National Consumer Disputes Redressal
Reliance General Insurance Company ... vs Maa Yog Shanti on 18 December, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 562 OF 2015 (Against the Order dated 09/04/2015 in Complaint No. 27/2012 of the State Commission Uttar Pradesh) 1. RELIANCE GENERAL INSURANCE COMPANY LTD. & 2 ORS. THROUGH MANAGING DIRECTOR, REGISTERED OFFICE-RELIANCE CENTRE, 19, WALCHAND HIRACHAND MARG, BALLARD ESTATE, MUMBAI-400001 2. RELIANCE GENERAL INSURANCE CO. LTD., THROUGH DEPUTY MANAGER, REGIONAL OFFICE PLOT NO. 60, OPPOSITE STATE BANK OF INDIA, OKHLA INDUSTRIAL ESTATE, PHASE-3, NEW DELHI-110021 3. RELIANCE GENERAL INSURANCE CO. LTD., THROUGH MANAGER, REGIONAL LEGAL OFFICE-ROHIT HOUSE, SHAHNAJAF ROAD, OPPOSITE-SAHARA GANJ, LUCKNOW UTTAR PRADESH ...........Appellant(s) Versus 1. MAA YOG SHANTI DAUGHTER OF LEKHRAJ SINGH, RESIDENT OF 4/7, DAKSHINI DHARMSHALA, NEW JHUSI, ALLAHABAD ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : : Mr. Rajeev M. Roy, Advocate For the Respondent : : Mr. B.K. Upadhyay, Advocate with
Mr. Nikhil Jain, Advocate
Dated : 18 Dec 2017 ORDER
This appeal has been filed by the appellant, Reliance General Insurance Company Ltd. and others against the order dated 9.4.2015 passed by the State Commission, Uttar Pradesh in C.C. No.27 of 2012.
2. The brief facts of the case are that the respondent/complainant purchased a vehicle Mahindra Scorpio bearing registration No. UP-70-BQ-1235 on 14.10.2011 for Rs.11,54,320/- including the accessories. The vehicle was insured by the appellant /OP and the insurance was valid from 20.10.2011 to 19.10.2012. The vehicle was insured for Rs.9,93,891/-. The vehicle met with an accident while going from Allahabad to Jhusi on the Shastri Bridge on 3.12.2011 and collided with a standing truck while saving a dog who suddenly appeared in front of the vehicle. The information was given on-line to the OP insurance Company. Insurance company appointed surveyor Mr. Anil Kumar who visited the workshop/garage where the vehicle had been taken for repairs on 9.12.2011. The surveyor submitted its report and assessed the loss at Rs.1,99,764.54. The case of the complainant is that the complainant got the estimate of repairs from the United Automobiles on the advice of the insurance company and the same was sent to the insurance company. The estimate prepared by the dealer was for Rs.9,54,561/- The complainant then filed a Consumer Complaint No.27 of 2012 before the State Commission requesting that the insured amount should be treated as the total purchase value of the vehicle which was Rs.11,54,320/- and then additional sum of Rs.10 lakhs was demanded as punitive damages for not settling the claim as total loss.
3. The complaint was resisted by the OP/appellant on the ground that the invoice value of the vehicle was only Rs.9,93,891/- and accordingly the insurance was effected only for this amount. The insurance company further informed that the surveyor was appointed and he has assessed value of the loss at Rs.1,99,764.54/-. The insurance company also took the preliminary objection of pecuniary jurisdiction stating that the value of the vehicle was less than Rs.20 lakhs, hence the State Commission did not have the jurisdiction to decide the present complaint. The State Commission vide its order dated 26.2.2014 appointed another surveyor as there was huge difference between the loss assessed by the first surveyor appointed by the insurance company and estimate prepared by the dealer. The second surveyor Mr. Ramesh Kumar Singh submitted its report dated 15.5.2014 and assessed the loss as Rs.9,43,916/-.
4. The State Commission after hearing submissions of both the parties allowed the complaint vide its order dated 9.4.2015 as under:
"Complainant's complaint is partly accepted and opposite parties 1 to 3 insurance company order to pay Rs.9,93,891/- to the complainant with 6 percent annual simple interest from the date of filing of complaint till the date of payment. Insurance company would be at liberty to receive the salvage themselves desired and pay the aforesaid amount or the insurance company can offer to the complainant to keep the salvage herself if she desire and deduct the value of salvage Rs.30,000/- from the insured amount to the complainant. Complainant is also entitled to receive Rs.1,500/- as litigation costs from the opposite parties, certified copy of this judgment be made available to the parties as per rule."
