DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 500 of 12-08-2014

Decided on : 08-09-2015

Beant Singh Gill S/o Sh. Ram Singh Gill, R/o Village Duggan, Tehsil & District Sangrur.

…...Complainant

Versus

1. Bajaj Allianz General Insurance Co. Ltd., SCO 146-147, Feroze Gandhi Market, Sixth Floor, Near Ludhiana Stock Exchange, Ludhiana, through its Divisional Manager

2. Bajaj Alliznz General Insurance Co. Ltd., GE Plaza Airport Road, Yerwada, Pune 411 066

3. Volkswagen, Bathinda, near Mukatsar Road Bye-pass Malout Road, Bathinda, through its Prop/Partner/Manager

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa, President

Smt. Sukhwinder Kaur, Member

Sh. Jarnail Singh, Member

Present :

For the Complainant : Sh. Chander Mohan, counsel for complainant.

For the opposite parties : Sh. Vinod Garg, counsel for OPs No. 1 & 2.

Sh. Gurpal Singh, counsel for OP No. 3.

O R D E R

M. P. Singh Pahwa, President

1. This complaint has been filed by Sh. Beant Singh, complainant under Section 12 of the consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Bajaj Allianz General Insurance and others (here-in-after referred to as 'opposite parties').

2. Briefly stated, the case of the complainant is that he purchased a car make Volkswagen Polo Comfort line TD1 from Lally Motors India Ltd., authorized dealer of Volkswagen at Ludhiana, vide invoice No. 768 dated 11-02-2013 for a sum of Rs. 6,68,177/-. After purchasing car, he got it insured with opposite parties No. 1 & 2 vide policy No. OG-13-9991-1801-00016154 on payment of requisite charges. The insurance was valid w.e.f. 11-02-2013 to 10-02-2014 (midnight). The complainant got the car registered in his name vide registration No. PB-13AE-4864 and started plying the same for his personal use and occupation.

3. On 9-02-2014, the complainant alongwith his two friends namely Gurinder Singh Brar and Shamsher Singh, residents of village Kotkapura had come to Bathinda in order to attend marriage of their close friend. After marriage ceremony, they stayed at Bathinda and at about 10.30 p.m. they had gone to McDonald situated on Bathinda Bhucho Road. While returning back at about 11.00/11.30 p.m. the said car of complainant met with an accident due to striking of the car with the divider of the road on Cantt. Road, Bathinda. The car was extensively damaged. The complainant immediately informed the opposite parties No. 1 & 2 about the said accident on Toll free number. The authorized representative of the opposite parties reached at the spot and took photographs of the car. The complainant was instructed to take the car to the workshop of Volkswagen at Bathinda situated near Mukatsar Road, Bye-pass, Malout Road, Bathinda. The complainant took the car to the said workshop on 10-02-2014 by towing the same with the help of crane hired from Baba J.C.B. & Crane Service, Bathinda, by spending Rs. 800/- vide bill No. 1007 dated 10-02-2014. The opposite party No. 3 repaired the car vide proforma invoice/order No. SO131606 and delivered possession of car to complainant on 20-06-2014 and prepared bill for a total sum of Rs. 2,34,260/- out of which, opposite party No. 3 got deposited a sum of Rs. 70,260/- from complainant vide receipt 3659 dated 20-06-2014 on account of depreciation charges and the parts not covered under warranty. The remaining amount was paid by opposite parties No. 1 & 2.

4. It is further pleaded that tentative date for delivery of the car, after repairing the same, was 26-03-2014 but however, it was repaired and possession was delivered on 20-06-2014. On 20-06-2014 when complainant, after depositing the amount of Rs. 70,260/-, tried to start the car in the workshop of the opposite party No. 3 itself, the car did not get start. On inquiry about the same, opposite party No. 3 told the complainant that it (opposite party No. 3) has repaired the car under insurance cover as per instructions of opposite parties No. 1 & 2, but engine of the car is also not working and has ceased. The opposite parties No. 1 & 2 refused to make payment of the insurance claim for the repair of the engine and its parts, as a result of which it has not been repaired. On this, the complainant refused to take possession of the car and requested opposite party No. 3 that engine of the car is also to be repaired under insurance cover but opposite parties No. 1 & 2 proclaimed that the damage to the engine of the car is a consequential loss, which is not covered. The opposite party No. 3 started pressurizing the complainant to take possession of the car from the workshop otherwise to charge a sum of Rs. 500/- per day from the complainant on account of parking charges. The complainant was forced to take possession of the car and he brought the same to his house after towing the same.

