State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. vs Charan Kamal Singh on 27 January, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.124 of 2014
Date of Institution: 10.02.2014.
Date of Decision : 27.01.2016.
1. The Oriental Insurance Company Limited, Oriental House, A-
25/27, Asaf Ali Road, New Delhi-110002, through the Manager
2. The Oriental Insurance Company Limited SCO No.109-110-
111, Surendra Building, Sector-17 D, Chandigarh through the
Branch Manager.
3. The Oriental Insurance Company Limited Sona Complex, Near
Fire Brigade, Miller Ganj, Ludhiana, through the Branch
Manager.
Now all, through authorized signatory, Ram Avtar, Manager,
SCO No.109-110-111, Surendra Building, Sector 17-D,
Chandigarh.
.....Appellants/opposite parties
Versus
Charan Kamal Singh son of S. Tajinder Singh, resident of Village
Rattan, PO Jodhan, Tehsil and District Ludhiana.
.....Respondent/complainant
First appeal against order dated
29.11.2013 passed by the District
Consumer Disputes Redressal
Forum, Ludhiana.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellants : Sh. J.P. Nahar, Advocate For the respondent : Sh. Beant Singh, Advocate ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 29.11.2013 of District Consumer Disputes Redressal Forum Ludhiana (in short the "District Forum"), accepting the complaint of First Appeal No.124 of 2014 2 the complainant with compensation of Rs.25,000/- and costs of litigation of Rs.5000/-. The instant appeal has been preferred against the same by the OPs now appellants.
2. Complainant Charan Kamal Singh has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that he purchased a Car (Sedan) make Chevrolet Optra 2.0 Magnum, bearing registration no.PB-10-DH-7200 having Engine no.1435778K and chassis no.MA6NFADDBBH011073, model 08/2011 from M/s Padam Motors Ludhiana for an amount of Rs.8,30,765/-. The complainant got it insured from OPs, vide policy no.233400/31/2012/1614 for the insured amount of Rs.7,89,226/-. On 15.08.2012, the car met with an accident at Dasua District Hoshiarpur and DDR no.27 dated 15.08.2012 was lodged about this accident at PS Dasua. The car was taken to the workshop of Padam Motors on 16.08.2012 at Ludhiana. The surveyor conducted the survey on the car and intimated the complainant to get it repaired from the workshop of Padam Motors. The Body Shop Manager of Padam Motors Ludhiana surveyed the car and assessed the estimated loss of Rs.16,44,744/-, whereas insured declared value (IDV) of the car was Rs.7,89,226/- only and the cost of repair of the car exceeded 75% of the IDV and under IRDA guidelines, it is a case of total loss. The complainant approached OP's surveyor and he assessed the loss of Rs.4,50,000/- to the car and insisted on the repair of the car from workshop of Padam Motors Ludhiana. The complainant again First Appeal No.124 of 2014 3 approached workshop Manager of Padam Motors. He stated that estimated loss of the vehicle was Rs.16,44,744/- and IDV of the car was Rs.7,89,226/- only. It was further averred that car has been lying at the workshop of Padam Motors and complainant has suffered loss of Rs.200/- per day on account of parking charges since 16.08.2012. The complainant served legal notice to OPs and they replied thereto denying all the facts of the notice. The complainant has, thus, filed the complaint directing the OPs to pay the IDV of the car of Rs.7,89,226/-, being more than 75% loss to the insured vehicle in the accident. The complainant further prayed for compensation of Rs.20 lakhs and Rs.200/- per day as parking charges since 16.08.2012.
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complaint is hit under Section 26 of the Act. The complaint is not maintainable. It was further averred that surveyor personally inspected the spot and the vehicle in question and took the photographs thereof and prepared the report dated 21.08.2012. It was further pleaded that Satish Kumar Yadav, Engineer, Surveyor and loss assessor was appointed for final survey and to assess the loss caused to above said vehicle in accident by inspecting the vehicle and taking the photographs thereof. Vide his report dated 04.12.2012, he assessed the loss of Rs.5,27,149/- only. Harjinder Singh surveyor and loss assessor of Ludhiana was appointed to submit verification report of registration First Appeal No.124 of 2014 4 certificate of said vehicle and driving licence of Charan Kamal Singh. The investigator moved the necessary application to the competent authority and prepared his report dated 18.09.2012 about it. It was denied that it was a case of total loss of the vehicle even on merits by the OPs. The OPs pleaded that the car is repairable one only and net payable loss is Rs.5,27,149/-, as per the final survey report. It was denied that M/s Padam Motors gave any estimate of Rs.16,44,744/- as repair cost of the vehicle. It was vehemently denied by the OP that loss to the vehicle exceeded 75% of the IDV of the car i.e. Rs.7,89,226/-. It was not disputed that vehicle was insured with OPs. It was denied that any DDR was lodged with police about the accident of the car. The OPs denied the other averments of the complainant and prayed for the dismissal of the complaint.
4. The complainant tendered in evidence affidavit Ex.CW-1 alongwith documents Ex.C-1 to Ex.C-15 and closed the evidence. As against it, OPs tendered in evidence, affidavits Ex.R-A, R-B, R-C and R-D alongwith documents Ex.R-1 to Ex.R-34 and closed the evidence. On conclusion of evidence and arguments, the District Forum Ludhiana accepted the complaint of the complainant as referred to above. Dissatisfied with order of the District Forum Ludhiana dated 29.11.2013 the OPs, now appellants have preferred this appeal against the same.
5. We have heard the learned counsel for the parties and have also examined the record of the case. Evidence is required to First Appeal No.124 of 2014 5 be examined by us on the record to determine the controversy between the parties in this case. Affidavit of Charan Kamal Singh complainant is Ex.CW-1 in support of his averments on the record. He stated on oath that his vehicle was insured with the OPs for IDV of Rs.7,89,226/-, vide policy no.233400/31/2012/1614. He further stated that vehicle met with an accident at Dasuya and DDR no.27 dated 15.08.2012 was lodged about this accident thereat. He further deposed in this affidavit that vehicle was taken to workshop of M/s Padam Motors at Ludhiana for repair and it estimated the loss of Rs.16,44,744/-, whereas the IDV of the vehicle was Rs.7,89,226/- only. He further deposed that the OP's surveyor assessed the loss of Rs.4.5 lakhs and insisted on the repair of the car only. He further stated in this affidavit that he has been suffering loss of Rs.200/- per day for parking charges since 16.08.2012 due to deficient service of OPs and despite service of legal notice by him it had no effect on the OPs. The insurance cover is Ex.C-1 on the record proving that the vehicle was insured with OPs from 31.08.2011 to 30.08.2012. The accident took place on 15.08.2012 during the currency of the policy. Ex.C-2 is the registration certificate of the vehicle in the name of complainant. Ex.C-3 is the insurance certificate-cum-policy schedule. Ex.C-4 is the document showing the IDV of vehicle as Rs.7,89,226/-. Ex.C-5 and C-6 are the documents prepared by M/s Padam Motors with regard to estimate of repair charges of the vehicle. Similarly, we have also examined the documents of the complainant on the record including legal notice served by him upon the OPs. As against it, OPs placed reliance upon affidavit of Jagmohan Singh, Sr. Divisional First Appeal No.124 of 2014 6 Manager of OP Ex.R-A to the effect that vehicle in dispute was insured with the OPs. He further deposed that the surveyor personally inspected the spot and vehicle and also took the photographs and prepared his report dated 21.08.2012 and submitted the same to OPs. Thereafter, Satish Kumar Yadav Engineer, surveyor and loss assessor was appointed for final survey and he assessed the loss to the vehicle, vide his final report dated 04.12.2012 of Rs.5,27,149/-, finding it as repairable one. He further stated that the vehicle is repairable and the loss to the vehicle has not increased 75% of the IDV and hence it cannot be taken as a case of total loss. He further deposed that M/s Padam Motors never gave any estimate of Rs.16,44,744/- as repair cost of the said vehicle. Ex.R-B is the affidavit of Jasbir Singh surveyor and loss assessor proving his report Ex.R-10 and annexures Ex.R-26 to R-32 on the record. Ex.R-C is the affidavit of Satish Kumar Yadav Engineer, Surveyor and Loss Assessor, who was the final surveyor. This witness proved his report Ex.R-9 and annexures Ex.R-10 to Ex.R-21. Ex.R-1 is the reply to notice dated 24.01.2013 sent by the OPs to the complainant. We have also examined the other documents of OPs on the record which are part of the reports of the surveyors.
6. From hearing the respective submissions of counsel for the parties and appraisal of material evidence on the record, we find that only one point is involved for adjudication in this case as to whether the vehicle is repairable one or it is a case of total loss. First Appeal No.124 of 2014 7 There is no dispute about this fact that the vehicle purchased by the complainant from M/s Padam Motors were insured with OPs for IDV of Rs.7,89,226/-. Similarly, there is no dispute about this fact that vehicle met with an accident and suffered loss therein. The dispute boils down to this point as to whether it is a case of total loss exceeding 75% of IDV of the vehicle or it is a case of repairable loss only. We restrict ourselves to record this finding after evaluation of evidence on the record as to whether it is a case of total loss or it is only a case of repair of the vehicle. The relevant evidence on the record is affidavit of complainant Charan Kamal Singh, wherein he stated it to be a case of total loss. He mainly relied upon the estimated loss prepared by Padam Cars Pvt. Limited to the extent of Rs.16,44,744/- of the vehicle. Evidence has been led in rebuttal by the OPs on the record to the effect that the accidented vehicle in question is repairable and it is not a case of total loss. Affidavit of Jagmohan Singh, Sr. Divisional Manager is Ex.R-A on the record to this effect. Affidavit of Jasbir Singh surveyor and loss assessor is Ex.R-B on the record. Ex.R-C is the affidavit of Satish Kumar Yadav Engineer, the final surveyor on the record. He found in his report, the net payable loss of Rs.5,27,149/- only. The reliance of the OPs is on the report of Satish Kumar Yadav, surveyor and loss assessor Ex.R-9 on the record that the loss to vehicle is repairable to the amount of Rs.5,27,149/- only. The report of surveyor Jasbir Singh is Ex.R-10 on the record only. The main document is Ex.R-16 placed on the record by the OPs. This is the document of OPs and OPs are bound by this document. This is the estimate of repair of the vehicle First Appeal No.124 of 2014 8 in question prepared by Padam Cars Pvt. Limited, which is the authorized service station. This is the comprehensive estimate of loss of the vehicle of complainant, showing loss of Rs.16,37,100.06. We are of this view that this report by the authorized service station has been estimated the loss to be of Rs.16,37,100.06 only. This is material document, which cannot be discarded by us from the purview of legal evidence. This document has been placed on record by the OPs. The submission of counsel for OPs is that the entry at serial no.60 showing loss of Rs.4,79,154.29 is unjustified. Even, if we ignore this entry and ignore it from consideration, even then the loss to the vehicle is more than 75% of the IDV. The motor claim form submitted by the complainant is Ex.R-17 with the OPs for insurance claim. Claim intimation is Ex.R-21 on the record. Ex.R-30 is the document of Padam Cars Pvt. Ltd., which is replicated on the record. Undoubtedly, the report of the surveyor is a valuable piece of evidence, yet it is not a conclusive in nature. It can be rebutted by strong contrary evidence on the record. The estimated loss prepared by Padam Motors, the authorized service station, cannot be ignored by us from the purview of legal evidence. This estimated loss has to be given precedence over the surveyor's report in view of fact and circumstances of the case. Consequently, we find that this is a case of total loss of the vehicle and IDV of the vehicle in question is Rs.7,89,226/-. The District Forum has, thus, recorded appropriate finding after evaluation of the record by holding that it is a case of total loss and directed OPs to settle the claim of the complainant, as per terms and conditions of the policy. We, thus, hold that no parking First Appeal No.124 of 2014 9 charges would be realized from the complainant on account of loss being total loss and the demand of parking charges raised from the complainant is ordered to be quashed. The order of District Forum is affirmed in this appeal.
7. As a corollary of our above discussion, the parking charges, if any, shall be payable by the insurer/OPs, now appellants in this appeal and we find no merit in the appeal of the appellants and the same is hereby dismissed by affirming the order of District Forum dated 29.11.2013.
8. The appellants of this appeal had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount alongwith interest, which accrued thereon, if any, be remitted by the Registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall be payable in 45 days from the receipt of certified copy of order by the OPs.
9. Arguments in this appeal were heard on 21.01.2016 and the order was reserved. Now the order be communicated to the parties.
10. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
January 27, 2016 (H.S.GURAM)
(MM) MEMBER