National Consumer Disputes Redressal
Shriram General Insurance Co. Ltd. vs Jamshed Khan & Anr. on 5 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2597 OF 2015 (Against the Order dated 14/08/2015 in Appeal No. 905/2012 of the State Commission Rajasthan) 1. SHRIRAM GENERAL INSURANCE CO. LTD. REGISTERED OFFICE AT E-8, EPIP, RIICO INDUSTRIAL AREA, SITAPURA JAIPUR-302022 RAJASTHAN ...........Petitioner(s) Versus 1. JAMSHED KHAN & ANR. S/O SH. GURMALLI KHAN, R/O VILLAGE NANGAL RATAWAT, TEH. & DISTT. ALWAR RAJASTHAN 2. KOTAK MAHINDRA BANK LIMITED BRANCH OFFICE: DASTA ARKED, STATION ROAD, ALWAR RAJASTHAN ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. N.K.Chauhan, Advocate For the Respondent : For the Respondent No.1: Mr. Govind Narayan, Advocate with
Mr. Neeraj, Advocate
For the Respondent No.2: Ms. Pallavi Deepika, Advocate
Dated : 05 Jul 2017 ORDER
1. This revision petition has been filed by the petitioner, Shriram General Insurance Co. Ltd., against the order dated 14.08.2015 of the State Consumer Disputes Redressal Commission, Rajasthan, (in short 'the State Commission') passed in Appeal No.905/2012.
2. Brief facts of the case are that the complainant get insured his truck No.RJ-02-4192 with the opponent insurance company for the period from 11.3.2011 to 10.3.2012 for an IDV of Rs.14,20,000/-. The truck of the complainant caught sudden fire on 27.5.2011 in which the truck was burnt completely and turned into ashes, regarding which the opponent insurance company was immediately intimated. The insurance claim was filed before the opponent insurance company which was repudiated. Therefore, the complainant filed a complaint before the District Forum for insurance claim amount of Rs.14,20,000/- and other compensation.The opponent No.1 filed its reply to the complaint before the District Forum and stated that the vehicle of the complainant was burnt due to overloading than the capacity of the vehicle. Therefore there is violation of the terms and conditions of the insurance policy consequently the insurance claim was rightly repudiated. As per the survey report vehicle suffered damages to the extent of Rs.900,000/-. They have not committed any deficiency in service by repudiating the claim of the complainant. The complaint of the complaint may be dismissed.
3. The District Consumer Disputes Redressal Forum, Alwar, (in short 'the District Forum') after considering the submissions of the parties allowed the complaint as under on 12.06.2012:-
"It is therefore, ordered that the O/P insurance company within one month will pay to the O/P No.2 bank the balance due loan amount of Rs.12,21,186.17 with any interest etc. Thereon for the above said vehicle out of insurance claim amount of Rs.14,20,000/- and the balance amount and Rs.5,0000/- will be paid to the complainant for mental harassment and litigation expenses. If the above said order is not complied within the time fixed then the O/P insurance company will be liable to pay the interest @ 15% p.a. on the entire amount."
4. Aggrieved by the above order of the District Forum, the opposite party No.1, petitioner herein preferred an appeal before the State Commission bearing Appeal No.905 of 2012. The State Commission vide its order dated 14.8.2015 however dismissed the appeal at a cost of Rs.10,000/- and passed the following order:-
"Therefore the order dated 12.06.2012 passed by the District Forum in complaint no.1446/2011 is upheld and appeal of the appellant is dismissed with cost of Rs.10,000/-. The complainant is directed that he will hand over the salvage to the appellant/opponent no.1 within 30 days. After receiving the salvage the appellant will comply with the order of district forum within 60 days. The amount deposited by the appellant at the time of filing of appeal may be returned to it along with accrued profit. The cost of Rs.10,000/- be paid to the complainant."
5. Hence the revision petition by the opposite party No.1/petitioner.
6. Heard the learned counsel for the parties and perused the record.
7. The learned counsel for the petitioner stated that both the fora below erred in not appreciating the fact that the vehicle was overloaded and that is why it met with the accident. The load challan filed by the complainant with the Insurance Company was only the carbon copy and therefore, the Insurance Company appointed an Investigator to verify from the original GR. The Investigator has given his report dated 20.10.2011 and has clearly stated that the original GR 1788 was found blank with the transporter. The transporter has given his statement that three copies of this challan are given to the driver, who completes the same and one copy is later submitted to the transporter. The GR 1788 for this vehicle and for this journey was found out to be blank with the transporter. It means that whatever copy has been supplied to the Insurance Company was forged and the weight of 15 MT mentioned therein cannot be believed. If the papers are not completed before the journey, the presumption would be that this is done to gain undue advantage. The complainant has not submitted any report of any weigh-bridge where the truck might have been weighed before the accident. Thus, the Insurance Company had reached to the conclusion that the vehicle was overloaded as the correct GR was not submitted by the complainant along with his claim.
8. It was further submitted by the learned counsel for the petitioner that the surveyor has assessed the loss at Rs.9,00,000/- only, whereas, both the fora below have allowed the full IDV of the insured vehicle. Both the fora below have considered the claim on repair basis, whereas, the surveyor has clearly opined that claim cannot be accepted on repair basis as the cost of repair is more than the IDV and therefore, surveyor recommended that the claim be considered on 'net of salvage basis'. Learned counsel mentioned that surveyors are appointed under the Insurance Act, 1938 and their reports cannot be brushed aside without any cogent reasons. Both the fora below have not given any reasons for not accepting the final report of the surveyor.
9. Learned counsel for the respondent No.1/complainant stated that the vehicle was totally burnt due to sudden fire catching the vehicle. The spot surveyor as well as final surveyor both have agreed with this fact. If the total vehicle has been lost, how the Insurance claim can be less than the IDV? The surveyor himself has given the assessed amount of loss on the repair basis for Rs.16,88,803/-, however, the District Forum has allowed only IDV of the vehicle, which is Rs.14,20,000/-. Thus, there is no mistake in the orders of the fora below.
10. Learned counsel for respondent No.2 stated that they are only interested in the settlement of the insurance claim so that the money is received by them to set off the loan amount.
11. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. Though, it is a fact that the load challan submitted by the complainant to the Insurance Company is not original one as the original copy of GR 1788 kept with the transporter has been found totally blank by the Investigator appointed by the Insurance Company, however, the Insurance Company has also not produced any other evidence to show that the truck was overloaded.In the absence of any proof submitted by the insurance company for overloading, the benefit of doubt has to be given to the complainant.
12. Now coming to the settlement of the Insurance claim, the surveyor has compared in his report both the methods for arriving at the loss. He has stated that :-
"COMPARISON:
(A) REPAIR BASIS: Liability on Repair Basis is Rs.1688803/- & this can further increase at the time of actual Repair.
(B) NET OF SALVAGE BASIS: Liability on Net of salvage Basis is Rs.900000/- only.
OPINION: In my opinion the settlement of loss on Net of salvage Basis is economical & the same is recommended."
13. It is obvious that no surveyor would recommend a claim, which would be more than the IDV. Hence, the settlement of the claim on the basis of repair was out of question and the fora below should not have considered this option in the light of the fact that this option was not recommended by the surveyor. Then the claim has to be settled on the second option given by the surveyor, which is 'net of salvage basis'. The surveyor has calculated the loss under this head as under:-
(B) SETTLMENT OF LOSS ON NET OF SALVAGE BASIS: Insured's Declared value Rs. 1420000.00 Insured Agreed for Rs. 1251500.00 Less Wreck Value (With Documents) Rs. 350000.00 _____________ Rs. 901500.00 Less Policy Excess (-) 1500.00 _____________ Net Rs.-- 900000.00
14. From the above calculation, one thing is not clear that on what basis the surveyor has stated that the agreed value by the complainant was Rs.12,51,500/- as no details are given in the report of the surveyor in this regard. The surveyor is supposed to assess the loss on scientific basis and on the basis of existing practices in the field of insurance. As the truck was totally burnt, the claim can be settled on the basis of 'net salvage basis' by deducting wreck value of Rs.3,50,000/- from the IDV of Rs.14,20,000/-, which comes to Rs.10,70,000/- only.
15. Based on the above discussion, the revision petition is partly allowed and the petitioner, Insurance Company is directed to settle the insurance claim of the insured vehicle for Rs.10,70,000/-. This amount shall be payable by the Insurance Company along with interest @ 6% p.a. from the date of order of the District Forum, i.e. 12.06.2012 till actual payment. This amount shall be paid to the respondent No.2, Kotak Mahindra Bank Limited to be adjusted against repayment of loan amount, if the same has not yet been settled by the complainant. If there is any excess amount after repayment of loan, the same shall be paid to the complainant/respondent No.1. Orders of the fora below stand modified accordingly. This order be complied by the petitioner within a period of 45 days from the date of this order, failing which, an additional interest of 5% shall be payable by the Insurance Company from the date of this order till actual payment. Cost of Rs.10,000/- on the OP by the State Commission is set aside.
...................... PREM NARAIN PRESIDING MEMBER