5. It is alleged that again complainant approached opposite party No. 1 at its Ludhiana office as the opposite parties have shut down their office which was earlier situated at Bathinda. The concerned Divisional Manager proclaimed that the loss/damage to the engine of the car and parts of the engine is a consequential loss, which is totally wrong. The loss to the car/engine and its parts is also a direct loss which had occurred due to accident of the car. After accident, the car was never put into motion, rather the same was taken to workshop of opposite party No. 3 by towing the same and it remained in the workshop of opposite party No. 3 for a period of more than four months. Even at the time of delivery of possession of car after external repairs, the car did not get start. It was taken from the workshop by towing under compelled circumstances. As such, the loss to the engine and its parts cannot be said to be consequential loss due to any act of the complainant. The opposite party No. 3 was fully aware about the damage to the engine of the car in question on the very first day of taking the car to the workshop, which was due to aforesaid accident, but opposite party No. 3 intentionally did not inform the complainant about the same in connivance with opposite parties No. 1 & 2. Due to above said reasons, the car has also been repaired after considerable delay from the promised/tentative date for delivery of the possession of the car after repair.

6. It is also pleaded that opposite party No. 3 issued estimate regarding damage to the engine and its parts which is Rs. 3,01,748.60. The complainant requested the opposite parties No. 1 & 2 to honour the said lawful claim of the complainant as the same is also covered under the insurance cover of the vehicle, but to no effect. Ultimately on 3-7-2014, the opposite parties have repudiated the said lawful claim of the complainant on the basis of most flimsy grounds. It is alleged that impugned repudiation letter dated 3-07-2014 is totally illegal, null and void, arbitrary, nonest. It is having no binding effect on the rights of the complainant. The complainant is entitled to get insurance claim of Rs. 3,01,748.60 from opposite parties No. 1 & 2 for the repair of the engine. He has claimed that due to aforesaid illegal and arbitrary act of the opposite parties, the complainant is suffering from great mental tension, agony, botheration, harassment and financial crisis. He is deprived of using the car in question which is lying parked unused for a sufficient long time.

7. On this backdrop of facts, the complainant has requested for directions to pay insurance claim of Rs. 3,01,748/- on account of damage to the engine of the car and its internal parts and Rs. 1,50,000/- on account of mental tension and agony etc., in addition to Rs. 11,000/- as litigation expenses.

8. Upon notice, opposite parties appeared through their respective counsel and contested the complaint. Opposite parties No. 1 & 2 filed their joint written version wherein they have raised legal objections that intricate questions of law and facts are involved, which requires voluminous documents and evidence for determination which is not possible in summary procedure under the 'Act' and the appropriate remedy, if any, lies in the civil court; That complainant has concealed material facts and documents from this Forum, therefore complainant is not entitled to any relief. The complainant has concealed the fact that the loss claimed by complainant in the present complaint is consequential in nature and not covered under the purview of policy. As per terms and conditions of the policy under Section 2. a. “consequential loss, depreciation, wear and tear, mechanical and electrical breakdown, failures or breakages are not covered” Hence the claim was rightly repudiated vide letter dated 3-7-14.

9. It is further pleaded that opposite party No. 3 earlier issued estimate dated 10-02-2014 for Rs. 2,99,278/- and carried out repairs and issued final invoice dated 20-06-2014 for Rs. 2,34,260/-. The replying opposite parties paid Rs. 1,64,250/- on the basis of assessment of surveyor and remaining amount was paid by the complainant against depreciation and other heads, directly to opposite party No. 3. At that time, the kilometer reading was 21169 Kms. As per survey report, it was clear that engine of the insured vehicle was not damaged in accident. Damaged oil sump was replaced during the course of repair by opposite party No. 3, but nothing was informed about the damage to engine at that time. The vehicle was test run/road tested for 6 Kms after completion of repairs and meter reading at that time was 21175. Thus, the vehicle was run without engine oil after repair and consequently the engine seized. There is consequential loss due to negligence of insured/workshop/opposite party No. 3, which is not payable. Other legal objections are regarding estoppel and jurisdiction.

