BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

Complaint No. 05 of 2015

                                                 Instituted On: 16.01.2015

                                                Decided On: 03.06.2015

Gurcharan Singh aged about 52 years son of Gurbachan Singh, resident of VPO Tumber Bhan, Ferozepur, Tehsil & District Ferozepur.

………Complainant

Versus

1.       Brar Auto Wheels Private Limited Authorised Dealer of Nissan, VPO Mehna, Ludhiana Road, Moga.

2.       The Royal Sundram Alliance Insurance Company Limited also known as Royal Sundram General Insurance Registered Office at 21 Patullos Road, Chennai-600002.

3.       Japneet Singh Mechanical Engineer, Insurance Surveyor and Loss Assessor, B-34/5795, Street No.5, Raghubir Park Jassian Road, Haibowal Kalan, Ludhiana 141001.

                                                                          …………Opposite Parties

Complaint under Section 12 of the      Consumer Protection Act, 1986.

Coram:       Sh.S.S.Panesar, President

                   Smt Vinod Bala, Member

         Smt.Bhupinder Kaur, Member

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Present:        Sh Amarjit Singh Brar Adv. Cl. for the complainant

                    Sh Tajinder Singh Adv. for opposite party No. 1

                    Sh Vishal Jain Adv. Cl. for opposite party No.2

                    Opposite party No.3 Exparte

ORDER

(S.S.Panesar, President)

The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against Brar Auto Wheels Private Limited Authorized Dealer of Nissan, VPO Mehna, Ludhiana Road, Moga (herein-after referred to as ‘opposite party No.1), The Royal Sundram Alliance Insurance Company Limited also known as Royal Sundram General Insurance Registered Office at 21 Patullos Road, Chennai-600002 (herein-after referred to as ‘opposite party No.2) & Japneet Singh Mechanical Engineer, Insurance Surveyor and Loss Assessor, B-34/5795, Street No.5, Raghubir Park Jassian Road, Haibowal Kalan, Ludhiana 141001(herein-after referred to as ‘opposite party No.3)

directing them to pay Rs.1,01,868/- as remaining insurance claim amount besides Rs.1,00,000/- as  compensation for causing mental tension, harassment  and also to grant any other relief to which this Forum may deem proper.

2.                 Brief facts of the complaint are that in the month of August 2014 the complainant purchased a vehicle  make Nissan for a consideration of Rs.10,56,343/- from opposite party No.1, which was got insured from

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opposite party No.2 through opposite party No.1 by paying a sum of        Rs. 29,698/- as premium amount vide policy bearing No.VPC0647793000100 from 06.08.2014 to 05.08.2015.  On 03.09.2014, the vehicle in question met with an accident on the way of Moga to Ferozepur and totally damaged after hitting the railing of the bridge. It has been pleaded that after the accident, the complainant approached opposite party No.2 and gave information in this regard, who appointed a surveyor i.e. opposite party No.3. The surveyor inspected the spot and got photographs therefrom. On the advice of opposite party No.3, the complainant took the damaged vehicle to opposite party No.1 for the repairs. Opposite party No.1 made estimate of the repair of the damaged vehicle for a sum of Rs. 6,76,985/-. The same was submitted to opposite party No.3. Further it has been pleaded that the Surveyor and Loss Assessor, after completing various formalities for granting the claim amount, demanded some documents from the complainant. Thereafter opposite party No.2 sent a cheque of Rs. 1,50,000/-  dated 31.10.2014 as part payment of estimate bill to the complainant for starting the repairs of the damaged vehicle. It has been pleaded that the vehicle was fully got repaired by opposite party No.1 and it issued a bill to the tune of Rs.6,29,882/- dated 26.11.2014 and informed the complainant as well as  opposite party Nos. 2 & 3. Thereafter, the complainant approached opposite party Nos. 2 & 3 for a number of times to pay the remaining claim amount. In this regard the complainant sent emails dated 02.12.2014,

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06.12.2014 and 07.12.2014, but all in vain. On 15.12.2014, on the asking of opposite party No.3, opposite party No.2 settled an amount of Rs.3,78,014 vide E.F.T. reference No.185447 dated 15.12.2014. In this way, opposite party No.2 passed a sum of  Rs. 5,28,014/- against the bill of Rs.6,29,882/-. But opposite party No.1 demanded full amount of repair charges from the complainant, which the complainant has to pay Rs. 1,00,864/- from his own pocket for releasing the vehicle in dispute. Opposite party No.1 also charged Rs.500/- per day from 26.11.2014 to 16.12.2014. It has been  pleaded that it was a cashless policy and the vehicle was fully covered from bumper to bumper. Due to the negligent act of the opposite parties, the complainant is suffering from mental and physical harassment and economic loss.  Hence the present complaint.

3.              Notice of the complaint was given to the opposite parties. Opposite party No.1 appeared through its counsel Sh Tajinder Singh Advocate and filed written reply contesting the complaint. In its written reply, opposite party No.1 took up preliminary objections that the complaint is not maintainable; that the complainant has no locus standi to file the present complaint; that the present complaint is false and frivolous one; that the complainant has concealed the material facts from this Forum; that on 06.08.2014 when the complainant purchased the vehicle from opposite party No.1 it was informed that they would issue the vehicle to the complainant after insuring the same from the insurance company. The complainant himself got the vehicle insured from Royal Sundram Alliance

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Insurance Company. After the repair of vehicle in dispute, the bill to the tune of Rs.6,29,882/- was issued by opposite party No.1 to the complainant. Opposite party No.2 sent a cheque of Rs.1,50,000/- to the complainant for repairing of the damaged vehicle. The complainant informed many a times to opposite party Nos. 2 & 3 for sanctioning the remaining amount; that on 03.02.2015 the complainant completed the regular service of the said vehicle after fully satisfaction. On merits, the preliminary objections have been reiterated and the other allegations of the complaint have been denied.

4.                Opposite party No.2 appeared through its counsel Sh Vishal Jain Advocate Cl. and filed written reply contesting the complaint. In its written reply, opposite party No.2 has pleaded that the complainant took a Private Car Package Policy bearing Certificate No.VPC0647793000100 for his vehicle Nissan Terrano bearing Registration No.PB29HT9073 from opposite party No.2 for a period of 06.08.2014 to 05.08.2015. On receipt of information with regard to accident of the vehicle in dispute, opposite party No.2 appointed a surveyor namely Mr. Japeet Singh for assessing the loss, who assessed the loss to the tune of Rs. 5,28,014.00 vide his report reference No.RSIC/8449/2k14-2k15 dated 28.11.2014. But the complainant demanded Rs.1,01,868/- more from opposite party No.2 as he has spent an amount of Rs.6,29,882/- on the repair of the vehicle in dispute. It has been pleaded that opposite party No.2 deducted Rs.1,01,777/- out of the total claim as some parts, which were changed by the complainant  for regular

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maintenance, could be repaired. The detail of the parts is as under:-

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Therefore, a sum of Rs. 1,01,777/- has rightly been deducted  from the bills as against the complainant’s claim. Other allegations of the complaint have been denied and a prayer for dismissal of the complaint with costs has been made.

5.                Opposite party No.3 has appeared in person and filed his written reply. It has been pleaded that as per instructions from the office of M/S Royal Sundaram General Insurance Company Limited, he conducted the survey of the vehicle No. PB-29-H(T) 9073 of the complainant. The vehicle was inspected thoroughly and the damages parts were duly checked with the estimate generated by opposite party No.1. At the time of initial survey as well as at the time of dismantling the parts compressor & ECM

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were totally save & intact. Opposite party No.1 replaced the parts compressor & ECM as per the instructions of complainant.  After filing reply, opposite party No.3 has not appeared. Therefore, opposite party No.3 was proceeded against ex-parte vide order dated 05.05.2015.

6.                In order to prove his case, the complainant tendered in evidence his affidavit Ex.C-1, and copies of documents Ex.C-2, Ex.C-11 and closed his evidence.

7.                To rebut the evidence of the complainant, opposite party No.1 tendered affidavit of Gagandeep Singh authorized signatory Ex.OP1/1, copies of documents Ex. OP1/2 to Ex. OP1/6  and closed its evidence. Opposite party No.2 has also closed its evidence after tendering into evidence copies of documents Ex. O.P.No.2/1 to Ex. O.P.No.2/5 and affidavit of G.Vinayparkash Ex.O.P2/6.

8.                We have heard the learned counsel for the parties and have carefully gone through the record.

9.                On the basis of the evidence on record, the learned counsel for the complainant has vehemently contended that complainant purchased vehicle make Nissan from opposite party No.1. Opposite party No.1 got the vehicle insured from opposite party No.2 by making payment of               Rs. 29,698/- as premium amount vide policy bearing No.VPC0647793000100, copy whereof is Ex.C-2. The policy in dispute commenced w.e.f. 06.08.2014 and was valid uptil 05.08.2015.  On 03.09.2014, the vehicle in question met with an accident on the way from

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Moga to Ferozepur and it  damaged completely  after hitting the railing of a bridge. The complainant approached opposite party No.2 and informed it  in this regard. Opposite party No.2  appointed a surveyor i.e. Japneet Singh Mechanical Engineer to assess the loss. The surveyor inspected the spot and also took photographs. On the advice of opposite party No.3, the complainant took the damaged vehicle to opposite party No.1 for repairs. Opposite party No.1 made estimate of the repairs to the tune of                Rs. 6,76,985/-, which was submitted to opposite party No.3. Opposite party No.2 sent a cheque for an amount of  Rs. 1,50,000/-  dated 31.10.2014 as part payment of the estimate bill to the complainant for starting repair of the damaged vehicle. The vehicle was fully got repaired by opposite party No.1 and issued a bill to the tune of Rs.6,29,882/- dated 26.11.2014 and sent information to the complainant as well as to opposite party Nos. 2 & 3. On 15.12.2014, on the asking of opposite party No.3, opposite party No.2 settled an amount of Rs.3,78,014 vide E.F.T. reference No.185447 dated 15.12.2014. In this way, opposite party No.2 passed a sum of                   Rs. 5,28,014/- as claim against the bill of Rs.6,29,882/- and has wrongly withheld an amount of Rs.1,00,864/- payable to the complainant. The opposite parties are deficient in service and the complainant is entitled to recover an amount of Rs. 1,00,864/- as balance payment of claim, damages to the tune of Rs.1,00,000/- besides litigation expenses to be assessed by this Forum.

10.              On the other hand, the learned counsel for opposite party No.1

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has vehemently contended that opposite party No.1 has been wrongly impleaded as party to the complaint. The matter in dispute pertain inter-se complainant & opposite party Nos. 2 & 3. Because it was opposite party No.2 who insured the vehicle in dispute belonging to the complainant for the period in dispute vide insurance policy Ex.C-2 while opposite party No.3 was the surveyor appointed by opposite party No.2 for assessing the loss on account of accident to the insured vehicle. It is contended that no relief can be granted against opposite party No.1. Complaint against opposite party No.1 is liable to be dismissed on account of mis-joinder of party.  

11.              The learned counsel for opposite party Nos. 2 & 3 has vehemently contended that there is no dispute that vehicle bearing registration No. PB29HT9073 make Nissan belonging to the complainant was insured vide insurance policy bearing No. VPC0647793000100 issued by opposite party No.2, which was valid w.e.f. 06.08.2014 to 05.08.2015. It is also not disputed that the vehicle in dispute met with an accident on 03.09.2014. Opposite party No.2 appointed a surveyor namely Japneet Singh opposite party No.3 for assessing the loss, who assessed the loss to the tune of Rs.5,28,014/- vide report dated 28.11.2014, copy whereof is Ex. O.P.2/5. On the other hand, it is the case of the complainant that he had incurred an expenditure to the tune of Rs.6,29,882/- as per bill issued by opposite party No.1, copy whereof is Ex.C-9. The complainant as such demands balance amount of Rs.1,00,864/- from opposite party No.2.

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However, there is no bias or ill will either pleaded or proved against opposite party No.3, who is a neutral person. It is settled principal of law that the report of Surveyor and Loss Assessor is a valuable piece of evidence and report of the Surveyor cannot be brushed aside easily. Reliance in this regard can be placed upon Rajendra Singh Yadav Petitioner Versus National Insurance Company Limited Respondents IV(2014) CPJ 269 (NC), wherein it has been laid down that surveyor has mentioned all the items in his survey report for which estimate was submitted by the complainant and Surveyor after considering all the aspects assessed loss of Rs.1806.90 for parts and Rs.18.100 towards labour charges and later on by addendum report, he assessed total loss of Rs.22,988.10. Learned counsel for the petitioner could not place any document on record to substantiate that assessment made by the Surveyor is not in accordance with law or he has under estimated price of any part or labour charges. Most of the parts were found by him intact and in such circumstances, no amount was allowed against replacement of those parts or on their repairs. Learned State Commission rightly directed respondent to make payment as per Surveyors report and I do not find any illegality, irregularity or jurisdiction error in the impugned order and revision petition is liable to be dismissed.

          Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.

Further reliance can be placed upon Sri Venkateshwara Syndicate

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v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC) wherein it was held by 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 also held that Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary.

In the case in hand, the Surveyor has given a detailed report covering all the aspects i.e. price of damaged parts, labour charges etc. and reasons have been assigned by the surveyor for the deductions  made by him regarding certain spare parts & labour charges. No bias or ill will has either been alleged or proved by the complainant nor there is evidence on record to impugn the surveyor report. Since there are absolutely no reasons for discarding the surveyor report, therefore, the complainant is not entitled to the relief claimed vide instant complaint.

12.              On the basis of the aforesaid discussion, it transpires that the complainant has already been made payment of due repair charges as per assessment made by the Surveyor. There is no deficiency in service on the part of opposite party Nos. 2 & 3. Complaint against opposite party No.1 is not maintainable & we hold that it has wrongly been impleaded. Complaint against opposite party No.1 stands dismissed. Due to forgoing discussion complaint against opposite party Nos. 2 & 3 also fails and the same is ordered to be dismissed accordingly.

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Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

(Bhupinder Kaur)                    (Vinod Bala)                   (S.S.Panesar)

     Member                             Member                         President

Announced in Open Forum.

Dated:03.06.2015.