State Consumer Disputes Redressal Commission
Dr. Dharam Pal vs National Insurance Co. Ltd. on 19 November, 2008
H
H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9
F.A. No. 361 of 2007
Reserved at Dharamshala
on 14.10.2008.
Decided
on 19.11.2008
Dr. Dharam Pal Sharma
Son of Sh. Duni Chand,
R/o village Barol,
P.O. Dari,
Tehsil Dharamshala, District Kangra, HP.
....Appellant.
Versus
1.
National Insurance
Company Ltd.
through its Divisional Manager,
Palampur,
District Kangra, H.P.
2. National Insurance Company Ltd.
through its Divisional Office, Chandigarh.
.Respondents.
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Honble
Mrs. Saroj Sharma, Member.
Whether approved for reporting ?
For
the Appellant. Mr. Vinay Soni, Advocate.
For the Respondents. Mr.Jagdish Thakur, Advocate
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ORDER
Honble Mrs. Saroj Sharma, Member.
1. The present order shall dispose of Appeal No. 361/2007 filed by the appellant against the order of District Consumer Forum, Kangra at Dharmahala dated 5.4.2008 in Consumer Complaint No. 86/2005. Whereby the complaint was partly allowed and the present respondents were jointly and severely directed to pay a sum of Rs. 54,512/- along with interest @ 9% per annum from the date of complaint till its payment. The present respondents are also directed to pay compensation to the appellant to the tune of Rs. 3000/- for causing him mental tension, agony and inconvenience. The present respondents are further directed to pay litigation cost to the tune of Rs. 1500/-. However, liberty is reserved to the appellant to invoke arbitration clause as per law, if he so desires.
2. However, feeling dissatisfied by the impugned order, the appellant has come before this Commission with the present appeal for enhancement of the awarded amount.
3. Arguments on behalf of both the parties have been heard and the record of case filed has also been perused. As per Mr. Vinay Soni, who has argued on behalf of the appellant, the respondent appointed two surveyors i.e. Mr. Manmohan Sharma and Mr. Gulzar Singh. First surveyor who was appointed for the spot survey, assessed the loss to the tune of Rs. 1,07,321/- whereas Mr. Gulzar Singh has assessed the loss to the tune of Rs. 55,488/- minus salvage value which amounts to Rs. 2836/-. Mr. Soni further argued that the losses mentioned at Sr. No. 36,37,38,40,41,45,46 and 49 were disallowed without any reasoning, whereas the appellant placed on record the bills of workshop. He referred to the surveyor report of Sh. Manmohan Sharma and also the repair bills plus towing charges amounting to Rs. 3000/-. He also refers to another bills of tax vat etc. The total expenditure incurred for repair of vehicle by the appellant as per Mr. Soni was Rs. 1,24,233/-. Mr. Soni also referred to Annexure C-9 which is the legal notice served on behalf of the appellant. Annexure OP-9 is the survey report of Mr. Gulzar Singh, Surveyor, who assessed the loss to the tune of Rs. 55,848/- minus salvage value. So Mr. Soni prays that the second survey report be set aside and first survey report of Mr. Manmohan Sharma, surveyor be accepted and the appellant be allowed the amount estimated by the surveyor Manmohan Sharma.
4. These arguments have been forcefully controverted by Mr. Jagdish Thakur, Advocate on behalf of the respondents. As per him Mr. Manmohan Sharma is the spot surveyor. His duty is to inspect the spot only and submit the report. He further argued that no affidavits of the repairer or of the Automobile Manager have been filed and that findings given in para-6 of the order of the lower court are reasoned one. However, Mr. Jagdish Thakur admits that the appellant is entitled for the towing charges amounting to Rs. 1500/- as per terms and conditions of policy. He prays that the appeal be dismissed with cost.
5. Though the arguments put forth by Mr. Soni, on behalf of the appellant that there was no need to appoint second surveyor when the report of the first surveyor was there with the respondents, yet the necessity of the second surveyor was felt for the reason that the first surveyor was appointed for the spot survey only and not to assess the loss. The first surveyor Mr. Manmohan Sharma only estimated the value of loss occurred to the appellant whereas Mr. Gulzar Singh gave the assessment of the actual loss. But the question arises is as to what was the criteria adopted for the assessment of loss by Mr. Gulzar.
In his report there is specific mention that the body of the vehicle was totally dismantled before the final survey and that his report is based on his physical inspection of the individual parts as well as the spot survey report. While going through the summary of assessment which finds place on the report of Mr. Gulzar, who is the second surveyor, the estimated cost is Rs. 1,07,321/- whereas the assessed cost less excess clause is Rs. 55,848/-. The salvage value is assessed as Rs. 2836/-. But the utter surprise, no reason for reducing the estimated value of Rs. 1,07,321/- to Rs.
55,848/- has been given. Some explanation should have been given as to why the amount was reduced more so when the first surveyor is also an Automobile Engineer appointed by the respondents for the spot survey. So keeping in view the facts and circumstances of the case and the above discussion, it is felt that ends of justice would be met if the appellant is held entitled to a sum of Rs. 1,05,485/- after adding Rs. 1500/- as towing charges in the estimated value of the vehicle and after reducing Rs. 500/- of excess clause as well as Rs. 2836/- of the salvage value.
6. No other point was urged.
7. So the appeal is partly allowed and the impugned order is ordered to be modified to the extent that respondents are jointly and severely liable to pay Rs. 1,05,485/- instead of Rs. 54,512/- to the complainant. Subject to this partial modification rest of the order of District Forum is upheld, leaving the parties to bear their own cost.
8. All interim orders passed from time to time shall stand vacated forthwith.
8. Office is directed to supply copy of this order to the parties as well as their learned counsel free of cost as per Rules.
(Saroj Sharma) Member Suneera 19.11.2008.