5. Aggrieved with the order of the State Commission, the present appeal has been preferred by the OPs/appellants herein.
6. Heard the learned counsel for the parties and perused the record.
7. The learned counsel for the appellants stated that the complaint was not maintainable before the State Commission as the total insured value was Rs.9,93,891/-. The State Commission should have seen that the excessive compensation or penal damage was not required to be added for the value of the complaint. The issue of pecuniary jurisdiction was raised in the written statement filed by the OPs. However, the State Commission has not decided this issue. When the second surveyor was appointed by the State Commission vide its order dated 26.2.2014 it has touched upon the said issue of pecuniary jurisdiction. However, no final decision has been given in this regard, though it mentions that complainant has prayed for more than Rs.20 lakhs. The learned counsel for the appellant relied on the following two cases to support his arguments in this regard:
Padmini Malhotra Vs. M/s. Era Land Marks (India) Ltd., Consumer Case No. 1269 of 2015, decided on 15.12.2015, wherein this Commission observed as follows:-
"7. In the instant case main plea of the complainant is to seek delivery of possession of flat allotted to her. Besides there is an alternative plea seeking current market value of the subject flat calculated @ Rs.8000/- per sq. ft. amounting to Rs.1,17,60,000/-.
8. Cause of action of the complainant is that the opposite party despite of having received more than agreed consideration amount has failed to deliver the possession of the allotted flat within the period stipulated in the Apartment Buyer's Agreement dated 14.09.2007. On perusal of the agreement as also as per allegation in the complaint, consideration amount for the flat was Rs.19,84,500/-, against which Rs.20,61,990/- has been received. Thus, the value of service availed is Rs.20,61,990/-.
9. The complainant in the alternative has claimed a sum of Rs.1,17,16,000/- claiming the same to be market value of the flat, the aforesaid plea on the face of it appears to be figment of imagination of the complainant. On perusal of the complaint, I find that on one hand it is claimed that flat is not yet complete, on the other hand the complainant has put a preposterous figure of Rs.1,17,60,000/- as market rate of the flat for which he has paid Rs.20,61,990/- without quoting even a single instance of sale of similarly located flat at such a high rate of Rs.8000/- per sq. ft. It appears that aforesaid claim has been made just to inflate the amount of relief with a view to defeat the hierarchy of the consumer forum based upon the pecuniary jurisdiction.
10. Further as regards the compensation in prayer clause ( c ), the complainant is seeking compensation to the sum of Rs.4,41,000/- as compensation @ Rs.5 per sq. ft. as mentioned in clause 11.4 of the allotment agreement. Besides said compensation, the complainant has also prayed under clause ( d) for interest @ 18% p.a. w.e.f. 14.09.2010 to 14.09.2015 on the amount paid on sum of Rs.20,61,990/- amounting to Rs.18,55,791/- and also under clause (e) claimed compensation on account of loss of rental income for the said period @ Rs.25000/- per month. From the above it is clear that the complainant view a view to inflate the jurisdiction value has claimed the compensation on the basis of three yardsticks, namely, in terms of Clause 11.4 of the allotment agreement; 18% interest on the deposited amount for the period w.e.f. 14.9.2010 to 14.9.2015 as also the loss of rental income. By no standard the complainant can claim compensation by applying different yard sticks simultaneously. At best if at all the complainant succeeds, she would be entitled to compensation as per any one of the aforesaid three prayers clauses (c) (d) & (e). Thus, an attempt on the part of the complainant to inflate the value of the relief in order to bring the case within the jurisdiction of National Commission is obvious. Further in clause (f), the complainant is seeking compensation on account of mental agony and harassment to the tune of Rs.25,00,000/- and also a sum of Rs.25,00,000/- as cost for litigation. This clearly highlights the intention on the part of the complainant to inflate the value of the relief to bring this case within the jurisdiction of the National Commission".
(2) Consumers Welfare Association & Anr. Vs. M/s. Webb Hill Resort Corporation & Anr., Consumer Case No. 188 of 2013, decided on 13.05.2014, wherein this Commission observed as follows:-
"On perusal of the photocopy of the agreement for sale filed alongwith the complaint it is clear that the opposite party had agreed to develop the project, construct the bungalow and deliver its possession to the complainant in consideration of Rs.3,50,000/-. The valuer has arrived at the figure of Rs.1,27,60,000/- as estimated value of the bungalow constructed in 60 sq. mt. at the rate of Rs.40,000/- per sq. mt. at Rs.24,00,000/-. Besides the aforesaid value he has added the value of surrounding plot and facilities at Rs.1,03,60,000/- There is no justification in adding the figure of Rs.1,03,60,000/- to the value of the relief claim by the complainants particularly when the agreement with the opposite party was only in respect of bungalow constructed in 60 sq. mt. Thus, it is obvious that this is a clear case of inflating the value of relief with a view to bring this complaint within the pecuniary jurisdiction of this Commission which is not permissible under law. Thus, in our considered opinion and even as per valuation report the value of the relief sought in the complaint is not more than Rs.24 Lakhs. Section 21 (a) of the Consumer Protection Act, 1986 provides that National Commission shall have jurisdiction to entertain complaint where the value of the goods/services and compensation, if any, exceeds rupees one crore. Therefore, this being the case filed with the inflated jurisdictional value does fall within the pecuniary original jurisdiction of the National Commission. Complaint is, therefore, returned with liberty to the complainant to approach the Fora having pecuniary jurisdiction within one month. Consumer complaint is disposed of accordingly."
8. It was further argued by the learned counsel for the appellant that there is no provision of appointment of second surveyor under the Insurance Act, 1938 and particularly without rejecting the report of the earlier surveyor appointed by the insurance company. It was further mentioned that the report of the second surveyor has mentioned engine assembly and body assembly as damaged whereas these assemblies were not damaged at the time of visit of first surveyor. The complainant has herself damaged these items to prove her case of total loss. The essence of survey is to assess loss when the accident has occurred. In this case, the actual assessment was done by the first surveyor by visiting on 9.12.2011 whereas the second surveyor has seen the vehicle only in 2014, thus the reports of these two surveyors cannot be compared and the report of the second surveyor cannot be taken to represent the total loss at the time of accident. If there has been some damage after the visit of the first surveyor, the insurance company has no responsibility as the vehicle was kept at the complainant's premises. Thus, if any further loss has occurred, the respondent/complainant is herself responsible for the same.
9. There are several judgments of the Hon'ble Supreme Court which clearly state that the report of the surveyor appointed under the Insurance Act, 1938 is an important document for consideration of the insurance claim and cannot be brushed aside without any cogent reasons. Neither the complainant nor the State Commission have given any cogent reason for not accepting the report of first surveyor appointed by the insurance company under the Insurance Act, 1938. Thus, the insurance claim can only be settled on the basis of the first surveyor report and not on the basis of the report of the second surveyor. It was also pointed out by the learned counsel for the appellant that the insurance company sent various letters to the complainant advising that the work of repairs may be started and the vehicle may be repaired but the complainant insisted for advising for the total loss and did not get the vehicle repaired.
10. On the other hand, learned counsel for the respondent/complainant stated that the vehicle was brought to the authorized dealer and the estimate was prepared by the dealer only on the advice of the insurance company as the estimate was more than 75% of the total IDV of the vehicle, it becomes a total loss as per the policy conditions. Hence, the complainant was insisting on the declaration by the insurance company for total loss. In this regard, there was no question of accepting the report of the first surveyor who had assessed the loss at Rs.1,99,764.54/-. To support his argument that estimate given by the authorized dealer needs to be considered, he cited the following case:
Oriental insurance Co. Ltd. Vs. Mehar Chand, IV (2009) CPJ 230 (NC), wherein this Commission held as follows:-
"According to the learned Counsel for the petitioner, the authorized garages normally give inflated estimate, which is required to be pruned in order to come to the actual damages. We cannot accept this submission of learned Counsel for the petitioner because if the authorized garage gives inflated estimate, the Insurance Company should change the authorized garage and take on their panel such garages, which give the correct estimate of damages. Be that as it may, the Surveyor is required not only to examine the estimate given but also to give sound and cogent reasons as to why the estimates should not be accepted. No reasons whatsoever have been given in Annexure 'A' of the surveyors report, to which our attention was drawn. In fact, the State Commission had come to the conclusion that no reasons had been given by the Surveyor for not accepting the estimate submitted by the complainant and that the Surveyors being expert in the field are required to give reasons for disallowing or partly disallowing the estimate claim given by the complainant".
11. The learned counsel further pointed out that the State Commission has appointed the second surveyor from the list supplied by the OP and the second surveyor is also an IRDA approved surveyor. Thus, his report is of equal importance as that of the first surveyor if not more. This report can also not be brushed aside without any cogent reasons. The learned counsel argued that the National Commission in the following case has accepted the report of the second surveyor appointed by the District Forum:
Sumit Kumar Agarwal Vs. Oriental Insurance Co. Ltd., II (2012) CPJ 73(NC), wherein this Commission held as follows:-
"12. In the present case, District Forum was not satisfied with the recommendation made by the surveyor that the vehicle can be repaired and appointed an expert to report the extent of damage and as to whether the vehicle was in a repairable condition. The independent expert came to the conclusion that the vehicle could not be repaired because of the damage caused to the chassis, front axle and steering. According to the expert, the chassis in future could bend or go weak as and when the tyres wear out. Surveyor has submitted that the vehicle was extensively damaged but recommended the claim to be settled "on repair" basis without giving any reason. Perusal of the findings recorded by the Surveyor regarding the extent of damage caused to the car leaves no doubt in our mind that the car could not be repaired and that too with a paltry sum of Rs.63,713/-. We are of the opinion that the vehicle was extensively damaged and could not be repaired. District Forum had rightly accepted the report of the independent expert appointed by it and awarded the compensation on "total loss" basis. State Commission erred in reversing the finding recorded by the District Forum.
13. For the reasons stated above, the Revision Petition is allowed, the order of the State Commission is set aside and that of the District Forum is restored. Respondent is directed to comply with the order of the District Forum within four weeks from the date of receipt of copy of the order."
12. It was further pointed out that the appellant insurance company even did not care to file the affidavit of its surveyor to prove the survey's report. In these circumstances, there is no value of this report and that is why the report of the second surveyor appointed by the State Commission has been accepted by the State Commission. The learned counsel relied on the following decision in support of his arguments:
Hira Lal Ramesh Chand Vs. New India Assurance Co. Ltd. & Ors., II (2003) CPJ 43 (NC), wherein this Commission observed as follows:-
"26. The first ground is based on the report of Surveyor's, Toplis and Harding Inc. of 27.6.1990. This report has two salient features. One that one Mr. Kumar Choudhry was the President of Shipping line - Overseas Container as also the final buyer M/s. Atlanta Rugs. Second feature is that the Survey or/Investigator met Mr. Choudhry who told him that he had received all the shipments, but, would not allow to inspect the storage facility. Mr. Choudhry was willing to speak but not to issue a signed statement. Surveyor also states that the Sun Trust Bank told the Surveyors that the shipments have not been paid for which confirmed our (Surveyor's) earlier statement that probably Overseas Container Lines were using the steamship line, Master Bill of Lading to obtain and clear the shipments. M/s. Atlanta Rugs Inc. has since been dissolved. In conclusion they state that it would appear that all the shipments were picked up by Atlanta Rugs Inc. who used fraudulent methods for obtaining shipments without payment through the Bank. It is this report and host of correspondence between the Surveyors, complainants and the OPs which has been used as a ground to repudiate the claim. Onus of proof lies with the OPs to prove that the buyer did receive the consignment to make it a commercial dispute. It is well settled law that the onus of proof lies with the person who sets up the case. In the instant case it is OPs who have set up the case that the goods have been received by the buyer -- they had to prove it. The report of the Surveyor is not supported by any affidavit nor is there any affidavit of the Surveyor nor for that matter of any one from the OP to this effect. We also see that report of the Surveyor -- very key document relied upon by the OP itself is based on uncorroborated/unsubstantiated facts and suspicion etc. As per law of evidence little merit is attached to such documents. The least that could have been done by the OPs. 1-3 was to file an affidavit of the Surveyor, in the absence of which, his report has little evidentiary value more so when Surveyor's report is the foundation of the case of OPs 1-3. In the absence of any proof we are unable to satisfy ourselves on this plea of the OPs 1-3 that the shipments were received by the buyer, Atlanta Rugs."
