ORDER

(Per: Mr. D.K. Tyagi, Member):

This is insurer’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 03.02.2011 passed by the District Forum, Haridwar in consumer complaint No. 155 of 2009.  By the order impugned, the District Forum has allowed the consumer complaint against the opposite party-insurance company and directed the opposite party to pay to the complainant a sum of Rs. 7,25,000/- alongwith interest @ 7% per annum, within one month from the date of order.

2        Briefly stated the facts of the case as mentioned in the consumer complaint are that the complainant being the registered owner of car named Ford Fiesta, bearing registration No. UK08-L-6192 obtained insurance in respect of said car from the opposite party vide their cover note/policy    No.OG-08-1201-1801-0000-48TS for a period of one year from 19.03.2008 to 18.03.2009 midnight for a sum assured of Rs. 7,13,925/- and paid the consideration amount of Rs. 21,966/- to the opposite party in lieu of same. The opposite party issued only cover note which does not contain any terms and conditions attached thereto and the opposite party never supplied any computerized policy of insurance of aforesaid car till today.  That on 13.03.2009 at about 9:30 p.m., the aforesaid vehicle met with serious accident on Jaipur highway due to lot of water logging on the Highway and was badly damaged.  No report about the accident of the vehicle was lodged by the complainant with police, as there was no causalities to its occupants and or to any third party.  Intimation of the loss of vehicle was immediately lodged by the complainant with the opposite party over phone.  The opposite party was requested to register the claim and issue necessary form for completion to pay the claim of the complainant.  As per the verbal advice of the opposite party, the accidental vehicle was towed down to Dehradun and was lodged with an authorized dealer of the Ford Fiesta car M/s A.B. Motors Pvt. Ltd., who prepared an estimate of repairs on 17.03.2007 for total sum of more than Rs. 8.00 lakhs and declared the vehicle as total loss.  As desired by the opposite party, a copy of the estimate prepared by dealers was also provided to the opposite party and opposite party was again requested to depute a surveyor for assessment of loss.   The opposite party for many days failed to depute any surveyor for the reason best known to them, but later depute a surveyor namely Sh. Pradeep Joshi, who visited the complainant’s place and the workshop where the damaged vehicle is lying at present.  It also transpired that the surveyor so deputed by the respondents also took various photographs of the damaged vehicle.  The deputed surveyor also took all the required papers from the complainant.  After obtaining the claim papers, the said surveyor started forcing the complainant to accept the loss on repair basis whereas the car had been totally damaged and will not be put to its original position even after spending a lot of money as is being desired by the opposite party.  Due to adamant attitude of the opposite party as well a surveyor deputed by it, has resulted into the delay in settlement of claim of claim of the complainant with the result that the car is still lying as it is position till today even after 105 days of the loss.  The opposite party did nothing to settle the claim of the complainant as per contract of insurance inspite of the fact that the required papers were submitted to them on the very first date along with the intimation letter and thereafter to surveyor and that the complainant has been reminding them over phone and by personal visits.  The complainant being a professional is put to grate harassment as he forced to carry on his daily routine jobs without his car for more than 105 days.  It appears that the opposite party is playing the tactics of delaying the genuine claim of complainant on one pretext or other and by doing so the opposite party is not only harassing the complainant mentally so that out of frustration, the complainant might grease their palm and or accept the loss on repair basis.  Non-settlement of the claim of the complainant 105 long days by the opposite party and its surveyor, is clear case of violation of IRDA rules and amount to deficiency in service on the part of the opposite party, as per Consumer Protection Act.  The car met an accident on 13.03.2009, the intimation of claim was given immediately to respondents over phone and in writing when completion of other claim formalities were also submitted to opposite party, as advised by them.  As per contract of insurance, the opposite party is liable to pay to the complainant in settlement of his claim a sum of      Rs. 7,13,925/- on account of total loss of aforesaid vehicle alongwith interest thereon @ 18%.  The opposite party is further liable to pay compensation to the complainant for mental agony, pain and suffering, loss of business a sum of Rs. 1,50,000/- on account of deficiency of service on the part of the officers of the opposite party.  The opposite party is also liable to pay Rs. 51,000/- to the complainant for the cost of litigation and other miscellaneous expenses. 