10. On merits, opposite parties No. 1 & 2 have admitted that car was insured with them against policy in question from 11-02-2013 to 10-02-2014. It is admitted that intimation was received regarding said occurrence and opposite parties deputed Er. Vikas Chander, IRDA licensed surveyor and loss assessor to conduct the survey. He conducted the survey on 10-02-2014 and assessed the loss to the tune of Rs. 1,64,250/- after applying depreciation and other provisions as per terms and conditions of insurance policy and IMT. It is further stated that as per estimate given by opposite party No. 3, there was nothing regarding damage or seizer of engine. So much so, opposite party No. 3 even repaired the insured car against invoice for Rs. 2,34,260/- but the vehicle was road tested for 6 Kms. without making sure that engine oil is there in the vehicle. Even damaged oil sump was replaced during the course of repair and nothing was informed by opposite party No. 3 regarding any damage to the engine at that time as actually the engine was not damaged or seized due to accident, rather the same seized later on as stated above. Therefore, it was a consequential loss and not a loss due to accident. It is also mentioned that complainant even executed a satisfactory note dated 20-06-2014 and a discharge voucher accepting the payment of Rs. 1,64,250/- as full and final payment of claim. Hence, no claim is payable to the complainant. It is admitted that opposite party No. 3 repaired the car against order No. SO131606 and delivered possession of the car to complainant on 20-06-2014 against invoice of Rs. 2,34,260/-. The complainant paid amount of depreciation etc., and balance Rs. 1,64,250/- was paid by replying opposite parties on the basis of assessed loss by the surveyor as full and final settlement. It is denied that car did not start at that time. It is further mentioned that the vehicle had started and even road tested by the complainant as well as employees of opposite party No. 3 for 6 kms as the meter reading was 21175 Kms against the initial reading of 21169 Kms. After controverting all other averments, opposite parties No. 1 & 2 prayed for dismissal of complaint.

11. Opposite party No. 3 in its reply also raised legal objections that complainant has not come to this Forum with clean hands; he has concealed material and true facts from this Forum. As per opposite party No. 3, complainant came to their office with his accidental car on 10-02-2014 and disclosed the fact about accident. The opposite party No. 3 got inspected the car from surveyor of opposite parties No. 1 & 2 in the presence of complainant and on instructions of surveyor of opposite parties No. 1 & 2, opposite party No. 3 prepared an estimate. At the time of survey, the surveyor of opposite parties No. 1 & 2 did not inspect the engine of the car and did not instruct opposite party No. 3 for any repair of engine of car but the mechanic of opposite party No. 3 told the complainant and surveyor of opposite parties No. 1& 2 that no engine oil was present in the engine. Car was repaired. After repair, the mechanic of opposite party No. 3 after filling the engine oil tried to start the car, but it did not start. The replying opposite party informed the complainant and surveyor of opposite parties No. 1 & 2 that engine of car is not in working conditions. The surveyor of opposite parties No. 1 & 2 inspected the engine of the car in the presence of complainant and told him that engine of car has been damaged. The surveyor told the complainant that damage to the parts of the engine is consequential loss and is not covered under insurance policy. The opposite party No. 3 made an estimate for repair of engine which comes to Rs. 3,01,748.60 but the complainant shown unwillingness to get repaired the engine of the car and took delivery of same being satisfied by signing a satisfaction note dated 20-06-2014.

12. Further legal objections are that complainant has got no locus standi and cause of action to file the complaint; complainant is estopped for filing the present complaint by his own act and conducts; this Forum has got no jurisdiction to decide the complaint.

13. On merits also, the opposite party No.3 controverted all the material averments and reiterated its stand as taken in legal objections and detailed above.

14. All the parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence documents (Ex. C-1 to Ex. C-13) which includes affidavits of Beant Singh Gill dated 11-8-14 and 13-11-14 (Ex C-1 & Ex. C-14 respectively), affidavit of Shamsher Singh dated 13-11-14 (Ex. C-16), affidavit of Gurinder Singh Brar dated 13-11-14 (Ex. C-18), photocopy of estimate (Ex. C-3) and photocopy of payment receipt (Ex. C-10).

