State Consumer Disputes Redressal Commission
1.Reliance General Insurance Co. Ltd., ... vs Nirmala Rani Wife Of Mohan Lal, Resident ... on 19 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.524 of 2011 Date of Institution: 19.04.2011 Date of Decision: 19.09.2012 1. Reliance General Insurance Co. Ltd., 19, Reliance Centre, Walachand Hiarachand Marg, Ballarad Estate, Mumbai-400031 through its Branch Manager at City Centre, GT Road, Panipat. 2. Reliance General Insurance Co. Ltd., Branch Office Pawan Plza, Subhash Chowk, Sonepat. Appellants (Ops) Versus Nirmala Rani wife of Mohan Lal, Resident of 272/R, Model Town, Sonepat. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Ranjeesh Malhotra, Advocate for appellants. Respondent exparte. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 07.02.2011 passed by District Consumer Forum, Sonepat whereby complaint filed by complainant (respondent herein) seeking direction to the appellants-opposite parties to pay the insurable benefits in respect of her insured car which damaged in an accident during the subsistence of the Insurance Policy, was accepted and directions given below were issued:-
.it is directed to the respondents to pay the aforesaid amount to the complainant alongwith interest at the rate of 09% per annum from the lodging of the claim by the complainant with the respondents. The complainant has claimed compensation to the tune of Rs.2 Lacs which in the opinion of this Forum is on a very higher side, excessive, exorbitant. However, in the interest of justice, it is directed to the respondents to pay a sum of Rs.2000/- (Rs.two thousands) for rendering deficient services, for causing mental agony & harassment and Rs.2000/- (Rs. two thousands) under the head of litigation expenses. The present complaint, thus, stands allowed.
The delay of 39 days in filing of the present appeal is condoned for the reasons stated in the application moved by the appellants alongwith this appeal.
The brief facts of the present case as emerged from the record are that car of the respondent-complainant was insured with the appellants-opposite parties for the period 5.7.2008 to 4.7.2009 for Rs.6,01,800/-. The car damaged in an accident on 18.06.2009 due to sudden tyre burst. DDR No.19 dated 18.5.2009 was lodged in Police Post Sector-24, Panipat and intimation was given to the appellants-opposite parties upon which the Insurance Company deputed surveyor and loss assessed who inspected the vehicle and submitted his report whereby the loss of the vehicle was assessed at Rs.601236/- on repair basis. Complainant submitted claim with the appellants-opposite parties but the said claim was not settled. The surveyor then submitted another report whereby he assessed the damage of complainants vehicle at Rs.3,42,378/-. The complainant approached the opposite parties several times but still her vehicle was not repaired. Forced by these circumstances, the complainant invoked the jurisdiction of the District Consumer Forum.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement wherein they stated that the claim of the complainant was closed as No Claim because the complainant had not furnished the necessary documents for settling her claim. Thus, it was prayed that the complaint merited dismissal.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Forum accepted complaint and issued direction to the opposite parties as noticed in the opening para of this order.
Aggrieved against the order of the District Forum, the opposite parties have come up in appeal.
Heard.
On behalf of the appellants it is contended that on receipt of the information regarding the accident of complainants vehicle, M/s Royal Associates were appointed for investigation who submitted investigation report dated 10.08.2009 (Annexure A-3). The appellants had also appointed Shri Sanjeev Chhabra as surveyor to assess damage caused to the vehicle. The surveyor had asked the complainant to provide the necessary documents and to get the vehicle repaired to that the final assessment of the loss could be carried out but the complainant failed to furnish the documents/bills with respect to the repair of his vehicle. As the vehicle was not being repaired by the complainant, the surveyor had written registered letter dated 20.08.2009 (Annexure A-4) to the complainant whereby he was requested to get the vehicle repaired. Reminder dated 11.09.2009 (Annexure A-5) was also sent to the complainant. Thereafter, vide letter dated 21.09.2009 (Annexure A-6), the appellants-opposite parties had asked the complainant to produce the estimate, repair bills, claim form and also to reproduce the vehicle for re-inspection after repair. The complainant furnished the claim form Annexure A-7 upon which Shri Sanjeev Chhabra had checked the vehicle and gave his detailed assessment report Annexure A-8, vide which the loss of the vehicle was assessed at Rs.3,42,378/- as per the terms and conditions of the Insurance Policy, after deduction for depreciation, policy excess and salvage. But the complainant was adamant to get the vehicle declared as total loss and did not get the vehicle repaired and filed the complaint before the District Consumer which under the circumstances of the case was not maintainable being pre-mature.
Shri Rajneesh Malhotra, learned counsel for the appellants has argued that as per the provisions of Section 64 UM(2) of the Insurance Act, 1938, the appellants-opposite parties are bound to appoint a surveyor to assess the loss. In support of his arguments learned counsel for the appellants has drawn our attention towards Section 64UM of the Insurance Act, mentioned in the grounds of appeal, as under:-
No claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the insurance (Amendment) Act, 168, shall, unless otherwise directed by the (Authority), be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred from a person who holds a licence issued under this section to act as a surveyor or loss assessor (hereafter referred to as approved surveyor or loss assessor.
Learned counsel for the appellants has further argued that the surveyor Shri Sanjeev Chhabra had assessed the loss of the vehicle to the extent of Rs.3,42,378/- which was to be paid to the complainant subject to the compliance of the terms and conditions of the Insurance Policy but the complainant failed to furnish the necessary documents with respect to the repair of his vehicle and thus there was no deficiency in service on the part of the appellants-opposite parties in view of Condition No.3 of the Insurance Policy. Condition No.3 of the Policy, reproduced as under:-
Condition No.3: The company may at its own option repair/reinstate or replace the vehicle or part thereof/or its accessories or may pay in cash the amount of the loss or damage and the liability of the company shall not exceed:
(a) for total loss/constructive total loss of the vehicle-the Insureds Declared Value (IDV) of the vehicle (including accessories there on) as specified in the schedule less the value of the Wreck.
(b) For partial losses i.e. other that total loss/constructive total loss of the vehicle-actual and reasonable cost of repair and/or replacement of parts lost/damaged subject to depreciation as per limits specified.
According to the opposite parties the total loss of the vehicle can be declared only when the repair expenses of the vehicle exceeds 75% of the insured value of the vehicle, as has been mentioned in GR 8 of the Indian Motor Tariff which governs the terms and conditions of the Insurance Policy. GR 8 of the Indian Motor Tariff (Annexure
-10) is reproduced as under:-
GR.8. Insureds Declared Value (IDV) The Insureds Declared Value (IDV) of the vehicle 10ll be deemed to be the SUM INSURED for the purpose of this tariff and it will be fixed at the commencement of each policy period for each insured vehicle.
The IDV of the vehicle is to be fixed on the basis of manufacturers listed selling price of the brand and model as the vehicle proposed for insurance at the commencement of insurance/renewal and adjusted for depreciation (as per schedule specified below). The IDV of the side car(s) and/or accessories, if any, fitted to the vehicle but not included in the manufacturers listed selling price of the vehicle is also likewise to be fixed.
The schedule of age-wise depreciation as shown below is applicable for the purpose of Total Loss/Constructive Total Loss (TL/CTL) claims only. A vehicle will be considered to be a CTL, where the aggregate cost of retrieval and/or repair of the vehicle subject to terms and conditions of the policy exceeds 75% of the IDV.
The depreciation for replacement of parts in partial loss claims will be as per a separate schedule specified under GR.9.
SCHEDULE OF DEPRECIATION FOR ARRIVING AT IDV AGE OF THE VEHICLE % OF DEPRECIATION FOR FIXING IDV Not exceeding 6 months 5% Exceeding 6 months but not exceeding 1 year 15% Exceeding 1 year but not exceeding 2 years 20% Exceeding 2 years but not exceeding 3 years 30% Exceeding 3 years but not exceeding 4 years 40% Exceeding 4 years but not exceeding 5 years 50% NOTE: IDV of vehicles beyond 5 years of age and of obsolete models of the vehicles (i.e. models which the manufacturers have discontinued to manufacture) is to be determined on the basis of an understanding between the insurer and the insured.
For the purpose of TL/CTL claim settlement, this IDV will not change during the currency of the policy period in question. It is clearly understood that the liability of the insurer shall in no case exceed the IDV as specified in the policy schedule less the value of the wreck, in as is where is condition.
We find force in the contention raised on behalf of the appellants-opposite parties. Admittedly, in the instant case the insured value of complainants vehicle was Rs.6,01,800/- and as per the report of the surveyor, the repair value was assessed at Rs.3,42,378/-. Thus, the repair value of the vehicle does not exceeds 75% of the insured value which comes to Rs.4,51,350/-. In other words, 75% of the insured value of vehicle is less than the repair value and therefore the claim of the complainant was to be settled by the Insurance Company on the basis of repair value of the vehicle and the Insurance Company cannot be forced to declare it a case of total damage of vehicle. All these aspects have not been considered by the District Consumer Forum while deciding the complaint and erred in ignoring the report of the surveyor which is an important document as has been held by Honble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), wherein it has been held:-
4. Nothing has been shown to us to take any view different than the one taken by the State Commission, which is based on the Surveyors report, which, has been held severally by the Honble Supreme Court and this Commission, that Surveyor Report is an important document and cannot be wished aside without any compelling evidence to the contrary. The latter has not been done in the case in hand. If the Surveyor has assessed the salvage value at Rs.1,65,000/- and unilaterally the petitioner has decided to sell the salvage at lower value, he cannot be permitted to take advantage of his wrong.
Admittedly in the instant case the surveyor had assessed the damage of the vehicle on repair basis at Rs.3,42,378/- which was less than 75% of the insured value and therefore, the vehicle could not be declared of total damage without any compelling evidence contrary to the surveyors report. The complainant has failed to lead any cogent and convincing evidence to establish that his car was totally damaged in view of GR.8 and GR.9 of the Indian Motor Tariff. Thus, the order passed by the District Consumer Forum is erroneous on the face of record and the same cannot be allowed to sustain.
As a sequel to our aforesaid discussions, this appeal is accepted, the impugned order is set aside and complaint is disposed of with the direction to the opposite parties to pay Rs.3,42,378/- to the respondent-complainant. As the appellants-opposite parties have not been proved deficient in service, therefore, no case for granting of compensation, interest and cost of litigation expenses is made out.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal and Rs.3,28,946/- deposited on 18.05.2011 as per the order of State Commission, be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 19.09.2012 President B.M. Bedi Judicial Member