STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Cheema Brick Klin, Manakpur Sharif, Tehsil and District SAS Nagar, through its Proprietor Sh. Harinder Singh Cheema.

……Appellant/complainant

V e r s u s

Future Generali India Insurance Company Limited, SCO 78-79, IInd  Floor, Sector 17-C, Chandigarh 160017 through its Branch Manager.

              ....Respondent/Opposite Party

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. Vikram Tandon, Advocate for the appellant.

                   Sh. Vishal Aggarwal, Advocate for the respondent.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 07.09.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).

2.               The facts, in brief, are that Sh. Harinder Singh Cheema, Proprietor of the complainant, being the owner of truck (Tata 1613) bearing registration No.PB-12-H-6733, got the same insured from the Opposite Party, for the period from 3.11.2010 to 2.11.2011, after making the payment of requisite premium. On 05.06.2011, the said truck, met with an accident, and was badly damaged. Intimation, was given to the Opposite Party with regard to the accident. The vehicle was taken for repairs. The repairer gave the estimated cost of repairs to the tune of Rs.2,18,178/- (Annexure C-3).  According to the complainant, the cowl shell of the vehicle was damaged, in the accident, and, as per the repairer, it was not repairable. The repairer had given the estimated cost of the new cowl shell, to the tune of  Rs.1,35,400/-.  The repairer sent an email to the Opposite Party, intimating it, that the cowl shell was not repairable, and sought permission for its replacement, with a new one.  However, the Opposite Party, in reply to the email, stated that the Surveyor and it (Opposite Party) were of the opinion, that the cowl shell, in question, was repairable. It was also mentioned, in  reply to the email, that request for the replacement of cowl shell could be considered, only if, the same was got endorsed from Tata Motors. Thus, the Opposite Party did not accept the report, submitted by the repairer, on the point that the cowl shell was not repairable. It was stated that, under these circumstances,  the complainant had no option, but to get the vehicle repaired, from its own sources. Thereafter, the complainant lodged claim with the Opposite Party. However, the Opposite Party sent a cheque, in the sum of Rs.34,441/-, as full and final settlement of the claim, which was returned by the complainant, to it.  Later on, the cheque, in the sum of Rs.34,441/- was again sent to the Counsel for the complainant, which was accepted by him as partial payment. It was further stated that by not accepting the claim of the complainant, to the tune of Rs.2,22,906/-, which amount was paid by the complainant, towards the repair of vehicle, the Opposite Party was not only deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to pay the claim amount of Rs.2,22,906/-, as per the claim intimation letter sent to it; compensation, in the sum of Rs.1,00,000/-for damages, suffered by the complainant, on account of negligence and deficiency, in rendering service, including cost of litigation; and interest @18% P.A., on the aforesaid amounts, from the date of filing the claim, till realization.

3.               The Opposite Party was duly served, but no authorized representative, on its behalf, put in appearance, as a result whereof, it was proceeded against exparte, vide order dated 21.08.2012.

4.                  Harinder Singh Cheema, Proprietor of the complainant, led evidence, by way of submitting his affidavit, alongwith which, a number of documents were attached.

5.               After hearing the Counsel for the complainant, and, on going through the evidence, and record of the case, the District Forum, came to the conclusion, that the Opposite Party was within its right, to refuse the replacement of cowl shell with a new one, as the complainant failed to produce a certificate from Tata Motors, to the effect, that it was not repairable. The District Forum further held that the Surveyor was right, in assessing the loss, to the tune of Rs.34,441/-, the amount, which was sent to the complainant, through the cheque aforesaid, and accepted by its Counsel. It was further held by the District Forum, that the Opposite Party was not deficient, in rendering service, to the complainant.  

6.               Ultimately, the District Forum, dismissed the complaint, as stated above.

7.               Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

8.               We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 

9.               The Counsel for the appellant, submitted that, as per the repairer i.e. M/s Pasco Motors, Ropar, the cowl shell, which was damaged, in the accident, with which the vehicle of the complainant met, was not repairable. He further submitted that the Opposite Party and its Surveyor, without any valid reasons, came to the conclusion, that the cowl shell was repairable. He further submitted that since the cowl shell was not repairable, the repairer i.e. M/s Pasco Motors, Ropar, replaced the same, the cost whereof was Rs.1,35,400/-. He further submitted that the complainant paid Rs.1,66,406/-, being the repair charges, including the amount of new cowl shell, vide retail invoice dated 04.07.2011 Annexure C-6 (at page 59 of the District Forum file), to M/s Pasco Motors, Ropar. He further submitted that the repair was also got effected from Roshan Lal, Truck and Bus Body Repair, Welding and Related Job Works, SCF 431, New Motor Market Complex, Manimajra, Chandigarh, who charged another sum of Rs.71,500/-. He further submitted that  the Opposite Party was wrong, in coming to the conclusion, that the complainant was entitled to a sum of Rs.34,441/- only, assessed by the Surveyor, on account of loss, to the vehicle, in the accident aforesaid. He further submitted that the claim of the complainant, regarding the remaining amount, spent by it, on the repair of the insured vehicle, which met with an accident, was illegally repudiated by the Opposite Party. He further submitted that the order of the District Forum, in dismissing the complaint, being illegal and invalid, is liable to be set aside. 

10.            On the other hand, the Counsel for the Opposite Party, submitted that the Opposite Party and the Surveyor were right, in coming to the conclusion, that the cowl shell, which was damaged, in the accident, was repairable and rightly denied payment of Rs.1,35,400/-, the price of the new cowl shell, which was got replaced by the complainant, from M/s Pasco Motors, Ropar, on its own, against their opinion. He further submitted that the Surveyor was right in assessing the loss, to the tune of Rs.34,441/-and that amount was accepted by the Counsel for the complainant and paid to him (complainant). He further submitted that, it is not known, as to how and why, after getting the vehicle, in question, repaired from M/s Pasco Motors, Ropar, further  repairs were allegedly got effected, from Roshan Lal, Truck and Bus Body Repair, Welding and Related Job Works, Chandigarh, by the complainant. He further submitted that the order of the District Forum, in dismissing the complaint, being legal and valid, is liable to be upheld.

11.            Admittedly, the vehicle, in question, was got insured by the complainant, from the Opposite Party. There is also, no dispute, about the factum, that the said vehicle met with an accident, during the currency of Insurance Policy. The first question, that falls for consideration, is, as to whether, the cowl shell, which was damaged, in the accident, was repairable or not. Annexure C-3 is the estimate of repairs of the vehicle, and price of the new cowl shell was mentioned therein, as Rs.1,35,400/-. It is further evident from Annexure C-4 that M/s Pasco Motors, Ropar, sent an email to Goldkeykamal@yahoo.com the Insurance Brokers Pvt. Ltd., of the Opposite Party, stating therein, that the cowl shell was not repairable. These Insurance Brokers sent the email Annexure C-4 of M/s Pasco Motors to the Opposite Party. In reply to this email, Mr. Rattandeep Singh Babbar, Deputy Manager of the Opposite Party, sent email dated 13.06.2011, (Annexure C-4 doubly numbered) that the Surveyor and the Opposite Party were of the opinion, that the cowl shell was repairable, and the complainant was requested to get endorsed from Tata Motors, that the cowl shell was not repairable, so that the Opposite Party could take up the matter, with the concerned Service Engineer and its Head Office, for further action. Once, the repairer i.e. M/s Pasco Motors, Ropar, an authorized dealer of Tata Motors, sent the email dated 10.06.2011, to the effect, that the cowl shell was not repairable, it was for the Surveyor and the Opposite Party, to inspect the vehicle and record its conclusion, as to under what circumstances, it was not replaceable, but only repairable. After the email referred to above, of the repairer, an authorized dealer of Tata Motors, the onus did not lie, on the complainant, to get an endorsement, from the Tata Motors, that the cowl shell was not repairable. It was, for the Opposite Party, to submit the affidavit of an Engineer, to the effect that, in fact, the cowl shell was repairable. No affidavit was produced, by the Opposite Party, in that regard. Mere opinion of the Surveyor and the Opposite Party, without being supported by any cogent and convincing evidence of a technical person, that cowl shell was repairable, could not be taken into consideration. Once the Engineers/ Technicians of M/s Pasco Motors, Ropar, came to the conclusion, that the cowl shell was not repairable, but was replaceable, and, actually the same was replaced by them, as is evident from the retail invoice Annexure C-6 (at page 59 of the District Forum file), the Opposite Party could not say that it was repairable. It may be stated here, that the report of the Surveyor was not got produced, by the District Forum, in the complaint. Report of the Surveyor was got produced, during the pendency of the appeal, alongwith his affidavit. The Surveyor submitted in his report, that the estimate of loss of the vehicle and claim form were received by him. He also mentioned, in his report Annexure AX, that the estimated value of cowl shell was to the tune of Rs.1,35,400/-, but he only, assessed the loss, to the tune of Rs.10,600/- for the same, on the ground, that it was repairable. Objections to this report, by the Counsel for the appellant, were also filed, wherein, it was stated that the cowl shell was not repairable but replaceable. It is settled principle of law, that the report of the Surveyor is not the last and the final word. It is neither binding upon the insured, nor on the insurer. If a part of the report of the Surveyor, is not based on the cogent and convincing data and material, then, it can certainly be discarded. The report of the Surveyor, to the extent, that the cowl shell was repairable, being neither supported by any cogent and convincing data and material, nor supported by any report of the Engineer/Technician of M/s Pasco Motors, Ropar, repairer, cannot be acted upon. Once, M/s Pasco Motors, Ropar, came to the conclusion, that the cowl shell was replaceable, and it replaced the same, as a result whereof, the complainant paid a sum of Rs.1,35,400/-,  the Opposite Party was required to pay the full amount of replacement of the same (cowl shell), spent by the complainant. The respondent/Opposite Party was, thus, deficient, in rendering service, by repudiating the claim of the complainant, for payment of full amount of the price of cowl shell. The appellant/complainant was, thus entitled to a sum of Rs.1,24,800/-i.e. (Rs.1,35,400/- cost of the new cowl shell paid by the complainant minus(-) Rs.10,600/- already paid to him) on account of the cost of replacement of cowl shell.

12.            The complainant also submitted an estimate dated 16.07.2011 of Roshan Lal, Truck and Bus Body Repair, Welding and Related Job Works, Chandigarh, to the tune of Rs.71,500/-. The retail invoice regarding the repair of the vehicle, issued by M/s Pasco Motors, Ropar, is dated 04.07.2011. It is not known, as to what was the requirement for further repairs of the vehicle, after the same was repaired by M/s Pasco Motors, Ropar, and the amount of Rs.1,66,406/-, vide retail invoice Annexure C-6 dated 04.07.2011, was paid by the complainant,  to it. Annexure C-6 (doubly marked) at pages 53 to 57 of the District Forum file comprise loose sheets of estimated repairs of Roshan Lal, Truck and Bus Body Repair, Welding and Related Job Works, Chandigarh, on which a number of items, in Hindi, are recorded.  The loose sheets being not supported by any cogent and convincing evidence, cannot be said to be authentic. No reliance, therefore, can be placed thereon. Once the vehicle was got repaired from M/s Pasco Motors, Ropar, on 04.07.2011, the question of further repairs from Roshan Lal, Truck and Bus Body Repair, Welding and Related Job Works, Chandigarh, did not at all arise. The complainant, is, therefore, not entitled to any amount allegedly paid by it, to Roshan Lal, Truck and Bus Body Repair, Welding and Related Job Works, Chandigarh

13.            With regard to the repair and replacement of the remaining parts of the insured vehicle, which were damaged in the accident, Er. S.P. Singh, Surveyor and Loss Assessor, in his report Annexure AX, assessed the amount, after deducting depreciation of 50% in respect of the rubber parts, 75% in respect of the plastic parts and 70% in respect of the metal parts. The dispute was only with regard to the amount of Rs.1,35,400/-, spent by the complainant,  for replacement of new cowl shell, out of which, only Rs.10,600/- were assessed, as loss, by the Surveyor, considering, as if the same had only been repaired. The report of the Surveyor Annexure AX, with regard to the repairs/replacement of remaining parts of the insured vehicle, is correct.

14.            No other point, was urged, by the Counsel for the parties.

15.            In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission, and is liable to be set aside.

16.            For the reasons recorded above, the appeal is accepted, with costs. The order of the District Forum is set aside. The complaint is partly accepted, in the following manner:-

                              i.   The respondent/Opposite Party is directed to pay Rs.1,24,800/- (as indicated in paragraph number 11 above) to the appellant/ complainant, in addition to the amount of Rs.34,441, already paid to it.

                            ii.   The respondent/Opposite Party is further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the appellant/ complainant.

                          iii.   The amounts mentioned in Clauses (i) and (ii), in paragraph 16 above, shall be paid by the respondent/Opposite Party, to the complainant, within 45 days, from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay the same, alongwith interest @12% P.A., from the date of filing the complaint, till realization, besides payment of costs to the tune of  Rs.20,000/-

17.            Certified copies of this order, be sent to the parties, free of charge.

18.            The file be consigned to Record Room, after completion

Pronounced.

06.02.2013

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg