State Consumer Disputes Redressal Commission
The Oriental Insurance Company Ltd.& ... vs Gurteshwar Singh on 27 April, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.215 of 2021
Date of institution : 18.06.2021
Reserved On : 19.04.2022
Date of decision : 27.04.2022
1. Oriental Insurance Co. Ltd., Oriental House, A-25/27, Asaf Ali
Road, New Delhi-110002.
2. Oriental Insurance Co. Ltd., Branch No.3, Ist Floor, Rattan
Tower, near Naam Dev Chowk, Jalandhar, Punjab.
Now both through their Authorized Signatory Gurupdesh Kaur,
Manager, the Oriental Insurance Company Ltd., Regional Office,
SCO No.109-111, Sector 17-D, Chandigarh.
....Appellants/Opposite Parties
Versus
Gurteshwar Singh S/o Sh. Satinder Singh, R/o VPO Nurpur,
Jalandhar.
....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 20.04.2021 passed by the
District Consumer Disputes Redressal
Commission, Jalandhar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No First Appeal No.215 of 2021 2 Present For the appellants : Sh. Krishna Kant, Advocate for Sh. J.P. Nahar, Advocate For the respondent : Sh. Gurteshwar Singh, in person. JUSTICE DAYA CHAUDHARY, PRESIDENT Appellants/opposite parties i.e. Oriental Insurance Company Limited Oriental House, A-25/27, Asaf Ali Road, New Delhi- 11002 and another have filed the present appeal under Section 41 of the Consumer Protection Act, 2019 to challenge the order dated 20.04.2021 passed by the District Consumer Disputes Redressal Commission, Jalandhar (in short, "the District Commission"), whereby the complaint filed by the respondent/complainant was partly allowed.
2. There was a delay of 06 days in filing of the appeal. M.A. No.676 of 2021 was filed seeking condonation of delay, which was supported by an affidavit. Said application was allowed and the delay of 06 days in filing of the appeal was condoned vide order dated 22.06.2021.
3. It would be apposite to mention here that hereinafter the parties will be referred, as have been arrayed before the District Commission.
4. Briefly, the facts of the case as made out by the respondent/complainant while filing the complaint before the District Commission are that the complainant Gurteshwar Singh was the owner of vehicle bearing Registration No.PB-08-BT-8885 Make truck. Said vehicle was got insured by the complainant for a period from First Appeal No.215 of 2021 3 31.03.2016 to midnight of 30.03.2017 vide Policy No.233102/31/2016/4962. Said vehicle/truck of the complainant met with an accident on 23.09.2016 at 5.00 a.m. when it was parked at the parking place at the site of Highway Road between Lajwanti Petrol Pump to Gangwal Dhaba, Police Station Bhogpur, District Jalandhar while a truck bearing No.JK02-BM-7175 coming with high speed from Jammu side lost control to save an animal and it was struck with the parked vehicle. An FIR No.034 dated 24.09.2016 was registered at Police Station, Bhogpur, District Jalandhar. The front and backside of truck was stated to be totally damaged. The police and the Surveyor visited the place of occurrence. The surveyor advised the complainant to get the vehicle repaired from some workshop and assured the complainant to take the claim from the opposite parties thereafter. It was further mentioned in the complaint that the complainant spent an amount of ₹4,07,880/- from his own pocket for repair and replacement of damaged parts of the vehicle from various workshops. All the bills and required documents were also supplied to the surveyor, who assured to do the needful after a period of one month. It was further mentioned in the compliant that an application was also given to the local office of the opposite parties at Jalandhar regarding payment of claim of loss of ₹4,07,880/- and thereafter also a number of requests were made but nothing was done. A legal notice was also served upon the appellants/opposite parties but still no action was taken. First Appeal No.215 of 2021 4
5. A prayer was made in the complaint for issuance of directions to the opposite parties to pay an amount of ₹4,07,880/- along with interest at the rate of 18% per annum along with compensation of ₹50,000/- for causing mental tension and harassment and also to pay ₹50,000/- as litigation expenses.
6. In the said complaint filed by the respondent/complainant, notice was issued to the appellants/opposite parties, who filed reply and contested the complaint filed by the complainant by raising certain preliminary objections stating that the complaint was not maintainable as complicated questions of law and facts were involved. Further, an objection was also raised that the District Commission was not having jurisdiction to try and decide the complaint. It was also opposed on the ground that certain material facts were concealed by the respondent/complainant. The occurrence of the accident was also disputed.
7. By considering the contents of the complaint and also the stand taken in the reply filed by the opposite parties and also on appraisal of evidence available on record, the complaint filed by the respondent/complainant was partly allowed vide impugned order dated 20.04.2021 with the directions to the opposite parties to pay insurance claim amount as per bills Ex.C-5 to Ex.C-11 i.e. ₹4,07,880/- as prayed in the complaint and also to pay an amount of ₹7,000/- as compensation for causing mental agony and physical harassment to First Appeal No.215 of 2021 5 the complainant. A further direction was also issued to the opposite parties to deposit an amount of ₹3,000/- in the Consumer Welfare Fund of the District Commission. The compliance of the order was to be made within a period of 45 days from the date of receipt of copy of the order.
8. Aggrieved by the order dated 20.04.2021 passed by the District Commission, the present appeal has been filed by the appellants/opposite parties i.e. Insurance Company and another by raising a number of arguments.
9. Mr. Krishna Kant, proxy counsel for Sh. J.P. Nahar, learned counsel for the appellants submits that the District Commission has not properly appreciated the evidence available on the record produced by both the parties and has allowed the full amount of bills without appreciating the fact that the age of the vehicle was more than five years on the date of accident and on depreciation, the complainant was entitled only to 50% amount in view of the policy applicable in the case. Learned counsel also submits that most of the bills submitted by the complainant were relating to some of the parts, which were not even damaged in the accident as the vehicle in dispute was hit from the backside and the right hand side, as it was on the parking mode. Learned counsel further submits that in the Spot Survey Report also it has clearly been mentioned that 'Right Hand Rear Body and Dalla' were damaged. The Survey Report dated 26.09.2016 was First Appeal No.215 of 2021 6 exhibited as Ex.O-6 of the District Commission's record and Annexure A-4 with the appeal. Learned counsel further submits that the complainant has failed to submit any Claim Form or original estimate of damage repair to the opposite parties and the vehicle, in dispute, was removed from the spot and it was taken to Transport Nagar for repair without lodging any claim with the opposite parties. The surveyor, who was conducting the final survey, also confirmed this fact that only 'Rear Body and Right Hand Side Dalla' were damaged. Respondent/complainant did not meet the Surveyor in-spite of several requests made in this regard and there was no cooperation on the part of the complainant. The relevant documents like Claim Form, R.C. of the vehicle, Driving Licence of the driver, Route Permit, GR of the goods being carried at the time of accident, copy of Insurance Policy, estimates of repair etc. were not supplied in-spite of asking time and again. Learned counsel also submits that a number of letters were written by the Surveyor for supplying those documents but there was no response and the attitude of the complainant was not cooperative. In the absence of said documents, the surveyor was compelled to submit his final report dated 29.03.2017 and on the basis of said report, the claim was closed by the opposite parties. It is also the argument of learned counsel for the appellants that the findings recorded by the District Commission with regard to letters/communications, survey report, bills, claimed by the First Appeal No.215 of 2021 7 complainant were contrary to evidence and averments made in the complaint. At the end, learned counsel for the appellants submits that wrong bills were submitted pertaining to the damage of front portion of the vehicle and other chassis parts, whereas those parts of the truck were not affected at all. The findings recorded by the District Commission are contrary to evidence and the reports submitted by the Surveyor and as such the impugned order is liable to be set aside. In support of his contentions, learned counsel for the appellants has relied upon judgment of the Hon'ble National Commission in the case of D.N. Badoni v. Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC).
