| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.
CC. No. 75 of 21-02-2012 Decided on 20-09-2012
Hem Raj aged about 76 years S/o Hari Ram R/o New Malwa Pesticides Store, Maur Mandi, District Bathinda. ........Complainant Versus Bajaj Allianz General Insurance Co. Ltd., 3038/A, 2nd Floor, Guru Kashi Marg, G.T. Road, Bathinda, through its Branch Manager Raj Paul Singhal Surveyor Cum Loss Assessor, Near Tinkoni. Namdev Marg, G.T. Road, Bathinda. .......Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Smt. Vikramjit Kaur Soni, President Sh. Amarjeet Paul, Member Smt. Sukhwinder Kaur, Member
For the Complainant : Sh. R.D. Goyal, counsel for the complainant For the Opposite parties : Sh. Rajan Singla, counsel for opposite party No. 1. Opposite party No. 2 exparte
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT
The instant complaint has filed by the complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that his Maruti Swift Car bearing registration No. PB-03-R-5041, Model 2008, is comprehensively cashless insured with opposite party No. 1 vide Insurance Certificate No. OG-11-1212-1801-00001521 w.e.f. 25-02-2011 for the IDV of Rs. 3,30,000/-. The complainant alleged that the opposite party No. 1 never issued any Insurance policy and only issued one Plastic Card of Insurance Cover. On 20-09-2011, the car of the complainant met with an accident in the revenue limits of Maur Mandi. At the time of accident, the car was being driven by Gurpreet Singh and in the accident, Gurpreet Singh and Balkaran Singh died. In this regard, DDR No. 9 dated 21-09-2011 was registered in Police Station, Maur Mandi, District Bathinda. The complainant lodged the claim with opposite party No. 1. The complainant alleged that under compelling circumstances on the asking of Mr. Prabhjot Official of opposite party, he shifted the car with M/s. Super Automobiles, Tinkoni, Bathinda. The opposite party No. 1 appointed opposite party No. 2 as surveyor and he surveyed the vehicle in the aforesaid workshop. The complainant spent Rs. 4000/- for shifting the car from the place of accident to Bathinda Workshop and Rs. 6,000/- were charged by the Workshop as estimate charges. M/s. Super Automobiles gave the estimate to the tune of about Rs. 5,41,110/-. The opposite party No. 2 supplied one Claim Form and Full and Final Discharge voucher and asked the complainant to sign the same but he returned the Claim Form duly signed but did not sign the discharge voucher. The opposite party No. 2 asked the complainant to firstly sign the full and final discharge voucher for Rs. 3,00,000/- and thereafter he will prepare the report. The complainant alleged that the vehicle is total loss as the loss exceeds 75% of the IDV. The complainant has written letter dated 20-01-2012 to the opposite parties with intimation to I.R.D.A. but to no effect and ultimately he removed the damaged car from the said Workshop as it was demanding Rs. 100/- per day as parking charges. Thereafter the complainant received one letter from opposite party No. 1 to get the vehicle repaired against the rules of Indian Motor Tariff and against the rules of Insurance. The complainant received letter dated 11-02-2012 from opposite party No. 1 demanding unnecessary documents and the said information and documents have already been supplied to opposite party No. 2. The complainant has mentioned in his complaint various authorities on different aspect of matters. The complainant approached opposite party Nos. 1 & 2 and demanded his claim of the total loss as per IDV alongwith shifting charges of Rs. 4,000/- and estimate parking charges of Rs. 6,000/- but they neither gave any satisfactory reply nor paid any single penny, so he shifted his car from M/s. Super Automobiles. Hence, the complainant has filed the present complaint seeking direction to the opposite parties to pay claim amount of Rs. 3,30,000/- on account of total loss ; Rs. 4,000/- shifting charges and Rs. 6,000/- parking and estimate charges besides interest, compensation and cost. The opposite party No. 1 filed its written statement and pleaded that complainant did not inform it regarding the accident immediately rather the accident was intimated after 9/10 days of accident and at the same time, the vehicle was shifted to Police Station, Maur Mandi. The opposite party No. 1 deputed Sh. Raj Paul Singhal, surveyor for inspecting the vehicle. On 15-12-2011, the complainant shifted his vehicle at M/s. Super Automobiles, Bathinda and got prepared the estimate in connivance of workshop for getting the total loss. The vehicle of the complainant is very much in repairable condition. The amount mentioned in the policy does not signify that the Insurance Company guarantees payment of the said amount. The opposite party No. 1 has pleaded that firstly it has not provided any cashless facility. Secondly incase this Forum