3.       The opposite party-Bajaj Allianz General Insurance Co. Ltd. has filed its objections/written statement before the District Forum, Haridwar and has pleaded that the contents of para No. 2 of the consumer complaint are not admitted on account of the fact that the certificate-cum-policy schedule was delivered to the complainant.  It is pertinent to mention here that certificate-cum-policy schedule has terms and conditions of policy which are an integral part of policy, as per which an intimation regarding any loss shall be given in writing to the insurance company by the insured.  The answering opposite party has admitted the contents of para No. 6 of the consumer complaint to the extent that answering opposite party advised the complainant to tow down to authorized dealer, but at the same time rest contents of same para are not admitted unless proved by the complainant. The answering opposite party is not liable to make payment of compensation to complainant for mental agony nor for pain and suffering nor for the loss of business to the tune of Rs. 1,50,000/- or any amount thereof, as no deficiency of any sort in the services had ever been committed by the answering opposite party.  The cause of action already extinguished when the complainant adopted non-cooperative attitude to process the claim and was adamant for accepting amount of compensation due to total loss against opinion of qualified and licensed surveyor.  The opposite party is a general insurance company has no branch office at Haridwar, hence the District Forum has no jurisdiction to hear and dispose of the present complaint.  In additional pleas the opposite party has pleaded that the answering opposite party deputed surveyor to conduct survey immediately on the date of intimation itself.  The insurer is bound to depute a qualified and licensed surveyor from IRDA, if the claim exceeds           Rs. 20,000/- under Section 64 UM of Insurance Act.  The answering opposite party in fulfillment of its statutory obligation deputed Sh. Preetesh Joshi, Surveyor, to conduct survey, who vide his survey report dated 18.04.2009 assessed the loss to the tune of Rs. 1,98,481.31ps.  The answering opposite party vide its letter dated 06.04.2009 sought explanation from the complainant for removing the vehicle from the spot without intimation depriving the insurer from an opportunity to ascertain necessary facts related to accident like cause of loss, circumstances and quantum of loss on record to decide admissibility of claim.  The answering opposite party vide letter dated 06.04.2009 sought copy of FIR, towing receipt, occupants details, injury details and third party details within the time limit of furnishing the same on or before 12.04.2009 with a view to facilitating claim in question at an earliest.  The answering opposite party vide its letter dated 13.04.2009 reminded complainant about its previous letter dated 06.04.2009 and set deadline for furnishing requisite documents/information before 22.04.2009, but of no avail.  The answering opposite party vide its letter dated 22.04.2009 intimated complainant about completion of repair assessment by surveyor and determined liability of insurer after depreciation and excess as per Insurance Act.  The answering opposite party vide such letter requested complainant to get the vehicle repaired and furnish repair bills at an earliest for the purpose of reimbursement.  The answering opposite party set a deadline of seven days and told complainant not to delay in the repair because any delay may cause aggravation in the loss and for which insured himself is responsible, but of no avail.  The answering opposite party vide its letter dated 01.05.2009 reminded complainant about its previous letter dated 22.04.2009 and set the deadline for fulfilling the requirement upto 08.05.2009, but of no avail.  The answering opposite party receiving no response and complete inertness on the part of complainant to its earlier letters dated 27.04.2009, 22.04.2009, 01.05.2009 was compelled to repudiate claim of complainant for non-fulfillment of required formalities necessary for processing the claim vide letter dated 08.07.2009.  The answering opposite party has never been deficient in rendering its services to complainant.  But it is rather complainant who insisted upon payment of compensation on total loss basis against recommendations of qualified and independent surveyor who assessed loss on repair basis because any law to qualify total loss should exceed 75%, then only it can be termed as total loss.  Even if it is less than that it can be on repair basis.  Hence, complainant itself forced answering opposite party to repudiate the claim by not performing its part of performance as laid down in contract of insurance.

4.       The complainant has filed replication before the District Forum against the objections/written statement of the opposite party and has pleaded that he has never received any certificate-cum-policy schedule from the opposite party.  Only a cover note was issued by the opposite party to the complainant, which is filed on the record.  The authorized dealer has found the vehicle as total loss, but the opposite party has denied the same, as it was not given according to the opposite party. The complainant has categorically pleaded in the replication that he has never received letters dated 06.04.2009, 13.04.2009, 22.04.2009, 27.04.2009 and 01.05.2009 from the opposite party.  The aforesaid car has been completely damaged and it is a case of total loss, therefore, the complainant is entitled to get actual cost of the car insured by the opposite party-insurance company.  It is wrong to say that there is no branch of opposite party at Haridwar. 

5.       The District Forum on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 03.02.2011 in the above terms.  Aggrieved by the said order, the opposite party-insurance company has filed this appeal.

6.       We have heard Sh. Sudhanshu Dwivedi, learned counsel for the appellant and Sh. Tanmay Vashistha, learned counsel for respondent and have also perused the material placed on record.

7.       Learned counsel for the appellant has submitted before this Commission that the District Forum has acted in a manner that is unreasonable, arbitrary and capricious and in a manner contrary to the settled principles of law. The District Forum reached unfounded conclusions in the impugned order by completely disregarding the documentary evidence on record by the appellant and respondent.  The District Forum has failed to consider that the relationship between the appellant and respondent is governed by the contract of insurance and that the parties being bound by the terms and conditions agreed between them in the policy, the District Forum could not have gone beyond the terms of contract.  The District Forum has failed to appreciate that IRDA approved independent surveyor assessed loss on sound principles of Insurance Act, who assessed loss on the basis of sound principles laid down which specifies total loss on conditions of loss exceeding 75% of the sum assured and lower Forum is ignoring sound principles.  The District Forum has exercised the jurisdiction not vested in it by law by usurping the power of specialized agency like IRDA approved independent surveyor who are licensed by IRDA. The District Forum held insurer-appellant to be deficient in services inspite of prompt appointment of IRDA approved independent surveyor.  The District Forum did not consider the fact of non-cooperative attitude of complainant in removing the vehicle from the spot without intimation to deprive insurer from conducting spot survey and later on insisting upon compensation on total loss.  IRDA approved independent surveyor assessed the loss for Rs. 1,98,481/-, which is way below 75% of IDV, i.e. Rs. 7,13,925/-, hence not a total loss. 

8.       Learned counsel for respondent-complainant has submitted that      Sh. Preetesh Joshi, Surveyor of the appellant-insurance company had submitted that the survey report in which cost of the body shell was assessed for about Rs. 60,000/-, whereas the authorized dealer M/s A.B. Motors Pvt. Ltd. has mentioned the cost of body shell as Rs. 2,10,936/-.  Similarly in the survey report the cost of engine assembly was mentioned by the authorized dealer M/s A.B. Motors Pvt. Ltd. is Rs. 3,45698/-, whereas the surveyor had not mentioned any cost of engine assembly.  Learned counsel has also argued that the surveyor Sh. Preetesh Joshi has mentioned in the survey report that the engine of the vehicle is ceased and the liability may increase, once the vehicle is dismantled for repair and the dashboard is kept open at present. This shows that the engine of the vehicle was badly damaged due to lot of water logging on the Jaipur highway on 13.03.2009 at about 9:00 p.m.

9.       The surveyor report has been filed on record (paper Nos. 38 to 42) and letter of surveyor to the complainant-respondent (paper No. 43).  The appellant-insurance company has filed certificate-cum-policy schedule (paper No. 25/6 on the District Forum’s record) and Motor Insurance Claim Form (paper Nos. 25/7 to 25/8 on the District Forum’s record). The appellant-insurance company has also filed letters dated 06.04.2009, 13.04.2009, 22.04.2009 and 01.05.2009 and letter dated 08.07.2009 which are annexure Nos. 1 to 7 on District Forum’s record.  The respondent-complainant has also filed copy of registration certificate of vehicle (paper No. 14/5 on the District Forum’s record), certificate-cum-policy schedule (paper No. 14/6 on the District Forum’s record) and copy of estimate dated 17.03.2009 of M/s A.B. Motors Pvt. Ltd. (paper Nos. 14/7 to 14/10 on the District Forum’s record).

10.     The surveyor Sh. Preetesh Joshi conducted survey of the accidented vehicle at repairer workshop M/s A.B. Motors Pvt. Ltd. on 04.04.2009 and submitted his survey report dated 18.04.2009 (paper Nos. 38 to 42).  In the survey report, the surveyor has prepared a comparative chart of the estimate given by the authorized dealer M/s A.B. Motors Pvt. Ltd. and his own assessed amount. The surveyor has mentioned in his report that engine of the vehicle is ceased, when the cylinder head of the engine was removed the oil mixed water was observed accumulated on the piston top on all the four and when the crankshaft was made to rotate with the external force, it was jammed.  The surveyor has not checked further in the engine. The surveyor has also mentioned in the survey report about loss assessment that the liability may increase once the vehicle is dismantled for repair and the dashboard is kept open at present.  It is clearly indicates that according to the surveyor report, at the time of conducting survey, the engine of the aforesaid car was totally ceased and when the cylinder head of the engine was removed the oil mixed water was observed accumulated on the piston top on all the four and when the crankshaft was made to rotate with the external force, it was jammed.  Even then in his survey report at serial    No. 53 where authorized dealer M/s A.B. Motors Pvt. Ltd. has given estimate of cost of engine as Rs. 3,45,698/-, whereas the surveyor has not mentioned any kind of loss in the engine of the vehicle.  Though the surveyor himself has mentioned that the engine of the vehicle was ceased.  In this way, the approved surveyor of the appellant-insurance company has not given a fair survey report to the insurance company.  In case, the engine of the aforesaid car is ceased, then this case will come as a case of total loss. 

11.     The appellant-insurance company has stated in its written statement/objections that the answering opposite party vide its letter dated 06.04.2009 sought explanation from the complainant for removing the vehicle from the spot without intimation depriving the insurer from an opportunity to ascertain necessary facts related to accident and also sought copy of FIR, towing receipt, occupants details, injury details and third party details. The appellant vide its letter dated 13.04.2009 reminded complainant about its previous letter dated 06.04.2009 and set deadline for furnishing requisite documents/information before 22.04.2009 and also vide its letter dated 22.04.2009 intimated complainant about completion of repair assessment by surveyor and determined liability of insurer after depreciation and excess as per Insurance Act.  The appellant vide its letter dated 27.04.2009 reminded complainant about its previous letter dated 22.04.2009 and set the deadline for fulfilling the requirement upto 08.05.2009, but the answering opposite party did not receive any response against its letters dated 22.04.2009, 27.04.2009 and 01.05.2009, was compelled to repudiate the claim of complainant for non-fulfillment of required formalities necessary for processing the claim vide letter dated 08.07.2009. But the respondent in his replication (paper Nos. 26/1 to 26/5) has categorically pleaded that he has never received letters dated 06.04.2009, 13.04.2009, 22.04.2009, 27.04.2009 and 01.05.2009.  The replication is supported with an affidavit of Dr. Sudhir Sharma-complainant/respondent, in which he deposed on oath that the documents produced by the appellant are totally false and manipulated, so that the claim may be repudiated. The appellant-opposite party has not filed any evidence before this Commission to show that the letters mentioned above were actually sent to the respondent-complainant or these letters were ever received by the respondent.  The appellant has also not mentioned the mode of sending these letters to the respondent.  Therefore, we are of the view that these letters were never sent to the respondent and were never received by the respondent. 

12.     Learned counsel for the appellant has cited a decision of the Hon’ble National Commission in the case of Bhim Singh vs. National Insurance Co. Ltd.; IV (2011) CPJ 323 (NC).  In this case, the Hon’ble National Commission has observed that the surveyor’s report was an important documents as per the settled law, the State Commission held that the report could not be brushed aside unless there was specific reason to do so or some mala fide on the part of the surveyor was established.  Contrary to it, learned counsel for respondent has placed reliance on the decision of the Hon’ble Supreme Court in the case of New India Assurance Company Ltd. vs. Pradeep Kumar; 2009 LegalEagle 1785 (SC). In the said judgment, the Hon’ble Apex Court has held that although assessment of loss by approved surveyor is a pre-requisite for payment or settlement of claim for twenty thousand rupees or more by insurer, but surveyor’s report is not the last and final word.  It is not that sacrosanct that it cannot be departed from.  It is not conclusive.  It may be basis for or foundation for settlement of a claim, certainly it is neither binding on insurer nor insured. 

13.     In the present case, the District Forum in its impugned judgment and order has not discussed the report of approved surveyor of the appellant-insurance company in which the surveyor has mentioned about the cease of engine, but did not assess loss of engine assembly.  This report of surveyor is against the estimate given by the authorized dealer M/s A.B. Motors Pvt. Ltd.  Though this approved surveyor’s report cannot be brushed aside, but this surveyor report is not the last and the final word, it is not conclusive.  It may be basis for or foundation for settlement of a claim and it is neither binding on insurer nor insured. From the perusal of the approved surveyor’s report, it is very much clear that the surveyor has not mentioned the actual cost of damage of engine assembly, whereas the authorized dealer has mentioned that the cost of engine assembly as Rs. 3,45,698/- and also mentioned the cost of body shell as Rs. 2,10,936/-.  The authorized dealer has mentioned the total cost of repair is as Rs. 9,24,882.88ps., whereas the approved surveyor has mentioned the assessed amount as      Rs. 1,98,481.31ps., which is very low amount.  In the circumstances when the vehicle met an accident on Jaipur Highway, where the water logged on the road.  The appellant has not challenged the estimate given by the authorized dealer M/s A.B. Motors Pvt. Ltd.  As the engine assembly of the vehicle was ceased and the body shell was badly damaged, therefore, the report of the approved surveyor has failed to calculate the exact damage of the vehicle.  In these circumstances, it is very much clear that the vehicle aforementioned was badly damaged and the appellant should have not repudiated the claim of the complainant-respondent on total loss basis. 

14.     The District Forum has properly considered all the facts and circumstances of the case and has passed a reasoned order, which does not call for any interference except that the salvage of the vehicle alongwith all the documents relating to the vehicle shall be handed over by the respondent-complainant to the appellant-insurance company at the time of payment of IDV value of the insured vehicle alongwith an amount against the litigation expenses with simple interest @ 7% per annum. The appeal being devoid of merit, is liable to be dismissed.

15.     For the reasons aforesaid, the appeal is dismissed.  Impugned judgment and order dated 03.02.2011 passed by the District Forum, Haridwar in consumer complaint No. 155 of 2009 is hereby confirmed.  Respondent-complainant is directed to hand over the salvage of the vehicle named Ford Fiesta registration No. UK08-L-6192 alongwith all the documents to the appellant-insurance company at the time of payment.  No order as to costs.