State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Daman Goyal on 8 November, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.476 of 2017
Date of Institution : 16.06.2017
Order Reserved on: 06.11.2017
Date of Decision : 08.11.2017
1. United India Insurance Co. Ltd. Divisional Office, Railway Road
Sangrur through Deputy Manager, Regional Office, SCO 123-
124, Sector 17 B, Chandigarh.
2. Divisional Manager United India Insurance Company,
Divisional Office, Ankur Bhawan, The Lower Mall, Opposite
Polo Ground, Patiala through Deputy Manager, Regional
Office, SCO 123-124, Sector 17-B, Chandigarh.
.....Appellants/opposite parties
Versus
Daman Goyal s/o Bir Chand, r/o Guru Teg Bahadur Colony,
Bhawanigarh, Tehsil Bhawanigarh, Distt-Sangrur.
.....Respondent/complainant
First Appeal against order dated
01.06.2017 passed by the District
Consumer Disputes Redressal Forum,
Sangrur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. B.S. Taunque, Advocate
For the respondent : Sh. Sanjeev Goyal, Advocate
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellants is to order dated 01.06.2017 of District Consumer Disputes Redressal Forum Sangrur (in short the 'District Forum'), directing appellants to pay the amount of Rs.58,628/- alongwith interest @9% per annum from the date of filing the complaint i.e. 07.02.2017 till realization, besides to pay Rs.5000/- as compensation for mental harassment and litigation First Appeal No.476 of 2017 2 expenses to respondent of this appeal. Respondent of this appeal is complainant in the complaint before the District Forum and appellants of this appeal are opposite parties (OPs) therein and they be referred as such hereinafter for the same of convenience.
2. The complainant filed complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that he availed the services of OPs by getting insured his truck LPS 4018 bearing No.PB-13-AR-8220 for Rs.17,10,000/- for the period from 15.09.2016 to 14.09.2017 by paying the requisite premium of Rs.52,983/-. The policy was of nil depreciation. The OPs did not supply the separate terms and conditions of the policy to complainant except policy certificate. It was further averred that on 13.10.2016, the above said insured vehicle of complainant met with an accident on Khanal-Gujjran road and was damaged therein.
Intimation was given to the OPs about above said accident by complainant. They appointed Shri Bhupesh Bhardwaj as surveyor and loss assessor for spot survey and on the instructions of the surveyor, the vehicle in question was brought to United Brothers Engineering Works, Khanna for repairing, which prepared the estimate for Rs.2,18,767/-. The OPs appointed K.P.S.Oberoi as surveyor for assessing the final loss to the vehicle, who passed the claim for Rs.1,97,100/- against the total repair expenses of Rs.2,22,497/- and OPs also intimated about the settlement of claim at Rs.1,97,100/-. But OPs again appointed another surveyor, who assessed the claim at Rs.1,47,000/-, which is clearly deficiency in First Appeal No.476 of 2017 3 service on the part of OPs. The complainant prayed that OPs be directed to pay the claim amount of Rs.2,18,767/- alongwith interest @18% per annum from the date of accident till realisation; further to pay Rs.50,000/- as compensation for mental harassment; and Rs.11,000/- as litigation expenses.
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. Legal objections were raised by OPs by denying any deficiency in service or unfair trade practice on their part. On merits, this fact was admitted that complainant got his truck in question insured with OPs. The IDV of the insured vehicle was Rs.17,10,000/- and Rs.4,00,000/- of trailer totaling Rs.21,10,000/-, which was subject to the terms and conditions of the insurance policy. After receipt of intimation, OPs appointed Er. Bhupesh Bhardwaj, surveyor and loss assessor for spot inspection, who visited the spot and took photographs and submitted his report dated 24.10.2016. Thereafter, Sh. KPS Oberoi Surveyor and Loss assessor was appointed as surveyor for assessment of the loss of the vehicle, who assessed the loss at Rs.1,95,628/-. Sh. KPS Oberoi surveyor submitted his addendum report and assessed the loss at Rs.1,51,628/- from which the salvage value of Rs.17,000/- was required to be deducted and by this way, the surveyor assessed the net loss payable to the complainant at Rs.1,34,628/- only. It was denied that OPs ever appointed second surveyor. After considering the addendum report of the surveyor, the OPs recommended the claim for Rs.1,36,700/- First Appeal No.476 of 2017 4 and this amount of Rs.1,36,700/- has already been paid to the complainant on 05.02.2017. The OPs controverted the other averments of the complainant and prayed for dismissal of the complaint.
4. The complainant tendered in evidence the affidavit alongwith documents Ex.C-1 to C-13 and closed the evidence. As against it, OPs tendered in evidence affidavits and copies of documents Ex.OP-1 to Ex.OP-12 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant, as referred to above. Aggrieved by above order, the OPs now appellants, have directed this appeal against the same.
5. We have heard learned counsel for the parties and also examined the record of the case. Affidavit of Daman Goyal complainant is Ex.C-1 on the record in support of his pleadings. He testified that his vehicle, which was insured with OPs, met with accident on 13.10.2016. The estimate for repair was prepared of the accidental truck to the extent of Rs.2,18,767/- as well as of trailer. He further stated that he submitted the final bill for amount of Rs.2,22,497/- to OPs for reimbursement. He received text message from OP that his claim has been scaled down to Rs.1,97,100/-. Thereafter, he served legal notice upon OPs. He received telephonic call from OPs regarding decreasing his claim to the extent of Rs.1,47,000/- only. The policy terms and conditions are Ex.C-2 on the record. The intimation regarding settlement of complainant's First Appeal No.476 of 2017 5 claim is Ex.C-3. Ex.C-4 is the legal notice dated 02.01.2017 served upon OPs by complainant and Ex.C-5 is the copy of postal receipt thereof. Ex.C-6 is the copy of estimate. Ex.C-7 is the copy of repair bill dated 20.10.2016 for the amount of Rs.1,02,000/- issued by United Brothrs Engg. Works Khanna. Ex.C-8 is the another bill dated 20.10.2016 issued by United Brothers Engg. Works to the extent of Rs.88,234/-. Ex.C-9 is the copy of bill dated 16.10.2016 issued M/s Punjab Motors Parts to the extent of Rs.13,195/-. Ex.C-10 is the copy of bill dated 18.10.2016 issued Sond Denting & Welding Works, Patiala to the extent of Rs.4500/-. Ex.C-11 is the copy of bill dated 18.10.2016 issued by Maheshi Painter Patiala to the extent of Rs.4000/-. Ex.C-12 is the copy of invoice no.1295 dated 13.10.2016 issued by Mittal Crane Service Sangrur to the extent of Rs.8400/-. Ex.C-13 is the copy of survey fee bill of Rs.2167/- issued by Er. Bhupesh Bhardwaj. The complainant adduced above evidence to substantiate this point that the loss of vehicle in the accident was upto that extent.
6. The OPs tendered in evidence affidavit of Er. Bhupesh Bhardwaj, Surveyor and loss Assessor, Ex.OP-1 on the record. He testified that OP appointed him as surveyor for the spot inspection for the assessment of damage to truck no.PB-13AR-8220 and he inspected the vehicle on 13.10.2016 and noted down the damage and took the photographs. Ex.OP-2 is the affidavit of Dinesh Goel, Deputy Manager of OP company. This witness has reiterated the case of OPs, as pleaded in written reply on oath. The claim of First Appeal No.476 of 2017 6 Rs.1,36,700/- was passed, whereas complainant remained adamant to receive the amount of Rs.2,18,767/- only as claimed by him. He further deposed that OPs paid the amount of Rs.1,36,700/- to complainant on 05.02.2017. Ex.OP-3 is the affidavit of K.P.S. Oberoi, Surveyor and Loss Assessor. He deposed that due to oversight, he allowed the excess labour charges in the earlier report. Actual labour charges for the repair of load body was Rs.40,000/- and painting charges of load body was covered in load body repair and due to oversight, he allowed double painting charges in his survey report. This witness further stated that he in his addendum report provided Rs.5000/- as painting of cabin and door and the salvage value of Rs.17,000/- not Rs.12,000/-, which was mentioned in his final report. Ex.OP-4 is the copy of insurance policy. Ex.OP-5 are the terms and conditions of policy. Ex.OP-6 is the copy of motor survey report dated 24.10.2016 submitted by Er. Bhupesh Bhardwaj Surveyor. Ex.OP-7 is the copy of final survey report. Ex.OP-8 is the copy of assessment details. Ex.OP-9 to Ex.OP-14 are the photographs of the offended truck.
7. The submission of counsel for OPs now appellants before us is that as per assessment detail report submitted by KPS Oberoi, due to oversight, he allowed double painting charges. The actual labour charges of body is Rs.40,000/-, Rs.5000/- as painting of cabin and door and the salvage value of Rs.17,000/- and not Rs.12,000/-. The District Forum has not accepted this contention of OPs and directed the OPs to pay the amount of Rs.58,628/- with First Appeal No.476 of 2017 7 interest @9% per annum from 07.02.2017 till actual payment to insured. The complainant got the vehicle repaired, as per the instructions of surveyor by incurring expenses of Rs.2,18,767/- thereupon. The submission of counsel for the appellants is that KPS Oberoi passed the claim of Rs.1,95,328/- after deducting the salvage value at Rs.12,000/-, thereafter as per addendum report, the payable amount was reduced to Rs.1,36,700/-, which has already been paid to complainant. The submission of counsel for appellant is that this amount has been rightly paid to him and nothing else is due to complainant from OPs. We are not oblivious of this fact that Insurance Companies made every effort to pay the minimal amounts of the insurance claim to the insured. The Apex Court has held in "New India Assurance Company Limited Vs. Pradeep Kumar"
2010(1)CLT-266 that the report of surveyor is not the last and final word. It is not conclusive. It could be the basis for settlement of claim, but it is neither binding upon insurer nor upon insured. The National Commission has also held in "Oriental Insurance Co. Vs. Banka Ram & others" 2016(1)CPJ-420 that insurance company being in a dominant position, often acts in an unreasonable manner and after having accepted value of a particular insured goods, disown that very figure on one pretext or other when they are called upon to pay compensation. This observation of National Commission cannot be ignored by us. The Apex Court also held in "Dharmendra Goel Vs. Oriental Insurance Co. Ltd." 2008(3)CPJ-63 that courts are to take a realistic view of the matter- if a particular claim to First Appeal No.476 of 2017 8 compensation is possible on the material on record, it should not be denied on hyper technical pleas. We are, thus, in agreement with the findings of the District Forum that once the surveyor has assessed the claim, thereafter it has departed from the same by submitting addendum report, which is undated vide Ex.OP-8. As held by the National Commission in "Oriental Insurance Co. Vs. Banka Ram & others" (Supra), we find no merit in the submission of counsel for appellants. Counsel for appellants relied upon law laid down in "Swastik Petrochem (I) Pvt. Ltd. Vs. Oriental Insurance Co. Ltd."
III(2017) CPJ-585 (NC) by the National Commission. The cited authority is distinguishable from the facts situation of the case and would not be applicable herein. Similarly, the case titled as "Garg Acrylics Ltd. Vs. United India Insurance Co. Ltd." I(2015)CPJ- 185(NC), is the authority of National Commission, which is also distinguishable from the facts of the case in hand. The complainant has not accepted the amount towards full and final discharge or settlement of his claim and hence, the above authorities relied up by appellants are not applicable to the facts of the case in hand.
8. As a corollary of our above discussion, we find no merit in the appeal and the same is hereby dismissed by affirming the order of the District Forum under challenge in this appeal.
9. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.36,266/- in compliance with order of this Commission. These amounts with interest, which accrued thereupon, if any, be First Appeal No.476 of 2017 9 remitted by the registry to respondent, being complainant, by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay order, if any received. The remaining amount, if any found due, shall be paid by OPs to complainant.
10. Arguments in this appeal were heard on 06.11.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER November 08, 2017 MM