Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 (as amended upto date) on the allegations that he insured his vehicle Toyota Etios GD bearing Registration Certificate No.PB-01B-7852 vide policy No.TBA-50090216 with Opposite Parties for IDV of Rs.4,34,268/- valid for the period 22.3.2021 to 21.3.2022. Further alleges that said insured vehicle met with an accident on 25.07.2021 and in this regard, the complainant immediately informed the Opposite Parties and thereafter, the Opposite Parties deputed their surveyor who inspected the damaged vehicle and told the complainant to get the vehicle repaired from his own pocket and same will be reimbursed by the company. At the instance of the surveyor of Opposite Party No.1, the complainant got it repaired from Opposite Party No.2 and paid Rs.38,719/- on account of repair charges of the insured vehicle. Thereafter, the complainant lodged the claim with the Opposite Party No.1 for the reimbursement of his repair charges, but the Opposite Party No.1 has approved only Rs.16,267/- and on asking, the Opposite Party No.1 has failed to explain any reason for the deduction of the remaining repair charges.
Thereafter, the complainant made so many requests and visits to the office of Opposite Party No.1, but Opposite Party No.1 did not pay any heed to the request of the complainant. As such, there is deficiency in service on the part of Opposite Party No.1. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay Rs.38,719/- on account of repair charges of the insured vehicle alongwith interest @ 12% per annum till its actual realization.
b) The amount of Rs.50,000/-be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.
c) The cost of complaint amounting to Rs.10,000/- may please be allowed.
d) And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.
2. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complainant has not come to this District Consumer Commission with clean hands. The claim intimation was received by Opposite Party No.1 through Motor Claim Form, and immediately, Opposite Party No.1 appointed surveyor who carried out his inspection and vide letter dated 03.08.2021 has asked the complainant to furnish duly signed discharge cum satisfaction voucher and claim amount confirmation sheet and he also informed the complainant that the amount of Rs.25,320/- has been assessed to the insured vehicle, but the complainant has failed to fulfil the requisite formalities and in the absence of mandatory documents, the Opposite Party No.1 could not release the payable amount to the complainant and hence, there is no deficiency in service on the part of Opposite Party No.1. On merits, Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections and prays for dismissal of the complaint.
3. Opposite Party No.2 appeared separately and filed written reply contesting the same stating that the complaint against Opposite Party No.2 is not maintainable as there is no privity of contract in regard to settlement of insurance claim between the complainant and Opposite Party No.2. There is no elements of rendering of deficient/ negligent services etc. on the part of the Opposite Party No.2 in repairing the accidenal vehicle as such, the present complaint against Opposite Party No.2 is not maintainable and the same deserves dismissal. On merits, Opposite Party No.2 took up the same and similar pleas as taken up by them in the preliminary objections and prays for dismissal of the complaint.
4. In order to prove his case, the complainant has tendered into evidence the affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C6 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered into evidence the affidavit of Sh.Saurav Khullar, Ex.OP1 alongwith copies of documents Ex.OP2 to Ex.OP12 and closed the evidence. Similarly, Opposite Party No.2 tendered into evidence affidavit of Amandeep Singh Ex.OP2/1 alongwith copy of resolution Ex.OP2/2 and closed their evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in the written statements respectively. We have perused the rival contentions of the parties and also gone through the record on file.
8. It is not denial of the Opposite Parties-Insurance Company that the complainant has purchased the policy in question and during the policy period, the insured vehicle of the complainant met with an accident and was got repaired from Opposite Party No.2 i.e. IJM Toyota, Moga and they charged Rs.38,719/- from the complainant on account of repair charges of the vehicle. Thereafter, the complainant lodged the claim with the Opposite Party No.1 under the policy, for the reimbursement of the repair charges, but the surveyor of the Opposite Party No.1 vide its detailed report Ex.OP9 has assessed only Rs. 25,320/- on account of repair charges and this surveyor has not been challenged by the complainant by filing any cogent or convincing document with regard to less assessment of the repair charges. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports can not be brushed aside without any cogent reasons.” Hon’ble National Commission in the case of Ankur Surana v. United India Insurance Co. Ltd., reported in I (2013) CPJ 440 (NC), wherein it has been observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
9. Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
10. In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed partly and Opposite Party No.1-Insurance Company is directed to make the payment of Rs.25,320/- (Rupees Twenty Five Thousands Three Hundred Twenty Only) to the complainant on account of repair charges of the insured vehicle in question, on the basis of report of surveyor alongwith interest @ 8% per annum from the date of filing the instant complaint i.e. 20.09.2021 till its actual realization. The compliance of this order be made by Opposite Party No.1-Insurance Company within 60 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced in Open Commission.
