The challenge in this revision petition filed under Section 21(b) of the Consumer Protection Act, 1986 is to the impugned order dated 27.5.2011, passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (for short, ‘State Commission’), in First Appeal No.1288 of 2006, Bajaj Allianz General Insurance Company Ltd. vs. Rajesh Rao, vide which, while allowing the said appeal, the order passed by the District Consumer Disputes Redressal Forum, Yamuna Nagar dated 28.4.2006 in Consumer Complaint No.989/2005, filed by the petitioner, allowing the said complaint, was modified. 2. There is a delay of 64 days in filing the present revision petition, but the said delay was ordered to be condoned, vide order of this Commission on 31.1.2012. 3. The factual matrix of the case says that the petitioner/complainant Rajesh Rao insured his Maruti car, bearing registration no.HR-02J-1110 with the respondent insurance company, Bajaj Allianz General Insurance Company Ltd. for an amount of Rs.1,50,000/- for the period 17.9.2004 to 16.9.2005. The said vehicle met with an accident on 25.5.2005, when the complainant alongwith his family members was going from Jagadhri to Panchkula in the said car, when it was hit by a bus bearing no.HR-37A-1908, coming from the other direction. The complainant and his family members received multiple injuries in the accident and had to remain in hospital for a long time. An intimation about the accident was given to the local police station at Sadhora, vide report no.27 and the insurance company was also intimated. It is stated in the consumer complaint that the complainant was advised by the OP-insurance company to contact authorized service station of Maruti Udyog Ltd., Gopal Automobile Service Station, Yamuna Nagar. The said service station gave an estimate of Rs.1,60,297/- for the repair of the car. The complainant submitted all the documents with the OP, but they did not settle the claim. It has been stated in the consumer complaint that the vehicle was still lying with Gopal Automobiles, Yamuna Nagar, awaiting repairs. The OP insurance company asked the complainant to get the vehicle repaired at Chandigarh, but they did not settle the claim of the claimant, despite providing documents to them. The complainant filed the consumer complaint in question, seeking directions to the insurance company to pay the sum insured of Rs.1.50 lakhs alongwith interest from the date of accident and also to pay Rs.2.5 lakhs as compensation against mental harassment and Rs.5,500/- as litigation cost. 4. The complaint was resisted by the insurance company by filing written statement before the District Forum, in which they stated that they appointed Shri Rajiv Sahni as surveyor to assess the loss who conducted the survey at Gopal Automobiles, Yamuna Nagar. The said surveyor assessed the loss to be to the tune of Rs.71,634/- which included the cost of spare parts and labour charges. The surveyor expressed opinion that the body shell of the car in question was repairable with the help of car-o-liner. Since the said facility was not available at Yamuna Nagar, the vehicle should be taken to Chandigarh for repairs. The complainant was accordingly informed, but he did not proceed in accordance with the opinion of the surveyor. According to the insurance company the vehicle could not be declared as total loss, keeping in view the report of the surveyor. 5. The District Forum after taking into account the averments made by the parties, allowed the consumer complaint and directed the OP to pay the assured sum of Rs.1.5 lakhs to the complainant alongwith 12% p.a. interest from the date of accident and also to pay garage charges to M/s. Gopal Automobiles and give Rs.50,000/- as compensation against harassment to the complainant. Being aggrieved against the said order, the OP insurance company challenged the same by way of an appeal before the State Commission. The said appeal was allowed by the State Commission vide impugned order dated 27.5.2011 and the State Commission observed as follows; “From the record, we are of the view that it is a case wherein the complainant has failed to lead even an iota of evidence to substantiate that he has suffered a loss of Rs.1,60,297/- as alleged. The documents produced by the complainant are with respect to the estimate amount and not with respect to the actual amount paid by the complainant for the repair of his accidental vehicle. Thus, in the absence of any cogent and convincing evidence, the estimated invoice submitted by the complainant are un-authenticated and the same cannot be taken into consideration while assessing the actual damage caused to the vehicle. The estimated invoice is totally different from the bill of actual repair but no bills for actual repair have been filed by the complainant. Thus, in the absence thereof, we are left with the Surveyor report only.” 6. Being aggrieved against the above order of the State Commission, the petitioner/complainant is before this Commission by way of the present revision petition. The main ground taken by the petitioner is that the vehicle was still lying with M/s. Gopal Automobiles and the repairs had not been effected so far. There was, therefore, no question of producing actual bills for the said repairs and hence, the order passed by the State Commission was not in accordance with law. The OP insurance company has filed reply to the memo of revision petition through an affidavit filed by Ashutosh Singh, Assistant Legal Manager of the company. It has been stated in the said reply as well that till date, the repairs of the vehicle in question had not been carried out and the claim made by the complainant was based on estimates alone. The insurance company has taken the plea that the complainant should have transferred the vehicle for repairs to the authorized garage of the company in Chandigarh, where the vehicle could be repaired completely. 