State Consumer Disputes Redressal Commission
1.M/S Icici Lombard General Insurance ... vs 1.Gurbachan Singh Son Of Shri Pritam ... on 6 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.688 of 2008 Date of Institution: 05.03.2008 Date of Decision: 06.08.2012 1. M/s ICICI Lombard General Insurance Company Limited Branch Office at C/o ICICI Bank Ltd., # 528A, Gobindpuri Road, Near J.K. Residency Hotel, Model Town, Yamuna Nagar. 2. ICICI Lombard General Insurance Company Limited, ICICI Bank Towers, Bandra Kurla Complex, Bandra (East), Mumbai-400051. (1 and 2 through, Regional Manager (Legal), ICICI Lombard General Insurance Company Limited, Regional Office, SCO 214, Sector 14, Panchkula-134113. Appellant (Ops 1&3) Versus 1. Gurbachan Singh son of Shri Pritam Singh, resident of Village Bhagwanpur, P.O. Manka Manki, Tehsil Jagadhri, District Yamuna Nagar. Respondent (Complainant) 2. The Manager ICICI Bank Ltd. (Vehicle Loan Section/Collection Centre), Yamuna Nagar having its office at Gobindpuri Road, Model Town, Near J.K. Residdency Hotel, Yamuna Nagar. Respondent (OP-2) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: None for appellants. None for respondent No.1. Respondent No.2 exparte. O R D E R
Justice R.S. Madan, President:
Case called several times since morning but none put in appearance on behalf of the parties though the case is fixed for arguments. Respondent No.2 is already exparte vide order dated 21.02.2012. It is already 1.00 P.M. This appeal relates to the year 2008. As per the provision of the Consumer Protection Act, 1986, the complaints as well as the appeals are to be decided within the prescribed period. Thus, the non-cooperative attitude of the parties/their counsel is against the spirit of the Consumer Protection Act. Under these circumstances we do not think it appropriate to adjourn this appeal indefinitely and therefore we proceed to decide the same after going through the case file.
Challenge in this appeal is to the order dated 04.01.2008 passed by District Consumer Forum, Yamuna Nagar at Jagadhri whereby complaint filed by complainant (respondent No.1 herein) was accepted by granting following relief:-
..we allow the complaint of complainant and direct the respondents to pay Rs.7,51,250/- i.e. insured amount plus transportation charges of the crane along with interest at the rate of 12% per annum after three months of the accident till realization and bear the parking charges of the truck in question to Metro Motor Private Limited and pay Rs.11,000/- as litigation expenses further complainant is directed to return salvage to respondents. Order be complied within one month.
The brief facts of the present case as emerged from the record are that the respondent No.1 (complainant) got insured his truck bearing registration No.HR-58/8130 with the opposite parties. On 21.06.2007 the above said truck fell down in a ditch in the area of J &K being rolled down from the road due to slippery surface of the road resulting damage of the truck. A report/FIR was recorded in Police Station Chenani. On being informed, the Insurance Company deputed Sudhir Dhingra, Mechanical Engineer, Surveyor & Loss Assessor, who after inspecting the vehicle assessed the damage of the truck to the extent of Rs.3,24,072/-. Thereafter, the complainant brought his truck to M/s Metro Motors Pvt. Ltd., Ambala.
The grievance of the complainant before the District Consumer Forum was that since the time of accident, he was contracting the opposite party No.1 regularly to pass his claim and to release the amount thereof so that the truck could be repaired but the opposite party No.1 inspite of considering his request, postponed the matter on one pretext or the other. Rather the opposite party No.1 asked the complainant to visit its office at Karnal and to meet with Mr. Kapil-Manager of Insurance Company. On visiting of the complainant said Kapil compelled the complainant to get his damaged truck repaired by purchasing the parts from Disposal Market for which the complainant was not ready as a result of which the officials of the opposite party No.1 started lingering on the matter of complainants claim. According to the complainant aforesaid Kapil had told to the complainant that they would pass the insurance claim after deducting 35% amount. Complainant further alleged that due to sole negligence and deficiency in service on the part of the opposite parties for not settling complainants claim, he (complainant) suffered huge financial loss because he was doing the business of transportation of poultry birds from Haryana to Jammu and Kashmir with two trucks for which he had entered into an agreement with M/s New Kashmir Poultry, Sofigund, Bagawad, National Highway District Anant Nag (J&K) Kashmir on 31.3.2007 and had paid a sum of Rs.8,00,000/- to the said firm as a security for supply of the birds but due to non-payment of the insurable benefits of his truck by the opposite parties, his truck stood parked in the workshop of M/s Metro Motors Pvt. Ltd., Ambala for which he was paying Rs.200/- per day from 26.6.2007 till the repair of truck and also suffered huge financial loss of Rs.1,40,000/- every month due to non-supply of fourteen trucks of poultry birds to M/s New Kashmir Poultry, Sofigund, Bagawad, National Highway District Anant Nag (J&K) Kashmir. Complainant was also paying Rs.7,000/- per month to the driver of the truck i.e. Rs.4,000/- as salary and Rs.3,000/- as daily expenses of diet etc. Thus, the complainant invoked the jurisdiction of the District Consumer Forum.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement stating therein that on receipt of information about the accident, the opposite parties had immediately deputed its surveyor who made thorough investigation and survey, who made thorough investigation and survey in the matter and the loss to the tune of Rs.3,24,972/- was assessed by Sudhir Dhingra, Mechanical Engineer, Surveyor & Loss Assessor. During the course of the investigations, certain discrepancies were pointed out by the surveyor and clarifications regarding the same were sought from the opposite parties. However, the complainant failed to revert back to the said quarries. The complainant filed complaint on false, baseless and afterthought averments which was pre-mature and was liable to be dismissed. It was prayed that the complaint merited dismissal.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Forum accepted complaint and issued direction to the opposite parties as noticed in the opening para of this order.
Aggrieved against the order of the District Forum, the opposite parties have come up in appeal.
Since none has appeared on behalf of the appellants to argue the case, we ourselves have perused the grounds of appeal as well as the documents available on the appeal file.
Admittedly, the truck of the complainant was insured with the appellants-opposite parties and had fallen in a ditch and as per report submitted by the Surveyor namely Sudhir Dhingra, Mechanical Engineer, Surveyor & Loss Assessor of the appellants-Company, the damage of the truck was assessed of Rs.3,24,072/-. On the other hand it is the claim of the complainant that his truck was badly damaged and the estimated damaged was assessed to the extent of Rs.5,51,086/- in view of the assessment given by M/s Metro Motors Pvt. Ltd., Ambala.
Having taken into consideration the facts and circumstances of the case, we feel that the estimated loss claimed by the complainant with respect to the damage of his truck is on higher side. By now it is well settled law that the surveyor report is an important document and the same canoe be brushed aside unless and until any cogent and convincing evidence is produced on the file contrary to the same. Reference in this regard is made to law settled by Honble National Commission in D.N. BADONI versus ORIENTAL INSURANCE CO. LTD., I(2012) CPJ 272 (NC) wherein it has been held that:-
It is well settled law that a Surveyors report has significant evidentiary value unless it is proved otherwise which petitioner has failed to do so the instant case The instant case is fully covered by D.N. BADONIs case (Supra). Complainant has failed to produce any evidence against the report of the surveyor and for that reason the same cannot be brushed aside. The surveyor in his report Annexure A/1 has given details of the loss assessed by him with respect to the damage of complainants truck and nothing beyond the report of the surveyor can be paid to the complainant without any cogent and convincing evidence. District Consumer Forum has failed to appreciate the above stated facts, hence, the impugned order cannot be allowed to sustain.
For the reasons recorded above, this appeal is partly accepted and the impugned order is modified with the direction to the appellants-opposite parties to pay Rs.3,24,072/- alongwith interest @ 6% per annum from the date of filing complaint till its realization. However, the order with respect to granting of cost of litigation awarded by the District Forum is maintained.
The statutory amount of Rs.25,000/-
deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 06.08.2012 President B.M. Bedi Judicial Member