DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.501 of 2011
Smt. Ruby Sonkar, aged about 35 yrs.,
W/o Sri Navneet Mohan Sonkar,
R/o 110/106A-1, Model House,
Lucknow-226018.
……Complainant
Versus
- Manager,
Bajaj Allianz General Insurance Co. Ltd.,
Shahnajaf Road, District- Lucknow.
- Chief Manager,
Bajaj Allianz General Insurance Co. Ltd.,
Registered Office- G.E. Plaza, Airport,
Yarwada, Pune-411006. (Maharashtra)
.......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
JUDGMENT
This complaint is filed by the Complainant against the OPs for payment of Rs.52,716.00 with 18% interest, Rs.20,000 as compensation, Rs.11,000 as Counsel fees and Rs.2,000.00 as cost of the litigation.
The case in brief of the Complainant is that his car No.UP32 CU-9761was insured with OP No.1 from 24.06.2010 to 24.06.2011. His car met with an accident on 06.01.2011 and got damaged. The Complainant preferred claim of Rs.52,716.00 with the OP No.1 for the expenses incurred on repairing of the vehicle but he received a cheque on 03.05.2011 for a sum of Rs.16,370.00 which was returned by him to OP No.1. The Complainant contacted OP No.1 with regard to the payment of his entire claim but in vain, hence after giving notice the Complainant has filed this complaint.
The OPs have filed the WS wherein it is mainly submitted that the impugned policy is subject to agreed bank
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clause. The insured vehicle is hypothecated to Axis Bank, hence it is a necessary party to this proceeding. Therefore, the complaint is bad for non joinder of necessary party because the Complainant has failed to implead financier of the vehicle. As per the complaint the date of loss is 06.01.2011 whereas the Complainant has intimated the loss to the OP before lodging police complaint on 13.01.2011 and lodged the complaint with police on 14.01.2011. In both intimation to the OP and police the date of loss is mentioned as 12.01.2011. It is admitted that approval of the claim of the complaint is for Rs.16,370.00 as per the independent IRDA licensed surveyor/loss assessor’s report. The insurance company offered to settle down but Complainant refused to take approved amount cheque. The answering OP considered claim of the Complainant on the basis of independent IRDA licensed surveyor/loss assessor’s report but Complainant is seeking compensation which is not payable as per policy and its conditions. There is no consumer dispute in between parties concerned because the claim of the Complainant was considered by the insurance company and approved on the basis of independent IRDA licensed surveyor/loss assessor’s report. There is no deficiency in service or unfair trade practice on the part of insurance company. A contract of insurance is a contract of indemnity and no one is allowed to gain wrongfully from it. The present complaint deserves to be dismissed with cost.
The Complainant has filed the replication.
The Complainant has filed her affidavit and 11 annexures with the complaint. The OPs have filed the affidavit of Sri Anil Singh Sachan, Surveyor with final survey report. Both the parties have filed the written arguments.
Heard Counsel for the parties and perused the entire record.
In this case, it is not disputed that the Complainant’s
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vehicle met with an accident and that she pressed claim for reimbursement of amount spent by her on the repair of the car. The disputed point according to the Complainant is that she was paid only a sum of Rs.16,370.00 only whereas she had spent Rs.52,716.00 on the repairs of the car, therefore according to the Complainant the OPs have committed deficiency in service. On the contrary, it is the stand of the OPs that the surveyor had recommended for settlement of the claim of Rs.16,370.90 only and this amount was sent by the OPs but the Complainant refused to take that amount, therefore they have not committed any deficiency in service.
The Complainant in support of his claim for Rs.52,716.00 has filed the photocopy of the sale invoice, bill cash memos of Jyoti Auto Spares, Lucky Auto Spares, R.K. Auto Spares which show that the Complainant has spent about Rs.52,716.00 in the repairs of the vehicle and on the basis of these documents it is argued by the learned Counsel for the Complainant that as the Complainant had spent Rs.52,716.00 in the repair of the vehicle, therefore he should be paid Rs.52,716.00 by the OPs and not Rs.16,370.90 offered to him. But in this regard, it is argued by the learned Counsel for the OPs that the surveyor in his report has assessed the loss to the tune of Rs.17,370.00 and after deducting the excess clause and salvage of Rs.1,000.00 the Complainant was sent a cheque for Rs.16,370.00 which the Complainant refused to accept. Learned Counsel for the OPs has cited the ruling of Hon’ble NCDRC passed in III (2015) CPJ 75 (NC) Iffco Tokio General Insurance Co. Ltd. Vs Beena Raghav where the Hon’ble NCDRC has decided that surveyor was independent professional engaged by petitioner to assess loss suffered-Report prepared by Surveyor was of significant and evidentiary value cannot be ignored and dismissed as such by saying that “assessed loss” cannot be considered trustworthy without giving valid reason and on the basis of this judgment it
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is argued by the learned Counsel for the OPs that the report of the surveyor is to be taken into consideration. Now the surveyor has assessed the loss to the tune of Rs.16,370.90 whereas according to the OPs he has spent Rs.52,716.00 on the repairs. While scrutinizing the surveyor’s report and the receipts/bill cash memos filed by the Complainant, it transpires that there is not much of difference between the cost of the parts etc. whereas there is much difference between the labour charges assessed by the surveyor and shown by the Complainant as the surveyor’s report assesses labour charges to the tune of Rs.4,175.00 whereas the Lucky Auto Care shows a sum of Rs.28,900.00 as labour charges. The surveyor report does not properly disclose the basis on which he has assessed the charges of the labour involved in the repairs. In the same way the Lucky Auto Spares also does not disclose the basis of the charges as it does not specify item wise labour charges however as the surveyor’s report is also not credible, therefore labour charges do not appear to have been correctly assessed by the surveyor. On the same corollary the Lucky Auto Spares receipt also shows the charges to be inflated ones. Since the surveyor’s report with regard to labour charges is not correctly assessed, therefore on the basis of the case law cited above it can be said that the assessed loss by the surveyor is not trustworthy and there are reasons for the same as have been mentioned above. As the labour charges shown by Lucky Auto Spares also appear to be inflated one, therefore it is proper to decrease the charges by 50% considering the circumstances of the case and the labour that might be involved in the repair of the vehicle and accordingly the labour charges are assessed at Rs.14,450.00. Accordingly this amount is found payable as labour charges. The Complainant has filed receipts for the cost of the parts paid by him which are to the tune of Rs.23,821.00 but this amount is assessed by the surveyor as Rs.13,195.00. It appears that the surveyor had not
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taken into consideration the receipts and the bills/cash memos furnished by the Complainant as the report of the surveyor makes mention of the fact that no cash memo were provided by the insured. But the fact remains that the Complainant has provided the receipts which shows that he has spent Rs.23,821.00 on the parts etc. and there is no reason to doubt the veracity of these receipts, therefore the Complainant is entitled to get Rs.23,821.00 + labour charges of Rs.14,450.00 totalling Rs.38,271.00. Therefore, this amount the Complainant was entitled to get from the OPs but they had offered only Rs.16,370, therefore they have committed deficiency in service, therefore the Complainant is entitled to get this amount with interest. The Complainant is also entitled to the cost of the litigation.
ORDER
The complaint is partly allowed. The OPs are jointly and severally directed to pay Rs.38,271.00 (Rupees Thirty Eight Thousand Two Hundred Seventy One Only) with 9% interest from the date of filing of the case till the final payment is made to the Complainant.
The OPs are also directed to pay Rs.3,000.00 (Rupees Three Thousand Only) as cost of the litigation.
The compliance of the order is to be made within a month.
(Anju Awasthy) (Vijai Varma)
Member President
Dated: 15 January, 2016
