State Consumer Disputes Redressal Commission
Oriental Insu.Co.Ltd. vs Deviram Chouhan on 6 May, 2024
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO. 1984 OF 2019 (Arising out of order dated 25.09.2019 passed in C.C.No.22/2014 by District Commission, Bhopal-1) 1. MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, HEAD OFFICE A-25/27 ASIF ALI ROAD, NEW DELHI 2. BRANCH MANAGER, THE ORIENTAL INSURANCE CO.LTD. E-5/10 RAVISHANKAR NAGAR, OPPOSITE HABIBGANJ POLICE STATION, BITTAN MARKET, BHOPAL (M.P.) 3. DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO.LTD. DIVISION OFFICE NO.II, CHITTOD COMPLEX, M.P.NAGAR, BHOPAL. ... APPELLANTS. Versus DEVIRAM CHOUHAN, S/O SHRI RAMPRASAD CHOUHAN, R/O D-43, OASIS STERLING, RAJAT VIHAR COLONY, HOSHANGABAD ROAD, BHOPAL (M.P.) .... RESPONDENT. BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES : Shri Anurag Khaskalam, learned counsel for appellants. Shri Kavindra Raghuvanshi, learned counsel for the respondent. O R D E R
(Passed On 06.05.2024) The following order of the Commission was delivered by A. K. Tiwari, Acting President:
This is an appeal by the opposite parties/appellants-The Oriental Insurance Co. Ltd. (hereinafter referred to as 'insurance -2- company') against the order dated 25.09.2019 passed by the District Consumer Disputes Redressal Forum, Bhopal-1 (for short 'District Commission) in C.C.No.22/2014 whereby the complaint filed by the complainant/respondent (hereinafter referred to as 'complainant')has been allowed.
2. In short, facts of the case as stated by the complainant in his complaint are that complainant's dumper bearing registration number MP-04 HE-1957 was insured with the opposite party-insurance company for the period w.e.f. 10.12.2012 to 09.12.2013. The subject vehicle met with an accident on 26.06.2013 and sustained damages. FIR was lodged with the police station-Obedullaganj and the insurance company was also informed in writing. The claim was filed with the insurance company on 01.07.2013. It is alleged by the complainant that the subject vehicle was in the workshop for repairs but for 11 days no surveyor reached the workshop for conducting survey. Thereafter Surveyor Anil Khare conducted the survey and on the instructions of the insurance company he got his vehicle repaired of which expenses were Rs.10,33,500/-. He submitted the bills with the insurance company but the insurance company did not pay the claim. The complainant therefore alleging deficiency in service on part of the insurance company approached the District Commission seeking relief.
-3-3. The opposite parties-insurance company resisted the complaint stating that from the spot survey it was found that some parts of the vehicle such as tie rod assembly, deprential housing, gear box, jack assembly combination, switch and brake booster were in good condition and safe. After final survey it was found that ECU was not of the subject vehicle and hydraulic jack and its controller valve were safe and therefore Surveyor rightly did not allow the claim for the same. The complainant produced the bills for Rs.36,864/- and Rs.1,25,034/- but did not produce the receipts whereas as per surveyor the parts were not damaged. The complainant also did not produce the authentic bill of steel cabin alleged to have been purchased. Surveyor Brijesh Shrivastava also conducted survey and found that some parts were replaced by old parts and not the new one. The complainant deliberately concealed material facts and also not filed authentic bills for parts replaced. The complainant is not entitled to get any relief. It is therefore prayed that the complaint be dismissed with costs.
4. The District Commission partly allowing the complaint directed the opposite parties-insurance company jointly and severally to pay to the complainant Rs.10,33,500/- within a period of two months with interest @ 9% p.a. from the date of filing of claim i.e. 01.07.2013 till payment. Compensation of Rs.10,000/- with costs of Rs.3,000/- is also directed to -4- be paid within two months failing which the amount shall carry interest @ 9% p.a. from the date of filing of complaint till payment. Hence this appeal by the opposite parties-insurance company.
5. Heard learned counsel for the parties. Perused the record.
6. Learned counsel for the opposite parties-insurance company argued that the impugned order passed by the District Commission is contrary to the law laid down by Hon'ble Supreme Court and Hon'ble National Commission. He argued that the District Commission has committed material irregularity in not considering the documentary evidence available on record and surveyor's report. He argued that the District Commission erroneously awarded the amount more than the amount assessed by the surveyor. He therefore prayed for setting aside the impugned order.
7. Learned counsel for the complainant/respondent argued that the District Commission considering the documents and evidence placed on record has rightly allowed the complaint to the extent of Rs.10,33,500/- as the surveyor did not assess the loss for certain parts. He therefore prayed for dismissal of appeal.
8. The complainant has filed his affidavit along with documents marked as A-1 to A-8, whereas on behalf of insurance company affidavit of Sunil Shrivastava, Senior Divisional Manager, Smt. Rekha Satpute, -5- Manager Incharge, Mahendra Jaiswal Surveyor & Loss Assessor, Shri Rajendra Singh Dangi Investigator along with documents marked as D-1 to D-85 with photographs have been filed.
9. Having heard learned counsel for the parties and on going through the record we find that it is an admitted position that the complainant had obtained insurance policy for his vehicle for the period 10.12.2012 to 09.012.2013 (A-1). On 26.06.2013 the subject vehicle met with an accident of which FIR was lodged with the police (A-2) and intimation was given to the insurance company (A-3). On receipt of intimation the insurance company immediately appointed the surveyor Anil Kumar Khare, who vide his report dated 28.08.2013 (D-8) assessed the loss to the tune of Rs.4,01,288.10/-. D-7 is the report of Brijesh Kumar, Surveyor who after re-inspection of subject vehicle vide his report dated 08.10.2013 (D-7) has made a note that "The insured has shown the damaged Beam No.51601YY215218 which is not tallying with the photos taken by final surveyor (i.e.51601YY3098) and the I Beam fitted in the vehicle having marks of hammering and painted Sr. nos. not visible Batteries 2 Nos. shown in broken condition whereas the fitted batteries are old clearly visible in the photos taken by me."
10. It is pertinent to mention here that Spot surveyors and final surveyors though appointed by the insurance company under statutory -6- provisions but they are independent authorities and it is well settled that the insurance claim can only be settled on the basis of survey report unless it was challenged by cogent evidence. Here in the instant matter, the complainant has not challenged the survey report, therefore without any reason, the surveyor's report cannot be discarded.
11. Hon'ble National Commission in Iffco Tokio General Insurance Co. Ltd. Vs Beena Raghav III (2015) CPJ 75 (NC) and United India Insurance Co. Ltd. Vs East Indian Produce Limited & Anr, I (2015) CPJ 409 (NC) has held that 'In terms of Section 64UM(2) of the Insurance Act, 1938 the surveyor was an independent professional engaged by the insurance company to assess the loss suffered by the complainant with respect to his vehicle. The report prepared by the Surveyor is of a significant and evidentiary value cannot be ignored and dismissed as such by saying that the assessed loss cannot be considered trustworthy, without giving valid reasons.
12. In view of the settled position of law, the surveryor's report cannot be brushed aside unless it is proved otherwise. Thus in view of the above discussion we are of a considered view that the complainant is entitled to get the amount as assessed by the Surveyor only and not on the basis of bills produced by him. We find that the District Commission has gravely erred in allowing the claim made by the complainant -7- Rs.10,33,500/-against the assessment made by the surveyor for Rs.4,01,288/- without any basis.
13. In view of the aforesaid discussion, we find that the impugned order deserves to be modified. Accordingly, we direct the opposite parties/appellants insurance company to pay jointly and severally Rs.4,01,288/- as assessed by the surveyor to the complainant within a period of two months with interest @ 6% from the date of filing of complaint i.e. 01.07.2013 till payment. The insurance company is directed to pay compensation of Rs.10,000/- with costs of Rs.3,000/- as awarded by the District Commission within a period of two months failing which the amount shall carry interest @ 6% p.a. from the date of this order till payment.
14. With the aforesaid modification in the impugned order this appeal stands partly allowed. No order as to costs of this appeal.
(A. K. Tiwari) (Dr. Srikant Pandey) Acting President Member