State Consumer Disputes Redressal Commission
Sh. Vinay Sahni vs New India Assurance Company Ltd., on 2 January, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 420 of 2012 Date of Institution : 18.12.2012 Date of Decision : 02.01.2013 Sh. Vinay Sahni S/o Sh. Sohan Lal Sahni, R/o House No. 1098, Behind Civil Hospital, Kalka, District Panchkula, Haryana. Appellant/complainant V e r s u s [1] New India Assurance Company Ltd., through its Regional Manager, SCO No. 36-37, Sector 17-A, Chandigarh. [2] Branch Manager, New India Assurance Company Ltd., Branch Office, SCO No. 347-348, Sector 35-B, Chandigarh. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Harish Bansal, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 31.10.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it disposed of the complaint, filed by the complainant (now appellant) and directed the Opposite Parties (now respondents) as under:-
In the given situation, we also agree that the payment be made to the Complainant in terms of the Surveyors Report only. The estimate of repair is placed on record, while the surveyor vide his Final Survey Report has assessed the loss to the tune of Rs.76,016/- (Annexure C-7). We accordingly dispose off the present complaint, with directions to the Complainant to get his vehicle repaired from the repairer in accordance with the estimate/ surveyor report. The Complainant should make payment as per the bill raised with due intimation to the Opposite Parties. The Opposite Parties shall reimburse the amount of the bill so raised by the repairer, to the Complainant, in accordance with the Surveyors Report upto Rs.76016/-. No costs.
The Opposite Parties are directed to make payment to the Complainant within 45 days of receipt of actual bill/ payment proof from the Complainant, failing which, they shall be liable to make the payment of the bill raised, along with interest @12% per annum, from the date the bill is raised, till the date of payment.
2. The facts, in brief, are that the complainant, being the owner of Bajaj Tempo Trax, bearing Regn. No. HP-51-B-0116, model 2003, got it comprehensively insured with the Opposite Parties, for the period from 11/4/2010 to 10/4/2011 (infact 11.06.2010 to 10.06.2011), for the Insured Declared Value of Rs.1,60,000/-. On 28/7/2010, when the aforesaid vehicle was being driven by the driver of the complainant, namely Sh. Nem Raj, due to rain and bad weather, it (vehicle) unfortunately slipped, on the road, and rolled down into the Sainj rivulet (Nala) on Kandaghat-Gunga Road, about 70-80 feet down, from the road level, due to which, it (vehicle) was badly damaged, from all sides and its entire chassis and engine became salvage. F.I.R. No. 66 dated 28/7/2010 was lodged in Police Station Kandaghat. The driver of the vehicle died, in the accident. The other occupants` received grievous injuries, in the accident. The vehicle was brought out, from the Sainj rivulet (Nala), with the help of cranes and was taken into possession, by the Police. Later on, the vehicle was released by the Court, on supardari, on 9/8/2010 and was towed to M/s Shubh Motors, Kalka, for repairs. The Opposite Parties were also informed immediately about the accident.
3. It was stated that the Opposite Parties, deputed Mr. Pankaj Sharma, Surveyor and Loss Assessor, for spot survey. Mr. Pankaj Sharma inspected the damaged vehicle, on the spot, took photographs of the same and collected all the documents, of his own, and, thereafter, submitted his report dated 18/9/2010, (Annexure C-4), to the Opposite Parties. Later on, the Opposite Parties, appointed another Surveyor and Loss Assessor Mr. R.S. Arora, who inspected the vehicle on 18/9/2010. It was further stated that M/s Shubh Motors, Kalka, gave an estimate of Rs.4.00 lacs approximately. It was further stated that the Surveyor had told the complainant, that the vehicle was not repairable and its scrap value was just about Rs.32,000/-. It was further stated that all the required/requisite documents were submitted by the complainant to Mr. R.S. Arora, Senior Surveyor and Loss Assessor. It was further stated that the survey report of Mr. R.S. Arora, was not correct. It was further stated that the vehicle being a total loss, was not repairable and was still lying with M/s Shubh Motors, Kalka.
