State Consumer Disputes Redressal Commission
Smt. Poonam Singh vs B.M. United India Insurance Co.Ltd. on 2 January, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/15/445
Instituted on : 22.09.2015
Smt. Poonam Singh, W/o Prem Singh, Age about 48 years,
Profession - House Wife, R/o : Kumda Colony,
Quarter No.243, New B.M.Q. Post : Kumda,
Vishrampur, District Surajpur (C.G.),
Through Special Power of Attorney Holder Prem Singh,
S/o Late Ujagar Singh,Age about 51 years,
R/o : Kumda Colony,
Tehsil Surajpur, District Surajpur (C.G.) ... Appellant
Vs.
Branch Manager, United India Insurance Co. Ltd.,
In Front of Kumkum Hotel, Bramha Road,
Ambikapur, District Surguja (C.G.) ...Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for the appellant.
Shri P.K. Paul, for the respondent.
ORDER
Dated : 02/01/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 05.08.2015, passed by District Consumer Disputes Redressal Forum, Surguja (C.G.) (henceforth called "District Forum") in Complaint Case No.C.C./2015/18. By the impugned order, the District Forum, has partly allowed the complaint of the appellant (complainant) and // 2 // directed the respondent (O.P.) to within a period of 45 days a sum of Rs.6,25,804/- towards compensation, a sum of Rs.10,000/- towards crane charges, a sum of Rs.1,500/- towards towing charges, and a sum of Rs.4,000/- towards compensation for mental agony i.e. total amount Rs.6,41,304/- along with interest @ 9% p.a. from the date of filing of the complaint i.e. 30.01.2015 till realisation. The respondent (O.P.) has further been directed to pay a sum of Rs.3,000/- towards cost of litigation to the appellant (complainant). The appellant (complainant) filed this appeal for enhancement of the awarded amount.
2. Briefly stated, the facts of the case are that the appellant (complainant) is registered owner of the Truck / Trailer bearing registration No.C.G.15-AC-0706, which was insured with the Ambikapur Branch of the respondent (O.P.) under Policy No.1916013112 P 3022 for the period from 08.02.2013 to 07.02.2014. The Insured Declared Value of the vehicle was assessed by the respondent (O.P.) for Rs.15,30,000/-. On 03.08.2013 at 1.30 A.M., after loading the goods from Jindal Steel Power, it was going to Ludhiana (Punjab) and near Ghat Pendari the vehicle met with an accident and fell down in 100 foot depth, due to which the vehicle was completely damaged. The husband of the appellant (complainant) intimated the incident before Police Station Chandaura District Surajpur, where First Information No.7/2013 dated 03.08.2013 was registered. The appellant (complainant) also gave intimation regarding the incident to // 3 // the office of the respondent (O.P.) and submitted claim form before the respondent (O.P.). As per the instructions of the respondent (O.P.) the vehicle of the appellant (complainant) was brought to the authorized workshop of the Tata Company i.e. M/s Babra Motors, Namnakala, Ring Road, Ambikapur with the help of crane of Surya Company, for which she incurred a sum of Rs.65,000/- out of which a sum of Rs.25,000/- was taken by Surya Company and a sum of Rs.40,000/- was freight charges. As per the estimate dated 09.08.2013 received by the appellant (complainant) the loss to the vehicle was assessed to the tune of Rs.21,75,635/-, which was submitted on 22.10.2013 and the husband of the appellant (complainant) requested to assess the loss on total loss basis. On 17.02.2014, the Shivam Motors, which is authorized workshop of the Tata Motors, informed that the total expenditure in the repairing of the vehicle would be Rs.19,84,465.58 and provided estimate to the appellant (complainant) which was submitted by the appellant (complainant) to the respondent (O.P.) and she demanded the Insured Declared Value of the vehicle. After receiving intimation regarding the incident, the respondent (O.P.) appointed Shri Harjeet Singh, Surveyor to conduct spot survey and he went to Pendari Ghat and conducted spot survey. During spot Survey, the Surveyor took photographs of the damaged parts of the vehicle and gave information that the vehicle was completely damaged. After conducting spot survey by Surveyor Shri Harjeet Singh, the final survey was conducted // 4 // by Shri Anil Kumar Khare, Surveyor, who orally informed that the loss to the accidented vehicle is under total loss. Shri Anil Kumar Khare, informed that the fees of the final survey is to be paid by the owner of the vehicle and obtained a sum of Rs.50,000/- in cash from the husband of the appellant (complainant). Thus, the appellant (complainant) has paid the fees of final survey to the tune of Rs.50,000/- to the Surveyor, but even then Anil Kumar Khare did not assessed the amount of compensation on the basis of final survey. Shri Anil Kumar Khare, Surveyor has received a sum of Rs.50,000/- from the husband of the appellant (complainant) on 24.08.2013 in presence of Sohan Singh at Hotel Anmol, Mahamaya Chowk, Ambikapur and demanded separate amount, but when the appellant (complainant) did not give separate amount, then with malice intention, the Surveyor prepared his Survey Report, which was not accepted by the respondent (O.P.) because on the date of preparing Survey Report, the said vehicle was under total loss and the assessment was not done according to law and as per terms and conditions of the policy. After rejecting the final survey report of Shri Anil Kumar Khare, Surveyor, the respondent (O.P.) again conducted final survey through Shri Harjeet Singh, but neither the information regarding the assessed amount was given nor the payment of the IDV is being made. Therefore, the appellant (complainant) filed consumer // 5 // complaint before the District Forum and prayed for granting reliefs, as mentioned in the prayer clause of the complaint.
3. The respondent (O.P.) filed its written statement and averred that the insurance policy was issued by the respondent (O.P.) in respect of the Truck/Trailer bearing registration No.C.G.15-AC/0706 which is under ownership of the appellant (complainant) for the period from 08.02.2013 to 07.02.2014. After receiving the intimation regarding the incident, the respondent (O.P.) conducted Spot Inspection and Re- inspection of the vehicle through Surveyor Shri Harjeet Singh. The final Survey was conducted through Surveyor Shri Anil Kumar Khare, who assessed the loss to the tune of Rs.6,25,803.86 The amount which is assessed by the Final Surveyor is finally assessed as per bill, voucher and terms and conditions of the insurance policy. The respondent (O.P.) verified the bills which were submitted by the appellant (complainant) and it came to know that in respect of bill dated 25.07.2014, the shopkeeper has not availed cash receive voucher and the tax which was added in the price of the parts has not been cleared. In these circumstances the above bill and another, was not established in the verification. After calculating the bills submitted by the appellant (complainant), the loss has been assessed to the tune of Rs.3,97,000/-. The appellant (complainant) is not entitled to get any amount more than the above amount.
// 6 //
4. Learned District Forum, after having considered the material placed before it by the parties, has partly allowed the complaint and directed the respondent (O.P.) to pay compensation to the appellant (complainant), as mentioned in para 1 of this order.
5. The appellant (complainant) has filed documents. Document A- 1 is photocopy of Certificate of Registration of vehicle bearing registration No.C.G.15.AC-0706, A-2 is photocopy of the Acknowledgement for On Line Tax Payment, A-3 is photocopy of Permit for goods vehicle, A-4 is photocopy of national permit, A-5 is photocopy of Certificate of Fitness, A-6 is photocopy of the insurance policy, A-7 is photocopy of the driving licence, A-8 is photocopy of First Information Report, A-9 is photocopy of claim form, A-10 is photocopy of the Estimate dated 09.08.2013 issued by Babra Motors, A-11 is photocopy of letter dated 22.09.2013, A-12 is photocopy of letter dated 23.09.2013, A-13 is photocopy of letter dated 22.10.2013, A-14 is photocopy of letter dated 23.10.2013, A-15 is photocopy of letter dated 30.09.2013, A-16 is letter dated 15.04.2014 in original, A-17 is letter dated 02.05.2014 sent by the appellant (complainant) to the respondent (O.P.), in original, A-18 is bill dated 15.07.2014 issued by Pragati Automobiles in original, A-19 is photocopy of tax invoice, A- 20 is second copy of the legal notice sent to the respondent (O.P.), A- 21 is acknowledgement and Enquiry Particulars, A-22 is letter dated 24.12.2013 sent by Shri Anil Kumar Khare, Surveyor to the appellant // 7 // (complainant), A-23 is bill dated 03.08.2013 issued by Surya Crane Service, A-24 is Invoice dated 01.08.2013 issued by Kanahaya Tyres, Ambikapur to the appellant (complainant).
6. The respondent (O.P.) has also filed documents. Ex. D-1 is letter dated 15.04.2014 sent by the respondent (O.P.) to the appellant (complainant), Ex. D-2 is Re-inspection Report dated 31.07.2014 of Shri Harjeet Singh, Surveyor and Loss Assessor, Ex. D-3 is Survey Report dated 28.04.2014 of Shri Anil Kumar Khare, Surveyor and Loss Assessor, Ex. D-4 is GCV Public Carrier Other Than 3 Wheeler Package Policy, Policy No.1916013112P302290159, issued by the United India Insurance Company Limited, in favour of the appellant (complainant) for the period from 08.02.2013 to 07.02.2014, D-5 is Motor Sport Survey Report dated 07.08.2013 of 2013.
7. Shri R.K. Bhawnani, learned counsel appearing for the appellant (complainant) has argued that the vehicle truck / trailer bearing registration No.C.G.15-AC-0706 was fell down in 100 foot depth, due to which the vehicle was completely damaged. The vehicle was taken to M/s Babra Motors, Ambikapur, which is authorized workshop of Tata Motors, for repairing, who gave its estimate to the tune of Rs.21,75,635/-. The Insured Declared Value of the vehicle it Rs.15,30,000/-. It appears that the vehicle was in total loss condition, but learned District Forum did not consider the above aspect. The // 8 // appellant (complainant) also incurred a sum of Rs.65,000/- out of which a sum of Rs.25,000/- was taken by Surya Company and Rs.40,000/- was freight charges. Shri Anil Kumar Khare, Surveyor did not properly assess the loss and the appellant (complainant) was dissatisfied with his survey report. The Surveyor Shri Anil Kumar Khare also took a sum of Rs.50,000/- from the appellant (complainant) towards Survey charges and also demanded money from the appellant (complainant) for giving favourable report. On the basis of Spot Survey Report of Shri Harjeet Singh, Surveyor & Loss Assessor, the vehicle suffered total loss basis. Survey Report of Shri Anil Khare is not reliable. The appellant (complainant) is entitled to get a sum of Rs.17,03,000/- from the respondent (O.P.) towards compensation, but learned District Forum has erroneously disallowed the claim of the appellant (complainant). Hence the appeal of the appellant (complainant) may be allowed and the impugned order of the District Forum be modified accordingly.
8. Shri P.K. Paul, learned counsel appearing for the respondent (O.P.) has supported the impugned order passed by the District Forum and submitted that Shri Anil Kumar Khare, Surveyor, assessed the loss to the tune of Rs.6,25,803.86. The report of the Surveyor is a reliable document. Shri Anil Kumar Khare, Surveyor sent several letters from the time to time to the appellant (complainant) , but the appellant (complainant) had not shifted the vehicle to the repairer's place for final // 9 // repairing. According to the Surveyor, the husband of the appellant (complainant) threatened him to give report according to total loss basis. M/s. Babra Motors gave its estimate in which it has been stated that the vehicle is repairable and agreed to repair the vehicle at the cost of Rs.7,00,000/-, if the 50% of the said amount is made by the appellant (complainant) in advance, but the appellant (complainant) did not pay the above amount to the repairer. The impugned order passed by the District Forum, is just and proper and does not suffer from any infirmity or illegality. The appeal of the appellant (complainant) is liable to be dismissed.
9. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
10. It is admitted fact that the appellant (complainant) is owner of vehicle Truck/Trailer bearing registration No.C.G.15-AC/0706, which was insured with the respondent (O.P.) for the period from 08.02.2013 to 07.02.2014.
11. The learned District Forum after considering the material available before it has observed that according to the Survey Report and other documents, it appears that the appellant (complainant) got her vehicle repaired. It shows that the vehicle was repairable and it does not come within purview of total loss.
// 10 //
12. Document Ex.D-3 is Survey Report dated 28.04.2014 of Shri Anil Kumar Khare, Surveyor and Loss Assessor. In Survey Report. He specifically mentioned in his Survey Report, thus :-
"As per instructions received from your regional office, Bhopal, undersigned visited to M/s Babra Motors, Ambikapur (which is the authorized Service Station of TATA) but there I found that the subject vehicle was not there. Then after contacting to Insured I came to know that said vehicle is lying on another place and her husband Shri Prem Singh is there. Then I contacted to Shri Prem Singh and reached to the place where said vehicle was lying. There I found that the said vehicle was kept is the trailer of the subject vehicle without its wheels & batteries. I took the photograph of said condition and requested to Shri Prem Singh to arrange to remove the assemblies / parts of the said vehicles from the trailer for inspection. A crane was arranged, which put down the assemblies/sub assemblies of the said vehicle. I took few more photographs of the said vehicle and inspected the parts apparently in without dismantling condition with my best efforts and as per best possibilities. Same time Mr. Babra of M/s Babra Motors was also there, who had also inspected the said vehicle in said condition. After inspection we found that the losses of the subject vehicle are less than 75% of IDV and said vehicle is repairable. After thorough inspection of the said vehicle, Mr. Babra was also having opinion that the said vehicle will be repaired under the limit of Rs.7.00 lakhs and said vehicle will be repaired within 10 days."
13. Shri Anil Kumar Khare, Surveyor & Loss Assessor sent so many letters to the appellant (complainant) and requested her to shift the vehicle to the repairer's place for final repairs and further inspection, but the appellant (complainant) never shifted it. On 13.10.2013, the // 11 // Surveyor again sent a mail to the repairer M/s Babra Motors, Ambikapur and asked about the total repairing cost of the said vehicle, to confirm that the said vehicle will be repaired under Rs. Seven Lakhs. Shri Anil Kumar Khare, Surveyor and Loss Assessor assessed the loss to the tune of Rs.6,25,803.86.
14. In Iffco-Tokio 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."
15. 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".
16. 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)".
// 12 //
17. 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".
18. 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. 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).
// 13 //
19. 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."
20. 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).
21. 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 submitted by him is entitled to a great weight and should ordinarily be accepted."
22. On the basis of Survey Report and Spot Inspection Report, it appears that the vehicle in question suffered loss less than 75% of IDV and the said vehicle is repairable. From the bare perusal of Motor Sport Survey Report of Shri Harjeet Singh, it also appears that the said // 14 // vehicle had not suffered total loss and it is repairable, therefore, the Survey Report submitted by Shri Anil Kumar Khare, Surveyor is reliable. Learned District Forum has rightly awarded compensation on the basis of Survey Report of Shri Anil Kumar Khare, Surveyor & Loss Assessor. The learned District Forum has also rightly held that the appellant (complainant) is entitled to get a sum of Rs.10,000/- towards crane charges and a sum of Rs.1,500/- towards towing charges.
23. Therefore, the finding recorded by the District Forum, is just and proper and does not require any modification by this Commission.
24. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /01/2016 /01/2016 /01/2016 /01/2016