Date of Filing : 04.03.2021

Date of Disposal : 01.08.2022

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED THIS THE 01^st DAY OF AUGUST 2022

PRESENT

 Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER

Mrs. M.DIVYASHREE : LADY MEMBER

APPEAL NO.217/2021

1. Nagajyothi.M.L

W/o T.M.Chandramouleshwara,

Aged 37 years,

R/at no.1615, Sangam road,

Hullahalli village-571314,

Nanjangud Taluk,

(By Sri.S.Kalyana Basavaraj, Advocate)

1. Bajaj Allianz General Insurance Co., Ltd.,

No.1335, 1^st floor, C & D block,

Panchamantra road, Kuvempunagara,

Mysuru-570023 (Opp. Gnana Ganga School)

Rep. by its Branch Manager

Sri.Jagannath Suresh Kumar, Advocate

2. Bajaj Allianz General Insurance Co., Ltd.,

Rep. by its Managing Director,

Reg. and H.P. at GE Plaza, Airport road,

Yerawada, Pune-411066.

(R1 & 2 By Sri.Manojkumar.M.R, Advocate)

3. Inspire Honda, Shah Automotives Pvt. Ltd.,

Rep. by its Managing Director,

Authorised Dealer, Honda Car India Ltd.,

No.101(P), Hootagalli Industrial Area,

Opp. Automotive Axles, Off.Hunsur road,

O R D E R

BY Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER

1.    This is an appeal filed U/s.41 of CPA 2019 by Complainant/Appellant aggrieved by the order dtd.18.01.2021 passed in CC/151/2020 on the file of Mysuru District Commission.
2. The Commission examined the impugned order, grounds of appeal and heard the learned counsels.
3. Learned counsel for Appellant/Complainant would submit that Commission below ought to have considered the case for the purpose of determination of assessment of damages under the head of ‘total loss’ for the reason that the car is beyond economic repair and even if it is repaired, it would have been roadworthy for luxury keeping quality in mind. Further would submit, Commission below has failed to render any finding as to why the report of the first surveyor could not have been accepted. Commission below failed to appreciate independent IRDA surveyor by name A.C.Mahesh, who upon detailed inspection of the car has opined that the car was assessed at Rs.6,14,000/-.  The OP/Insurance Company ought not to have appointed the second surveyor. Having regard to the two opinions formed by the two surveyors, both of them were competent to assess the damages since they have the requisite expertise and competence, the District Commission ought to have recorded a finding, as to how, the report of the surveyor appointed by the OP overrides the report of the surveyor appointed by the Complainant. If the survey cannot be disregarded or dismissed without cogent reasons, the same principle will also apply to the survey report placed on record by the surveyor appointed by the Complainant. The surveyor appointed by the OP ought to have been stepped into the box and spoken about the fact of his arriving at a decision in assessing the damages in a sum of Rs.3,88,000/- contrary to the one submitted by the surveyor appointed by the Complainant. Learned counsel further would submit that, if the surveyor appointed by the Insurance Company were to be examined, the Complainant would have had the occasion to cross-examine him to elicit truth from his mouth.
4. Let us come to examine the impugned order. Admittedly, car was purchased in the year 2017 for Rs.11,16,866/-. The policy issued by OP is covering the period from 07.02.2020 to 06.02.2021. It is not in dispute that, insured vehicle met with accident on 01.06.2020. It is also not in dispute that IDV is found from the policy is Rs.6,07,440/-. It is found, Crime No.61/2020 came to be registered on 01.06.2020 by Puttur Traffic police station and the said vehicle was towed to the workshop of OP.3 at the cost of Complainant for Rs.14,000/-. OP.3 is the authorised service centre received the car on 03.06.2020 and generated estimate amounting to Rs.6,84,604/- and the same was submitted to OP.1. Most important fact would be on 05.06.2020 the Complainant received SMS from one Mr.Manukumar, who has been appointed as surveyor to assess the damages caused to the car, and he has submitted the report on 10.06.2020. Thus from impugned order could see three reports, one at the instance of OP insurer at the first instance, another at the instance of Complainant and finally at the instance of OP insurer. The IDV as found from the policy is at Rs.6,07,440/- and OP.3 the authorised service centre generated estimate amounting to Rs.6,84,604/- to repair the vehicle. IRDA approved surveyor Mr.Manukumar appointed by OP at the first instance assessed the damage at Rs.6,84,604/- and their own surveyor subsequently submitted the report assessing the cost of repair at Rs.3,88,000/-, while Mr.A.C.Mahesh who is also IRDA approved surveyor appointed at the instance of Complainant assessed the loss at Rs.6,14,000/-. In such circumstances, learned counsel for the Complainant would righty submit that even after accepting the IRDA approved surveyor appointed by OP at the first instance, Mr.Manukumar assessed the loss at Rs.6,84,604/- and Mr.A.C.Mahesh appointed by the Complainant who is also the IRDA approved surveyor assessed the loss at Rs.6,14,000/- exceeds 75% of the IDV namely 75% comes to Rs.6,07,440/- was not considered by the Commission below and the OP/insurer is not justified to appoint yet another surveyor Mr.Hareesh Moolya only on the ground that Mr.Manukumar has assessed the loss at Rs.6,84,604/- is on higher side, since their own authorised service centre as on 03.06.2020 generated estimate amounting to Rs.6,84,604/- which in fact is almost similar to the damages assessed by their own first surveyor Mr.Manukumar. No doubt, investigation and survey by an insurance company are fundamental in determining the amount payable to the insured. Its surveyor has to possess the prescribed qualifications, it is accountable, inter alia also to the regulator. A survey cannot be disregarded or dismissed without cogent reasons. But the facts remain that, Commission below failed to consider the damage caused to the insured vehicle as assessed by Mr.Manukumar at Rs.6,84,604/- who is IRDA approved surveyor appointed by OP/insurer. In this regard, we have to observe herein that, when the Commission below found inordinate delay in settling the claim of the Complainant on the part of OP.1 & 2, could have held are deficient in providing service, amounts to deficiency in service and unfair trade practice. The Commission below could have accepted the report of surveyor appointed at the first instance by insurer who had assessed the loss at Rs.6,84,604/- and in this regard Commission below has failed to record sound reasons, as to why, the report of Mr.Hareesh Moolya who had assessed the loss only afterthought at Rs.3,88,000/- is accepted. According to the Commission below such assessment is held just and reasonable, but the facts remain, no proper and sound reasons are recorded to hold that such assessment is just and reasonable, when their own assessment made at the first instance was at Rs.6,84,604/- which is more than 75% of IDV under the policy terms for the purpose of determination of assessment of damages under the head of total loss. When there are two reports submitted by the surveyors appointed by the insurer, one is at Rs.6,84,604/-  and another is at Rs.3,88,000/-, to rebut, burden shifts on insurer to prove as to why assessment made at Rs.3,88,000/- alone has to be acceptable as against the first report and they could have examined the said surveyor before the Commission below affording opportunity to the Complainant to rebut the same. In other words, said surveyor could have stepped in to the witness box and spoken about the fact of his arriving at assessing the damages in a sum of Rs.3,88,000/- contrary to the one submitted by the surveyor Mr.Manukumar appointed at the first instance Rs.6,84,604/- and as assessed by Mr.A.C.Mahesh at Rs.6,14,000/-.
5. In view of such discussions made above, contention of the learned counsel for OP/Respondent that, what the surveyor has assessed the loss at Rs.3,88,000/- was rightly accepted by the Commission below which is 53% of the IDV is unacceptable. Accordingly, Commission proceed to allow the appeal, consequently modified the order in the following terms:

The complaint filed by the Complainant is allowed in part. It is hereby declared car bearing Registration no.KA09 MC7511 has total loss and directed OP.1 & 2 to indemnify the Complainant and return the invoice value and settle the claim within 60 days, failing which, amount shall carry interest at 6% p.a. from the date of complaint till realisation and do pay Rs.25,000/- towards litigation cost.

6. Notify copy of this Order to the District Commission and parties.

   Lady Member                                Judicial Member              

*NS*