15. In order to rebut this evidence, opposite parties No. 1 & 2 have tendered into evidence documents (Ex. OP-1/1 to Ex. OP-1/10) which includes affidavit of Sarvpreet Kaur Ahluwalia, Senior Executive dated 12-12-14 (Ex. OP-1/1), affidavit of Vikas Chander Jain, surveyor dated 18-12-014 (Ex. OP-1/2), photocopy of final survey report (Ex. OP-1/3), photocopy of policy (Ex. OP-1/4), photocopy of claim discharge cum satisfaction voucher (Ex. OP-1/6), photocopy of estimate (Ex. OP-1/7) and photocopy of satisfaction note (Ex. OP-1/9).

16. Opposite party No. 3 has tendered into evidence affidavit of Rajesh Kumar dated 19-12-14 (Ex. OP-3/1), photocopy of repair order (Ex. OP-3/2), photocopy of satisfaction note (Ex. OP-3/3), photocopy of claim intimation (Ex. OP-3/4) and photocopy of claim form (Ex. OP-3/5).

17. Parties have also submitted written arguments.

18. We have heard learned counsel for the parties and gone through the record and written submissions of the parties.

19. Learned counsel for complainant has reiterated his averments as taken up in the complaint as well as in the written arguments. It is further submitted by learned counsel for the complainant that material facts are not in controversy. It is not disputed that car of the complainant met with an accident on 09-02-14 and it was fully insured.

20. The stand of the complainant is that car was badly damaged including its engine. The surveyor at the time of inspection did not examine engine, as such loss to the engine was not assessed. Subsequently when other repairs were effected, it was found that engine was also damaged. The complainant got prepared estimate from opposite party No. 3 for repair of engine which is Ex. C-3. As per this estimate, a sum of Rs. 3,01,748.60 is required for effecting repair of engine. As the car was fully insured, the opposite parties No. 1 & 2 are liable to reimburse this loss also. The claim of the complainant has been repudiated vide letter Ex. C-7 and it is reported that loss to engine internal parts are consequential in nature and not covered under the preview of the policy. This order of the opposite parties is illegal and based on surmises and conjunctures only. The opposite parties are required to prove that this loss is consequential in nature but there is no evidence except the report of surveyor. The opposite parties have also produced report of surveyor as Ex. OP-1/3. This report was prepared on 12-05-2014 whereas the loss to engine internal parts was detected on 20-06-2014 when the complainant was to take delivery of the car. The surveyor Vikas Chander Jain has also tendered into evidence his affidavit Ex. OP-1/2. In his affidavit, the surveyor has revealed that the vehicle was test run/road tested for 6 Kms after completion of repairs and meter reading at that time was 21175 Kms. Photographs Ex. OP-1/8 are produced on record to prove this fact. These photographs were taken on 16-5-14. There is nothing to show that on 16-5-14, the car was completely repaired. There is also nothing to show that these photographs were taken in the presence of complainant and more so of the car being owned by the complainant. Therefore, the report of surveyor is not fair report. It is partial report and submitted only to favour the opposite parties. The averments of the complainant cannot be held rebutted by the report of the surveyor.

21. It is further submitted by learned counsel for the complainant that opposite party No. 3 has not disputed the stand of the complainant. The opposite party No. 3 in its written reply has rather pleaded that at the time of survey, the surveyor of the opposite parties No. 1 & 2 did not inspect engine of the car and did not instruct (opposite party No. 3 in this case) for repair of engine of the car in question but the mechanic of the opposite party told the complainant and surveyor of opposite parties No. 1 & 2 that no engine oil was present and the car was repaired accordingly. It is pleaded by opposite party No. 3 that after filling engine oil in the car, they tried to start the car but the car did not start and opposite party No. 3 informed the complainant and surveyor of opposite parties No. 1 & 2 that engine of the car is not in working condition. In this way, opposite party No. 3 has also fully supported the claim of the complainant. As such, complaint be accepted and relief prayed for be granted.

22. To support these submissions, learned counsel for the complainant has cited 2004(2) CLT 0089 case titled United India Insurance Co. Ltd., Vs. Seema Bhargav. 2009(4) R.C.R. (Civil) 864 wherein it was observed that in case of ambiguity in a contract of insurance, the ambiguity should be resolved in favour of claimant and against the Insurance Company.

23. On the other hand, the learned counsel for opposite parties No. 1 & 2 submitted that complainant has concocted entirely false story in connivance with opposite party No. 3. As per complainant the accident took place on 9-2-14. It is admitted case of the parties that after receipt of information regarding accident, the surveyor was appointed by opposite parties No. 1 & 2 who inspected the vehicle in question and prepared estimate. The complainant has himself relied upon the estimate Ex. C-11. During inspection damage to engine oil sump with opening was noticed and it was also mentioned that engine oil 1 Ltr castrol is required. At the end of this report, it was also specifically noticed that 'oil sump damaged- no engine oil found during survey'. The opposite party No. 3 has submitted invoice Ex. C-12 on the basis of which the claim of the complainant was reimbursed. It is mentioned at Sr. No. 37 that engine oil sump was repaired and a sum of Rs. 10,789.14 was claimed for this service. Similarly at Sr. No. 43 engine oil 1 Ltr castrol was shown for which Rs. 822.39 were claimed. At the end of this invoice also, it is again revealed that 'oil sump damaged – no engine oil found during survey'. Therefore, from the documents relied upon by the complainant himself and signed by opposite party No. 3, it is proved that engine was also inspected at the time of first survey. This fact also belies the version of the complainant as well as opposite party No. 3.

24. It is further submitted by learned counsel for opposite parties No. 1 & 2 that there are other factors are also which show that there was no damage to the engine on account of accident. The complainant has signed the satisfaction note (Ex. OP-1/9) wherein he has confirmed that he has taken test drive of this vehicle and he is satisfied with its performance after repair and accept the delivery of the same. This note was signed by complainant on 20-06-2014. The complainant has also accepted the claim for Rs. 1,64,250/- vide Claim Cost Confirmation (Ex. OP-1/10). In this memo, the complainant has admitted that the company is liable to pay Rs. 1,64,250/- as full and final settlement of this claim towards repair of the vehicle. When the complainant himself has accepted the claim as full and final satisfaction, he is debarred from re-agitating this claim.

    To support this submission, learned counsel for opposite parties No. 1 & 2 has cited 2013 CPJ 586 case titled M L Kathuria Vs. Oriental Insurance Company limited, wherein Hon'ble National Commission has observed that when once party accepts the payment as full and final satisfaction without any protest, the party cannot put forward claim before Consumer Fora.

25. It is further submitted by learned counsel for opposite parties No. 1 & 2 that opposite party No. 3 has pleaded incorrect facts just to support the complainant obviously for the reason that no relief is claimed against opposite party No. 3 and opposite party No. 3 has nothing to lose by the result of the case. The connivance of opposite party No. 3 with the complainant is discernible from the other facts on record also. The accident took place on 9-2-14. As per complainant, originally date of delivery of vehicle after repair was 26-3-14 i.e. after 44 days but according to complainant date of delivery was subsequently extended to 20-06-2014 i.e. after further 86 days. It is highly improvable that when originally period for repair was required 44 days and the opposite party No. 3 will offer the delivery after further 86 days i.e. total 130 days. This fact shows that car was repaired in time or earlier to 20-06-2014. The complainant has alleged damage to engine of the vehicle in connivance with opposite party No. 3. He has projected the loss to engine (insured vehicle) on account of accident that occurred on 9-2-2014. As the complainant has approached this Forum with malafe intention, he is not entitled to any relief for this reason also.

    In support of his submissions, learned counsel for opposite parties No. 1 & 2 has cited (i) 2011(1) CLT 485 case titled M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd., Vs. United India Insurance Co. Ltd. and other. (ii) AIR 1980 Supreme Court 695 case titled Meharban Singh Vs. Bhagwant Singh (iii) 2008 (2) CLT 299 case titled National Insurance Company Ltd., Vs. Sehtia Soes. (iv) 2009 (3) CLT 417 case titled Sikka Papers Ltd., Vs. National Insurance Co. Ltd., & Ors. He also cited decision of Hon'ble State Commission, Haryana, Panchkula, in Appeal No. 524 of 2011 decided on 19-09-2012 titled as Reliance General Insurance Co. Ltd., and another Vs. Nirmala Rani and decision of Hon'ble State Commission, U.T. Chandigarh, in Appeal in 186 of 2011 decided on 13-01-2012 titled as Reliance General Insurance Company Ltd., Vs. Gurpinder Singh Grewal.

26. The learned counsel for opposite party No. 3 has reiterated his version as taken in written arguments. It is further submitted that no relief has been claimed against opposite party No. 3 and no deficiency in service or unfair trade practice is alleged against opposite party No. 3. The opposite party No. 3 has been unnecessarily dragged into litigation. Therefore, complaint qua opposite party No. 3 be dismissed with special cost and compensation to opposite party No. 3.

27. We have carefully considered the rival contentions.

28. The undisputed facts are that complainant purchased one car and got insured with opposite parties No. 1 & 2. The car met with an accident on 9-2-14. After intimation, the surveyor was appointed by opposite parties No. 1 & 2 who conducted inspection of the damaged vehicle on 10-2-2014.

29. The controversy revolves around the fact that whether the damage to the engine internal parts (damage in dispute) was result of accident occurred on 9-2-104 or this damage is consequential and whether engine internal parts were inspected by surveyor on 10-2-2014 or not.

30. The opposite party No. 3 has effected the repairs of the vehicle in question. Of course in written version opposite party No. 3 has pleaded that it got inspected the vehicle from the surveyor of opposite parties No. 1 & 2 in the presence of complainant and on this inspection, surveyor prepared estimate. It is further pleaded that at the time of survey, surveyor did not inspect the engine of the car and did not instruct opposite party No. 3 for any repair of engine of the car in question but the mechanic of the opposite party No. 3 told the complainant and surveyor of opposite parties No. 1 & 2 that no engine oil was present in the engine and car was repaired accordingly. In this way, the opposite party No. 3 has not hotly contested the claim of the complainant and has impliedly admitted version of the complainant that on 10-2-2014 engine of the car was not inspected by surveyor. Obviously, no relief is claimed against opposite party No. 3. It has nothing to loose with the outcome of the the complaint. The opposite party No. 3 is the authorized service centre of the vehicles. It has to claim repair charges. It is immaterial for it whether these charges are paid by complainant or Insurance company i.e. opposite parties No. 1 & 2. Therefore, the claim of the complainant cannot be held proved only for the reason that opposite party No. 3 has not controverted the material averments of the complainant.

31. When the opposite parties No. 1 & 2, who are actually affected parties, have controverted the claim of the complainant, the complainant was duty bound to establish his case as per his averments. Of course, the parties have brought on record number of the documents. The controversy can be solved on the basis of following documents :-

    (a) Performance Invoice (Ex. C-11)

    (b) Tax Invoice (Ex. C-12)

    (c) Affidavit dated 12-5-2014 of Vikas Chander Jain, Surveyor, (Ex OP-1/2)

    (d) Final survey report with Annexure ( Ex. OP-1/3)

    (e) Estimation (Ex. OP-1/7)

    (f) Satisfaction Note (Ex. OP-1/9)

    (g) Claim Cost Confirmation (Ex. OP-1/10)

    (h) Repair Order (Ex. OP-3/2

    (i) Satisfaction Note (OP-3/3)

32. The averments of the complainant is that engine was not inspected at the time of first survey which was conducted on 10-2-2014. The complainant himself has relied upon Proforma Invoice (Ex. C-11) and Tax Invoice (Ex. C-12). A perusal of Proforma Invoice shows that 'Engine Oil Sump with Opening ' was also found damaged and 'Engine Oil 1 Ltrs Castrol' was also shown required. In the end of this estimate, it is specifically mentioned 'Oil sump damage – no engine oil found during survey'. Of course opposite party No. 3 has pleaded that engine was not inspected at the time of survey by surveyors of opposite parties No. 1 & 2. Ex. C-12 is the Tax Invoice issued by opposite party No. 3. As per this invoice, Engine Oil sump was changed (Sr. No. 37) and its cost was mentioned as Rs. 10,789.14. Similarly engine oil 1 Ltr was also shown for the car for Rs. 822.39. At the end of this invoice, it was also mentioned 'Oil sump damaged – no engine oil found during survey'. Ex. OP-3/2 is the copy of Repair Order prepared by opposite party No. 3 relied upon by opposite party No. 3. It was prepared on 10-02-2014 and it is mentioned in it that 'Engine opened from under-body for visual check. To check internal pieces.' This document is signed by complainant Beant Singh Gill. It is also marked in this document 'Oil sump damaged – no engine oil found during survey'. All these documents relied upon by complainant as well as opposite party No. 3 prove that engine was also checked by surveyor on 10-02-2014. These documents prove that it was in the knowledge of the complainant also that 'oil sump was damaged and there was no engine oil'.

33. The survey was conducted by Vikas Chander Jain, Surveyor. He has tendered his affidavit Ex. OP-1/2. In this affidavit he has categorically proved his report dated 12-05-2014. He has also categorically stated that as per survey, the engine was not damaged in accident. Oil sump was found damaged but nothing was informed about the damage to engine at that time nor the engine was damaged at that time.

34. The evidentiary value of the report of surveyor was discussed in the cases relied upon by the learned counsel for the opposite parties and cited above wherein it was observed that report of surveyor/loss assessor is an important and significant document, reliance, whereupon is required to be placed. It is also noticed in the cited judgement that in Pradeep Kumar Sharma Versus National Insurance Company 2008(III) CPJ 159 (NC), the surveyor assessed the loss to the tune of Rs. 4,40,000/-, after deducting salvage value of Rs. 1,65,000/- and settlement of claim at Rs. 2,74,500/- was recommended, after catering Rs. 500/- for excess charges. The claim was allowed by the State Consumer Disputes Redressal Commission, on the basis of Surveyor's report and the same was upheld by the National Disputes Redressal Commission, New Delhi, holding that the surveyor's report being an important document, could not be washed aside, without any compelling evidence to the contrary. It was further observed that in Suryachem Industries Vs. Oriental Insurance Co. Ltd., 2007(I) CPJ 278 (NC), it was held that the report of the surveyor could only be successfully challenged by producing tangible evidence by the complainant.

35. There are other important factors also. The accident took place on 9-2-2014. As per complainant himself, he took the vehicle to opposite party No. 3 for its repairs and original date of delivery after repairs was 26-3-2014 i.e. after 44 days but the complainant has further pleaded that thereafter delivery period was extended to 20-6-2014. It is highly improbable and unbelievable that when originally the vehicle was to be repaired within 44 days, how it would have taken 86 days more i.e. total more than 130 days.

36. The surveyor Vikas Chander Jain has deposed in his affidavit that he submitted his survey report dated 12-5-2014 and at that time kilometer reading of the vehicle was 21169. The survey report is also on the file as Ex. OP-1/3 alongwith Annexure '1'. As per this report also, the engine oil sump was replaced. Its value was Rs. 10,789.14 and its reimbursement was approved for Rs. 11,715/- including repair and other incidental charges. Therefore from the affidavit of Vikas Chander Jain coupled with his report dated 12-5-2014, it is also proved that vehicle was actually repaired on or before 12-5-2014 and by that time, there was no damage to the engine (damage in dispute).

37. The opposite party No. 3 has also produced on record 'Satisfaction Note' dated 20-6-2014 (Ex. OP-3/3). This note is signed by complainant Beant Singh. Vide this note, complainant has certified that his vehicle has been attended as per details. He has also confirmed that he has taken test drive of his vehicle and is satisfied with its performance after repair. He has accepted the delivery after repair and being satisfied with the repair. In case the vehicle was not in a running condition when complainant accepted this vehicle after repair, he was not supposed to pay Rs. 70,260/- as part payment for the repairs. It is a matter of common knowledge that every customer before paying such huge amount ensures by way of test drive or otherwise that vehicle is satisfactorily repaired and made in a running condition.

38. The opposite parties No. 1 & 2 have also produced on record photographs (Ex. OP-1/8). These photographs are of dated 16-5-2014 showing meter reading of vehicle as 21175 Kms. meaning thereby that after 12-5-2014 which is the date of final survey, the vehicle has run for six kms after accident.

39. The opposite parties No. 1 & 2 have also produced on record Claim Cost Confirmation (Ex. OP-1/10). This document is also signed by complainant Beant Singh. Vide this note also, the complainant has accepted Rs. 164,250/- as full and final settlement of his claim towards repairs. This fact also shows that complainant has already accepted the claim as full and final satisfaction. Now he is debarred from taking any other claim from the opposite parties No. 1 & 2.

40. The net conclusion of our above discussion is that the damage to the engine (damage in dispute) is not the result of accident which took place on 09-02-2014 and it is a consequential loss.

41. As a result of above discussions, this complaint fails and is hereby dismissed with no order as to costs.

42. The complaint could not be decided within the statutory period due to heavy pendency of cases.

43. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    08-09-2015

    (M.P.Singh Pahwa )

    President

     

     

    (Sukhwinder Kaur)

    Member

     

     

    (Jarnail Singh )

    Member