10. Mr. Gurteshwar Singh, respondent/complainant while appearing in person has opposed by the submissions made by learned counsel for the appellants. He also submits that the order passed by the District Commission is based on proper appreciation of evidence led by both the parties and the claim, as mentioned in the complaint, was rightly accepted and no interference is required. He further submits that from the very beginning, the intention of the appellants/opposite parties was not fair and they were hand-in-glove with the Surveyor and there was no truth in the reports submitted by the Surveyor. The respondent/complainant while relying upon the judgment of the Hon'ble Supreme Court of Civil Appeal No.3253 of 2002 titled as "New India Assurance Company Limited v. Pradeep First Appeal No.215 of 2021 8 Kumar" submits that the Surveyor's report is not the last and final word and it cannot be said to be conclusive. He has also relied upon other judgments of the Hon'ble Supreme Court reported as 2008 CPJ 63 (Supreme Court) and the Hon'ble Punjab and Haryana High Court reported as 2008 (3) RCR Civil Page-111.
11. Heard arguments of learned counsel for the appellants/opposite parties and the respondent/complainant who was appearing in person. We have also carefully perused the impugned order passed by the District Commission whereby the complaint filed by the respondent/complainant was allowed and have also carefully gone through the written arguments submitted by the parties as well as all the documents available on the file.
12. On perusal of the impugned order passed by the District Commission, it is apparent that the accident took place on 23.09.2016. The vehicle in dispute was insured for a period from 31.03.2016 to midnight of 30.03.2017. As per case of the complainant, it was parked at parking place and was hit by another truck, which was coming from opposite direction with high speed and said truck lost control while saving the life of an animal and struck against the standing truck of the complainant. Admittedly, FIR No.034 dated 24.09.2016 was registered in Police Station, Bhogpur, District Jalandhar. It was also the case of the complainant that the truck in dispute was totally damaged in the said accident. The police and Surveyor visited the place of occurrence First Appeal No.215 of 2021 9 and advised the complainant to get the vehicle repaired from the workshop and also promised to pay claim amount from the opposite parties. As per further version of the complainant, he spent an amount of ₹4,07,880/- from his own pocket for repair as well as replacement of damaged parts of the vehicle in dispute from various workshops and submitted bills as well documents as per requirement of the Surveyor.
13. As per the version of the appellants/opposite parties, the standing vehicle on the parking place could not have been hit/damaged by the truck, which was coming from backside. The photographs of the damaged vehicle clearly prove that the damaged parts of the standing truck could not have been damaged in such circumstances under which the other vehicle hit the parked vehicle at the back and on the right side. Even as per version of the appellants/opposite parties, certain required documents were not supplied. Even the complainant did not meet the Surveyor at the site and thereafter also in-spite of requests made on a number of occasions. In the absence of non-supplying the documents and without meeting, the Surveyor submitted his Final Report. The documents like Claim Form, R.C. of the vehicle, Driving Licence of the driver, Route Permit, GR of goods being carried at the time of accident, copy of policy and estimates of repairs were not submitted/supplied. As per further stand of the opposite parties, the vehicle was taken away for repairs without any intimation to them. The First Appeal No.215 of 2021 10 Surveyor visited subsequently during the period of repair on 23.12.2016 and clicked certain photographs. On that day also, he asked the complainant to submit the estimates and bills as well as other documents but still the same were not supplied.
14. It appears from the stand of both the parties that the dispute is not only of the bills of repair but the parts, which were damaged and which were not damaged on account of accident are also matter of dispute.
