State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Shyam Kumar Parashar on 24 April, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/39
Instituted on : 22.02.2017
The Oriental Insurance Company Limited,
Branch Office - Laxman Avenue Building,
In Front of Mandi, Jagdalpur, Dist. Bastar (C.G.)
Through : Divisional Office, Near Gandhi Chowk,
Dhamtari (C.G.) ..... Appellant/O.P.
Vs.
Shri Shyam Kumar Parashar.
S/o Late Shri Ramdayal Parashar,
Address : Parashar Dairy, Jawahar Nahar Ward,
Metgudapara Jagdalpur,
Post, Teshsil & District Jagdalpur (C.G.) ......Respondent/Complainant
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri P.K. Paul, Advocate for the appellant (O.P.).
Shri Rajesh Pandey, Advocate for the respondent (complainant).
ORDER
DATED : 24/04/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 22.12.2016, passed by District Consumer Disputes Redressal Forum, Bastar at Jagdalpur (C.G.) (henceforth "District Forum") in Complaint Case No.CC/22/2016. By the impugned order, learned District Forum, has partly allowed the complaint of the complainant and directed that :-
// 2 // (1) The complainant is entitled to get Rs.3,47,960/- (Rs. Three Lakhs Forty Seven Thousand Nine Hundred Sixty) which was spent by him in repairing of the vehicle bearing registration No.C.G.17-D-1913, from the O.P. The O.P. will pay the above amount to the complainant within 30 days from the date of the order.
(2) The O.P. will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards compensation for mental agony, which will be payable by the O.P. within 30 days.
(3) The complainant is entitled to get simple interest @ 6% on the above amount from the O.P. from the date of accident. (4) If the above amount is not paid by the O.P. within prescribed period, then the O.P. will be liable to pay interest @ 9% p.a. (5) The O.P. will also pay a sum of Rs.3,000/- (Rupees Three Thousand) towards cost of litigation to the complainant.
2. Briefly stated, the facts of the complaint of the complainant are that the complainant is registered owner of vehicle Tavera bearing registration No.C.G.17/D-1913 and the said vehicle was insured with the O.P. for the period from 27.08.2012 to 26.08.2013. During subsistence of the insurance policy, the vehicle met with an accident and was completely damaged. The complainant filed claim along relevant // 3 // documents before the O.P, but the O.P. did not settle the claim of the complainant and committed deficiency in service and unfair trade practice. The complainant filed complaint before Permanent & Continuing Lok Adalat (Public Utility Services), Jagdalpur and the complaint was returned to the complainant with observation that the Lok Adalat has no jurisdiction to take cognizance and complainant was directed to file complaint before the proper Forum. Hence, the complainant filed instant complaint before the District Forum and prayed for granting reliefs as mentioned in relief clause of the complaint.
3. The O.P. filed its written statement and averred that the complainant has obtained insurance policy in respect of vehicle Tavera bearing registration No.C.G.17-D-1913 and the vehicle was insured for the period from 27.08.2012 to 26.08.2013. The Surveyor was appointed by the O.P. who assessed the loss to the vehicle. The O.P. was ready to pay the amount according to the Surveyor Report to the complainant and cheque for the said amount was sent to the complainant and the O.P. demanded discharge voucher, but the complainant refused take the cheque, therefore, the amount was deposited in the bank account of the complainant, but the complainant refused to accept the said amount. The O.P. is always ready to pay Rs.2,07,800/- to the complainant, therefore, the O.P. has not committed any deficiency in service and unfair trade practice. The complaint is liable to be dismissed.
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4. The complainant has filed documents. Document Ex.P-1 are Job Retail Invoice issued by Vardhaman Motors, Ex.P-2 is Certificate of Registration, Driving Licence of Nuruddin Sohale, Ex.P.-3 is Survey Report dated 23.08.2013 of Utkarsh Shingwekarm, Ex.P-4 is Motor Claim Scrutiny Form, Ex.P-5 is letter dated 11.03.2014 sent by the O.P. to the complainant, Ex.P-6 is Claim Payment Voucher, letter sent by the complainant to the O.P., Receipt dated 25.01.2013 issued by Vardhman Motors, letter sent by the complainant to O.P., letter sent by the complainant to the O.P. which was received by the O.P. on 31.12.2012, Ex.P.-7 is Cash /Credit Memo dated 18.12.2012 issued by Maheshwar Transport, Ex.P-8 is Cash Credit Memo dated 18.12.2012 issued by Maheshwar Transport, Ex.P-9 is Schedule of premium and terms and conditions of Private Car Package Policy, Ex.P-10 is order dted 08.01.2016 of Permanent Lok Adalat.
5. The O.P. has not filed any documents.
6. Learned District Forum after having considered the material placed before it by the parties has partly allowed the complaint of the complainant by the impugned order.
7. Shri P.K. Paul, learned counsel appearing for the appellant (O.P.) has argued that the impugned order passed by the District Forum, is erroneous and the District Forum has wrongly awarded amount of Rs.3,47,960/- and also wrongly awarded interest and compensation for // 5 // mental agony. The appellant (O.P.) appointed Surveyor, who assessed the loss. The amount assessed by the Surveyor was deposited in the bank account of the respondent (complainant), but the respondent (complainant) did not accept the amount. The complainant himself filed complaint before Permanent & Continuing Lok Adalat (Public Utility Services), Jagdalpur and he took period of two years to continuously prosecuting his complaint before Permanent Lok Adalat. Therefore, the delay was caused by the complainant himself, hence, the complainant is not entitled to any interest and compensation for mental agony. The appellant (O.P.) is always ready to pay Rs.2,07,800/- to the respondent (complainant). The report of the Surveyor is a reliable evidence, therefore, the Surveyor's report is genuine and dependable. The report of the Surveyor can be given due weightage and it cannot be brushed aside lightly. The impugned order passed by the District Forum is erroneous and is liable to be set aside. The appeal may be allowed and impugned order be set aside. He placed reliance on Appeal No.FA/2016/559 - Jitendra Kumar Vaishnav Vs. The Divisional Manager, The Oriental Insurance Company Limited & Another order dated 17.01.2017 of this Commission.
8. Shri Rajesh Pandey, learned counsel appearing for the respondent (complainant) has argued that the vehicle in question was completely damages. The complainant incurred Rs.3,73,960/- in the repairing of the vehicle. The report of the Surveyor is not reliable. The Surveyor has // 6 // not mentioned regarding depreciation and he deducted depreciation on higher side. The Surveyor had not considered bills and invoice submitted by the respondent (complainant). The learned District Forum has rightly awarded Rs.3,47,960/-, interest and compensation for mental agony. The impugned order passed by the District Forum, does not call for any interference by this Commission. The appeal may be dismissed.
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
10. It is admitted that the respondent (complainant) is registered owner of the vehicle Tavera bearing registration No.C.G.17-D-1913 and the same was insured with the appellant (O.P.) for the period from 27.08.2012 to 26.08.2013. It is also admitted that the accident took place during subsistence of the insurance policy and Surveyor was appointed by the appellant (O.P.).
11. Shri Utkarsh Shingwekar, was appointed by the appellant (O.P.) as Surveyor & Loss Assessor, who submitted his report dated 23.08.2013 to the appellant (O.P.). In his report, the Surveyor mentioned regarding cause and nature of accident in detail. He also gave reasons for assessment of loss in detail and assessed the loss to the tune of Rs.2,25,994/-. The report of the Surveyor is a reliable document, therefore, the Surveyor's report is genuine and dependable. The Report // 7 // of the Surveyor can be given due weightage and it cannot be discarded lightly.
12. In Devendra Malhotra Vs. United India Insurance Co. Ltd. & Anr. 2016 (3) CLT 525 (NC), Hon'ble National Commission, has observed thus :-
"Consumer Protection Act, 1986, Sections 2 (1) (g), 19 & 21 (a) (ii)- Insurance claim Surveyor report Held It is a established legal proposition that the report made by the surveyor, who is a professional in his field, cannot disbelieved, unless there are cogent and convincing reasons to do so."
13. 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)."
14. 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".
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15. 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)".
16. 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".
17. The respondent (complainant) pleaded that he purchased the vehicle in question on 27.08.2012. The respondent (complainant) filed Certificate of Registration of vehicle bearing registration No.C.G.17-D- 1913, which is marked as document Ex.P-2. According the Certificate of Registration, the vehicle was manufactured in August, 2010. The // 9 // Surveyor in his Survey Report mentioned the date of registration 01.10.2010. It appears that the vehicle was two years old when the respondent (complainant) purchased it. The respondent (complainant) has not specifically mentioned regarding the date of accident and he simply pleaded that during the subsistence of the insurance policy, the vehicle met with an accident. The insurance policy was valid for the period from 27.08.2012 to 26.08.2013. It means the accident took place between August, 2012 to August, 2013 and at that time the vehicle was about 3 years old, therefore, the Surveyor has rightly deducted depreciation on the vehicle. The respondent (complainant) has not filed any cogent evidence for discarding the Report of the Surveyor. Merely filing invoices and bills by the respondent (complainant), it cannot be held that actually the respondent (complainant) incurred expenditure of Rs.3,73,960/- in repairing of the vehicle. The respondent (complainant) is not entitled for Rs.3,73,960/- on the basis of invoices and bills. The Surveyor's Report is reliable document, therefore, the respondent (complainant) is only entitled for the amount, which was assessed by the Surveyor. The Surveyor has rightly assessed the loss suffered by the respondent (complainant) to the tune of Rs.2,25,994/-, therefore, the respondent (complainant) is only entitled for Rs.2,25,994/- from the appellant (O.P.).
18. Learned District Forum has awarded a sum of Rs.5,000/- towards compensation for mental agony, which was payable by the appellant // 10 // (O.P.) to the respondent (complainant) within 30 days. The District Forum also awarded interest @ 6% on the above amount from the date of accident and directed that if the above amount will not be paid by the appellant (O.P.) within prescribed period, then interest @ 9% p.a. would be payable.
19. Now we shall examine whether the respondent (complainant) is entitled for interest, compensation for mental agony and cost of litigation ?
20. The appellant (O.P.) specifically pleaded that the cheque of Rs.2,07,800/- was sent to the respondent (complainant), but the respondent (complainant) refused to take the same. The respondent (complainant) has filed document Ex.P-6 which is Claim Payment Voucher in which it is mentioned the vide cheque No.14733 dated 20/02/2014 Rs.2,07,800/- was sent by the appellant (O.P.) to the respondent (complainant). Initially the respondent (complainant) filed complaint before Permanent Lok Adalat, Jagdalpur and the matter was pending for near about 2 years before Permanent Lok Adalat. Vide order dated 08.01.2016, the Permanent Lok Adalat, Jagdalpur, on the basis of judgment in Writ Petition (227) No.131 of 2015 - Branch Manager National Insurance Co. Ltd. Vs. Upendra Kumar Narvas, order dated 03.11.2015, observed that Permanent Lok Adalat, has no jurisdiction to entertain and adjudicate the motor accident // 11 // compensation claim under the Motor Vehicles Act, 1988 and the complaint was dismissed with the direction that the complainant can file complaint before competent Forum. Looking to the order dated 08.01.2016 of Permanent Lok Adalat, it appears that initially the respondent (complainant) had filed complaint before Permanent Lok Adalat, Jagdalpur and period of near about two years was spent, thereafter instant complaint had been filed before the District Forum, therefore, the respondent (complainant) himself caused delay in filing complaint before the District Forum. The appellant (O.P.) was ready and willing to pay Rs.2,07,800/- to the respondent (complainant), but the respondent (complainant) was not willing to receive the said amount. The appellant (O.P.) did not commit any deficiency in service, therefore, the respondent (complainant) is not entitled to get any interest, compensation for mental and cost of litigation from the appellant (O.P.). The respondent (complainant) is only entitled for getting a sum of Rs.2,25,994/- from the appellant (O.P.), which was assessed by the Surveyor.
21. Therefore, the appeal filed by appellant (O.P.) is allowed and the impugned order dated 22.12.2016, passed by the District Forum, is modified and it is directed that :-
(i) The appellant (O.P) will pay a sum of Rs.2,25,994/-
(Rupees Two Lakhs Twenty Five Thousand Nine Hundred and Ninety Four) to the respondent (complainant) within a period of // 12 // one month from the date of this order. If the appellant (O.P.) fails to pay the above amount to the respondent (complainant) within stipulated period, then the appellant (O.P.) will be liable to pay interest @ 12% p.a. on Rs.2,25,994/- from the date of this order till date of payment.
(ii) So far as the directions of the District Forum in the impugned order regarding interest, compensation for mental agony and cost of litigation, are concerned, the same are set aside.
(iii) No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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