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 Tata Safari bearing RC No.PB-05D-0007, Model 2015 vide policy No. 2012043118P110808932 with the Opposite Parties for sum assured of Rs.8,10,000/- valid for the period w.e.f. 27.11.2018 to 26.11.2019. Further alleges that said insured vehicle met with an accident on 13.08.2019 and in this regard, the complainant immediately informed the Opposite Parties and thereafter, the damaged vehicle brought to Dada Motors, Moga to get the repair the vehicle in question. Thereafter, the vehicle was repaired by Dada Motors with actual repair charges ofRs.5,37,407/-. The Opposite Parties appointed their surveyor to assess the loss who passed the claim of the complainant to the tune of Rs.5,14,000/-, but the Divisional Officer of the Opposite Parties reduced the claim amount to the tune of Rs.4,14,218/- without any reason which is totally illegal ad arbitrary act done by the Opposite Parties and under the forcible circumstances, the complainant has paid the amount of Rs.99,780/- to Dada Motors, Moga. Thereafter, the complainant made so many requests and visits to the office of the Opposite Parties, but the Opposite Parties did not pay any heed to the request of the complainant and retained the remaining assessed amount of Rs.99,780/- without any explanation. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay the remaining amount alongwith interest @ 18% per annum till its actual realization.
b) The amount of Rs.5 lakh 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.25,000/- 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 Parties 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 loss suffered by the complainant was assessed and the complainant submitted the estimate report on 17.08.2019 which was got prepared from the surveyor. The complainant got the vehicle repaired from Tata Motors, Moga and then submitted his another estimate report and bill dated 26.11.2019. Accordingly, the Opposite Parties verified the bills and estimation report and found that the prices of the articles/ spare parts are very different in both the estimates and accordingly, the claim was assessed and paid to the complainant as per the actual loss occasioned to the complainant. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections and prays for dismissal of the complaint.
3. In order to prove his case, the complainant has placed on record his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C175 and closed the evidence on behalf of the complainant.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit of Sh.Raghunandan Bansal, Sr.Divisional Manager Ex.Ops1 alongwith copies of documents Ex.Ops2 and Ex.Ops3 and closed the evidence.
5. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
6. 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.
7. 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 its authorized service Centre i.e. Dada Motors, Moga and they assessed the loss to the tune of Rs.5,37,407/-. The Opposite Parties appointed their surveyor to assess the loss who passed the claim of the complainant to the tune of Rs.5,14,000/-, but the Divisional Officer of the Opposite Parties reduced the claim amount to the tune of Rs.4,14,218/- without any reason which is totally illegal ad arbitrary act done by the Opposite Parties and under the forcible circumstances, the complainant has paid the amount of Rs.99,780/- to Dada Motors, Moga. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the Opposite Parties verified the bills and estimation report and found that the prices of the articles/ spare parts are very different in both the estimates and accordingly, the claim was assessed and paid to the complainant as per the actual loss occasioned to the complainant. Bare perusal of the report Ex.C69 of O.P.Garg & Associates, surveyor shows that he has assessed the loss to the insured vehicle to the tune of Rs.5,14,000/-, whereas the Opposite Parties have passed the claim of the complainant to the extent of Rs.4,14,218/-. 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."
8. 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.
9. In such a situation the non payment of the assessed amount by the surveyor till date by Opposite Party regarding genuine claim of the complainant appears to have been unwarranted. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
10. In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed partly and the Opposite Parties are directed to make the payment of remaining claim of Rs.99,782/- (Rupees ninety nine thousands seven hundred eighty two only) to the complainant on account of repair charges of the insured vehicle in question, on the basis of report of surveyor. The compliance of this order be made by Opposite Parties-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.
