State Consumer Disputes Redressal Commission
The New India Assurance Company Ltd. & ... vs Baljit Singh on 23 January, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.429 of 2023
Date of Institution : 26.06.2023
Reserved on : 04.01.2024
Date of Decision : 23.01.2024
1.The New India Assurance Co. Ltd., Regd. Head Office: New India Assurance Bldg. 87, M.G. Road, Fort, Mumbai-400001, through its Managing Director.
2. The New India Assurance Co. Ltd., # 7, Chhoti Baradari, The Mall, Patiala, through its Branch Manager.
3. Seema Kataria, (NIA 1D6342530) Authorized Agent, The New India Assurance Co. Ltd., # 7, Chhoti Baradari, The Mall, Patiala.
Now through their authorized signatory, Deep Shikha, Manager, The New India Assurance Co. Ltd., Regional Office, SCO No.36-37, Sector-17 A, Chandigarh.
........Appellants/Opposite Parties No.1&2 Versus Baljit Singh, aged 51 years son of S. Gurdev Singh, resident of Village & Post Office, Daun Kalan, Tehsil and District Patiala.
.....Respondent/Complainant Appeal under Section 41 of the Consumer Protection Act, 2019 to challenge the order dated 31.03.2023 passed by the District Consumer Disputes Redressal Commission, Patiala in C.C. No.396 of 2017.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President Present:-
For the Appellants : Sh. J.P. Nagar, Advocate
For the Respondent : Sh. Jatinder Nagpal, Advocate
2
First Appeal No.429 of 2023
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
JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The Appellants/OPs No.1 & 2 have filed the present Appeal under Section 41 of the Consumer Protection Act, 2019 as amended upto date (in short the 'Act'), being aggrieved by the impugned order dated 31.03.2023 passed by the District Consumer Disputes Redressal Commission, Patiala in C.C. No.396 of 2017, whereby the Complaint filed by the Complainant had been partly allowed.
2. Briefly, the facts of the case as made out by the Complainant in the Complaint filed before the District Commission are that the he was the owner of vehicle make Tata Truck bearing registration No.PB-11-CB-8895 and the Complainant had got insured the said vehicle with OPs No.1 and 2 vide policy for the period w.e.f.
03.11.2016 to 02.11.2017. Further, it was mentioned that the Complainant had got the said truck financed from Kotak Mahindra Bank Limited on monthly installments. Said vehicle met with an accident on 24.04.2017 at about 1.30 am at Kishanganj (Bihar) which was in between the border of Bengal and Bihar. Said accident had occurred due to sudden application of break by the driver of another vehicle who ran away from the spot alongwith his truck. Further, it 3 First Appeal No.429 of 2023 was mentioned that no DDR/FIR was lodged and the intimation of the accident was given to the Insurance Company who had further instructed the Complainant to bring the vehicle at Patiala for repair.
Further it was mentioned that the Complainant had brought the vehicle to Patiala and parked the same at M/s Kalgidhar Automobiles, TATA Authorized Service Station, Jordian Sadka, near Turna Palace, opposite HP Petrol Pump-Samana Cheeka Road, Patiala on 05.05.2017. The OP had told the Complainant to submit the estimate of repair and the same was submitted. Further, it was mentioned that the Surveyor namely Mr. Sandeep Puri had visited the said service station and said Service Station gave in writing on 10.05.2017 that the vehicle cabin and chassis framework were not reparable, rather it was replaceable and had recommended for replacement. Further it was mentioned in the Complaint that it was told to the Surveyor that in case the repair was to be done, then vehicle would not be in a position to given proper performance and it would be dangerous to drive the said vehicle after the patch work. Further the carriage capacity would have also be effected adversely and it would not have been proper alignment of the said vehicle after its repair. Further, the Surveyor had told the authorized service station to start the repair work of the vehicle and had asked the Complainant to pay initial bill which could have been reimbursed by the OPs. Thereafter, the Complainant had paid the advance amount through cheque dated 16.05.2013 for an amount of Rs.3,00,000/- in favour of M/s Kalgidhar Automobiles drawn on Axis Bank Limited, Urban Estate Branch, 4 First Appeal No.429 of 2023 Patiala. Further, the vehicle of the Complainant was repaired and a bill of Rs.7,07,300/- was submitted on 13.06.2017 but still the OPs had not paid any heed and the Complainant was compelled to pay the entire amount towards the bill. Further it was mentioned that the legal notice was issued for doing the needful but still nothing was done.
