State Consumer Disputes Redressal Commission
Rakesh Kumar vs 1. Reliance General Insurance Company ... on 11 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 254 of 2013 Date of Institution : 17.06.2013 Date of Decision 11.09.2013 Rakesh Kumar son of Shri Khedu Prasad, aged 42 years, resident of H.No. 1664, Vikas Nagar, Mauli Jagran, Chandigarh. Appellant/complainant V e r s u s 1. Reliance General Insurance Company Limited, SCO No. 145-146, Top Floor, above V.L.C.C., Sector 9-C, Chandigarh, through Branch Manager. 2. Reliance General Insurance Co. Limited, Regional Office, Plot No.60, Second Floor, Okhala Industrial Estate, Phase-3, New Delhi 110020. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Sandeep Bhardwaj, Advocate for the appellant.
Sh. Tajender K.Joshi, Advocate for the respondents.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 08.05.2013, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it disposed of the complaint, filed by the complainant (now appellant), in the following manner:-
In the given situation, as the Complainant has failed to prove any deficiency in service on the part of the Opposite Parties, the present complaint fails on these merits. But at the same time, it is also noticed that the Opposite Parties though are in the possession of the surveyors report, which shows the assessed loss to the Complainant to the tune of Rs.1,28,000.38/- but at the same time has failed to bring on record any proof that this amount has been released in favour of the Complainant. It would not be out of place to mention here that the vehicle was being plied under temporary number, and definitely the original registration was in the process of being issued to the Complainant. The demand of the Opposite Parties for the original registration certificate of the vehicle could only met by the Complainant on receiving the same from the Registering Authority.
The Complainant is however, at liberty to claim the assessed amount, as per the survey report, after completing the documentary formalities, as demanded by the Opposite Parties and direct the Opposite Parties to do the needful, on receiving the documents from the side of the Complainant.
2. The facts, in brief, are that the complainant purchased a Ford Figo car (Model ZXI Diesel) bearing Regn. No.CH-47-T-1497, from M/s Bhagat Motors, Chandigarh, vide invoice dated 25.04.2011, for a total sale price of Rs.5,24,744/-, vide retail invoice Annexure C-1, and got the same insured, with Opposite Party No.1, for the period from 25.04.2011 to the midnight of 24.04.2012, for the Insured Declared Value of Rs.4,95,900/-, on payment of premium, to the tune of Rs.13,000/-. On 19.05.2011, the said vehicle, met with an accident, within the Jurisdiction of Police Station New Agra, when a Canter Eicher bearing Regn. No. HR-38-J5978, driven by Sudhir driver, rashly and negligently, hit the same (car) from behind, as a result whereof, the same hit behind a stranded bus, and was badly damaged. F.I.R. No. 424/11 under Sections 279, 337, 338 and 427 of the Indian Penal Code, was got registered in Police Station, New Agra. The Opposite Parties were duly informed, regarding the accident, upon which the complainant was instructed to take the damaged car to some nearest service station/garage, so that the same could be inspected by their Surveyor. The complainant after getting the damaged vehicle released, on supardari, towed the same, to the NCR Ford (NCR Vehicle (P) Ltd.), the authorized Service Station of Ford Company, at Mathura Road, New Delhi, on 02.06.2011.
3. It was stated that, on the first inspection by the technical staff of the NCR Ford (NCR Vehicle (P) Ltd.), an estimate dated 04.06.2011, for a sum of Rs.5.00 lacs approximately, was prepared. The Opposite Parties deputed the Surveyor namely Mr. Ramneesh Tangri, who took photographs of the damaged vehicle, and informed the complainant that it was a case of total loss. The said Surveyor further told the complainant, that he would try to get the cheque prepared, at the earliest, after deducting some marginal amount. It was further stated that after a few months, the complainant came to know that the matter regarding his claim, had further been handed over to another Surveyor namely Mr. M.K. Aggarwal, who had initiated the whole proceedings afresh, and had also taken the photographs of the damaged vehicle, at NCR Ford (NCR Vehicle (P) Ltd.). The complainant enquired and met Mr. M.K. Aggarwal, Surveyor, at Delhi, several times, but he was never ready to report the vehicle, as a total loss, but on the other hand, insisted upon him, to get the same repaired, except the change of chassis.
4. It was further stated that to the utter dismay of the complainant, he received a letter from the Opposite Parties, on 29.03.2012 (wrongly typed as 29.04.2012) desiring him to furnish the various documents, including repair bills. Vide this letter, the complainant was also asked to produce the said vehicle at the workshop, for repairs and re-inspection, despite the fact that the same (vehicle) had been lying at the NCR Ford (NCR Vehicle (P) Ltd.), since 02.06.2011, for awaiting instructions, from the Opposite Parties, either to get it repaired or to be collected, in salvage, being a case of total loss. It was further stated that the Opposite Parties were many a time, asked to the settle the genuine claim of the complainant, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the Insured Declared Value of the vehicle, i.e. Rs.4,95,900/- alongwith interest @18% P.A.; and compensation, to the tune of Rs.5,00,000/- for mental agony and physical harassment.
5. The Opposite Parties, in their written version, admitted that the vehicle, in question, was got insured with them, by the complainant, for the period from 25.04.2011 to the midnight of 24.04.2012, for the Insured Declared Value of Rs.4,95,900/-, on payment of premium, to the tune of Rs.13,000/-. The factum of receipt of information, about the accident and that the complainant had taken the insured car, to the NCR Ford (NCR Vehicle (P) Ltd.), was admitted. It was stated that the complainant had got issued an exorbitant estimate, in respect of the damaged vehicle, aforesaid, from the staff of the NCR Ford (NCR Vehicle (P) Ltd.), which was not prepared, as per the actual loss, caused to the same. It was further stated that, on receipt of intimation, with regard to the accident, in question, the Opposite Parties appointed Mr. Ramneesh Tangri, Surveyor to investigate the matter and assess the loss, on account of the damage caused to the vehicle, but the complainant did not allow the workshop, to repair the same, and insisted for declaring the same, as a total loss, though the same was repairable. It was further stated that, on account of that reason, the loss to the damaged vehicle, in question, could not be assessed by the said Surveyor. It was further stated that, thereafter, Mr. M.K. Aggarwal, Surveyor and Loss Assessor was appointed to assess the loss on account of the damage caused to the vehicle of the complainant. Mr. M.K. Aggarwal visited the workshop, where the vehicle of the complainant was parked, and assessed the loss, on repair basis, to the tune of Rs.1,28,000.38Ps., vide his report, Annexure R-1. It was further stated that, however, the complainant did not allow the workshop, to repair the vehicle, and insisted for declaring the same, as a total loss. It was further stated that the Opposite Parties wrote letter dated 29.04.2012 to the complainant, asking him to furnish certain documents, including repair bills and produce the vehicle, at the workshop, for repair, as also re-inspection, but he failed to do so. It was further stated that Mr. M.K. Aggarwal, Surveyor and Loss Assessor, also sent so many communications/letters to the complainant, including the last letter dated 27.04.2012, asking him to provide the repair bills, satisfaction voucher etc. etc but he failed to supply the same It was further stated that the Opposite Parties again sent a letter dated 02.05.2012 to the complainant, and requested him to advise his repairer, to start repair work, but the complainant failed to do so. It was further stated that the complainant himself was not getting the vehicle repaired, and insisted for declaring the same, as a total loss, though the same was in repairable condition. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. In the rejoinder, filed by the complainant, he reasserted all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
7. The Parties led evidence, in support of their case.
8. On 23.04.2013, when the complaint was fixed for final arguments, none appeared, on behalf of the complainant. The District Forum, however, decided to proceed further and dispose of the complaint, on merits, as envisaged by Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13 (2) of the Act (as amended up-to-date), in the absence of the complainant
9. After hearing the Counsel for the Opposite Parties, and, on going through the evidence, and record of the case, the District Forum, disposed of the complaint, in the manner, referred to, in the opening paragraph of the instant order.
10. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
11. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
12. The Counsel for the appellant, submitted that during the currency of the Insurance Policy, the vehicle of the complainant met with an accident, and was totally damaged. He further submitted that it was a case of total loss, but the Opposite Parties were not ready to indemnify the complainant, in respect of the Insured Declared Value of the vehicle. He further submitted that, in the first instance, Mr. Ramneesh Tangri, was appointed as a Surveyor, who after inspection of the damaged vehicle told that it was a case of total loss, but the Opposite Parties, instead of accepting his report, appointed another Surveyor namely Mr. M.K. Aggarwal, for reassessment of the loss, which was against the provisions of law. He further submitted that no documents were ever called for, from the complainant, in respect of the vehicle, in question, by the Opposite Parties. He further submitted that even the estimate, which was got prepared from the authorized dealer i.e. NCR Ford (NCR Vehicle (P) Ltd.), clearly revealed that it was a case of total loss, but the same was arbitrarily rejected by the Opposite Parties. He further submitted that the findings of the District Forum are completely vague. He further submitted, that, in the first instance, the District Forum came to the conclusion that there was no deficiency, in rendering service, on the part of the Opposite Parties and the complaint failed on merits, but, at the same time, it was recorded that the complainant would be at liberty to claim the assessed amount, from them. He further submitted that the order of the District Forum, being illegal and invalid is liable to be set aside, and the complainant is entitled to be indemnified, in respect of the Insured Declared Value of the vehicle.
13. On the other hand, the Counsel for the respondents/Opposite Parties, submitted that, no doubt, the vehicle, in question, was got insured by the complainant, from the Opposite Parties. He further submitted that the vehicle met with an accident, during the currency of the Insurance Policy. He further submitted that it was not a case of total loss, but the vehicle was repairable. He further submitted that, no doubt, in the first instance Mr. Ramneesh Tangri, was appointed as Surveyor, to assess the loss of the damaged vehicle, and he asked the complainant, to get repaired the vehicle, but he insisted upon declaring the same, as a case of total loss. Thus, he did not submit any report. He further submitted that, under these circumstances, the second Surveyor namely Mr. M.K. Aggarwal, was appointed, for the purpose, who asked for many documents, from the complainant, but he failed to produce the same. He further submitted that the appointment of second Surveyor, by the Opposite Parties, in such circumstances was not against law. He further submitted that Mr. M.K. Aggarwal, Surveyor and Loss Assessor, assessed the loss of the damaged vehicle, in question, only to the tune of Rs.1,28,000.38Ps., vide his report Annexure R-1, on repair basis. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
14. Admittedly, the vehicle, in question, was purchased by the complainant, on 25.04.2011, which was got insured by him, from the Opposite Parties, for the period from 25.04.2011 to the midnight of 24.04.2012, for the Insured Declared Value of Rs.4,95,900/-, on payment of premium, to the tune of Rs.13,000/-. The Policy document and the terms and conditions thereof were not produced by the complainant, or the Opposite Parties, before the District Forum. Since these were very essential for the just decision of appeal, the same were got produced, from the Opposite Parties, and are Annexures AX and AY. The first question, that falls for consideration, is, as to whether, the Opposite Parties could appoint second Surveyor, or not. In the instant case, the Opposite Parties, in their joint written version, admitted that originally Mr. Ramneesh Tangri, was appointed as a Surveyor, to investigate the claim of the complainant, and assess the loss of the damaged vehicle, but he did not allow the workshop, to repair the vehicle, and insisted for declaring the same, as a total loss, though it was repairable, and, as such, the loss could not be assessed by him (Mr. Ramneesh Tangri). He, thus, did not submit any report. This stand of the Opposite Parties, in their written version, was duly corroborated, through the affidavit of Vineet Solanki, their Assistant Manager Legal, and Power of Attorney holder, which was submitted by way of evidence. Right from the very beginning, the complainant was insisting that the vehicle be declared as a total loss, though, according to the Opposite Parties, it was repairable. When the complainant did not get the vehicle repaired, on the asking of Mr. Ramneesh Tangri, Surveyor, but insisted on declaring the same, as a total loss, no alternative was left with the Opposite Parties to appoint another Surveyor namely Mr. M.K. Aggarwal, to assess the loss. It is not that, in every situation, the Insurance Company is prohibited from appointing the second Surveyor. It depends upon the facts and circumstances of each case. Since the first Surveyor appointed by the Opposite Parties, could not submit the report, for the reason that the complainant was not ready to get the vehicle repaired, and always insisted on declaring the same, as a total loss, we are of the considered opinion, that the Opposite Parties took a right decision, to appoint another Surveyor namely Mr. M.K. Aggarwal, to assess the loss. Reliance was placed by the Counsel for the appellant/complainant, on Sri Venkateswara Syndicate Vs. Oriental Insurance Company Limited and another, (2009) 8 Supreme Court Cases 507, to contend that the second Surveyor could not be appointed. Perusal of the principle of law, laid down, in the aforesaid case, goes to show that the insurer could not appoint the second Surveyor, without specifying the cogent and satisfactory reasons, for not accepting the report of the first Surveyor. In the instant case, the first Surveyor did not submit any report, for the reasons aforesaid, and, thus, the second Surveyor was appointed. No help, therefore, can be drawn by the Counsel for the appellant/complainant, from the principle of law, laid down, in Sri Venkateswara Syndicate`s case (supra). It is, therefore, held that the appointment of second Surveyor namely Mr. M.K. Aggarwal, by the Opposite Parties, could not be said to be against the provisions of law or the Insurance Regulatory Development Authority Regulations. There was, therefore, no deficiency, in rendering service, on the part of the Opposite Parties, on this count.
15. The second question, that falls for consideration, is, as to whether, the Surveyor demanded the documents vide various letters, from the complainant, and whether he submitted the same or sent reply to these letters or not. Annexure C-6 is a copy of the letter dated 29.04.2012, which was sent to the complainant, by the Opposite Parties, wherein, the following documents were demanded from him:-
Claim form duly filled in RC in original for verification/Copy of RC duly self attested.
DL in original for verification/Copy of DL duly self attested.
Repair bills Bills Payment receipt Fitness KYC-Pan card Address Proof NOS-Consent FIR copy Cancelled (cancelled)cheque Vehicle to be produced at w/s for repairs Vehicle to be produced for re-inspection
16. No reply to this letter was sent by the complainant. On the other hand, the Counsel for the appellant/complainant submitted that since the vehicle was not got repaired, the question of submission of repair bills, bills payment receipt, cancelled cheque etc., did not at all arise. It may be stated here, that other documents i.e DL in original for verification/copy of DL duly self attested, KYC-Pan card and Address Proof, could certainly be sent/supplied by the complainant, to the Opposite Parties. However, these documents were not sent by the complainant to the Opposite Parties. There is another letter Annexure R-2 dated 27.04.2012, which was sent by the Opposite Parties, vide which certain documents were demanded from the complainant, but according to him it was not received by him. Though there is a stamp, in photo-impression of the post office, showing the dispatch of this letter through registered post. Similarly, Annexure R-3, is another document, dated 02.05.2012, which was sent through registered post, to the complainant, reminding him about the earlier letter dated 27.04.2012, which was sent to him, but he did not supply the requisite documents, asked for, by the Opposite Parties. Sending of communications through registered post, is one of the recognized mode. If a registered letter is sent to a person, at his correct address, presumption can be drawn that it was received by him. The submission of the Counsel for the appellant/complainant, that the letters aforesaid, were not received by the complainant, therefore, cannot be said to be correct. If the complainant could not supply the documents mentioned in the letters, aforesaid, for whatever the reasons may be, he could send a reply specifying therein, as why he was unable to do so. He, however, even failed to send any reply to these communications of the Opposite Parties. The fault, therefore, lay on the shoulders of the complainant, for not sending the documents, asked for, from him, or for not intimating the Opposite Parties, by way of a communication, that such documents were not available with him.
17. The next question, that falls for consideration, is, as to whether, the report of the Surveyor Annexure R-1, assessing the loss, to the tune of Rs.1,28,000.38Ps., is correct or not. It is, no doubt, true that the report of the Surveyor is not the last and final word. It is neither binding upon the insured, nor the insurer. However, the report of the Surveyor is a significant document, and cannot be discarded lightly. The perusal of report Annexure R-1 of the Surveyor, clearly goes to show that all the items mentioned in the estimate Annexure C-5, were mentioned by him, in his report. He assessed the loss, in respect of each and every part of the vehicle, which was damaged, strictly, in accordance with the terms and conditions of the Policy. No doubt, no affidavit was submitted by the Surveyor, in support of his report Annexure R-1, yet, in case, the complainant had any doubt, with regard to the same, he could produce the report of another Surveyor or expert, to rebut the report Annexure R-1. The Counsel for the appellant, during the course of arguments, could not point, as to how, the report of the Surveyor Annexure R-1, was incorrect. The report of the Surveyor, on the other hand, is based on the cogent material and data. Estimate Annexure C-5, submitted by the complainant of the NCR Ford (NCR Vehicle (P) Ltd.), in respect of the vehicle, in question, was merely an estimate, and could not be said to be conclusive. The actual loss to the vehicle could only be assessed by the Surveyor. Even the estimate which was prepared by the NCR Ford (NCR Vehicle (P) Ltd.), an authorized dealer, showed the same (the amount of actual loss), to be more than the Insured Declared Value of the vehicle. No reliance on such an estimate could, therefore, be placed, to come to the conclusion that the vehicle was a total loss.
Reliance, therefore, could certainly be placed, on the report of the Surveyor Annexure R-1. In our considered opinion, the Surveyor was right, in coming to the conclusion that the vehicle was capable of being repaired, but the complainant was insisting upon declaring the same, as a total loss. The loss assessed by the Surveyor, to the tune of Rs.1,28,000.38Ps., on repair basis, therefore, could be said to be correct. The appellant/complainant is only entitled to a sum of Rs.1,28,000.38Ps., assessed by the Surveyor, as per the report Annexure R-1. He is not entitled to be indemnified, treating the vehicle as a total loss. The submission of the Counsel for the appellant/complainant, therefore, being devoid of merit, must fail, and the same stands rejected.
18. The next question, that falls for consideration, is, as to whether, there was any deficiency, in rendering service, on the part of the Opposite Parties, in not releasing the amount of Rs.1,28,000.38Ps., assessed by the Surveyor, vide report Annexure R-1, on account of loss suffered by the complainant, due to damage to his vehicle, in question. Once the Surveyor assed the loss to the tune of Rs.1,28,000.38Ps., it was incumbent upon the Opposite Parties, to send the draft/cheque of that amount, to the complainant. Had this amount been not received by the complainant, and had be returned the same to the Opposite Parties, the matter would have been different. In those circumstances, it would have been said that the Opposite Parties were not deficient, in rendering service. Since the cheque/draft, in the sum of Rs.1,28,000.38Ps., assessed by the Surveyor, was not sent to the complainant, immediately, after report Annexure R-1 was received by the Opposite Parties, it could be said that they withheld this amount for a sufficient longer period. Had the amount of Rs.1,28,000.38Ps., been paid to the complainant, as soon as the report of the Surveyor was received, he would have utilized the same. By improperly and illegally retaining the amount, financial loss was caused to the complainant, by the Opposite Parties. The complainant , is, thus, entitled to the amount of Rs.1,28,000.38Ps., alongwith interest @9% P.A., from 24.04.2012, the date on which the Survey Report Annexure R-1, was submitted.
19. No other point, was urged, by the Counsel for the parties.
20. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside. The complaint is partly accepted, in the following manner:
i. The respondents/Opposite Parties shall pay a sum of Rs.1,28,000.38Ps., (if already not paid) to the appellant/complainant, with interest @9% P.A., from 24.04.2012, the date of submission of report of the Surveyor, Annexure R-1, on completion of the requisite formalities by the latter (appellant/ complainant) .
ii. The amount aforesaid shall be paid by the respondents/Opposite Parties, to the appellant/complainant, within a period of 45 days, from the date of receipt of a certified copy of the order, subject to completion of all the requisite formalities, by the latter (appellant/complainant) failing which, the same shall carry penal interest @12% P.A., instead of 9% P.A., from the date of default, till realization.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion Pronounced.
September 11, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg