National Consumer Disputes Redressal
Jagdish Thapliyal vs United India Insurance Co. Ltd. on 14 October, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 252 OF 2011 (Against the Order dated 30/05/2011 in Complaint No. 8/2008 of the State Commission Uttaranchal) 1. JAGDISH THAPLIYAL PROP TUSHAR BUILDERS 159, PRAGATI VIHAR, RISHIKESH -249201 UTTRAKHAND ...........Appellant(s) Versus 1. UNITED INDIA INSURANCE CO. LTD. THROUGH ITS BRANCH MANAGER UNITED INDIA ASSURANCE CO. LTD KAILASH GATE MUNI KI RETI RISHIKESH -249201 UTTRAKHAND ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
For the Appellant : Mr. Viraj R. Dattar, Advocate with
Mr. Kranti Vikram Singh Bhandari, Advocates For the Respondent : For the Respondent : Mr. Rajesh K. Gupta, Advocate
Dated : 14 Oct 2022 ORDER
The present First Appeal under Section 19 of the Consumer Protection Act, 1986 (hereinafter to be referred to as "the Act") has been filed by the Appellant/Complainant assailing the Order dated 30.05.2011 passed by the State Consumer Disputes Redressal Commission Uttarakhand at Dehradun (hereinafter to be referred to as "State Commission") whereby the Consumer Complaint No. 08 of 2008 filed by the Complainant was dismissed.
Brief facts of the case as narrated in the Complaint are that the Complainant purchased a Package Policy of insurance from the Respondent Insurance Company in respect of his newly purchased JCB Machine Excavator Loader for the period from 28.06.2006 to 27.06.2007 by paying premium of ₹25,274/-. The Insured Declared Value was ₹18,24,200/- against the loss by accident amongst others.
Unfortunately, the JCB Machine met with an accident on 05.10.2006 and fell down in a ditch (khud), resulting in constructive loss. The Complainant lodged an FIR with the Police on 06.10.2006 and the information about the incident was also given to the Respondent Insurance Company on 09.10.2006. Accordingly, on 10.10.2006, the Respondent Insurance Company appointed Sh. Rajeev Gupta as Surveyor to assess the loss and submit his report. He submitted his report to the Respondent Insurance Company, however, allegedly, the said report was not supplied to the Complainant despite demand. After investigation, Complainant retrieved the wreck of the JCB Machine from the ditch on 20.10.2006 and took it to Rishikesh with the help of a crane and truck and spent a sum of ₹23,000/- for the said purpose. On 14.11.2006, Complainant received an estimate for repairs being ₹14,38,086/- from Classified Auto Distributors Pvt. Ltd, Dehradun. The cost of repairing being about 79% of the IDV, the Complainant has stated that it was a case of constructive total loss. It was alleged that the Respondent Insurance Company appointed M/s M.K. Jain and Company as final surveyors to assess the loss. According to the Complainant, he paid a sum of ₹35,000/- to the Surveyor as Survey fees but no receipt was issued for the same. Complainant alleged that in spite of completing all the formalities, as directed by the Surveyor and the Respondent Insurance Company, the claim was not settled in time.
On 30.06.2008, the Respondent Insurance Company offered to settle the Claim of the Complainant for ₹7,71,496 and assessed the value of the salvage at ₹1,15,574/- deductible from the claim amount if the salvage amount is not deposited with the Insurance Company. The said amount was offered by the Respondent Insurance Company on the basis that Hydraulic Pump for ₹50,552/-, Engine for ₹1,86,254 and Gear Box for ₹2,36,116/- were not dismantled for consideration of the exact loss. However, according to the Complainant all these assemblies were dismantled at the time of final survey in presence of M.K. Jain, Surveyor. After various correspondences, the Respondent Insurance Company affirmed with its stand that these assemblies were not dismantled. Aggrieved, the Complainant filed Consumer Complaint No. 08 of 2008 before the State Commission alleging deficiency in service on the part of the Respondent Insurance Company.
The Complaint was resisted by the Respondent Insurance Company by filing their Written Version, inter-alia, on the grounds that; Complainant was not a "Consumer" under the provisions of Act since the JCB Machine was purchased for the business activities/commercial activities; the IDV of the machine was ₹18,24,000/- and the value of the Complaint was deliberately inflated in order to bring the complaint within the jurisdiction of the State Commission; the survey report as submitted by the surveyor, Sh. Rajiv Gupta was private and confidential in nature and there was no cause or reason to provide a copy of the Survey Report to the Complainant; no cogent evidence has been filed by the Complainant in support of his contention that the assemblies in question were opened before the Surveyor, M.K. Jain, as per the seating capacity of the machine, only one person was allowed to sit, the accident occurred due to loading additional people in the sitting area; Complainant failed to call the Service Engineer/Mechanic on 04.07.2008, the date fixed for dismantling of the assemblies; he also refused to sign the note sheet prepared on 04.07.2008, however, he promised to call the Engineer on 12.07.2008; despite various communications, Complainant did not come forward for dismantling of the vehicle; the Complainant was asked to get a report from the Service Engineer and to submit it to the Insurance Company by 20.01.2009, but the Complainant failed to perform his duties.
Initially, the State Commission, vide Order dated, 04.03.2009, dismissed the Complaint for want of Pecuniary Jurisdiction and returned the same to the Complainant for filing it before the appropriate Forum. However, in Appeal preferred before this Commission, vide Order dated 04.02.2010, the order of the State Commission was set aside and the complaint was restored to its original number. The State Commission was also directed to decide the Complaint in accordance with law.
Having heard the learned Counsel for the parties and after re-appraising the material and evidence placed on record, the State Commission, vide impugned Order dated 30.05.2011 dismissed the Complaint on merits by observing as under:-
4. The Complainant himself has admitted in his Consumer Complaint that the dispute between the parties is in respect of the quantum of loss to be indemnified by the Opposite Party. There is no dispute in respect of value of the machine, its insurance with the opposite party, accident and damage caused to the machine. The report dated 17.11.2007 of the Surveyor deputed by the Insurance Company is at Paper Nos. 219 to 226 and at Paper No. 223, the Surveyor has given the details of assessment of loss made by him. He has not allowed the loss of some of items and the Complainant has not disputed it. The dispute is in respect of Hydraulic Pump, Engine and Gear Box. Except these three items, the Complainant has not objected to the report. That means, leaving the dispute on these items, the loss to be indemnified by the Opposite Party is ₹7,70,496/- minus value of the salvage which has been assessed at ₹. 1,15,574/-.
5. According to the Surveyor's report, the damaged machine was lying/stored in an industrial compound in Rishikesh. The Complainant had called the Technician/S/ervice Engineer form Classified Auto Distributors Pvt. Ltd. and the estimate/quotation dated 14.11.2006 was prepared by him for sum of ₹14,38,086/- The Surveyor has assessed the loss on the basis of this estimate. The Surveyor asked the Complainant to co-ordinate with the repairer so that the inspection/survey could be made in Service Engineer's presence and the gravity/impact of the damage could be discussed. On 29.09.2007, the Surveyor inspected the vehicle in the presence of Mukesh Kumar, Service Engineer of the repairer and the Complainant. The Service Engineer told the Surveyor that the vehicle needed to be taken to the repairer's site at Dehradun so that it could be properly dismantled for assessing the gravity of damage to the engine and gear box assembly. From Paper No. 227, it appears that the complainant had refused to get the machine dismantled. In his consumer complaint, under para (xiii), the complainant has stated that all the assemblies were dismantled at the time of final survey in the presence of Sh. M. K. Jain, but we find that this statement of the complainant is very vague and without any evidence. The complainant himself cannot dismantle the machine. Obviously, if it was done, he might have hired the services of some mechanic or service engineer. So to prove his contention, he could have filed the affidavit of that mechanic or service engineer. Therefore, in absence of any conclusive evidence, we have no other option left with us but to reply on the surveyor's report. The opposite party has offered compensation to the complainant according to the survey report and therefore, has not committed any deficiency in service. On other allegations, such as not providing the surveyor's report or not acting as per the provision of IRDA etc., we are of the view that these are not the part of "service" which can be adjudicated by the Consumer Fora under the provisions of Consumer Protection Act, 1986. If the complainant has any grievance in this respect, he can move to the Civil Court or approach IRDA or make a complaint to the Management of the Corporation."
Aggrieved by this order, the Appellant/Complainant is before us by way of present First Appeal.
I have heard the learned Counsel for the parties at some length and also have carefully gone through the record.
Mr. Viraj R. Dattar, learned Counsel appearing for the Appellant has urged that the State Commission has erroneously dismissed the Complaint and has committed grave error in arriving at the conclusion that the Complainant ought go to Civil Court or IRDA for redressal of which grievance. He further submitted that the State Commission had failed to properly appreciate the fact that the dispute at hand between the parties was a very simple Consumer Dispute wherein the liability was admitted by the Insurer and that the estimated repair charges plus retrieval charges were more than 75% of Insured Declare Value and hence it was to be treated a Total Loss case. It is finally contended by him that the dispute relates to only quantum of compensation, the Insurance Company has to indemnify the Complainant for the loss suffered by him and to take back the salvage.
Per contra, Learned Counsel appearing for the Respondent Insurance Company has supported the well-reasoned order passed by the State Commission. He submitted that the State Commission had passed the impugned correct and proper appreciation of evidence and material available on record and the impugned Order does not call for any interference.
Having bestowed my anxious consideration to the rival contentions of the Learned Counsel for the parties and after carefully going through the entire record of the case, I am of the considered view that the entire episode revolves around the question as to whether the Hydraulic Pump, Engine and Gear box were dismantled or not to assess the exact loss suffered by the Complainant.
During the course of proceedings, on 19.04.2018, this Commission had passed the following order:-
" In furtherance of the Order dated 10.04.2018, the Appellant has suggested the terms of reference and the names of two independent experts for inspection of three major parts, namely, Engine Assembly, Gear Box Assembly and Hydraulic Pump of the machine in question.
Learned Counsel appearing for the Respondent - Insurance Company submits that as per his instructions, the question of appointment of an independent expert as also the terms of reference are left to the discretion of this Commission.
In view of the above, we appoint Chief Service Manager of Continental Earthmover, 30, Upper Kaunwala, Haridwar Road, Dehradun 248001, Uttarakhand, as an independent Expert to inspect the afore-said parts, in the presence of a technical expert, to be nominated by the Head of the concerned Regional Transport Authority at the request of the Appellant and a representative of the Insurance Company. The Expert shall submit his report on the following points:-
Whether the Engine Assembly, Gear Box Assembly and the Hydraulic Pump show any signs of having been tampered with or opened before the same were inspected by the Surveyor on 29.09.2007/13.11.2007;
The nature and extent of the damage to the afore-said parts and the approximate cost of repairs thereof; and Whether the passage of time between October 2006 and April 2018 has had any bearing on the extent of damage to the said parts.
Sh. Manoj Kumar, Senior Service Engineer, JCB Continental Earth Movers, Kuanwala, Haridwar Road, Dehradun, after inspection of the all the three parts of JCB in question, submitted his report on 30.07.2018 as under:-
The machine shows no sign of having been tampered with, however, it appears that it has been opened earlier also for inspection. All the signs visible are related to the accident. Engine became seized due to leakage of engine oil due to bursting of engine filter.
Rear Crossing of Gear Box is found broken.
Some part of the Hydraulic pump was found broken and missing The missing part of the hydraulic pump was found attached with the Gear Box.
The condition of the machine due to rust was very worse and the repair cost would be on the higher side. Besides, the life time of the machine was very less as per guidelines of the Government.
15. Against the said report, the Respondent insurance Company has filed the following objections:-
(i) Report of the Senior Service Engineer of JCB Continental Earth Movers, Dehradun is materially at variance with what was observed and agreed during the inspection as is evident from the Affidavit of Mr. Manish Kumar, Assistant Manager of the Insurance Company who has stated that it was agreed that the insured would arrange to shift the Engine Assembly and Gear Box to continental JCB workshop immediately for further dismantling and complete assessment of the loss. He further submitted that the Hydraulic Pump was not made available for inspection.
(ii) The Final Surveyor, Mr. M.K. Jain, had submitted that despite repeated reminders the Appellant did not get the aforesaid three parts dismantled for assessment of loss while the appellant has submitted that all these three parts were dismantled. The Appellant has not made available the Hydraulic Pump Assembly during the inspection, however, the JCB was in his custody. If the Hydraulic Pump was missing, why the Complainant did not brought the said fact in the knowledge of the Commission at the time of passing order dated 19.04.2018.
16. On bare perusal of the afore-extracted report of Manoj Kumar, Senior Service Engineer, JCB Continental Earth Movers as well as the objections made by the Respondent Insurance Company, I do not find any reason to dis-believe the report of Mr. Manoj Kumar appointed as an Expert for inspection of the machine by this Commission vide Order dated 19.04.2018. In support of his Report, he has also filed an affidavit stating that he has inspected a JCB Machine Engine bearing No.4H2139/0604240 which belonged to M/s. Tushar Builders. He has further stated that there is no change in the inspection report submitted by him on 21.07.2018 and all the information given by him in his report is true. In his report, the Expert has submitted that the Machine in question has not been tempered with and it was opened earlier also for inspection which supports the defence of the Complainant that these assemblies were opened/dismantled at the time of final survey in the presence of Mr. M.J. Jain, Surveyor. On inspection, the rear crossing of the Gear Box was also found broken. According to the Respondent Insurance Company, the Hydraulic Pump was not made available to the Expert for inspection, however, in his report, he has submitted that the broken part of the Hydraulic Pump was found attached with the Gear Box. The Expert has further opined that due to rust in the years from the date of accident till the date of inspection, condition of the JCB Machine has become deteriorated and non-repairable. Moreover, there is no life of the machine as per the guidelines issued by the Government. Nevertheless, the Complainant in his letter dated 28.08.2008 in reply to the letter dated 25.08.2008 sent by the Insurance Company, has submitted as under:-
" I am surprised to read your letter as well as the letter of the Surveyor. It is reiterated that the assemblies were opened and inspected by the Surveyor when he made the Survey. Because Survey Report has either been delayed or suppressed in collusion with concerned Officers of the Company, a false case is being made to say that these assemblies has not yet been checked in dismantled condition.
Without prejudice to my claim for total loss, interest and other claims, I am agreeable to reopen the assemblies. But this has to be in presence of the Surveyor and your own officials. You may inform me the day you want to come at least two days before when I shall be ready with the mechanic. All these has to be done within the period of 15 days and maximum period, I can wait.
17. A perusal of the aforesaid letter, would reveal that the contention of the Respondent Insurance Company that despite the repeated requests, the Complainant did not agree for the dismantle of three parts of the JCB Machine in question, does not hold any water.
18. For the aforesaid discussion, I am of the considered view that the impugned order passed by the State Commission suffers from perversity and infirmity. Consequently, the impugned order passed by the State Commission is set aside and the Complaint filed by the Complainant is allowed. Now, coming to the question of compensation to be awarded to the Complainant for the loss suffered by him on account of accident of JCB Machine, I find that to maintain the balance of equity between the parties and in the interest of justice, it would be proper in the facts of the case to direct the Respondent Insurance Company to pay a sum of 14,38,086/- to the Complainant as assessment of repairs obtained by the Complainant from M/s. Classified Auto Distributors Pvt. Ltd. The Surveyors appointed by the Insurance Company had also submitted their report assessing the loss on the basis of said estimate. The Respondent Insurance Company shall also be liable to pay interest @ 6% p.a. on the said amount from the date of submission of final report by the Surveyor till payment subject to the adjustment of the amount, if any, already paid to the Complainant and the value of the salvage as on the date of passing of this order.
......................J R.K. AGRAWAL PRESIDENT