State Consumer Disputes Redressal Commission
The Oriental Insurance Company ... vs Smt. Savitri Devi on 16 January, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/11/2751)
Appeal No.470/2011
Instituted on 24.08.11
The Oriental Insurance Company Limited,
Nr. Ambedkar Chowk, Manendragarh Road, Ambikapur,
Dist. SARGUJA, Divisional Office: KORBA (C.G.)
Through : Senior Divisional Manager,
Divisional Office No.1, Jail Road,
Post & District RAIPUR (C.G.) ... Appellant.
Vs.
Smt. Savitri Devi, W/o Shri D.R. Ravi,
R/o : Near Power House, Namnakala,
P.S. & Tehsil - Ambikapur,
District SARGUJA (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri P.K. Paul, for appellant.
Shri R.K. Bhawnani, for respondent.
ORDER
Dated: 16/01/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is preferred by the Insurer against order dated 27.07.2011, passed by District Consumer Disputes Redressal Forum, Surguja-Ambikapur (hereinafter called "District Forum" for short) in complaint case No.08/2011, directing the Insurer to pay Rs.1,88,714/- to the complainant/Insured within a period of one month other wise the amount would be payable with interest @ 6% p.a. Apart from it the Insurer has further been directed to pay Rs.3,000/- as compensation for mentally agony and Rs.1,000/- as cost of litigation.
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2. Indisputably, a bolero vehicle, of which the respondent was registered owner, having registration No.CG-15 B-4723 was insured by the appellant insurance company for the period between 29.06.2009 to 28.06.2010 and the said vehicle suffered road accident on 01.01.2010, while it was coming from Korba to Morga. In the said accident there were excessive damages, to the insured vehicle. Then intimation was given to the Insurance Company. Surveyor was appointed and after spot survey the vehicle was taken to the Star Automobiles Service Centre as per direction of the Surveyor. The Insurance Company paid Rs.2,36,500/- to the complainant against the damages, whereas case of the complainant before District Forum was that she was required to spent Rs.4,25,214/- on repairs of the vehicle and the amount which was paid by the Insurer to her was accepted under protest. She filed complaint before the District Forum for seeking directions for payment of remaining amount of Rs.1,88,714/- against the Insurance Company.
3. The claim was resisted by the Insurance Company before the District Forum on the premise that licenced Surveyor and Loss Assessor has assessed the loss to the tune of Rs.2,62,543/- and as per the bills submitted by the complainant it was coming out to Rs.2,55,582/-. From this amount value of salvage Rs.19,000/- was deducted and remaining amount was paid by the Insurer to the // 3 // insured and thus it committed no deficiency in service, so the complaint is not maintainable.
4. The District Forum after having considered the material placed before it by both parties, agreed with the case of the complainant and directed the Insurance Company to pay the amount spent by her.
5. We have heard arguments advanced by both parties and perused the record of the District Forum.
6. Before District Forum, the complainant / respondent has filed document Annexure A-1, which is Discharge Voucher and in this Discharge Voucher, while singing it, the complainant has made endorsement to the effect that she was not satisfied with the payment made of Rs.2,36,500/- only. Thus protest was made regarding the payment of the aforesaid amount. Thereafter the complaint was filed before the District Forum. Learned counsel for the complainant submitted that the complaint was very well maintainable in view of decision of Hon'ble National Commission in the case of National Insurance Co. Ltd. Vs. Vasavi Traders, I (2008) CPJ 487 (NC) and New India Assurance Co. Ltd. Vs. Shiv Khanna, Landmark Judgements on Insurance, page 186.
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7. In view of the protest made by the complainant while receiving payment, it appears that she was not satisfied with the payment made by the Insurance Company and therefore if any complaint has been filed by her alleging deficiency in service then such complaint was not liable to be dismissed at the threshold on the ground that she had signed Discharge Voucher, in view of the aforesaid decision of Hon'ble National Commission. This was the opinion of this Commission also in many cases.
8. Question for consideration is whether the amount which has been paid by the Insurance Company to the insured complainant is justified in the facts of the case and whether any interference was necessary by the District Forum, giving directions to the Insurance Company to pay some more amount?
9. Learned counsel for the appellant has drawn our attention towards the report of the Surveyor. Mr. Anand Mohan Goswami, copy of which is Annexure D-3, he submitted that the Surveyor has taken into consideration all the damaged parts while assessing the loss and ultimately assessed the amount of loss of Rs.2,62,543/-. This was accepted by the Insurance Company and from this amount only the amount for which the bills were not produced by the insured and value of salvage was deducted and remaining amount was paid. To // 5 // counter this argument learned counsel for the respondent / complainant submitted that the document Annexure A-III, which is Tax Invoice of Star Automobiles, Authorized Dealer of M/s. Mahindra & Mahindra Ltd. Co. Ltd., was produced by the complainant before the Insurance Company along with another bill of Kailash Automobiles. Bill of the Star Automobiles was of Rs.3,35,889/-, whereas that of the Kailash Automobiles was of Rs.35,686/- and Rs.48,030/-. These bills were also produced before the Insurance Company and so it cannot be said that all bills were not produced by the insured before the Insurance Company. It has further been submitted that the amount mentioned in the aforesaid bills was actually paid by the insured to the repairer and therefore she is entitled for reimbursement of the aforesaid amount by the Insurance Company, who undertook the liability of reimbursement of the amount of damages to the insured vehicle. He has further drawn our attention towards the document Annexure A-8, which is receipt of payment of Rs.3,500/- for bringing the damaged vehicle from the spot to the Service Centre with the help of another vehicle by towing and receipts Annexure A-9 (1), A-9 (2), A-9 (3), A-9 (4) & A-9 (5) also, which are the receipts of the amount paid by the complainant to Star Automobiles. It has been submitted that thus the actual expenses which was incurred by the complainant were not paid by the Insurance Company.
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10. We have gone through the aforesaid documents. We find that apart from filing of these documents and filing affidavit of complainant Smt. Savitri Devi, there is no material on the basis of which it can be said that all the parts which were replaced or the repairs which were carried out were on account of damages suffered by the insured vehicle in the said accident. In the affidavit of the complainant only it has been stated that she paid the amount from time to time to the repairer, but there is no affidavit of the repairer to the effect that all the repairing were necessary and were carried out on account of damages suffered in the road accident. Apart from it, so far as the bills of Kailash Automobiles are concerned, it was again a 3rd party and there is no material on the basis of which it can be said that articles which were purchased from that shop were actually utilized in the damaged vehicle and have not been included in the Invoice provided by Star Automobiles.
11. Surveyor Mr. Goswami has very minutely examined, each and every damaged parts of the vehicle and assessed as to whether its replacement is necessary or it can be repaired. Thus, the parts which could not be repaired have been recommended for replacement and those parts which can be repaired have been assessed likewise and claim for replacement of those parts which were not damaged and have been found safe, have been disallowed by him. There is no other // 7 // material on the basis of which it can be said that the claim which were disallowed by him were all justified & were to be allowed, and of the parts which were actually damaged or that he has unnecessarily reduced amount against any claim. He is a qualified and duly licenced Surveyor and Loss Assessor and his report carries weight, which cannot be brushed aside lightly without any cogent and convincing material. The District Forum discarded the report of the Surveyor merely on the basis that the Bills and Invoice which have been produced by the complainant are of more amount and that much amount has been awarded. But, this cannot be said a justifiable reason. In this regard learned counsel for the Insurance Company has drawn our attention towards recent pronouncement of Hon'ble National Commission, in the case of Khimjibhai & Sons Vs. New India Assurance Co. Ltd., IV (2011) CPJ 458 (NC), which was having almost identical facts and in that case also amount offered by the Insurance Company was accepted by the insured under protest without prejudice to his rights and thereafter complaint was lodged by him. That complaint was allowed by the District Forum on the basis of bills submitted, but the State Commission reversed the order passed by the District Forum on the basis of report of the Surveyor. Hon'ble National Commission rules that the "District Forum erred in discarding the surveyor's report and bills scrutiny report submitted by the surveyor without any cogent or convincing reasons. It is to be noted that it is in accordance with the // 8 // requirement of law that a surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order. Mere production of bills or estimates cannot be the basis for discarding the report of the Surveyor".
12. We totally agree with the aforesaid opinion expressed by the Hon'ble National Commission and it applies in the facts of the present case with full force. In the facts of the present case also report of the surveyor cannot be brushed aside merely on the basis of bills or his assessment cannot be discarded on imaginary grounds or on the ground, in support of which no material has been placed.
13. An amount of Rs.7,000/- has been reduced by the Insurance Company on the ground that the complainant has not filed necessary bills and further amount of Rs.19,000/- has been reduced on the ground that salvage has not been provided. The complainant in her affidavit in so many words has clearly stated that she approached the Insurance Company on many occasions by personally going to their Office, along with salvage and requested that the salvage be received by the Office of the Insurance Company, but the Officers of the // 9 // Insurance Company told her that they were not having proper place for keeping the articles in the Office and the Company will lift the articles in future. No affidavit to controvert these facts has been filed. Thus there is nothing to disbelieve the statement of the complainant in this regard and so far as bills are concerned, bills of an amount of Rs.3,35,889/- had already been provided by the complainant along with few other bills, so it cannot be said that bills of any of the amount, assessed by the Surveyor, was not provided. Thus the amounts, on both counts, which were reduced from the amount assessed by the Surveyor, can not be said to be justifiable and it was not appropriate on the part of the Insurance Company, to have deducted any amount from the assessment of surveyor on the aforesaid pretext.
14. In view of the aforesaid, the appeal succeeds in part and is allowed. The impugned order passed by the District Forum is modified to the extent that the Insurance Company is directed to pay Rs.26,000/- (i.e. Rs.7,000 + Rs.19,000/-) to the complainant / respondent at the place of Rs.1,88,740/-. The Company may collect the salvage from the complainant and the complainant is also directed to provide the same within a period of one month from today to the insurance company. Other directions of the District Forum in the impugned order will remain, as they are. Parties are directed to bear their own cost of this appeal.
(Justice S.C.Vyas) (V.K.Patil)
President Member
/01/2012 /01/2012