National Consumer Disputes Redressal
National Insurance Co. Ltd. vs Sanjeev Kumar on 15 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 450 OF 2010 (Against the Order dated 28/10/2009 in Appeal No. 2967/2007 of the State Commission Haryana) 1. NATIONAL INSURANCE CO. LTD. Through the Regional Manager, DROI, Jeevan Bharti, Connaught Circus New Delhi - 10001 ...........Petitioner(s) Versus 1. SANJEEV KUMAR R/o. Pawati, Tahsil: Samalakha Panipat Haryana ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Animesh Sinha, Advocate For the Respondent : Mr. Narender S. Yadav , Advocate with
Mr. A. Anandan, Advocate
Dated : 15 Nov 2017 ORDER
1. The present revision has been filed under Section 21 (b) of the Consumer Protection Act, 1986, wherein the petitioner seeks to assail the order dated 28.10.2009 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred to as "the State Commission) in First Appeal No.2967 of 2007. By way of the impugned order, the appeal preferred against the order dated 04.09.2007 passed by District Consumer Disputes Redressal Forum, Panipat (hereinafter referred to as "the District Forum") in complaint No. 461of 2006 has been dismissed and the order of the District Forum was upheld.
2. Briefly put, the facts relevant for the disposal of the present revision petition are that the complainant was the registered owner of a vehicle bearing registration No. HR-67-1882. The said vehicle was insured with the opposite party w.e.f. 22.09.2005 to 21.09.2006. On 03.11.2005, the said vehicle met with an accident, consequently, the vehicle was badly damaged. FIR was registered and the opposite party was duly informed. A surveyor was deputed by the opposite party. Meanwhile, the complainant furnished bills totalling Rs.1,78,000/- incurred for undertaking repairs, however, the claim was not settled despite repeated requests made by him. Aggrieved, the complainant was constrained to file a consumer complaint before the District Forum.
3. Upon service of notice, the opposite parties contested the claim of the complainant on the ground that the surveyor vide letters dated 06.01.2006 and 25.01.2006 asked the complainant to submit the original Driving License, Registration Certificate, Route permit and copy of the FIR for settling the claim but the complainant failed to submit the above stated documents. The District Forum vide order dated 04.09.2007 ordered as follows:-
"7. For the reasons recorded above, we accept the present complaint and direct the OPs to make the payment of Rs. 1,78,000/- to the petitioner together with interest at the rate of 12% from 11.03. 2006 till realisation and a sum of Rs. 3,300/- as litigation expenses within a period of 30 days from the date of receipt of copy of this order".
4. Aggrieved, the opposite party preferred an appeal before the learned State Commission. Vide order dated 28.10.2009, the learned State Commission dismissed the appeal and upheld the order of the learned District Forum.
5. Aggrieved, the opposite party has approached this Commission by way of the present revision petition.
6. Heard the learned counsel for the parties and perused the records.
7. The learned counsel for the petitioner submitted that as per the report of the Surveyor, the net loss of the vehicle was to the tune of Rs.95,445/-, however, both the fora below failed to appreciate the assessment made in the Surveyor Report and allowed the complaint on the basis of bills furnished by respondent. In this regard, it was further submitted that the repair/replacement estimate was prepared by the surveyor after discussion with the owner of M/s. Laxmi Motor Workshop, from whom the respondent himself had also obtained the estimate. However, the respondent finally repaired his vehicle at Chandigarh, which proved more expensive as the damaged vehicle was needed to be transported to Chandigarh. According to the learned counsel, the respondent was under duty to make every effort to minimise the loss but in the present case, the respondent tried to exaggerate the loss with an intention to extract more money from the insurer.
8. The learned counsel for the petitioner stated that the respondent had committed breach of the policy conditions by carrying 20-22 unauthorized passengers in a goods vehicle, which definitely might have contributed to the overturning of the vehicle. It was further stated that the respondent concealed the fact of carrying passengers before the lower fora, thereby suppressing material information.
9. To buttress his arguments, the learned counsel placed reliance on the following judgements:-
(i) M.V. Jayadevappa and Anr. Vs. Oriental Fire & General Insurance Co. Ltd. And Ors., (2004) 13 SCC43, wherein the Hon'ble Supreme Court held as follows:-
"Having perused the particulars of the vehicle, as given in the Insurance Policy, we are satisfied that the vehicle could not have carried passengers. The vehicles seems to have been a goods vehicle. The High Court has rightly exonerated the Insurance Company.
4. We are satisfied that no fault can be found with the view taken by the High Court. The appeals are devoid of any merit and are dismissed".
(ii) New India Assurance Co. Ltd. Vs. Vedwati and Ors., (2007) 9 SCC 486, wherein the Hon'ble Supreme Court held as follows:-
"The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'WC Act"). There is no reference to any passenger in "goods carriage".
10. On the other hand, the learned counsel for the respondent submitted that the lower fora have correctly appreciated the facts and circumstances and rightly directed the petitioner to pay Rs.1,78,000/- with 12% p.a. interest. In this regard, the learned counsel also submitted that both the fora did not find any reason to disbelieve the bills submitted by the respondent in respect to the repairs undertaken pursuant to the accident.
11. The learned counsel for the respondent stated that the petitioner was using delaying tactics to delay the settlement of the claim of the respondent, which amounts to deficiency in service.
12. To buttress his arguments, the learned counsel placed reliance on the judgement delivered by the Hon'ble Supreme Court in B.V. Nagaraju Vs. Oriental Insurance Co. Ltd., (1996) 4 SCC 647, wherein it was held as follows:-
"The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandia's case, the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle, which we hereby do".
13. I have given a thoughtful consideration to the arguments advanced by the parties and thoroughly examined the records. It is an undisputed fact that the damaged vehicle was insured under the policy issued by the petitioners at the time of the fateful accident.
14. It is well settled that the Surveyors are appointed under the provision of Insurance Act, 1938 and their report cannot be brushed aside without any cogent reasons. The Hon'ble Supreme Court in the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited &Anr., (2009) 8 SCC 507, has observed the following:-
"31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.
32. There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reason for not accepting the report."
15. Similarly, Hon'ble Supreme Court in Sikka Papers Limited Vs. National Insurance Company Limited and Ors., (2009) 7 SCC 777, has held that:-
A. " Insurance- Terms and conditions specified in insurance policy- Binding effect- Insurance policy not covering parts of machinery which were required to be replaced due to normal wear and tear-Held, Insurance Company while assessing claim, rightly excluded those parts-
B. Insurance Act, 1938,- S. 64-UM- Surveyor/Loss assessor's report- Weightage to be given- Held, Though not the last word, yet there must be legitimate reason for departing from report- No infirmity found in surveyor's report and therefore held, Insurance Company rightly admitted claim as per the report."
16. Based on the above stated principles laid down by the Hon'ble Apex Court, it is clear that although the surveyor report is not the final word when it comes to assessment of the claim, departure from the same should be accompanied by valid reasons. But in the case at hand, both the learned District Forum and the learned State Commission failed to provide any cogent reason for making a departure from the surveyor report and merely directed the petitioner to settle the claim on the basis of the bills furnished by the respondent, which is not justified. As per the surveyor's report, the net assessed loss is Rs 95, 445/-, whereas the value of the total bills amounts to Rs.1,78,000/-. In these circumstances, it becomes clear that respondent was entitled to only Rs.95,445/- but learned District Forum committed error in awarding Rs.1,78,000/- and learned State Commission further committed error in upholding order of District Forum. Thus, the revision petition is liable to be allowed.
17. As regards the question of breach of policy conditions is concerned, both the fora below have failed to consider this aspect. As per the surveyor report, there were some 20-22 persons sitting in the loaded body of the insured goods vehicle at the time of the accident. This amounts to violation of policy condition. The Hon'ble Supreme Court in Amalendu Sahoo vs. Oriental Insurance Company Ltd., (2010) 4 SCC 536, has held that in case of violation of any condition of the policy, the claim of the complainant may be settled on non-standard basis. Thus, the claim can be settled on non-standard basis (75% of the loss assessed by the surveyor i.e. Rs.95,445/-).
18. Based on the above examination, I find that the order dated 28.10.2009 of the State Commission is not based on correct appreciation of evidence and law. Accordingly, petitioner, Insurance Company is directed to settle claim on the basis of 75% of the admissible claim i.e 75% of Rs. 95,445/- i.e. Rs.71,584/- along with interest at the rate of 8%p.a. from 11.03. 2006 till realization. Rest of the impugned order to remain the same.
19. The revision petition stands disposed of accordingly. There shall be no order as to costs.
...................... PREM NARAIN PRESIDING MEMBER