State Consumer Disputes Redressal Commission
Shri Ram General Insurance Company ... vs Sukh Dyal on 31 December, 2013
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA.
First Appeal No: 236/2013.
Date of Presentation: 30.08.2013
Date of Decision: 31.12.2013.
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1. Shri Ram General Insurance Company Limited,
E-8, EPIP, Sitapur, Jaipur, Rajasthan,
Through its General Manager,
2. Shri Ram General Insurance Company Limited,
Branch Office near P.G. College, Raura Sector-3,
NH-21, Bilaspur, H.P.
Both appellants through its Assistant Manager (Legal),
Shri Ram General Insurance Company Limited,
E-8, EPIP, Sitapur, Jaipur, Rajasthan-302022.
... Appellants.
Versus
Sukh Dyal, S/o Phagani Devi,
R/o Village Gallon, Post Office Deutha,
Tehsil Banjar, District Kullu, H.P.
... Respondent.
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Coram
Hon'ble Mr. Chander Shekhar Sharma, Presiding Member
Hon'ble Mrs. Prem Chauhan, Member.
Whether approved for reporting?1
For the Appellants: Mr. Jagdish Thakur, Advocate
For the Respondent: Mr. Ajeet Saklani, Advocate
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O R D E R:
Mr. Chander Shekhar Sharma, Presiding Member This appeal is directed against the order dated 18.07.2013, passed in Consumer Complaint No.77/2012, by the Ld. District Consumer Disputes 1 Whether reporters of the local papers may be allowed to see the order? (Shri Ram General Insurance Co. & Anr. VS. Sukh Dayal {F.A.No.236/2013}) Redressal Forum, Kullu, District Kullu, H.P., whereby the complaint was allowed and the opposite parties have been directed to pay Rs.3,20,020/- to the complainant alongwith interest @9% per annum from the date of filing of the complaint till the date of realization; to pay an amount of Rs.5,000/- as compensation and litigation costs had been quantified at Rs.3,000/-. Parties are hereinafter referred to as per their status in the complaint.
2. Factual matrix of the case is that the vehicle No. HP-49A-0751 was got insured with the opposite party for a sum of Rs.7,50,000/-. This vehicle met with an accident on 20.11.2011 at Sidhowal Bridge Banjara, District Kullu, H.P. After the accident, opposite party No.2 was intimated about the accident. Opposite party No.2 deputed one surveyor, who after visiting of spot, assessed the loss. It was also alleged in the complaint that as per estimate issued by the repairer, the vehicle had suffered total loss amounting to Rs. 5,21,245/-, but the opposite parties have not made the said payment to him. In this background, deficiency of service has been alleged on the part of the opposite parties and present complaint had been filed, wherein, 2 (Shri Ram General Insurance Co. & Anr. VS. Sukh Dayal {F.A.No.236/2013}) relief to the extent as claimed in the complaint, has been sought for.
3. This complaint was resisted and contested by the opposite parties, wherein it had been alleged that the forum had got no jurisdiction to try the present complaint and complaint is bad for non-joinder of necessary parties. It was also alleged that final assessment of loss was rightly made by the surveyor, amounting to Rs.2,19,120/-, and said amount was duly accepted by the complainant in view of full and final settlement of the claim. It was also alleged that the complainant had not supplied the required documents, despite various letters written to him, by the opposite parties, as such, it had been prayed that complainant is not entitled to any relief and complaint deserves to be dismissed.
4. Rejoinder to the complaint was filed, wherein averments made in the complaint were reiterated and those of reply, had been denied.
5. Brief resume of the evidence led by the parties in nut-shell is that the complainant in support of its case has filed his own affidavit and had placed reliance upon various documents i.e. copy of FIR, Copy of delivery 3 (Shri Ram General Insurance Co. & Anr. VS. Sukh Dayal {F.A.No.236/2013}) notes, copy of RC, copy of driving license, insurance policy, copy of repair estimate, photocopy of sale certificate, copy of invoice of M/s Unique Motors. Opposite parties in support of their case have filed affidavit of Sh. Vikas Goel, Assistant Manager and Rajesh Sood, Surveyor, and placed reliance upon number of documents i.e. surveyor's report, copy of Claim Discharge-Cum-Satisfaction Voucher, copies of number of letters dated 16.02.2012, 25.02.2012 and 27.03.2012 addressed by the insurance company to the complainant.
6. We have heard learned counsel for the parties and have gone through the record of the case file minutely.
7. Mr. Jagdish Thakur, counsel for the appellant argued that the order of the Forum below is not legally sustainable, since in the present case, the complainant had given consent letter for an amount of Rs. 2,19,120/-, whereby, he has accepted this amount towards full and final settlement of the damage caused to his vehicle. He has also argued that in the present case, the forum below had illegally ordered the payment of Rs. 3,20,022/-, on the basis of the repair bill, submitted by the complainant and had not made any deduction for 4 (Shri Ram General Insurance Co. & Anr. VS. Sukh Dayal {F.A.No.236/2013}) depreciation as well as relating to consumable times under IMT condition. Hence, order of the Forum below is not legally sustainable. He had also placed reliance upon number of precedence of National Commission given in case Khumji Bhai Vs. New India Assurance Company reported in IV 2011 CPJ, 458 NC, wherein, it was held that where cogent reasons have not been assigned for discarding the report of surveyor, version of the complainant cannot be accepted upon mere production of bills or estimates and also precedence of the National Commission given in case, D.N. BADONI Vs. Oriental Insurance Company Ltd., Reported in 1 2012 CPJ 272 NC, wherein it was held that surveyor report is having significant evidentiary value unless it is proved otherwise.
8. Mr. Ajeet Saklani, counsel for the opposite party had supported the order of the Forum below in its entirety. He has also placed reliance upon precedent of National Commission in case tilted National Insurance Company Vs. Giri Raj Proteins reported in IV (2012) CPJ, 151 NC, wherein it was held that surveyor is not the last and final words, and it is not a conclusive proof and it can be ignored if it is perverse or arbitrary, 5 (Shri Ram General Insurance Co. & Anr. VS. Sukh Dayal {F.A.No.236/2013}) based on mere inferences and surmises and/or upon suspicion.
9. After hearing the learned counsel for the parties and going through the record of the case minutely, we are of the considered view that order of the Forum below in awarding amount of Rs. 3,20,022/- to the complaint, which is based simply upon the bills issued by M/s Unique Motors, is not legally sustainable. Reasons being, that the Forum below in the present case has illegally ignored the report of the surveyor, whereby, he had assessed the loss to the tune of Rs .2,19,120/-. This report of the surveyor is based on sound and cogent reasoning, since the items for which amount had been awarded, as claimed in the bill, are not allowed under IMT 21 and these items were not dented/not broken/not damaged and deduction in the salvage amount is also legal under the policy clause. As such, the surveyor had rightly assessed the compensation to the tune of Rs. 2,19,120/-, as referred above and the Forum below had illegally placed reliance upon the bill of repair, for which payment had been made to M/s Unique motors to the tune of Rs.3,20,022/-, by the complainant. Hence, the complainant is only entitled to an amount of 6 (Shri Ram General Insurance Co. & Anr. VS. Sukh Dayal {F.A.No.236/2013}) Rs.2,19,120/- and not for Rs.3,22,020/-, as awarded by the Forum below. Other feature of the case is that, in the present case, consent voucher, which is at page 72 of the complaint file, had been given by the complainant for an amount of Rs.2,19,120/- as full and final settlement of the claim. Though this amount had not been paid to the complainant, since he had not supplied the documents as required by the insurance company vide letters dated 16.02.2012, 25.02.2012 and 27.03.2012. The defence of the complainant is only to the effect that his signatures had been obtained on blank papers, but he has not made any complaint to any authority regarding taking of his signatures on the blank papers. In the present case, the report of the surveyor, which is a valuable piece of evidence and could only be brushed aside unless there are compelling reasons and report is perverse, but in the present case the report is well reasoned, as such, this report had been illegally brush aside and ignored by the forum below. In this regard our view is supported by the precedents of National Commission laid down in case titled Oriental Insurance Company Ltd. Vs. Rama Reddy 2006 (2) CPC 274 NC; (2) Deen Dayal Chamoli Vs. National Insurance Company Ltd. 2006(4) CPJ 86 NC. 7 (Shri Ram General Insurance Co. & Anr. VS. Sukh Dayal {F.A.No.236/2013})
10. There is no dispute about the law laid down in precedent of National Commission given in case titled National Insurance Company Vs. Giriraj Proteins, upon which reliance has been placed by the counsel for the respondent/complainant.
11. In view of the aforesaid discussions and facts and circumstances of the case, appeal is accepted and the order of the learned Forum below is modified to the extent that appellant will be entitled to an amount of Rs. 2,19,120/-, instead of Rs. 3,20,022/-. Further the order with regard to the awarding of interest @ 9% per annum, costs and compensation, as awarded by the Forum below vide its order dated 18.07.2013, is upheld. No order as to costs.
12. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Chander Shekhar Sharma) Member (Prem Chauhan) Member December 31, 2013.
Gaurav) 8