7. During hearing, the learned counsel for the petitioner/complainant submitted that although the accident took place as far back as in the year 2005, the vehicle was still lying with M/s. Gopal Automobiles, awaiting repairs. There was no question of submitting any actual bills as stated by the State Commission in the impugned order. The learned counsel further stated that on record, there were two reports both dated 3.8.2005 submitted by the said surveyor, Rajiv Sahni. In one report, the surveyor had stated in the section “Survey & Observation”, that most of the parts of the vehicle had been damaged. However, in the second report, after describing damage to various parts, the surveyor had given his opinion that the body shell of the car can be repaired by using car-o-liner etc. In the first report, the loss had been assessed at Rs.1,01,703.88, whereas in the other report, it was assessed at Rs.72,133.60. The learned counsel argued that the role played by the surveyor in the matter was not above board. It is true that survey report is an important document in such cases, but the said report could be ignored if there are facts available to prove to the contrary. The learned counsel has drawn attention to an order passed by the Hon'ble Supreme Court in Dharmendra Goel vs. Oriental Insurance Company Ltd., 2008(8) SCC 279, saying that the insurance company was bound by the value stated in the insurance policy, rather than depending upon the report of the surveyor. Further, in New India Assurance Company Ltd. vs. Pradeep Kumar, 2009 (7) SCC 787, it had been laid down by the Hon'ble Apex Court that survey report may be the basis or foundation for the settlement of a claim, but surely, such report was neither binding upon the insurer nor the insured. 8. Per contra, the learned counsel for the OP insurance company argued that as per the report given by the surveyor, the vehicle in question was repairable and hence, the complainant should have got it repaired by taking the vehicle to the authorized workshop at Chandigarh. The learned counsel further argued that even if the first report of the surveyor was accepted, the amount to the complainant would be Rs.1.01 lakhs and not Rs.1.50 lakhs. 9. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. 10. The main issue for consideration in the matter is with regard to quantum of claim to be allowed to the petitioner/complainant with regard to the damage suffered to the vehicle during the accident. It is an admitted position that following the accident , the vehicle was taken for repairs to M/s. Gopal Automobiles, Yamuna Nagar and the vehicle is still lying with them for the past many years, awaiting repairs. It is also clear that the estimate given by Gopal Automobiles for the repair of the vehicle is Rs.1,60,297/-. Based on this estimate, the District Forum directed that the insured amount of Rs.1.50 lakhs be given to the complainant alongwith interest. In the impugned order, the State Commission stated that the documents produced by the complainant were with regard to the estimated amount and not the actual amount paid by the complainant for the repairs of the vehicle. The State Commission also observed that the estimate invoice was totally different from the bill of actual repairs, and no bills for actual repairs had been filed by the complainant. This observation of the State Commission is erroneous as made out from the facts on record, because the actual repairs to the vehicle have still not been carried out, as stated by the petitioner. The insurance company has also not controverted this contention of the petitioner. The order passed by the State Commission is therefore, perverse in the eyes of law, because it is based on the presumption that the actual repairs had already been carried out. The impugned order deserves to be set aside on this count alone. 11. It is further made out from the facts on record that two reports of the surveyor bearing the same date have been placed on record. The respondent insurance company has not been able to explain anywhere as to how there could be two reports, carrying different versions with the same date, submitted by the surveyor. It is quite obvious therefore, that the version of the respondent insurance company lacks credibility and cannot be relied upon, while taking a decision in the present case. It is not understood as to how the surveyor stated in one of the reports that a sum of Rs.1,01,204/- was payable to the complainant, whereas in the other report he stated that only Rs.71,633/- was payable. 12. Based on the discussion above and keeping in view the facts that the vehicle has been lying with the Workshop for the last many years, it seems appropriate that the insured sum in the policy should be allowed to be given to the complainant. The District Forum in their order directed that a sum of Rs.1.5 lakhs be given to the complainant alongwith 12% p.a. interest after three months of the accident i.e., from 25.8.2005. The District Forum further allowed a compensation of Rs.50,000/- on account of financial loss, mental agony etc. To my mind, the grant of compensation of Rs.50,000/- as well as interest on the assured sum shall not be justified, because it will amount to payment of double compensation to the complainant. 13. Keeping in view the overall facts and circumstances of the case, it is ordered, therefore, that a sum of Rs.1.5 lakhs shall be paid to the complainant alongwith 12% p.a. interest from the date after three months of the accident i.e., from 25.8.2005. The order passed by the State Commission is therefore, set aside and the order passed by the District Forum is modified to the extent that the compensation of Rs.50,000/- shall not be payable. This revision petition stands disposed of in terms of the above directions. There shall be no order as to costs. |