15. On perusal of impugned order passed by the District Commission, the findings recorded by the District Commission are contrary to evidence available on record. The District Commission in Para-8 of the impugned order has mentioned that the District Commission could not find the receipt of letters dated 23.01.2017 (Ex.O-21) and 25.01.2017 (Ex.O-22), which were on record and were annexed with the appeal as Annexure A-5 and Annexure A-6. The complainant has not rebutted the version of the opposite parties by filing any rejoinder. In Para No.3 of the impugned order, it has been mentioned that no rejoinder was filed. In case, no rejoinder was filed by the complainant for rebutting the averments of the opposite parties, an adverse inference should have been drawn against the complainant. Similarly, the District Commission in Para-9 of the impugned order has mentioned that the survey report, on which the opposite parties have relied, had not been proved. The survey report First Appeal No.215 of 2021 11 dated 29.03.2017 is Ex.O-23 and the affidavit duly signed by Rajeshwar Nath, Surveyor is Ex.O-24 and the same have also been annexed with the appeal as Annexure A-7 and Annexure A-8 respectively. Therefore, said findings recorded by the District Commission are also contrary to the documents available on the file. Similarly, the District Commission in Para No.10 of the impugned order has directed the opposite parties to pay full amount of the bills, as claimed by the complainant without going into the contents of the survey report dated 29.03.2017, whereas the Surveyor has assessed the loss for ₹20,000/-, relating to the damaged parts in the accident. The Surveyor has mentioned that the parts, which were disallowed, were those which were not affected in the accident. Furthermore, it is the case of the complainant that the insured vehicle was standing parked and the other vehicle while saving a stray animal hit the 'Right Rear Portion' of the vehicle in dispute. It is not practically possible that the front portion of the vehicle could have been damaged under such circumstances/situation, unless the insured vehicle was hit with any other object in front of it. Similarly, the bills Ex.C-5 to Ex.C-11 pertain to front portion of the vehicle and other chassis parts, which were not affected/damaged. The Surveyor has allowed/assessed loss for the parts, which were in the line of impact when the other vehicle struck against the standing vehicle by applying 50% depreciation. The vehicle was more than five years old at the time of accident. The liability of the First Appeal No.215 of 2021 12 opposite parties is to be fixed as per the terms and conditions of the vehicle. Meaning thereby, the opposite parties are liable to indemnify the respondent/complainant for the actual loss sustained due to accident and after applying the depreciation on the parts replaced by considering the age of the vehicle. Meaning thereby, the amount of compensation has been awarded contrary to the terms and conditions of the Insurance Policy.
16. It is a case of 'Commercial Package Policy'. Section-I of that policy relates to 'Loss/Damage of Vehicle Insured' but is subject to deduction of depreciation at the rate mentioned under the relevant provision, which is reproduced as under:
"Section I - Loss or damage to the Vehicle Insured:
1. The Company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst hereon:
i) by fire, explosion, self-ignition or lightning;
ii) by burglary, housebreaking or theft;
iii) by riot and strike;
iv) by earthquake (fire and shock damage);
v) by flood, typhoon, hurricane, storm, tempest, inundation, cyclone, hailstorm, frost;
vi) by accidental external means;
vii) by malicious act;
viii) by terrorist activity;
ix) whilst in transit by road, rail, inland waterway, lift, elevator or air;
x) by landslide rockslide.
Subject to a deduction for depreciation at the rates mentioned below in respect of parts replaced:
First Appeal No.215 of 2021 13
1. For all rubber/nylon/plastic parts, tyres, tubes, batteries and air bags ........50%
2. For fiber glass components ........30%
3. For all parts made of glass ........Nil
4. Rate of depreciation for all other parts including wooden parts will be as per the following schedule:
AGE OF THE VEHICLE %OF
DEPRECIATION
Not exceeding 6 months Nil
Exceeding 6 months but 5%
not exceeding 1 year
Exceeding 1 year but not 10%
exceeding 2 years
Exceeding 2 years but 15%
not exceeding 3 years
Exceeding 3 years but 25%
not exceeding 4 years
Exceeding 4 years but 35%
not exceeding 5 years
Exceeding 5 years but 40%
not exceeding 10 years
Exceeding 10 years 50%
17. The Sum Insured-Insured's Declared Value (IDV) of the vehicle is fixed as per the following provisions of the Insurance Policy:
"Sum Insured-Insured's Declared Value (IDV): The Insured's Declared Value (IDV) of the vehicle will be deemed to be the 'SUM INSURED' for the purpose of this policy which is fixed at the commencement of insurance/renewal and adjusted for depreciation (as per schedule below). The schedule of age-wise depreciation as shown below is applicable for the purpose of Total Loss/Constructive Total Loss (TL/CTL) claims only:First Appeal No.215 of 2021 14
AGE OF THE VEHICLE %OF
DEPRECIATION
FOR FIXING IDV
Not exceeding 6 months 5%
Exceeding 6 months but not 15%
exceeding 1 year
Exceeding 1 year but not 20%
exceeding 2 years
Exceeding 2 years but not 30%
exceeding 3 years
Exceeding 3 years but not 40%
exceeding 4 years
Exceeding 4 years but not 50%
exceeding 5 years
18. The IDV of the vehicle beyond five years of age and of obsolete models of the vehicles is to be determined on the basis of an understanding between the insurer and the insured. It has further been mentioned that the IDV is to be treated as the 'Market Value' throughout the policy period without any further depreciation for the purpose of total loss. However, the aforesaid age-wise depreciation is relevant for the purpose of fixed IDV of the vehicle at the time of commencement/renewal of the policy and in Total Loss/Constructive Total Loss cases.