13. The learned counsel further pointed out that there is a delay of 66 days in filing the present appeal and no sufficient cause has been shown for this delay. The procedural delay for obtaining the legal advice for orders of the higher authorities cannot be considered as sufficient reason for condoning the delay. Hence, the application for condonation of delay cannot be allowed and consequently the appeal is liable to be dismissed only on this ground. He cited the case of Delhi Development Authority Vs. V.P. Narayanan, IV (2011) CPJ 155 (NC), wherein this Commission dismissed the appeal filed after a delay of 84 days.
14. I have carefully considered the arguments of both the parties and have examined the material on record. First of all, there is a delay of 54 days as calculated by the office whereas the application for condonation of delay has been moved for condoning the delay of 66 days. Be that as it may, from the application for condonation of delay, it is brought out that the delay has been caused in taking legal advice as well as in obtaining higher orders from the corporate office of the appellant. It has been mentioned in the application for condonation of delay that the official in the appellant's legal team who used to handle consumer case left the appellant's employment in the month of April, 2015 and the said post has remained vacant since then. It has been mentioned that the delay has been unintentional and inadvertent. Hon'ble Supreme Court in R.B. RamlingamVs. R.B. Bhavaneshwari, 2009 (2) Scale 108, has observed;
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."
15. Hon'ble Supreme Court in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others., (2013) 12 SCC 649, has laid down the following:-
"From the aforesaid authorities (case laws referred) the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
16. The Hon'ble Supreme Court in another judgment N. Balakrishnan Vs. M. Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:-
"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. Kuntal Kumari , MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972] 2SCR874a.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
17. Relying on the above judgments and in the circumstances of the case, the delay in filing the revision petition is condoned on the grounds mentioned in the application for condonation of delay at a cost of Rs.75,000/- to be paid to respondent /complainant
18. So far as the question of pecuniary jurisdiction is concerned, this issue was raised by the appellant in the written statement. However, the State Commission has considered this issue in its order dated 26.2.2014 and the following is mentioned:
"At the time of dictating the judgment, it came to our notice that the case was admitted on 30.3.2012. However, no finding regarding pecuniary jurisdiction was given at that time.
The complainant filed the instant case seeking a total damage of Rs.26,79,410/- alongwith 18% per annum interest, although the total value of the vehicle in question including accessories was Rs.11,54,320/- only. She claimed Rs.10 lacs towards punitive damages and Rs.5 lacs for physical and mental agonies arising out of a motor accident; whereas, the insurance company took the plea that nothing is payable to her on the ground of various remises,"
19. From the above, it is clear that though the State Commission has not given clear finding that the complaint was maintainable before that Commission, but it has been mentioned in the above observation that the complaint was filed for Rs.26,79,410/- with 18% p.a. interest and therefore it seems that the State Commission has assumed the pecuniary jurisdiction. As the State Commission has decided the complaint on merits, I would not like to examine this issue any further, as prima facie the value of goods and services alongwith the compensation exceeds Rs.20 lakhs as mentioned in the complaint and apparently the State Commission had the jurisdiction to decide the complaint.
20. Now, coming to the merits of the case, it is seen that the State Commission has allowed the complaint on the basis of the report of the other surveyor appointed by the State Commission vide its order dated 26.2.2014. The first question to be examined is whether Consumer Protection act, 1986 gives any power to a consumer forum to appoint a second surveyor when the report of a surveyor appointed by the insurance company under the Insurance Act, 1938 is already filed.
21. The Consumer Protection Act, 1986 has the following provisions under which some expert can be appointed:
a) Section 13(1)(c) states that District Forum can send a sample for testing to an approved laboratory. b) Section 13(1)(f & g) state that if there is a dispute in respect
of the report of the Laboratory, the District Forum has to obtain objections from the parties and the District Forum will have to decide those objections after hearing the parties and by passing an appropriate order.
c) Section 13(4)(iv) authorizes the District Forum to requisition the report of the concerned analysis or test from an appropriate Laboratory or from any other relevant source.
(d) Section 13(4)(v) gives the Forum the power to issue commission for examining of the witnesses.
22. In the present case, a surveyor appointed under the provisions of the Insurance Act, 1938 had surveyed the vehicle at the time of accident and then had issued a report. There are many judgments of the Hon'ble Supreme Court that the report of the surveyor appointed under the Insurance Act, 1938 is important document which cannot be brushed aside without any cogent reasons and which is to be taken into consideration while deciding the claim. Obviously, insurance companies have been discouraged to appoint any second or third surveyor to get their tailor-made report. This observation has been made by the Hon'ble Supreme Court in Sri Venkateswara Syndicate Vs. oriental Insurance Company Ltd. and another, Civil Appela No.3387 of 2004, decided on 24.8.2009 as mentioned below:
"(22) The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by the insured, a loss adjuster, popularly known as loss surveyor, is deputed who assess 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 17damage 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. There is no disputing the fact that the Surveyor/Surveyors are appointed by the insurance company under the provisions of 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 concerned officer 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. Scheme of Section 64-UM particularly, of sub-sections (2), (3) and (4) would show that the insurer cannot appoint a second surveyor just as a matter of course. If for any valid reason the report of the Surveyor is not acceptable to the insurer may be for the reason if there are inherent defects, if it is found to be arbitrary, excessive, exaggerated etc., it must specify cogent reasons, without which it is not free to appoint second Surveyor or Surveyors till it gets a report which would satisfy its interest. Alternatively, it can be stated that there must be sufficient ground to disagree with the findings of Surveyor/Surveyors. There is no prohibition in the Insurance Act for 18 appointment of second Surveyor by the Insurance Company, but while doing so, the insurance company has to give satisfactory reasons for not accepting the report of the first Surveyor and the need to appoint second Surveyor."
23. Now the question comes whether the State Commission was justified in ordering a second surveyor to give its report after about a gap of more than 2 years. The Trial Forum could be competent to send the vehicle to an expert to give a report on the defects under Section 13(1)(c) of the Consumer Protection Act, 1986. The present case relates to service of insurance where one expert (surveyor) has already given its report. Moreover, Section 13(1)(d) is related to goods and services are not covered under this section. Hence, the Consumer Forum does not have power to obtain report of a laboratory/expert/ surveyor in the present case which relates the service of insurance. In my view, only option available to the Trial Forum would be under Section 13(1) (f ) and (g), wherein the Trial Forum may get the objections of the parties on the expert report and then to decide the same after hearing both the parties. Though, provisions of Section 13(1)(f)(g) are also applicable to only goods, but by analogy the intent of these sections could have been applied to the present case as an authorized expert report (report of surveyor appointed under Insurance Act 1938) was already available.
24. Based on the above examination, I am of the view that the State Commission was not justified in appointing second surveyor and that too after more than 2 years.
25. Thus, based on the above discussion, I am of the view that the report of the second surveyor cannot be considered for settling the insurance claim of the complainant. The surveyor appointed by the insurance company under the Insurance Act, 1938 has already given its report wherein the total loss has been assessed to the tune of Rs.1,99,764.54. Though the complainant has stated that it was a case of total loss, however, it appears that nobody was seriously hurt in the accident and therefore, the severity of the accident which could cause total loss cannot be taken for granted. It is seen from the report of the surveyor appointed by the insurance company that the surveyor applied 50% depreciation on the items of cost of Rs.90,898/-. As the vehicle was very new, therefore, the depreciation could not have been allowed @ 50%. As the vehicle was brand new, the depreciation of 50% was not justified. However, a deduction of 10% depreciation would be reasonable. Accordingly, the depreciation could be only Rs.9,090/- instead of Rs.45,448/-. Thus, the total net claim as per the Surveyor's report would be Rs.2,36,123/-. As no objection has been filed against the surveyor's report by the complainant, it cannot be brushed aside without any reason. Therefore, the complainant is entitled to Rs.2,36,123/- alongwith interest @ 9% p.a. from the date of accident .
26. Based on the above discussion, I find merit in the appeal filed by the appellant insurance company which is partly allowed and the appellant insurance company is directed to pay Rs.2,36,123/- to the complainant alongwith interest @ 9% p.a. from the date of accident till actual payment. Accordingly, the order of the State Commission stands modified. The appellant is also directed to pay Rs.75,000/- as cost of condoning delay to the complainant. The Insurance Company shall also pay cost of Rs.25,000/- only as cost of litigation.
27. The order be complied by the appellant/OP Insurance Company within a period of 30 days from the date of this order, failing which the total sum awarded shall carry interest @ 12% per annum from the date of this order till actual payment.
...................... PREM NARAIN PRESIDING MEMBER