comes to the conclusion that cashless facility has been provided by it, the complainant himself has admitted that the Insurance Company will make the payment of repair of vehicle directly to the Workshop minus depreciation as per Indian Motor Tariff but on the other hand, the vehicle of the complainant has not been repaired till date even after the instruction of opposite party No. 1. The opposite party No. 1 has denied that Mr. Prabhjot Singh had compelled the complainant to shift his vehicle at M/s. Super Automobiles, Bathinda or the said Workshop has issued estimates on the asking of opposite party No. 2 i.e. surveyor. The estimate was prepared on 15-12-2011 at the instance of complainant. The complainant has got prepared the estimate of Rs. 5,41,000/- from M/s. Super Automobiles, Bathinda, after adding the unnecessary parts, which were not damaged in the accident. The surveyor directed the complainant to start the repair of his vehicle and submit the final bills, but he did not agree and compelled the complainant for total loss and thereafter he shifted his vehicle at his home. The opposite party No. 2 had written letter dated 25-01-2012 and 11-02-2012 to complete the formalities which were necessary for releasing the survey report, but he never replied those letters. The opposite party No. 2 assessed the loss to the tune of Rs. 1,60,381/- after discussing the matter with workshop who prepared the said estimates submitted by the complainant. The complainant did not submit the final repair bills and the amount was not released to him. The opposite party No. 2 has pleaded that complainant is not entitled to get IDV of Rs. 3,30,000/- as total loss and incase this Forum comes to any conclusion, the loss assessed by the surveyor to the tune of Rs. 1,60,381/- is payable. Registered notice of complaint was sent to opposite party No. 2, but none appeared on his behalf and as such, exparte proceedings were taken against him. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. These are undisputed facts between the parties that Maruti Swift car bearing registration No. PB-03R-5041 has been comprehensively insured with opposite party No. 1 vide Ex. R-1 for the period from 25-02-2011 to 24-02-2012 for the IDV of Rs. 3,30,000/-. The said car met with an accident on 20-09-2011 and DDR in this regard was got registered in Police Station, Maur Mandi, District Bathinda. The complainant intimated the loss to opposite party No. 1 and it deputed Sh. Raj Paul Singhal Surveyor i.e. opposite party No. 2 to assess the loss. Now the grudge of the complainant is that the estimate of the authorized workshop of the vehicle in question has issued an estimate to the tune of Rs. 5,41,000/- and hence it is a case of total loss and he is entitled to the claim amount of Rs. 3,30,000/- i.e. IDV of the vehicle whereas the version of opposite party No. 1 is that the complainant has got prepared exorbitant estimate to the tune of Rs. 5,41,110/- in connivance with said workshop, the vehicle is repairable and is not a total loss. Onus to prove that the vehicle in question is a total loss, heavily lies on the complainant but except an estimate Ex. C-3, the complainant has not placed any document on file to prove his this version whereas the opposite party No. 1 has produced on file survey report Ex. C-15 of an independent surveyor Sh. Raj Paul Singhal alongwith his affidavit Ex. R-10, who has deposed that the complainant was insisting him to settle the claim on total loss basis but he refused to settle the claim on total loss after going through the estimate because the vehicle is very much repairable and complainant has added un-necessary parts i.e. body shell, steering box assy, all Injectors were demanded but two were not damaged, turbo charger etc., were not damaged. The complainant has not produced any expert evidence on file to prove that the vehicle in question is a total loss The complainant has even failed to rebut the aforesaid evidence of the opposite party No. 1. Report of the surveyor is an authenticated document which cannot be brushed aside lightly. In this regard reliance can be put on precedent laid down in case titled Sarvalaxmi Marines Vs. Oriental Insurance Co. Ltd. & Anr. 2007 (3) CLT 559 (N.C.) wherein it has been held :- “Consumer Protection Act, 1986, Section 2(1)(g) – Insurance Act, 1986, Section 64UM – Insurance claim – Surveyor's report – The report of the Surveyor, who is independent agency and are qualified and licensed to carry out the work, cannot be brushed aside lightly.” The support can also be sought from the precedent laid down in case titled New India Assurance Co. Ltd Vs. Kamal Nayan 2007(1)CLT 112 (N.C) wherein it was held “Insurance claim – Surveyor's report – Held that report of Surveyor is an important piece of document and evidence – Cannot be brushed aside without sufficient reasoning.”
The Hon'ble Supreme Court in catena of judgements has taken pains to emphasize that report of surveyor is an important piece of document and evidence which can be brushed aside by sufficient reasoning. In the present case, no such instance or ground has been shown to take different view from the report of surveyor. Moreover, a close scrutiny of photographs Ex. R-14 to Ex. R-19 of accidental car in question reveals that only front portion of the car has been damaged and remaining portion/body of the car is intact. A perusal of complaint reveals that in addition to the loss amount, the complainant has claimed Rs. 4,000/- as shifting charges and Rs. 6,000/- as estimate charges. A perusal of survey report reveals that the said amount has not been allowed by the surveyor while assessing the loss. The complainant has not produced any proof on file to prove that he spent Rs. 4,000/- in shifting the vehicle in question. However, he has placed on file Ex. C-6 a receipt No. 250 dated 25-01-2012 issued by Super Automobiles, which shows that an amount of Rs. 6,000/- has been received by the said Workshop from the complainant. Thus, this Forum is of the view that the complainant is entitled to the amount of Rs. 6,000/- paid by him as estimate charges in addition to the claim amount of Rs. 1,60,0381/- assessed by the surveyor.
The contention of the opposite party that the complainant has intimated the loss very late, is not tenable. In this regard the special guidelines have been issued by the Insurance Regulatory and Development Authority vide Circular Ref. IRDA/HLTH/MISC/CIR/216/09/2011 dated 20-09-2011 to all the Insurance Companies. The relevant portion of said circular reads as under :-
“...The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents. The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimating or in submission of documents due to unavoidable circumstances. The insurer's decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the Insurance Industry, giving rise to excessive litigation. Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would not otherwise been rejected even if reported in time.”
A perusal of file reveals that during the pendency of this complaint, the opposite party No. 1 has repudiated the claim of the complainant on 31-03-2012 vide Ex. R-8. Hence, keeping in view the facts, circumstances and the record place on file, this Forum is of the view that there is deficiency in service on the part of the opposite party in repudiating the genuine claims of the complainant without any sufficient reason. Thus, the repudiation letter Ex. R-8 is liable to be set aside. In view of what has been discussed above, this complaint is accepted with Rs. 15,000/- as cost and compensation against opposite party No. 1 and dismissed qua opposite party No. 2. The repudiation letter Ex. R-8 vide which the claim in question of the complainant is repudiated by the opposite party No. 1, is hereby set aside. The opposite party No. 1 is directed to pay Rs. 1,60,381/- + Rs. 6,000/- = Total : Rs. 1,66,381/- to the complainant. The compliance of this order be made by the opposite party No. 1 within 45 days from the date of receipt of copy of this order. In case of non compliance within the stipulated period, the claim amount of Rs. 1,66,381/- will yield interest @ 9% P.A. from the date of institution of this complaint i.e. 21-02-2012 till realisation.
A copy of this order be sent to the parties concerned free of cost and file be consigned for record.
Pronounced 20-09-2012 (Vikramjit Kaur Soni)
President (Amarjeet Paul) Member
(Sukhwinder Kaur) Member
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