19. In the present case, the vehicle in dispute has not suffered total loss/constructive total loss but it has suffered partial loss which is First Appeal No.215 of 2021 15 covered under Section-1 of the terms and conditions of the Insurance Policy, as reproduced above.
20. The District Commission has wrongly allowed the complaint of the complainant by issuing directions to the appellants/opposite parties to pay a claim of ₹4,07,880/-. The District Commission has allowed the full amount of the bills without appreciating the fact that the vehicle was more than five years old on the date of accident and the depreciation applicable was 40% as per the terms and conditions of the policy. It has clearly been provided in the Table given in Section-I of the policy that %age of depreciation of all other parts in respect of loss/damage of a vehicle exceeding 5 years but not exceeding 10 years of age is 40%. It appears that most of the bills relate to parts out of which some were damaged in the accident and some were hit from the back of right hand side. This fact has also been disputed by the appellant/opposite parties. In case, the age of the vehicle of five years is taken into consideration, the respondent/complainant is entitled for 60% amount of the bills by applying 40% depreciation by considering the age of the vehicle as five years. Meaning thereby, the liability of the appellants/opposite parties is to be determined/decided as per policy terms and conditions and the they are liable to indemnify the complainant for the actual loss caused due to accident and after applying the depreciation on the parts replaced by considering the age of the vehicle. The bills Ex.C-5 First Appeal No.215 of 2021 16 to Ex.C-11 are allowed but subject to depreciation of 40%, as the age of the vehicle was more than five years at the time of accident. The authorities relied upon by both the parties are distinguishable in view of the facts and circumstances of the present case.
21. In view of the facts and circumstances as mentioned above and finding merit in the contentions raised by learned counsel for the appellants/opposite parties, the impugned order passed by the District Commission is liable to be modified.
22. Accordingly, the present appeal is partly allowed and the impugned order dated 20.04.2021 passed by the District Commission is modified to the extent that the respondent/complainant would be entitled to 60% of the total amount of the bills Ex.C-5 to Ex.C-11 by applying 40% depreciation (i.e. ₹2,44,728/- being 60% of ₹4,07,880/-) as the age of the vehicle in dispute was more than 5 years and below 10 years at the time of accident. Except this modification, the remaining part of the impugned order regarding award of compensation of ₹7,000/- and direction to deposit the amount of ₹3,000/- in the Consumer Welfare Fund of the District Commission is upheld.
23. Since the main case has been disposed of, so all the pending Miscellaneous Applications, if any, are accordingly disposed of.First Appeal No.215 of 2021 17
24. The appellants have deposited a sum of ₹25,000+1,82,440/- at the time of filing of the appeal. Said amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. Respondent /complainant may approach the District Commission for the release of the amount as per modification of the impugned order vide this order and the remaining amount, if any, shall be refunded to the appellants and the District Commission may pass appropriate order in this regard in accordance with law.
25. The appeal could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER April 27, 2022.
(Gurmeet S)