,280/- as per the survey report was sent to the complainant with the letter of insurance company to endorse the enclosed voucher alongwith proforma for its payment. It is also an admitted fact that the claimant has not sent the required documents after her endorsement because the appropriate amount for the repair of the damaged insured car was not assessed by the survey report.
12. Now the question of consideration before us is whether the surveyor of the company has properly assessed the loss to the insured vehicle and the amount Rs. 11,280/- is appropriate or according to the expenses of estimate of repair of the insured vehicle.
7 Appeal No. Smt. Shweta Jaiswal 21.11.2022
59 of 2013 Vs.
United India Insurance Co. Ltd.
13. The main argument of the appellant - complainant is that no opportunity was given to submit the objection against the surveyor report, but we are not convinced with the above argument of the appellant - complainant because when the insurance company has sent the letter dated 09.12.2011 to the complainant alleging that as per the survey report, the assessed amount was of Rs. 11,280/-; the claimant was then fully apprised of the fact of such report; at that time it was the duty of the claimant to seek the copy of the survey report from the insurance company - respondent and thereafter to file the objection against it, if any, before the company.
14. It is also pertinent to mention that the survey report was also filed by the insurance company - respondent alongwith the affidavit of surveyor concerned, then the complainant has hold an opportunity to file the objection against the surveyor report and to file her replication / rejoinder affidavit to rebut the survey report, but the same was not done on behalf of the complainant.
15. Now the question arises as to whether the survey report is an important piece of evidence or not.
16. In the case of Sikka Papers Limited vs. National Insurance Company Limited and Others, (2009) 7 Supreme Court Cases 777, the Hon'ble Supreme Court has held that it is true that the surveyor report is not the last word, but there must be legitimate reason for departing from such report. If the complainant has failed to show any reason to justify the rejection of the surveyor report; no infirmity is found in the order.
17. In the case of National Insurance Co. Ltd. vs. Noli Ram and Sons, 2017 (4) CPR 388 (NC), the Hon'ble National Commission has held that 8 Appeal No. Smt. Shweta Jaiswal 21.11.2022 59 of 2013 Vs. United India Insurance Co. Ltd.
surveyor report cannot be disbelieved and cannot be rejected without any forceful evidence on the part of the complainant.
18. In the case of Ashish Kumar Jaiswal vs. ICICI Lombard General Insurance Company Ltd. and Ors., 2017 (3) CPR 71 (NC), the Hon'ble National Commission has held that the surveyor's report is only reliable document which is to be considered for settling the insurance claim, the petitioner has failed to put forward any cogent reasons to dispute surveyor's report and there is no reason to reject it.
19. In the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited and Another, (2009) 8 Supreme Court Cases 507, the Hon'ble Supreme Court has held that option to accept or not accept report of surveyor lies with the insurer, however, if report is prepared in good faith, with due application of mind and in the absence of any error or ill motive, insurance company cannot reject report of surveyors; Courts or other forums can intervene only if rejection is arbitrary and based on no acceptable reasons.
20. In the case of Pradeep Sharma vs. Bajaj Allianz General Insurance Co. and Anr., 2017 (1) CPR 259 (NC), the Hon'ble National Commission has held that the assessment made by surveyor must be given due weightage. The complainant failed to provide stock of medicines which did not expire at the time of fire in shop and in such circumstances, surveyor rightly assessed loss and State Commission has enhanced loss to Rs. 20,000/-; petitioner could not place any document on record to substantiate that complainant suffered loss more than Rs. 20,000/- pertaining to medicines having validity period, there is no illegality, irregularity or jurisdictional error in impugned order.
9 Appeal No. Smt. Shweta Jaiswal 21.11.2022
59 of 2013 Vs.
United India Insurance Co. Ltd.
21. In the case of Devender Malhotra vs. United India Insurance Co. Ltd. & Anr., 2016 (3) CPR 461 (NC), the Hon'ble National Commission has held that the report made by the surveyor cannot be disbelieved unless there are cogent and convincing reasons to do so; report of the surveyor has to be given effect to unless there are contrary reasons to disregard the same. The appellant has not advanced any cogent and convincing reasons to disbelieve report of surveyor and assessment of loss made by surveyor is based on a correct appreciation of material made available to him.
22. In the case of National Insurance Company Ltd. vs. Manjit Singh and Ors., 2017 (4) CPR 384 (NC), the Hon'ble National Commission has held that the impugned order passed by the District Forum reflects a correct appreciation of issues involved in case and they rightly concluded that insurance company should make payment as per report given by surveyor.
23. In the case of Rohtas and Anr. vs. United India Insurance Co. Ltd. and Ors., 2017 (4) CPR 502 (NC), the Hon'ble National Commission has held that insurance policy was taken for general merchandise stocks at business premises and the loss caused due to fire, report made by surveyor in discharge of his professional duty should be accepted unless some serious discrepancies / short comings are pointed out in same.
24. The principles laid down in the above cited case laws are fully applicable to the case in hand.
25. We are of the definite opinion that the report of the surveyor is an important piece of document unless there is any cogent and convincing reason to do so and the assessment made by the surveyor should be given proper weightage unless and until there are contrary reasons to disregard the same. It is pertinent to note that on record, the complainant has not 10 Appeal No. Smt. Shweta Jaiswal 21.11.2022 59 of 2013 Vs. United India Insurance Co. Ltd.
submitted any contrary evidence which can be given weightage to disregard the surveyor report, hence, we are of the view that the survey report is admissible evidence and the assessed amount in the survey report is appropriate and just. We are also of the view that the insurance company
- respondent has committed deficiency in service on their part.
26. Thus, we are of the definite view that the complainant - appellant is entitled to get Rs. 11,280/- as insured amount for the loss occurred to the insured vehicle as per survey report.
27. Nowadays there is prevailing rate of interest @ 6% to 7 % per annum. So, we are also of the definite view that the claimant shall also be entitled to get simple interest @ 7% per annum from the date of filing the complaint, i.e. 24.01.2012 till its actual realization. We are also of the view that the complainant is entitled to get litigation charges as Rs. 10,000/-.
28. Thus, we are of the view that the District Commission has erred in rejecting the complaint, hence, the impugned judgment is liable to be set aside. Accordingly, the appeal deserves to be allowed.
29. Appeal is allowed. Impugned judgment and order dated 29.01.2013 passed by the District Commission, Dehradun is hereby set aside. No order as to costs. Consumer complaint is also allowed. The insurance company
- respondent is directed to pay Rs. 11,280/- alongwith costs of litigation Rs. 10,000/- with simple interest @ 7% per annum on the awarded amount from the date of filing the complaint till its actual realization.
30. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the 11 Appeal No. Smt. Shweta Jaiswal 21.11.2022 59 of 2013 Vs. United India Insurance Co. Ltd.
parties. The record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.
31. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 21.11.2022 12