3. Stating to be a case of 'deficiency in service' on the part of the OPs and also allegations of causing mental agony and harassment to the Complainant, the prayer was made for issuance of directions to the OPs to pay an amount of Rs.7,07,300/- towards repair charges of the vehicle and also compensation to the tune of Rs.2,00,000/-.
4. Upon issuing notice in the Complaint by the District Commission, OPs No.1 and 2 had appeared through Counsel and filed written statement wherein certain preliminary objections were raised stating that the Complaint was not maintainable as it was premature. It was also stated that OPs had written letter dated 03.11.2017 to the Complainant requesting to complete certain formalities. Further it was mentioned in the reply that it was not a case of any 'deficiency in service' or 'unfair trade practice'. It was also mentioned in the reply that the District Commission was not having jurisdiction to try the Complaint as the OP was ready to settle the claim as per assessment of the loss by the Surveyor. Other averments made in the Complaint were also denied. 5 First Appeal No.429 of 2023
5. After considering the averments made in the Complaint and reply thereof and also oral arguments raised by Counsel representing both the parties, the Complaint was partly allowed vide order dated 31.05.2023 which is subject matter of challenge in the present Appeal. The relevant portion of said order is reproduced as under:-
"20. The truck of the Complainant was registered during 29.11.2016 and met with an accident on 24.4.2017 i.e. merely after five months of the registration. As such the truck was brand new at the time of accident. The truck in question was duly brought to the authorized service station of the manufacturer for repairs who had recommended for the replacement of the cabin and chassis of the same as per the guidelines of the manufacturer i.e. Tata Motors Ltd., as the repair of the same was not recommended by the manufacturer. Moreover, repair of the cabin and chassis could not bring the vehicle to its original shape and there are lead to be deficiencies in the repairs thereby leading to the improper performance and shortcoming of the life of the vehicle. As such the guidelines of the manufacturer cannot be over looked.
21. Keeping in view the above facts and circumstances of the case, we are of the opinion that cabin and chassis were rightly replaced by M/s Kalgidhar Automobiles, authorized service station of Tata Motors Ltd. We therefore, partly allow the Complaint and direct OPs No.1&2 as follows:
To settle the claim of the Complainant to the tune of Rs.7,07,300/- only within 30 days from the date of receipt of certified copy of this order.6 First Appeal No.429 of 2023
No order as to interest and costs as the Complainant was also deficient to the extent that he had move the vehicle without lodging the FIR.
The instant Complaint could not be disposed of within stipulated period due to Covid protocol and for want of Quorum from long time."
6. Mr. J.P. Nahar Advocate, learned Counsel for the Appellants/OPs No.1 and 2 has vehemently argued that the District Commission has not taken into consideration the stand taken by the Appellants/OPs No.1 and 2 in the reply as well as in the oral arguments and the findings recorded by the District Commission are contrary to the evidence as produced by the Appellants. The OPs were intimated about the loss on 08.05.2017 and thereafter the Surveyor was deputed immediately who investigated the damaged vehicle on 10.05.2017 itself when the vehicle was in the workshop for repair. However, the Surveyor was of the view that the parts were not required to be replaced as those parts were repairable and as such it cannot be said to be a case of 'deficiency in service'. Learned Counsel has further submitted that once it has been proved on record that it was not a case of 'deficiency in service' on the part of the OPs and the District Commission has not taken into consideration the Surveyor's report and still the order has been passed by the District Commission. Learned Counsel has further submitted that a letter was written by the OPs to the Complainant for completing certain formalities but there was no response. The place of accident was shown at Kishanganj (Bihar) and the towing slip of the insured vehicle 7 First Appeal No.429 of 2023 had reflected that vehicle was brought from Rajpura to Patiala. However, the Complainant had failed to explain as to how the vehicle was brought from Kishanganj to Rajpura. In case the vehicle was worth driving by road from