State Consumer Disputes Redressal Commission
1. Tata Aig General Insurance Co. Ltd vs Jitin Bareja on 3 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 173 of 2014 Date of Institution : 02.05.2014 Date of Decision 03/06/2014 1. Tata AIG General Insurance Co. Ltd, Office: SCO No.232-234, 2nd Floor, Sector 34-A, Chandigarh, through its Branch Manager. 2. Tata AIG General Insurance Co. Ltd, Office: Lotus Towers, 1st Floor, Community Centre, New Friends Colony, New Delhi 110025, through its Manager. Appellants/Opposite Parties V e r s u s Jitin Bareja son of Sh. Ashok Kumar, r/o H.No.724, Sector 21, Panchkula. ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Rajneesh Malhotra, Advocate for the appellants.
Sh. Vishal Madaan, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 31.03.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now the appellants), as under:-
In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed. The same is accordingly allowed. The opposite parties are directed as under :-
i) To pay the amount of Rs.6,49,000/- as assessed by the surveyor in his report dated 20.11.2012(R-3).
ii) To pay Rs.50,000/- as compensation for mental agony and harassment;
iii) To pay Rs.10,000/- as costs of litigation.
11. This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr. No.(i) & (ii) above shall carry interest @18% per annum from the date of this order till actual payment, besides payment of litigation costs.
2. The facts, in brief, are that the complainant being the owner of Toyota Corolla Altis (D-4D J) car, got the same insured, vide cover note Annexure C-1, from the Opposite Parties, valid for the period from 28.08.2012 to 27.08.2013, for the Insured Declared Value (IDV) of Rs.9,00,000/-, on payment of premium to the tune of Rs.21,578/-. On 22.09.2012 (infact 29.09.2012), the said car met with an accident, on Saha-Jagadhari Road, while the complainant was going to Saharanpur (U.P), to attend a function. The said car was sent for repairs, to Pioneer Toyota workshop. Opposite Party No.1 was also intimated about the said accident. Thereafter, Opposite Party No.1, appointed Sh.Parvinder Kumar, Surveyor and Loss Assessor, to assess the loss, caused to the vehicle, in question, in the said accident. The said Surveyor and Loss Assessor, prepared the estimate for repairs, which came to be Rs.12,60,000/-. It was stated that since, the estimate of repairs was more than the IDV, therefore, the Surveyor and Loss Assessor, opined for total loss of the said car. In this process, the car remained with the dealer for about 10-12 days. The complainant took the car, to his residence, after paying Rs.25,000/-. It was further stated that, on 18.02.2013, the complainant received a letter from Opposite Party No.2, mentioning therein, that the insured vehicle was totally different than the one, shown at the time of pre-inspection, done on 28.08.2012. When the claim of the complainant was not settled, legal notice dated 09.05.2013 was served upon the Opposite Parties, but to no avail. 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.9 lacs, being the Insured Declared Value, as the vehicle was declared as total loss, by the Surveyor, alongwith interest @18% P.A., from the date of lodging the claim, till realization; compensation, to the tune of Rs.1 lac, for mental agony and physical harassment, including cost of litigation.
3. The Opposite Parties, in their joint written version, admitted that the complainant being the owner of Toyota Corolla Altis (D-4D J) car, got the same insured, from them, valid for the period from, 28.08.2012 to 27.08.2013, for Insured Declared Value (IDV) of Rs.9,00,000/-, on payment of premium to the tune of Rs.21,578/-. The factum of accident was not denied. It was stated that, on receipt of intimation, with regard to the accident, Sh.Parvinder Kumar, Surveyor and Loss Assessor, was appointed to assess the loss, who submitted his report dated 20.11.2012 Annexure R-3. It was further stated that, on scrutiny of the said report and comparison of the final inspection photographs, with those of the pre-inspection, it came to light that the vehicle shown, at the time of pre-inspection on 28.08.2012, was other than the accidental vehicle. It was further stated that, in those circumstances, letter dated 18.02.2013 Annexure R-6 was written to the complainant. It was further stated that since no satisfactory reply was received from the complainant, his claim was rightly repudiated by the Opposite Parties, vide letter dated 03.06.2013 Annexure R-7. 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.
4. In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the joint written version of the Opposite Parties.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellants, submitted that perusal of the report dated 20.11.2012, of Sh.Parvinder Kumar, Surveyor and Loss Assessor, clearly revealed that he assessed the loss on net basis, in which the salvage valued at Rs.3.50 lacs, was to be deducted from the Insured Declared Value of Rs.9 lacs. He further submitted that, while subtracting Rs.3.50 lacs, on account of salvage, from the Insured Declared Value of Rs.9 lacs, the same was mentioned as Rs.6.50 lacs, instead of Rs.5.50 lacs, which was only a clerical/mathematical mistake. He further submitted that Sh.Parvinder Kumar, Surveyor and Loss Assessor, also submitted his Addendum Report dated 05.12.2012 Annexure A-1, to this effect, to the appellants, but the same could not be placed, on record, before the District Forum, though submitted alongwith the memorandum of appeal. He further submitted that the only payable amount, as per the calculation made by Sh.Parvinder Kumar, Surveyor and Loss Assessor, came to be Rs.5.49 lacs, and not Rs.6.49 lacs. He further submitted that it is settled principle of law, that the clerical/mathematical mistake can be corrected, at any time. He further submitted that the order of the District Forum requires modification only to this extent.
10. On the other hand, the Counsel for the respondent/complainant, submitted that Sh.Parvinder Kumar, Surveyor and Loss Assessor, submitted his report, after assessing the loss. He further submitted that there was no discrepancy, in the report of Sh.Parvinder Kumar, Surveyor and Loss Assessor. He further submitted that the amount calculated by the said Surveyor and Loss Assessor, which was to be paid to the complainant, on account of the total loss of the vehicle, was to the tune of Rs.6.49 lacs and not Rs.5.49 lacs. He further submitted that the order of the District Forum being legal and valid, is liable to be upheld.
11. The factum that the vehicle, in question, was got insured by the complainant, from the Opposite Parties, valid for the period from, 28.08.2012 to 27.08.2013, for Insured Declared Value (IDV) of Rs.9,00,000/-, on payment of premium to the tune of Rs.21,578/-, was admitted by the parties. The factum of accident of the said vehicle, was also admitted. There is, no dispute, about the factum that, as soon as intimation was received by the Opposite Parties, Sh.Parvinder Kumar, Surveyor and Loss Assessor, was appointed, who declared the vehicle as total loss, and submitted his assessment report. It is evident, from the report dated 20.11.2012 Annexure R-3, of Sh.Parvinder Kumar, Surveyor and Loss Assessor, that he made assessment of loss, on net loss basis. The Insured Declared Value of the car was Rs.9 lacs, less expected salvage value of Rs.3.50 lacs. Thus, the Surveyor and Loss Assessor came to the conclusion that the net loss was to the tune of Rs.6.50 lacs. After deducting a sum of Rs.3.50 lacs, from Rs.9 lacs (IDV), the amount payable should have been Rs.5.50 lacs, and not Rs.6.50 lacs. It was only a clerical/mathematical mistake, on the part of Sh.Parvinder Kumar, Surveyor and Loss Assessor, that he recorded the wrong figure of Rs.6.50 lacs, instead of Rs.5.50 lacs. The amount of Rs.1,000/- was deducted, on account of less compulsory deductible. Thus, according to the report of the Surveyor and Loss Assessor, the net payable amount was Rs.6.49 lacs, instead of Rs.5.49 lacs. Addendum Report was also submitted by Sh.Parvinder Kumar, Surveyor and Loss Assessor, which is Annexure A-1. The application for admission of the same, by way of additional evidence was moved by the appellants. That application was separately allowed. It is also evident from the Addendum Report Annexure A-1 of the Surveyor and Loss Assessor, that the net assessed loss, on net loss basis, by him, was to the tune of Rs.5.49 lacs. Since the clerical/mathematical mistake could be corrected at any time, in our considered opinion, the submission of the Counsel for the appellants, in this regard, is correct. It is, therefore held that the respondent/complainant was only entitled to a sum of Rs.5.49 lacs, and not Rs.6.49 lacs, which fact was clarified by Sh.Parvinder Kumar, Surveyor and Loss Assessor, in his Addendum Report Annexure A-1. The order of the District Forum, deserves to be modified to this extent.
12. No other point, was urged, by the Counsel for the parties.
13. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
i. The appellants/Opposite Parties are directed to pay a sum of Rs.5.49 lacs, as clarified by the Surveyor, in his Addendum Report Annexure A-1, instead of Rs.6.49 lacs, as awarded by the District Forum, on the basis of report dated 20.11.2012 Annexure R-3.
ii. The other reliefs granted and directions given by the District Forum, in its order impugned, shall remain intact.
14. Certified copies of this order, be sent to the parties, free of charge.
15. The file be consigned to Record Room, after completion Pronounced.
03/06/2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg STATE COMMISSION (First Appeal No. 173 of 2014) Argued by: Sh. Rajneesh Malhotra, Advocate for the applicants/ appellants.
Sh. Vishal Madaan, Advocate for the respondent.
Dated the 3rd day of June 2014 ORDER Alongwith the appeal, an application for placing, on record, the Addendum Report dated 05.12.2012 Annexure A-1, submitted by Sh.Parvinder Kumar, Surveyor and Loss Assessor, to the appellants/Opposite Parties, by way of additional evidence, was filed by them (appellants/Opposite Parties).
2. It was stated in the said application, that as per the Addendum Report dated 05.12.2012, of Sh.Parvinder Kumar, Surveyor and Loss Assessor, sought to be placed, on record, by way of additional evidence, it was revealed that he assessed the loss, in his report dated 20.11.2012, on net loss basis, in which the salvage valued at Rs.3.50 lacs, was to be deducted, from the Insured Declared Value of Rs.9 lacs. It was further stated that, however, while subtracting Rs.3.50 lacs, on account of salvage, from the Insured Declared Value of Rs.9 lacs, the figure mentioned was Rs.6.50 lacs, instead of Rs.5.50 lacs, which was only a clerical/mathematical mistake. It was further stated that the Addendum Report dated 05.12.2012 Annexure A-1, submitted by the said Surveyor and Loss Assessor, could not be placed, on the record, before the District Forum inadvertently. It was further stated that the Addendum Report dated 05.12.2012, Annexure A-1, is very essential for the just decision of appeal. Accordingly, the prayer, referred to above, was made.
3. In reply to the application, it was stated by the respondent, that there was no clerical/mathematical mistake, in the report of the Surveyor Annexure R-3. It was further stated that, infact, there was a possibility that the said Surveyor and Loss Assessor, had an intention to give the claim of Rs.6.50 lacs, to the complainant, and, inadvertently, mentioned the salvage value of Rs.3.50 lacs, instead of Rs.2.50 lacs. It was further stated that the alleged Addendum Report Annexure A-1, being false and fabricated, and, sought to be produced, by the appellants/Opposite Parties, at this belated stage, did not have any relevance, for the decision of appeal. Accordingly, the prayer was made, that the application be dismissed.
4. It may be stated here, that, no doubt, the Addendum Report dated 05.12.2012 Annexure A-1, submitted by the Surveyor and Loss Assessor, was very much in possession of the Opposite Parties/appellants, yet they did not produce the same, in the District Forum. In our considered opinion, the same (Addendum Report dated 05.12.2012 Annexure A-1) is essential for the just decision of appeal, as from the same, it was proved that it was only due to the clerical/mathematical mistake, on the part of Surveyor, that the figure of Rs.6.49 lacs, instead of Rs.5.49 lacs, after deducting the amount of expected salvage value to the tune of Rs.3.50 lacs, from the Insured Declared Value of Rs.9 lacs, less compulsory deductible of Rs.1,000/-, was mentioned. After rectifying the clerical mistake aforesaid, that the Addendum Report Annexure A-1, was submitted by him, to the Opposite Parties, which, however, could not be placed on record, by them, before the District Forum, during the proceedings, due to inadvertence. It is settled principle of law, that every lis should be decided, after affording the parties, full opportunity to produce evidence, available with them, which is essential for the just decision of the same. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. When the hypertechnicalities and substantial justice, are pitted against each other, then the latter shall prevail, over the former. The main object of the Consumer/ Foras is to advance the cause of justice, than to thwart the same by resorting to hypertechnicalities. Since the Addendum Report dated 05.12.2012 Annexure A-1, is not only essential for the just decision of appeal, but will also enable this Commission, to pronounce the judgment, in a better manner, the application deserves to be allowed. Accordingly, the application, under disposal, is accepted, allowing the appellants/Opposite Parties, to place the Addendum Report dated 05.12.2012 Annexure A-1, on record. The Addendum Report has been placed on record, and admitted into evidence.
5. The Counsel for the respondent/complainant does not want to lead any evidence, in rebuttal, to the additional evidence.
6. Arguments in the appeal, have already been heard.
7. Vide separate detailed order, this appeal has been partly accepted, with no order as to costs, with the modification.
8. Certified copies of this order, be sent to the parties, free of charge.
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(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg.