State Consumer Disputes Redressal Commission
Smt. Umadevi Garg vs Shri Ram General Insurance Co.Ltd. & ... on 30 April, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2015/261
Instituted on : 22.08.2015
Smt. Umadevi Garg, W/o Ashok Agrawal,
R/o : Hukmi Colony, Ward No.2,
Tehsil : Gharghoda, District Raigarh (C.G.) .....Appellant
Vs.
1. Shriram General Insurance Company Limited,
Through : Head Manager / Branch Manager,
Chaitanya Nagar, Second Floor, Dhimrapur Road,
Tehsil and District Raigarh (C.G.)
2. Shriram Transport Finance Company Limited,
Through : Branch Manager,
Chaitanya Nagar, Second Floor, Dhimrapur Road,
Tehsil and District Raigarh (C.G.)
3. Shriram General Insurance Company Limited,
Head Office, E-8, P.I.P.R. L.L.O.C. Area Sitapur,
Jaipur (Rajasthan) - 302022 .....Respondents
PRESENT:-
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES:-
Shri C.R. Lahre, for the appellant.
Shri Deepak Gupta, for the respondent No.1 & 3.
Shri O.P. Agrawal, for the respondent No.2.
ORDER
Dated: 30/04/2016 PER:- HON'BLE SHRI JUSTICE R.S.SHARMA, PRESIDENT This appeal is directed against the order dated 29.04.2015, passed by the District Consumer Disputes Redressal Forum, Raigarh (C.G.) (henceforth 'District Forum' for short), in Complaint Case // 2 // No.147/2014. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant) with following directions :-
(a) The appellant (complainant) will pay a sum of Rs.2,000/-
(Rupees Two Thousand) to the respondent (O.P. No.2) towards cost of litigation.
(b) The appellant (complainant) and respondent No.3 (O.P.No.3) will bear their own costs.
2. Briefly stated, the facts of the complaint of the appellant (complainant) are that the respondent No.1 (O.P. No.1) provided vehicle of her choice to the appellant (complainant) and provided facility to make payment in intallments. After completing all formalities, the said vehicle was operating by the appellant (complainant) through driver and she was regularly paying the installment. The installment of Rs.62,302/- per month was fixed. The respondent No.1 (O.P.No.1) issued R.C. Book No.0052543 AB 7336 Form -23 in favour of the appellant (complainant). The said vehicle was legally registered in the R.T.O. Office and registration No.C.G.13- L/0420 was issued. The chassis No. of the vehicle is MAT 447212 B 2G18703 and Engine No. is B 591803111 G 63157275. The vehicle which was provided to the appellant (complainant) was manufactured in the year 2011 by Tata Motors. The said vehicle was insured with the respondent No.1 (O.P.No.1) and respondent No.3 (O.P.No.3) for the // 3 // period from 21.07.2012 to 20.07.2013 under insurance policy No.10003/31/13/177040. The R.T.O. authority issued permit for transportation of goods on 16.08.2011 in favour of the appellant (complainant). On 30.06.2013, the driver of the vehicle Nasim, whose driving licence No. is 2278/2010, issued on 15.04.1990 by transport authority and valid for the period from 14.06.2010 to 13.06.2013 had loaded Coal at 9.00 - 10 P.M. and he was going to Parsada Bhupdevpur Railway Siding for dumping. When the vehicle reached near main road Balaji Petrol Pump, heavy rain started and due to rain, it is not possible for the driver of the vehicle to see anything in front. Due to heavy rain, another vehicle trailer bearing registration No.C.G.12/F-1427, which was running in front of the vehicle of the appellant (complainant) and driver of the said vehicle all of a sudden applied brake, therefore, the vehicle of the appellant (complainant) dashed with that vehicle resulting which the vehicle of the appellant (complainant) also badly damaged and the driver and helper of the appellant (complainant) also sustained injuries. The husband of the appellant (complainant) lodged report in Police Station, Gharghoda on 01.07.2013, which was registered as First Information No.258/2013 for offence under Section 279 and 337 IPC. The appellant (complainant) sent intimation to the respondent No.1 (O.P.No.1) and respondent No.3 (O.P.No.3) regarding the incident along with relevant documents. The respondent No.1 (O.P.No.1) and respondent No.3 (O.P.No.3) appointed // 4 // Surveyor, who compelled the appellant (complainant) contrary to the terms and conditions of the policy, therefore, the husband of the appellant (complainant) sent email to the respondents (OPs) and informed his problem, but even then the respondents (OPs) did not take any concrete action due to which the vehicle of the appellant (complainant) was standing in stationary condition. The appellant (complainant) contacted the respondents (OPs) and made complaint to them regarding non-payment of the compensation as per terms and conditions of the policy, then the respondents (OPs) told her to get repair the vehicle on her expenses and submit original bills then respondents (OPs) will pay the amount. The appellant (complainant) expressed that there is no arrangement of the amount for repairing of the vehicle, therefore, keep the vehicle with them, then the respondent (OPs) told her that they will provide personal loan of Rs.5,00,000/- on the basis of which she can repair the vehicle. After receiving the above assurance, the vehicle was got repaired by the appellant (complainant) in her own expenses. The chassis, cabin and hydraulic system were completely damaged. The radiator, air coolen, engine wee also damaged. The pump was also complete damaged, crown soft, Kachua, steering box, assemble of turbo, engine piston, gasket, crown soft gear, soft bush, head valve, steering rod, radiator fan, total wiring of the vehicle and total pipe line, clutch hozing and 18 tyres were damaged because due to negligence of the respondents (OPs) the vehicle in // 5 // question was parked in stationary condition. Besides it a sum of Rs.11,64,681/-,was incurred in the repairing. In this regard as per version of the respondents (OPs), the appellant (complainant) submitted all original bills before the respondents (OPs) and requested to pay the amount spent by her in the repairing of the vehicle, at the earliest because the vehicle is parked in the spot and workshop from 30.06.2013 to January 2014 in stationary conditions and appellant (complainant) was required to pay installment of Rs.62,307/- per month. After submission of the bills in respect of repairing of the vehicle in question in the month of January, 2014, the respondents (OPs) informed the appellant (complainant) that they will not pay the amount in respect of damage of engine and they will deduct salvage of the old parts, then the appellant (complainant) told that the above facts are not mentioned in the terms and conditions of the policy, therefore, deduction thereof is fully improper and illegal. The appellant (complainant) contacted the local office of the respondents (OPs) from January, 2014 to April, 2014, but the respondents (OPs) did pay the compensation to the appellant (complainant). The respondents (OPs) did not pay amount to the appellant (complainant) but on 25.03.2014 sent a message on her mobile that a sum of Rs.5,37,652/- was paid to Shriram Transport Company Limited and payment of Rs.6,27,029/- was unauthorizedly stayed and was not paid for which proper reason was not given. The respondents (OPs) committed deficiency in service.
// 6 // Hence the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. Respondent No.1 (O.P. No.1) was proceeded ex-parte by the District Forum because respondent No.1 (O.P.No.1) refused to accept the notice.
4. The respondent No.2 (O.P.No.2) filed its written statement and averred that the appellant (complainant) voluntarily obtained financial help from the respondent No.2 (O.P.No.2) and a sum of Rs.5,00,000/- was financed by the respondent No.2 (O.P.No.2) to her. Until all installments are paid, the ownership of the vehicle is remained with the Finance Company and not with the borrower. The entire installment in respect of the financed vehicle was not paid by the appellant (complainant), therefore, the Finance Company, is owner of the same and not the appellant (complainant) borrower. The borrower is only ostensible owner. The appellant (complainant) is not paying the monthly installments. The respondent No.2 (O.P. No.2) is only Financer and financed the vehicle to the appellant (complainant) under loan agreement and to avoid from making payment of the loan amount, the appellant (complainant) has filed frivolous complaint. The appellant (complainant) is not entitled to get any relief from the respondent No.2 (O.P.No.2). The vehicle in question was financed by // 7 // the appellant (complainant) for the commercial purpose and not for livelihood. The appellant (complainant) has not averred in the complainant that the vehicle in question was financed for her livelihood. The above vehicle is commercial vehicle from which business is carried out. It is clear that the appellant (complainant) purchased the vehicle for commercial purpose, therefore, she does not come in the category of the consumer and on this basis the complaint is not maintainable before the District Forum. The appellant (complainant) has not averred that besides above vehicle any other vehicle is not in the name of her husband or in the family and with the help of vehicle in question she is earning livelihood of herself and her family. The complaint of the appellant (complainant) does not come within Consumer Protection Act, 1986 and is not maintainable. The appellant (complainant) purchased the vehicle in question for the commercial purpose for earning income. The vehicle in question is a commercial vehicle and not a private vehicle, therefore, the appellant (complainant) does not come in the category of "consumer" as defined in Consumer Protection Act, 1986. Besides it, as per terms of the loan agreement, if any dispute arise between the parties, then the same will be settled through Arbitrator, therefore, the complaint is not maintainable. If the R.C. book is perused then it is clear that hypothecation of the respondent No.2 (O.P.No.2) is endorsed. At present the respondent No.2 (O.P.No.2) has to recover huge amount // 8 // along with interest from the appellant (complainant). In the present case, there is dispute regarding insurance amount and not in respect of the financing, which is between the Insurance Company and the appellant (complainant). The appellant (complainant) has not paid any amount to the respondent No.2 (O.P. No.2) in respect of liability of insurance. Therefore no question arises for committing deficiency in service. The respondent No.2 (O.P. No.2) is not a necessary party. A sum of Rs.5,00,000/- has been provided to the appellant (complainant) for repairing of the vehicle and the appellant (complainant) is having knowledge regarding the same and has accepted. The respondent No.2 (O.P.No.2) is financer of the vehicle in question, who provided loan under loan agreement to the appellant (complainant). After understanding the terms of the Hire Purchase Agreement executed and the appellant (complainant) and guarantor have signed. As per terms of the agreement, the respondent No.2 (O.P.No.2) is entitled to get the insurance amount because the respondent No.2 (O.P.No.2) is real owner of the vehicle in question. The complaint is liable to be dismissed.
5. The respondent No.3 (O.P.No.3) filed its written statement and averred that the appellant (complainant) submitted claim before the respondent No.3 (O.P.No.3) and the claim was assessed by the Surveyor. The Surveyor assessed the claim amount on the basis of which the respondent No.3 (O.P.) paid a sum of Rs.5,37,652/- in favour // 9 // of the appellant (complainant). Thus, the respondent No.3 (O.P.No.3) Insurance Company has paid the actual amount to the appellant (complainant) and no further amount is payable to the appellant (complainant). The complaint of the appellant (complainant) is liable to be dismissed. The vehicle bearing registration No.C.G.13-L-0420 is a Tipper Vehicle manufactured by Tata Motor, which comes in the category of Heavy Goods Vehicle and the registration of this vehicle was done by the transport department and transport tax has also been paid according to commercial vehicle rate. The appellant (complainant) engaged driver Nasim Ansari and on the date of accident the above vehicle was coming from Baraud Colliery after loading coal from which it is clear that the vehicle in question was being used for commercial purpose through driver and is earning income. Thus, the vehicle in question is being used for commercial purpose. The respondent No.1 (O.P.No.1) does not have any office in Raigarh. The head office of the respondent No.1 (O.P.No.1) is situated at Jaipur. The respondent No.1 (O.P.No.1) has been unnecessary impleaded in the complaint, therefore, the complaint is liable to be dismissed. The appellant (complainant) uses the vehicle in question for commercial purpose, therefore, she does not come in the category of consumer under Consumer Protection Act, 1986. The appellant (complainant) is owner of vehicle bearing registration No.C.G.13-L- 0420, which is Tipper. The said vehicle is registered as commercial // 10 // vehicle in the record of the transport department and fitness and permit has also been issued by the transport department. The fitness and permit are issued by the transport department in respect of commercial use of the vehicle. The appellant (complainant) is depositing commercial tax with Taxing Officer, Transport Department, Raigarh which proves that the vehicle is used for commercial purpose. The Insurance Company has insured the above vehicle on the basis of documents of transport department and on the request of the appellant (complainant) under Commercial Vehicle Package Policy. As the vehicle in question relates to commercial purpose, therefore, the complaint is liable to be dismissed. The appellant (complainant) is using vehicle Multi Excel Tipper bearing registration No.C.G.13-L- 0420 for transportation of Coal and for this purpose she engage driver Nasim Ansari on salary, she is earning income from plying the vehicle on hire. The driver Nasim Ansari was not having valid driving licence and he did not know to drive the vehicle. He was negligently driving the vehicle in question and dashed the another vehicle from back side. The Police registered crime against him. On being intimation received regarding the incident from the appellant (complainant), the respondent No.3 (O.P.No.3) conducted spot inspection through Surveyor and on the basis of technical ground, preliminary examined the claim, then the respondent No.3 (O.P.No.3) told the appellant (complainant) to get the vehicle repaired but the appellant // 11 // (complainant) did not do so. The respondent No.3 (O.P. No.3) continuously asked the appellant (complainant) to submit claim, but the appellant (complainant) has not taken any action. Thereafter the respondent No.3 (O.P.No.3) sent a reminder to the appellant (complainant) on 17.09.2013 in which it was mentioned that after lapse of 79 days of the accident, the appellant (complainant) did not get the vehicle repaired, therefore, within 7 days get the vehicle repaired, then only further action would be taken in respect of her claim, but the appellant (complainant) did not give reply to the above letter. The respondent No.3 (O.P.No.3) again sent a letter to the appellant (complainant) on 28.11.2013, but appellant (complainant) has not given reply to the above notice. The respondent No.3 (O.P.No.3) requested several time to the appellant (complainant) to get the vehicle repaired and discharge her duty. If the vehicle of the appellant (complainant) was standing in stationary condition for about 7 months, then she herself is responsible for it and the respondent No.3 (O.P.No.3) cannot be held responsible for the same. The appellant (complainant) never told the respondent No.3 (O.P.No.3) that she did not have amount for the repairing and the respondent No.3 (O.P.No.3) did not tell the appellant (complainant) that he will give her personal loan. The appellant (complainant) did not incurr a sum of Rs.11,64,681/- under various heads in respect of repairing of the vehicle and actually the respondent No.3 (O.P.No.3) examined the claim of the appellant // 12 // (complainant) through Surveyor and paid the sum of Rs.5,37,652/-. Thus, the appellant (complainant) is not entitled to get any further amount from the respondent No.3 (O.P. No.3) under the above claim. As the amount has been paid to the appellant (complainant), therefore, case for professional misconduct, does not make out and the complaint is liable to be dismissed. The respondent No.3 (O.P.No.3) assessed the loss on the basis of show room price and accordingly amount was paid. The payment of claim has been made according to terms and conditions of the insurance policy and the amount has been paid to the appellant (complainant) on the basis of valuation. The appellant (complainant) is not entitled to get any amount from the respondent No.3 (O.P.No.3) and the complaint is liable to be dismissed.
6. The appellant (complainant) filed documents. Document No.1 is Certificate of Registration, document No.2 is Certificate of Fitness, document No.3 is permit for goods vehicle, document No.4 is Certificate Cum Policy Schedule GCCV-Public Carriers Other Than Three Wheelers Package Policy Zone C, document No.5 is driving licence of Nasim Ansari, document No.6 is C.M.C. Transit Pass of Urdana Barrier, document No.7 is First Information Report (Under Section 154 Cr.P.C.), document No.8 is letter dated 17th September, 2013 sent by Shriram General Insurance Company Limited, Jaipur (Rajasthan) to the appellant (complainant), document No.9 is email sent by Pari Agrawal to Anil Sharma on 22.11.2013, document No.10 is // 13 // Preliminary Accident Spare Parts Estimate, document No.11 is Quotation dated 26.07.2013 issued by Shivam Motors (P.) Ltd. to the appellant (complainant), document No.12 and document No.13 are quotation dated 25.09.2013 issued by D.J. Motors, Ghardhoda, document No.14 bill issued by New Patna Body Garage, Raigarh (C.G.), document No.15 is bill dated 31.12.2013 issued by Shere Punjab Motor Garage, Raigarh (C.G.), document No.16 is Cash Memo dated 01.01.2014 issued by Nasim Auto Electricals, Raigarh (C.G.), document No.17 is Bill dated 31.12.2013 issued by New Patna Body Garage, Raigarh (C.G.), document No.18 is Cash Credit dated 27.12.2012 issued by S.K. Motors, document No.19 is Cash Credit dated 22.12.2013 issued by Jindal Motors, Gharghoda, document No.20 is Tax Invoice issued by Shivam Motors, document No.21 is Tax Invoice dated 12 .12.2013 and 30.12.2013 issued by Shivam Motors, document No.22 is Cash Credit issued by Awesh Automotive.
7. The respondent No.3 (O.P.No.3) has filed documents. Document No.1 is Motor Final Survey Report of Shri Athaley dated 02.08.2013, document No.2 is Motor Claim Approval Sheet.
8. Learned District Forum, after having considered the material placed before it by the parties, has dismissed the complaint of the appellant (complainant).
// 14 //
9. Shri C.R. Lahre, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) submitted estimate of Rs.11,64,681/- to the Insurance Company and she suffered loss to the tune of Rs.11,64,681/-. The Insurance Company on the basis of Surveyor's Report, deposited a sum of Rs.5,37,652/- directly with the Finance Company. The Finance Company sanctioned loan to the appellant (complainant) to the tune of Rs.5,00,000/-, whereas the Insurance Company had paid a sum of Rs.5,37,652/- to the Finance Company and no intimation in this regard was given to the appellant (complainant). The repairing amount was paid by the appellant (complainant) to the repairer and the appellant (complainant) incurred expenditure to the tune of Rs.11,64,681/- in repairing of the vehicle in question, but the respondent No.3 (O.P.No.3) had paid a sum of Rs.5,37,652/- to the Financer and remaining amount of Rs.6,27,029/- was not paid by the respondent No.3 (O.P.No.3) to the appellant (complainant). Thus, the Insurance Company committed deficiency in service, but learned District Forum did not consider above aspect. The appellant (complainant) paid a sum of Rs.11,64,681/- to the repairer regarding repairing of the vehicle in question, therefore, the appellant (complainant) is entitled to get remaining amount Rs.6,27,029/- (Rs.11,64,681 - Rs.5,37,652) from the respondents (OPs) and is also entitled to get compensation towards mental agony, but learned District Forum, has wrongly disallowed the claim of the appellant // 15 // (complainant). Therefore, the appeal of the appellant (complainant) be allowed and the impugned order is liable to be set aside.
10. Shri Deepak Gupta, learned counsel appearing for the respondent No.1 (O.P.No.1) & respondent No.3 (O.P.No.3) has argued that after receiving intimation from the appellant (complainant) regarding the accident, the Insurance Company appointed Shri Ajay Athaley as Surveyor and Loss Assessor, who inspected the vehicle in question and submitted his report in which he assessed loss to the tune of Rs.6,16,201/- and after deducting excess to the tune of Rs.1,500/- and salvage to the tune of Rs.77,049/-, net loss was assessed to the tune of Rs.5,37,652/-. The said amount was paid by the Insurance Company to the Finance Company, respondent No.2 (O.P.No.2) because the appellant (complainant) has taken loan from the respondent No.2 (O.P.No.2) and the appellant (complainant) is borrower of the respondent No.2 (O.P.No.2), therefore, the respondent No.2 (O.P.No.2) is real owner of the vehicle in question and the appellant (complainant) is only ostensible owner, therefore, amount of Rs.5,37,652/- was paid by the Insurance Company to the respondent No.2 (O.P.No.2) Financer. It means that the respondent No.2 (O.P.No.2) financed the amount to the appellant (complainant) for purchasing vehicle in question, therefore, the amount was directly paid by the Insurance Company to the respondent No.2 (O.P.No.2) Finance Company. The impugned order passed by the District Forum, is just // 16 // and proper and does not suffer from any infirmity or illegality, hence does not call for any interference by this Commission. The appeal of the appellant (complainant) is liable to be dismissed.
11. Shri O.P. Agrawal, learned counsel appearing for the respondent No.2 (O.P.No.2) has supported the impugned order passed by the District Forum and prayed for dismissal of the appeal.
12. We have heard learned counsel for the parties and have also perused the record of the District Forum.
13. It is not disputed that the vehicle bearing registration No.C.G.13- L-0420 was registered in the name of the appellant (complainant) Smt. Uma Devi Garg and the said vehicle met with an accident on 30.06.2013 at about 9-10 P.M. The matter was intimated to the respondent No.1 (O.P.No.1) and respondent No.3 (O.P.No.3) Insurance Company. Shri Ajay Athaley, was appointed as Surveyor and Loss Assessor by the Insurance Company. It is also not disputed that the amount of Rs.5,37,652/- was paid by the respondent No.3 (O.P.No.3) to the respondent No.2 (O.P.No.2).
14. Shri Ajay Athaley was appointed as Surveyor and Loss Assessor by the Insurance Company, who inspected the vehicle in question. In his Motor Final Survey Report dated 02.08.2013, the Surveyor gave particulars regarding parts and amount estimate and // 17 // amount assessed and after giving details he came to the conclusion that the appellant (complainant) suffered loss to the tune of Rs.5,37,652/- In the Surveyor's report, it is mentioned thus :-
"SUMMARY OF ASSESSMENT
1) Labour charges - Rs. 45,500.00
2) Parts with 05% dep. - Rs.5,58,626.00
3) Parts with 50% dep. - Rs. 10,075.00
4) Pars with 00% depn. - Rs. 2,000.00 Rs. 6,16,201.00 Less : Excess Rs. 1,500.00 Less : Salvage Rs. 77,049.00 Rs. 5,37,652.00"
15. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises & Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus :-
"12. I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report. The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. & Ors., 2014 (SLT Soft) 1 = 2014 (CPJ Soft) 1 = (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."
16. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
// 18 //
17. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
18. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
"17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the 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".
19. In Shankarlal Virji Thakkar vs. United India Insurance Co. Ltd. 2015 (1) CPR 821 (NC), Hon'ble National Commission has observed thus :-
"7. The report of the Surveyor appears to be quite reasonable and just. There is no evidence whatsoever to 501 affected bags + other bags which were not counted. Thos bags must have fetched some amount.
// 19 // There is no reason to discard the report of the Surveyor. It is a balanced report. It has considered all the factors. It is well settled that the report of the Surveyor has to be given due weightage in view of the celebrated authorities of the Hon'ble Apex Court in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19, para 7, D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC).
20. In New India Assurance Company Ltd. vs. Balaji Emporium, I (2015) CPJ 588 (NC), Hon'ble National Commission has observed thus :-
"9. We are of the considered view that the report made by the Surveyor appears to be correct. It is bolstered by sold and unflappable evidence. He has also considered the income tax reports and entries in the stock registered. The conclusion of the State Commission is vague, evasive and leads us nowhere."
21. In Iffco Toko General Insurance Company Limited Vs. Beena Raghav, III (2015) CPJ 75 (NC); Hon'ble National Commission has observed that "respondent failed to explain her reluctance and refused to get the car repaired and thereafter claiming cost incurred based on actual bills for repair. No cogent reason for dismissing survey report as untrustworthy. Total loss not established."
22. In M/s. Hinafil India Limited vs. United India Insurance Company Limited & Another, 2015 (3) CPR 35 (NC), Hon'ble National Commission, has observed that "Surveyor being a third person, report // 20 // submitted by him is entitled to a great weight and should ordinarily be accepted."
23. In Sunanda Kishor Bhand & Anr. v. United India Insurance Co. Ltd. I (2014) CPJ 369 (NC), Hon'ble National Commission has observed thus :-
"11. It is well settled law that a surveyor's report has significant evidentiary value, unless is proved otherwise, which the complainant has failed to do so in the case. This view was taken in the case of D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) CPJ 272 (NC).
24. In Dipali Das versus United India Insurance Co. Ltd. & Anr. IV (2013) CPJ 233 (NC), Hon'ble National Commission, has observed thus :-
7. In D.N. Badoni versus Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC), it was observed that it is well settled that a Surveyor's report has significant evidentiary value, unless it is proved otherwise, which the petitioner has failed to do so in the instant case.
8. The Hon'ble Apex Court in United India Insurance Co. Ltd. V. Roshanlal Oil Mills & Ors. (2002) 10 SCC 19, was pleased to hold:
"The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the insurance Act, 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission but the Commission, curiously, // 21 // has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission for a fresh hearing."
25. In the case of Ankur Surana v. United India Insurance Co. Ltd., I (2013) CPJ 440 (NC), Hon'ble National Commission observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
26. In D.N. Badoni versus Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC), Hon'ble National Commission, has observed thus :-
"11. We see no reason to disbelieve the report of the Surveyor particularly since the petitioner has not been able to produce any credible evidence to contradict the same. The contention of the authorized agent of the petitioner that the Surveyor had admitted that the loss suffered was Rs. 93,340 is not correct. In fact, in his report Surveyor has just quoted the assessment and the details of the repairs // 22 // given by the petitioner. In the next column of his report, he has listed out the approximate net amount of the loss as Rs. 3,665.63. The District Forum erred in not taking this important evidence into consideration and relied only on the petitioner's version of the loss suffered based on some bills produced by him which have not been proved. It is well settled law that a Surveyor's report has significant evidentiary value unless it is proved otherwise which petitioner has failed to do so the instant case. The State Commission a part from being a Court of appeal in also a Court of fact and has correctly concluded that the actual loss suffered to the vehicle as reported by the Surveyor was Rs.3,715. To this amount the Surveyor has added another Rs.4,000 being the actual amount paid for the toeing charges and by not deducting Rs. 1,500 as excess clause, which is reasonable. We, therefore, agree with the well reasoned order of the state Commission that the petitioner is entitled to get Rs. 7,500 from the respondent as insurance and there is no other compensation warranted in the instant case."
27. In Khimjibhai & Sons Vs. New India Assurance Co. Ltd. IV (2011) CPJ 458 (NC),Hon'ble National Commission observed that "It is to be noted that it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order."
28. In Jaisri Mines Products Pvt. Ltd. Vs. New India Assurance Co. Ltd. & Anr. II (2009) CPJ 123 (NC); Hon'ble National Commission has // 23 // observed that "Burden to prove that fire was deliberate act on insurer. Second policy of Rs.115 lakh taken during continuance of first policy, when factory lying almost closed. Letter from bank for purchase of policy to cover the risk, not filed. Fire to factory set deliberately cannot be safely inferred from above facts. Fire accidental, caused due to electric short circuit proved by evidence on record. Out of 90 sale and purchase bills, 87 found written by one and same person. Documents and account books submitted by complainant after 6 months of incident. Explanation given for late submission of documents does not inspire confidence. Surveyor's report coupled with reports of Investigator, FSL and CID, proves that documents and books of accounts fabricated by complainant to support the claim made. Repudiation of claim justified. No relief entitled."
29. In the case of Ashu Textiles v. New India Assurance Company & Anr., III (2009) CPJ 272 (NC), Hon'ble National Commission observed that "the Surveyor's report has to be given more weightage than the report of Fire Brigade and compensation to be assessed on basis of detailed survey report."
30. In United India Insurance Co. Ltd. And Others Versus Roshan Lal Oil Mills Ltd. And Others (2000) 10 SCC 19, Hon'ble Supreme Court, has observed thus :-
"7. The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the insurance Act, 1938. Their report has been placed on // 24 // the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission for a fresh hearing."
31. Shri Ajay Athaley, Surveyor and Loss Assessor submitted his Motor Final Survey Report dated 02.08.2013 in which he gave reasons in detail, therefore, Motor Final Survey Report of Shri Ajay Athaley, Surveyor & Loss Assessor, cannot be discarded lightly. The Surveyor and Loss Assessor assessed total loss to the tune of Rs.6,16,201/- and after deducting excess to the tune of Rs.1,500/- and salvage to the tune of Rs.77,049/-, net loss was assessed to the tune of Rs.5,37,652/-. The Report of the Surveyor, is a reliable evidence, therefore, the Surveyor's Report is genuine and dependable. On the basis of Surveyor's Report, it is evident that the appellant (complainant) suffered loss to the tune of Rs.5,37,652/--. The respondent No.3 (O.P.No.3) had paid a sum of Rs.5,37,652/- to the respondent No.2 (O.P.No.2).
// 25 //
32. In the instant case, the appellant (complainant) herself pleaded that she obtained loan from respondent No.2 (O.P.No.2) and the respondent No.2 (O.P.No.2) financed a sum of Rs.5,00,000/- to the appellant (complainant), therefore, prima facie the ownership of the vehicle in question remained with respondent No.2 (O.P.No.2) and the respondent No.3 (O.P.No.3) deposited a sum of Rs.5,37,652/- with the respondent No.2 (O.P.No.2). Therefore, the respondent No.1 (O.P.No.1) and respondent No.3 (O.P.No.3) did not commit any deficiency in service and unfair trade practice by paying amount directly to the respondent No.2 (O.P.No.2).
33. The learned District Forum on the basis of judgments cited in para 18 to 20 has come to the conclusion that the Surveyor assessed the loss to the tune of Rs.5,37,652/- and finance company sanctioned loan of Rs.5,00,000/- to the appellant (complainant) whereas amount of Rs.5,37,652/- was paid to the appellant (complainant), therefore, the appellant (complainant) is not entitled to get any relief from the respondent No.1 (O.P.No.1).
34. The finding recorded by the District Forum is just and proper. The impugned order dated 29.04.2015, passed by learned District Forum is just and proper and does not suffer from any irregularity or illegality and does not call for any interference.
// 26 //
35. Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S.Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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