Bihar then why the towing slip had been produced from Rajpura to Patiala. As the damaged vehicle was towed from Kishanganj to Patiala, the Complainant was asked to provide the towing slip from Kishanganj to Patiala. A clarification was also asked as the vehicle was partially repaired at Kishanganj and thereafter it was brought to Punjab through road, the Complainant was required to provide toll slips, bills of parts which were repaired/replaced but no reply was filed by the Complainant. All these factors have not been taken into consideration by the District Commission whereas certain information was suppressed by the Complainant and the same has not been taken into consideration by the District Commission. Learned Counsel has further submitted that the District Commission has also lost sight of material fact that as per the intimation letter dated 08.05.2017, the alleged accident had occurred on 24.04.2017 and there was a delay of 14 days in giving intimation whereas as per condition No.1 of the insurance policy, the intimation was required to be given without any delay. The Complainant has violated the terms and conditions of the policy, which is necessary as mentioned in condition No.1. Learned Counsel has further submitted that the District Commission has also not taken into consideration a material fact that the appellant had deputed the Surveyor after giving intimation of loss after inspection of the vehicle 8 First Appeal No.429 of 2023 minutely at the workshop of the repairer. Surveyor has also mentioned that the insured had submitted a letter dated 10.05.2017 from the M/s Kalgidhar Automobiles which was only Tata authorized Service Centre but credibility of said letter issued by M/s Kalgidhar was suspicious. The Complainant was asked to got repair the vehicle from Dada Motors Mehndipur Branch from where the service centre had purchased both the items and also one more authorized delaer from Punjab and Tata Motors Workshop at Delhi. Learned Counsel has further submitted that the District Commission had wrongly allowed the replacement of the Cabin and Chassis as recommended by M/s Kalgidhar Automobiles and the District Commission had also lost sight of the material fact that there was allegation of any misconduct on the part of the Surveyor or otherwise. The Complainant would have lodged the Complaint to IRDA against the Surveyor but no such Complaint was ever made. Learned Counsel has further submitted that the Surveyor was having licence under Section 64 UM of Insurance Act., 1938. In case the opinion of the repairer was to be accepted and there was no need to depute an independent Surveyor. At the end, learned Counsel has relied upon following judgments in support of his arguments:-
(i) Smt. Dipali Das Vs. United India Insurance Co. Ltd decided by the Hon'ble National Commission on 02.08.2013.9 First Appeal No.429 of 2023
(ii) Oriental Insurance Company Limited Vs. Mehta Wool Store, III (2017) 317 (NC)
(iii) D.N. Badoni Vs. Oriental Insurance Co. Limited, 1 (2012) CPJ 272 (NC)
7. Mr. Jatinder Nagpal Advocate, learned Counsel for the Respondent/Complainant has submitted that the order passed by the District Commission is well reasoned as detailed findings have been recorded by considering the stand taken by both the parties in the Complaint as well as the reply thereof and also the arguments raised from both the sides. Learned Counsel has further submitted that although he has not challenged the order passed by the District Commission but the amount of compensation as awarded by the District Commission is on the lower side.
8. We have heard the arguments raised by learned Counsel for both the parties and have also carefully gone through the order passed by the District Commission and have also perused the documents/evidence available on the file.
9. Facts relating to filing of Complaint by the Complainant before the District Commission and partly allowing the Complaint by the District Commission and thereafter filing of Appeal by OP Insurance Company before this Commission are not in dispute. It is also not in dispute that the Complainant was the owner of the said truck which was got financed from Kotak Mahindra Company Limited by paying installments. The version of the Appellants is that said 10 First Appeal No.429 of 2023 vehicle met with an accident at Kishanganj (Bihar) and no FIR/DDR was lodged. It is also pertinent to mention that on account of non- registering of FIR/DDR, the District Commission has not granted any compensation to the Complainant as such there is no force in this version.
10. The version of the appellant is that the damaged cabin and chassis of the truck were reparable but the Complainant got replaced the same from Kalgidhar Automobiles. The Surveyor in his report dated 28.07.2017 (Ex.OP-10) has observed that he confirmed that factum of repair of the damaged vehicle from Tata Motor Authorized Dealers Points like Dada Motors Mehndipur Branch, authorized dealer in Punjab and from Tara Motors Workshop at Delhi. However, the Surveyor had not attached any affidavit of said persons who had recommended the repair of the said vehicle from said dealers/workshop as well as the Appellants/OPs No.1 & 2 had also failed to produce on record such documents before the District Commission as well as before this Commission. The Appellants had failed to rebut the document i.e. Service Circular issued by Tata Motors (Ex.C-18) wherein it has been recommended that new Cabins were to be used on vehicle below five years of age. Moreover, the M/s Kalgidhar Automobiles is a Tata Motors authorized service station, had recommended for replacement of chassis frame and assy. bare cabin of the damaged vehicle as per TML vide its certificated dated 10.05.2017 (Ex.OP-12). In view of certificate issued by M/s Kalgidhar Automobiles, which is authorized service of Tata 11 First Appeal No.429 of 2023 Motors, said parts of the damaged vehicle required replacement. In absence of any cogent evidence on the part of the Appellants, the version raised by learned Counsel for the appellant is not reliable. Moreover, the Hon'ble Apex Court in judgment of case of "Dharmendra Goel Vs. Oriental Insurance Co. Ltd." III (2008) CPJ 63 (SC), held as under:-
"Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This "take it or leave it", attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims."
11. The Appellants have relied upon report of the Surveyor. The Hon'ble Supreme in judgment of case "New India Assurance Company Limited Vs. Pradeep Kumar" 2009(6)SCALE-253, wherein it has been held that "In other words although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured."
12. In recent judgment, the Hon'ble Supreme Court of India of case "New India Assurance Co. Ltd. & others Vs. M/s Mudit 12 First Appeal No.429 of 2023 Roadways" Civil Appeal No.339 of 2023, decided on 24.11.2023, it has been held as under:-
"42. According to the Insurance Act 1938, an approved surveyor's assessment is necessary for a claim. The claimant however contends that the surveyor's report is not definitive. The key question is the extent to which the report is binding and under what conditions can it be overridden in. To address this, Section 64(UM)(4) of the Insurance Act, 1938 can be usefully read which concerns surveyors and loss assessors:
64-UM. (4) No claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, shall, unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred, from a person who holds a licence issued under this section to act as a surveyor or loss assessor (hereafter referred to as "approved surveyor or loss assessor"): Provided that nothing in this sub-section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved surveyor or loss assessors"."
"44. In New India Assurance Co. Ltd. v. Pradeep Kumar (supra), the court addressed whether one had to accept payment based on the surveyors' assessment or could provide independent evidence to support higher costs for replacement and repairs. The court's pertinent conclusion is as follows:
"22. In other words although assessment of loss by approved surveyor is a prerequisite for payment or settlement of claim of twenty thousand rupees or more by insurer, yet surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by 13 First Appeal No.429 of 2023 the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured."
45. Guided by the above ratio, the situation in the present case is found to be similar. The surveyor's report cannot be considered a sacred document and contrary evidence, including an investigation report, is subject to rebuttal." In the present case, the Appellants have failed to disprove the certificate dated 10.05.2017 (Ex.OP-12) by M/s Kalgidhar Automobiles, who is one of the Tata Motors Authorized Service Station.
13. As per the version of the Appellants, the Complainant had not produced on record any towing slip or toll plaza receipt regarding moving the Truck from the place of accident to Rajpura Patiala. It is also pertinent to mention that the Surveyor of the Appellants Insurance Company had mentioned in his report that "All these damages were fresh and occurrence seems to be possibility". The Appellants have also not produced on record any cogent evidence to prove the fact that the said truck was not met with an accident. No persons would like to damage his own vehicle and incur expenses from his own pocket to get the same repaired and thereafter claim the same from the Insurance Company. As such, we find no force in this contention raised by the Appellant Insurance Company.
14. In view of detailed discussion as referred above, we are of the considered view that there is no merit in the contentions raised 14 First Appeal No.429 of 2023 by learned Counsel for the Appellants/OPs No.1 and 2 and the Appeal being devoid of any merit is hereby dismissed.
15. The Appellant had deposited an amount of Rs.25,000/- at the time of filing of the Appeal with this Commission and further deposited an amount of Rs.6,82,300/- on 25.07.2023. Said amounts, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The Respondent/Complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
16. Since the main case is decided, the pending applications, if any, are also disposed of.
17. The Appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY)
January 23, 2024 PRESIDENT
(MM)