4. It was further stated that despite sending a number of reminders to the Opposite Parties, they failed to settle the claim of the complainant. It was further stated that, on account of non-settlement of the claim of the complainant, he suffered a lot of mental agony and physical harassment. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to pay Rs.1,60,000/-, i.e. the Insured Declared Value, on account of total loss of the vehicle; Rs.5,000/- for estimate cost, on account of claim of M/s Shubh Motors, Kalka; Rs.24,000/- i.e. the pendent lite interest, on the due amount @12% P.A., from 28.07.2010, upto the filing of the complaint; Rs.50,000/- on account of damages for non-availability of the use of vehicle; Rs.50,000/-, as compensation, for mental agony and physical harassment; interest @12% on the aforesaid amounts; and cost of litigation, to the tune of Rs.11,000/
5. The Opposite Parties, in their written version, admitted that the complainant, being the owner of the vehicle, in question, got the same comprehensively insured with them, for the period from 11.06.2010 to 10.06.2011, for the Insured Declared Value of Rs.1,60,000/-. It was stated that when the vehicle met with an accident, the driver of the same was driving the same, in a rash and negligent manner, as a result whereof, he died. It was also admitted that F.I.R. No. 66 dated 28/7/2010, was lodged in Police Station Kandaghat, whereafter, the vehicle was released on supardari on 9/8/2010, by the Court of Judicial Magistrate 1st Class, Kandaghat. It was further stated that, on receipt of intimation of the accident, the Opposite Parties deputed Mr. Pankaj Sharma, Surveyor and Loss Assessor, for Spot Survey. Eventually, Mr. R.S. Arora, a Senior Surveyor and Loss Assessor of A category, duly licenced by the Insurance Regulatory Development Authority, was deputed for final survey. Mr. R.S. Arora, Senior Surveyor and Loss Assessor, examined the vehicle, and gave his final survey report, keeping in view the age of the same and depreciation. It was further stated that, as per the report of Mr. R.S. Arora, Senior Surveyor and Loss Assessor, the vehicle was fully repairable, and he assessed the loss on repair basis to the tune of Rs.76,016/-. It was further stated that the Opposite Parties, were still ready and willing to settle the claim of the complainant, as per the Surveyors report. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, disposed of the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
9. We have heard the Counsel for the appellant/complainant, and, have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellant, submitted that, as soon as, the vehicle met with an accident, F.I.R, referred to above, was lodged, and intimation to the Opposite Parties i.e. the insurers, was given. He further submitted that, in the first instance, Mr. Pankaj Sharma, Surveyor and Loss Assessor, was appointed, on whose instructions, the vehicle was towed to M/s Shubh Motors, Kalka, for repairs, which gave estimate for repairs, in the sum of Rs.4 lacs. He further submitted that Mr. R.S. Arora, another Surveyor and Loss Assessor of A Category, appointed by the Opposite Parties, did not give the correct report Annexure C-7. He further submitted that, in his report, Mr. R.S. Arora, wrongly held that the vehicle was repairable and was not a total loss. He further submitted that even in his report, he assessed the value of some reconditioned parts, which according to him, were to be replaced, in place of the damaged parts. He further submitted that, as such, the report of Mr. R.S. Arora, Surveyor and Loss Assessor of A Category, was completely against the terms and conditions of the Insurance Policy. He further submitted that Mr. R.S. Arora, Surveyor and Loss Assessor, infact asked the complainant to grease his palm, for the settlement of claim, but he refused to do so.
He further submitted that since the vehicle was a total loss, the Opposite Parties were required to settle the claim at Rs.1,60,000/-, being the Insured Declared Value. He further submitted that even by not settling the claim, a lot of mental agony and physical harassment, was caused to the complainant, for which he was liable to be compensated. He further submitted that the order of the District Forum is liable to be modified, by enhancing the amount awarded, and by granting interest and compensation, for mental agony and physical harassment.
11. The vehicle, in question, was of 2003 Model, which was got comprehensively insured, for the Insured Declared Value of Rs.1,60,000/-, by the complainant. When it met with an accident, it had already covered a distance of 100211 kms, as is evident from Annexure C-4, the report of Mr. Pankaj Sharma, Surveyor and Loss Assessor. Mr. Pankaj Sharma, Surveyor and Loss Assessor, only conducted the spot survey. The final survey was conducted by Mr. R.S. Arora, Senior Surveyor and Loss Assessor of A Category. It is further evident, from the report of Mr. R.S. Arora, Senior Surveyor and Loss Assessor, which is duly supported by his affidavit, that the vehicle was repairable and was not a total loss. After thorough inspection of the vehicle, Mr. R.S. Arora, Senior Surveyor and Loss Assessor, listed as many as 46 items of the vehicle, out of which items at serial numbers 15,16,17,22,30,31,43,44,45 and 46, were not found to be damaged. On thorough inspection of the damaged vehicle, he assessed the loss, after giving depreciation, to the tune of Rs.76,016/-. The complainant did not give consent for repair of the vehicle, to the repairer, and, as such, the same could not be repaired. Mr. Pankaj Sharma, Surveyor and Loss Assessor, did not state, in his report Annexure C-4, that the vehicle was a total loss, and could not be repaired. The bald statement of the complainant, that the vehicle was a total loss, in the face of the reports of the Surveyors and Loss Assessors, therefore, could not be believed. Since the vehicle was 8 years old, and had already covered 100211 kms, by the time, it met with an accident, Mr. R.S. Arora, Senior Surveyor and Loss Assessor, after taking into consideration, all the facts and circumstances of the case, as also its condition, in our considered opinion, was right, in coming to the conclusion, that the damage caused to the vehicle, was to the tune of Rs.76,016/-. No objections, to the report of Mr. R.S. Arora, Senior Surveyor and Loss Assessor, were filed by the complainant, in the District Forum. There was, therefore, no reason, on the part of the District Forum, not to rely upon the report of Mr. R.S. Arora, Senior Surveyor and Loss Assessor of A Category, appointed by the Opposite Parties, for assessing the loss, on account of damage caused to the vehicle, in question. In Sikka Papers Limited Vs. National Insurance Company Limited, (2009) 7 Supreme Court Cases 777, the principle of law, laid down, was to the effect that, no doubt, the report of the Surveyor, is not the last word, yet, there must be legitimate reason for departing from the same. In New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC), the principle of law, laid down, was to the effect, that the report of the Surveyor, being an important piece of evidence, must be given weight and relied upon, unless proved unreliable. In Dabirudin Cold Storage Vs. New India Assurance Company Ltd. & Ors., I (2010) CPJ 141 (NC), the principle of law, laid down, was to the effect, that Surveyors report being an important document, cannot be easily brushed aside. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. .
12. The report of Mr. R.S. Arora, Senior Surveyor and Loss Assessor of A Category, being based on cogent and convincing material and data available with him, and inspection of the damaged vehicle, cannot, by any stretch of imagination, be dubbed as unreliable. The District Forum, was, thus, right, in holding that the report of Mr. R.S. Arora, Senior Surveyor and Loss Assessor of A Category, being final, was binding on both the parties. Since the Opposite Parties were ready and willing to settle the claim of the complainant, on the basis of the report of Mr. R.S. Arora, Senior Surveyor and Loss Assessor of A Category, there was, therefore, no deficiency, in rendering service, on their part.
13. No doubt, Annexure C-6, the estimate of repairs was given by M/s Shubh Motors, Kalka. This document is not supported by the affidavit of the author thereof. Even then, this estimate was taken into consideration by Mr. R.S. Arora, Senior Surveyor and Loss Assessor of A Category, appointed by the Opposite Parties. After considering the estimate Annexure C-6, and other relevant factors, as also the model of the vehicle, depreciation thereof, etc. etc., he rightly assessed the loss, to the tune of Rs.76,016/-, vide his report Annexure C-7. Annexure C-6 being only an estimate could not be said to be wholly binding upon the Surveyors. Under these circumstances, no help can be drawn, by the Counsel for the appellant, from Annexure C-6, to the effect, that since the estimate of repairs was about Rs.4 lacs, the vehicle was required to be treated as a total loss. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
14. No doubt, certain allegations, were leveled against Mr. R.S. Arora, Senior Surveyor and Loss Assessor, that he asked the complainant, to grease his palm, so as to enhance the assessment of loss, yet, these allegations are not supported by any cogent and convincing evidence. Mere allegations, without substantiation through cogent and convincing evidence, could not be relied upon. Mr. R.S. Arora, being an independent A category Senior Surveyor and Loss Assessor, was not biased, whatsoever, against the complainant. He discharged his duties, in accordance with the provisions of law. The mere fact, that Mr. R.S. Arora, Senior Surveyor and Loss Assessor, assessed the loss, to the tune of Rs.76,016/-, did not mean that he indulged into dubious practice, as alleged by the complainant. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
15. According to the Counsel for the appellant, Mr. R.S. Arora, Senior Surveyor and Loss Assessor, calculated the value of the major damaged parts, on the basis of the value of the reconditioned parts, whereas, no such condition was provided in the terms and conditions of the Insurance Policy. The detailed terms and conditions of the Insurance Policy, were not produced, on record, by the complainant, so as to find out, as to whether, replacement of the damaged parts, by the reconditioned parts, was contrary to the same. In the absence of detailed terms and conditions of the Insurance Policy, such a plea raised by the Counsel for the appellant, therefore, could not be taken into consideration. It, therefore, could not be said that, by assessing the value of reconditioned parts, the Surveyor and Loss Assessor, acted contrary to the terms and conditions of the Insurance Policy. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
16. No other point, was urged, by the Counsel for the appellant.
17. In view of the above discussion, it is held that the order passed by the District Forum, being based, on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
18. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
19. Certified copies of this order, be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion Pronounced.
January 2, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg