State Consumer Disputes Redressal Commission
1. National Insurance Company Ltd., vs Director General Health Services, ... on 15 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 389 of 2013 Date of Institution : 12.09.2013 Date of Decision : 15/11/2013 1. National Insurance Company Ltd., Regional Office 2, SCO No.337-340, Sector 35-B, Chandigarh, through its Regional Manager. 2. National Insurance Company Ltd., Divisional Office, SCO No.813, Mani Majra, Chandigarh, through its Divisional Manager Appellants/Opposite Parties V e r s u s Director General Health Services, Haryana, Sector 6, Panchkula, through its Additional Director (Administration). ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Brig. B.S. Taunque (Retd.), Advocate for the appellants.
Sh. Vivek Salathia, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 02.08.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
For the reasons recorded above, we find merit in the complaint and the same is allowed. OPs are directed :-
i To pay the sum assured of Rs.2,88,000/- to the complainant along with interest @9% p.a. from the date of filing of the claim, till realization.
ii To make payment of an amount of Rs.25,000/- to the complainant on account of harassment and deficiency in service.
iii To make payment of an amount of Rs.5,000/- to the complainant towards costs of litigation.
The liability of the OPs shall be joint and several.
This order shall be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant along with interest @12% p.a. from the date of filing of the claim, till its realization, besides costs of litigation, as mentioned above.
2. The facts, in brief, are that, according to the complainant, he is having a sizable fleet of vehicles, being used for official purposes. The said entire fleet of vehicles was earlier got insured, from the Oriental Insurance Co. Ltd. Sh.Bharat Handoo, Development Officer of the Opposite Parties, approached the complainant, through Mr.S.K.Dhawan, Divisional Manager, DO-III, Manimajra, Chandigarh, for procuring the insurance business, from him (complainant). The complainant then considered to pass on the insurance business, through the Opposite Parties, on the categorical assurance of quality insurance services, by Opposite Party No.2. Insurance of the Departmental vehicle No.HR 70E-0066, Tata Indigo Car, expired on 21.04.2009, but the same could not be got renewed, on 22.4.2009, as the budget under the general head was not available. The complainant, on the request of Sh.Bharat Handoo, asked him to get the vehicles insured. Sh.Bharat Handoo came on 27.04.2009, and after thorough inspection of the vehicle, in question, and after having taken the premium of Rs.7,568/-, in cash, handed over to the complainant, the insurance document/proposal form, copy of whereof is AnnexureC, under an impression that it was an interim protection note, showing the validity of insurance, for the period from 27.04.2009 to 26.04.2010. Sh.Bharat Handoo, on the face of the cover note, specifically recorded the fact of meter reading as 21413, at the time of inspection thereof, of the even date (27.04.2009). On 28.04.2009, Sh.Bharat Handoo, arranged the inspection of the five vehicles, and took Rs.7,50/- as inspection fees. He also told Mr.Rajesh Kumar, an official of the complainant, to prepare a consolidated cheque, in the sum of Rs.51,305/-, towards premium for the insurance of all the vehicles, including vehicle No. HR-70E-0066, because the premium had already been taken by him, in cash, on the previous day.
3. On 29.04.2009, Dr.Parveen Sethi, Director General Health Services, Haryana, alongwith other two officers Dr.N.L.Gupta and Mr.C.P.Malhotra, proceeded for official duty, in the vehicle, bearing registration No.HR-70-E-0066. The said vehicle was being driven by its official driver, and when they reached near Bastara Chowk between Madhuban and Gharunda GT Road, Karnal, in the evening at around 8.30 AM, a Neel Cow came running suddenly, on the road, and he (driver), in order to save the same (Neel cow), moved the vehicle, in question, to the left side, and also applied brakes, but it hit the stationery tractor trolley, on the road side, as a result whereof, it (the vehicle, in question) was extensively damaged, resulting in total loss. Dr.N.L.Gupta and Mr.C.P.Malhotra, occupants of the said vehicle, sustained injuries. They were rushed to Trauma Centre, General Hospital, Karnal, for immediate medical treatment. Thereafter, both were sent to Panchkula/Chandigarh, in the official car of Civil Surgeon, Karnal, on the intervening night of 29/30.04.2009.
4. The complainant immediately informed the Opposite Parties, at Karnal, about the accident, which appointed Sh.Iqbal Singh Arora, Surveyor and Loss Assessor from Karnal, for the spot survey, and further appointed Sh.Vinod Bhan, Surveyor, Loss Assessor and Valuer from Chandigarh, for assessing the loss. On their advice, DDR Annexure G, in that regard, was also lodged, in Police Post, Madhuban. After the accident, the vehicle, in question, was shifted to M/s Sameer Motors, G.T.Road, Karnal, an authorized workshop of Tata Motors, where the final survey of the vehicle was also got conducted by Mr. Vinod Bhan, Surveyor, Loss Assessor and Valuer. The complainant submitted all the documents, and completed the requisite formalities, as demanded by the Opposite Parties. Sh. Vinod Bhan, the Surveyor, vide his report dated 30.01.2010, assessed the loss, on total loss basis, to the tune of Rs.2,88,000/-; Rs.2,29,748/-, on repair basis; and Rs.2,13,000/- on net of salvage basis. It was stated that the vehicle, in question, was still lying parked, in the garage of M/s Sameer Motors, G.T.Road, Karnal, and Rs.100/- per day, were being levied, as parking charges, vide letter, copy whereof is Annexure J.
5. The complainant visited the office of the Opposite Parties, to know about the status of his claim. Ultimately, the Opposite Parties, repudiated the genuine claim of the complainant, on flimsy grounds, on 28.03.2011. It was further stated that a lot of harassment, inconvenience, mental torture and agony, were also suffered by the complainant. 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 amount of Insured Declared Value, to the tune of Rs.2,88,000/- alongwith interest @12% p.a. from the date of accident, till realization; dispose of the wreckage of the accidental car, after paying the garage charges, directly to the said workshop; compensation, to the tune of Rs.50,000/- towards mental agony and physical harassment; and cost of litigation, to the tune of Rs.5,000/-.
6. The Opposite Parties, in their joint written version, pleaded that the complainant had concealed the material facts. It was stated that neither the complainant had clarified the discrepancies/queries raised by the Opposite Parties, nor supplied the requisite/relevant documents, required by them. It was admitted that the car, in question, was insured with Opposite Parties No.1 and 2, for the period, in question. It was further stated that in the tax invoice dated 25.04.2009 Annexure B, issued by M/s Hind Motors (India) Ltd., the meter reading was shown to be 21832, whereas, in the proposal form dated 27.04.2009 Annexure C, the meter reading was shown to be 21413. The accident was admitted. Lodging of claim was also admitted. It was further stated after the accident, in final survey report by Sh. Vinod Bhan, Surveyor, Loss Assessor and Valuer, on the date of accident, meter reading was shown as 21877 kilometers. It was further stated that the claim of the complainant was validly repudiated by the Opposite Parties. 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.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
10. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellants, submitted that though the Surveyor and Loss Assessor, vide its report, Annexure-I, assessed the loss, on net of salvage basis, to the tune of Rs.2,13,000/- (Insured Declared Value of the vehicle-Rs.2,88,000/- minus(-) wreck value to the tune of Rs.75,000/-), yet the District Forum was wrong, in ordering the Opposite Parties, to indemnify the complainant, in the sum of Rs.2,88,000/-, which was the Insured Declared Value of the vehicle. He further submitted that the vehicle, in question, was not the personal vehicle of the Director General Health Services, Haryana/ complainant. He further submitted that the vehicle belonged to the Institution, and, as such, the District Forum was wrong, in granting compensation, for mental agony and physical harassment, as the Institution could not suffer the same. He further submitted that, as such, the order of the District Forum, being illegal and invalid, is liable to be set aside.
12. On the other hand, the Counsel for the respondent/complainant, submitted that the Surveyor, Loss Assessor and Valuer, also made assessment on total loss basis, to the tune of Rs.2,88,000/-. He further submitted that the Surveyor, Loss Assessor and Valuer, came to the conclusion that since the vehicle was insured for the Insured Declared Value, to the tune of Rs.2,88,000/-, the liability of the Insurer was to indemnify the insured, on total loss basis. He further submitted that, no doubt, another assessment was made by the Surveyor and Loss Assessor, on net of salvage basis, according to which wreck value of the vehicle, was assessed to the tune of Rs.75,000/-, and he came to the conclusion that the assessment on net of salvage basis, was Rs.2,13,000/-. He further submitted that since the Surveyor, Loss Assessor and Valuer, also made assessment, on a total loss basis, the liability of the insurer was to the tune of Rs.2,88,000/- i.e. the Insured Declared Value. He further submitted that, as such, the District Forum was right, in indemnifying the complainant, to the tune of Rs.2,88,000/-. He further submitted that compensation was granted, by the District Forum, not only for mental agony and physical harassment, but also for deficiency, in rendering service. He further submitted that, as such, it could not be said that the order granting compensation, to the tune of Rs.25,000/-, was illegal. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
13. The insurance of the vehicle, in question, for the Insured Declared Value of Rs.2,88,000/-, for the period from 29.04.2009 to the midnight of 28.04.2010, on payment of premium, to the tune of Rs.6,236/-, by the complainant, from the Opposite Parties, was admitted. The accident of the vehicle was also admitted, by the Opposite Parties. The correctness of the factum of accident was also verified by both the Surveyors and Loss Assessors aforesaid. The Surveyor, Loss Assessor and Valuer appointed by the Opposite Parties (now appellants), submitted his motor final survey report, copy whereof is Annexure-I. Sh. Vinod Bhan, Surveyor, Loss Assessor and Valuer, assessed the loss to the vehicle, on repair basis, to the tune of Rs.2,29,748/-; on total loss basis, to the tune of Rs.2,88,000/-, being the Insured Declared Value; and on net of salvage basis, to the tune of Rs.2,13,000/-. Since the vehicle, in question, was badly damaged, resulting into its total loss, assessment was made by the Surveyor, Loss Assessor and Valuer, to the tune of Rs.2,88,000/-, on the basis of the Insured Declared Value, which, in our considered opinion was correct. It is a settled principle of law, that the report of the Surveyor, is a significant document, and cannot be discarded lightly. Since the Surveyor, Loss Assessor and Valuer, came to the conclusion that the vehicle was a total loss, and it assessed the same, to the tune of Rs.2,88,000/-, being its Insured Declared Value, in our considered opinion, the District Forum was not wrong, in ordering the Opposite Parties, to indemnify the complainant, in the sum of Rs.2,88,000/-. No doubt, while assessing the loss, on net salvage basis, wreck value of the vehicle was assessed as Rs.75,000/-. At the same time, the Surveyor, Loss Assessor and Valuer, stated, in his report, that this wreck value was recommended in Interim Report and was valid for only one month. Since the vehicle was declared as total loss, there was no reason, on the part of the Opposite Parties, in not indemnifying the complainant, on total loss basis. The submission of the Counsel for the appellants, that the District Forum was wrong, in directing the Opposite Parties, to indemnify the complainant, in the sum of Rs.2,88,000/-, on the ground, that the vehicle was declared as a total loss, therefore, being devoid of merit, must fail, and the same stands rejected.
14. The next question, that falls for consideration, is, as to whether, the District Forum was right, in awarding compensation, in the sum of Rs.25,000/-, for mental agony and physical harassment, and deficiency, in rendering service. No doubt, the vehicle, in question, was not the personal vehicle of the Director General Health Services, Haryana. The vehicle was registered, in the name of the Institution. No mental agony or physical harassment could be suffered by the Institution, which could be said to be an unnatural person. However, at the same time, it may be stated here, that the claim of the complainant was illegally and arbitrarily repudiated by the Opposite Parties, vide Annexure R-1 dated 28.03.2011. The report of Sh. Vinod Bhan, Surveyor, Loss Assessor and Valuer, Annexure I is dated 30.01.2010. It could not be expected of the Opposite Parties, to take such a long time, in deciding the claim of the complainant, one way or the other. The Opposite Parties, in the first instance, by delaying the settlement of claim of the complainant, for a period of one year, after the receipt of report Annexure 1 of Sh. Vinod Bhan, Surveyor, Loss Assessor and Valuer, and secondly by illegally and arbitrarily, repudiating the same, were certainly deficient, in rendering service. The District Forum, no doubt, was wrong, in granting compensation, for mental agony and physical harassment, yet, at the same time, it was right, in coming to the conclusion that the complainant was entitled to compensation, for deficiency, in rendering service, on account of the aforesaid reason, by the Opposite Parties. The compensation of Rs.25,000/-, for deficiency, in rendering service, especially when the direction had already been given for indemnification of the complainant, to the tune of Rs.2,88,000/-, being the Insured Declared Value, of the vehicle, in question, in our considered opinion, is on the higher side. The compensation for deficiency, in rendering service, if reduced to Rs.15,000/-, shall be adequate, reasonable and fair. The findings of the District Forum, are, thus, modified to the extent, referred to above.
15. The District Forum also did not pass any order, that the Opposite Parties shall be entitled to the vehicle/wreck of the same, lying abandoned, in the workshop, by directing the complainant to execute the necessary documents, in their favour, as per the terms and conditions of the Policy. Once, the direction was given to the Opposite Parties, for indemnifying the complainant, in the sum of Rs.2,88,000/-being the Insured Declared Value of the vehicle, on total loss basis, the same (vehicle) became their (Opposite Parties) property. The direction, in this regard, is also required to be given, and order of the District Forum deserves to be modified, to that extent.
16. No other point, was urged, by the Counsel for the parties.
17. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
i. The appellants/Opposite Parties are directed to pay a sum of Rs.2,88,000/-, to the respondent/complainant, alongwith interest @9% P.A., which shall commence six months after the filing of claim, with them, by him (complainant), subject to compliance of the directions given in Clause (iv) below.
ii. The appellants/Opposite Parties are further directed to pay compensation, in the sum of Rs.15,000/-, to the respondent/complainant, for deficiency, in rendering service, on account of non-settlement of his claim, within six months, from the date of filing the same.
iii. The appellants/Opposite Parties shall also pay cost of Rs.5,000/-, as awarded by the District Forum, to the respondent/ complainant.
iv. The respondent/complainant is directed to execute all the necessary documents, as per the terms and conditions of the Policy, and law on the point, in respect of the vehicle/wreck, so as to vest the ownership thereof, in the appellants/Opposite Parties.
v. The amounts mentioned in Clauses (i) and (ii) shall be paid by the appellants/Opposite Parties, within a period of 45 days, from the date of receipt of copy of a certified copy of this order, failing which, the amount mentioned in Clause (i) shall carry interest @12% P.A., instead of 9% P.A., six months after the filing of claim, and the amount of compensation, mentioned in Clause (ii) shall carry interest @12% P.A., from the date of filing the complaint, till realization, besides payment of cost, to the tune of Rs.5,000/-, referred to above. The direction given in Clause (iv) above, shall also be complied with, within 45 days, from the date of receipt of a certified copy of the order.
vi. Any other relief awarded and direction given by the District Forum, which is contrary to, or in variance of this order, subject to the modification aforesaid, shall stand set aside.
18. Certified copies of this order, be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion.
Pronounced.
November 15, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg