ORDER
(Per: Mrs. Veena Sharma, Member):
This is insurer’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 29.08.2012 passed by the District Forum, Dehradun in consumer complaint No. 195 of 2010. By the order impugned, the District Forum has allowed the consumer complaint against the opposite party No. 1 and directed the opposite party No. 1 to pay to the complainant a sum of Rs. 1,94,000/- against insured amount, Rs. 50,000/- for mental agony and financial loss and Rs. 10,000/- towards cost of litigation within one month (30 days) from the date of order, failing which the complainant shall be entitled to get interest @ 9% per annum from the date of filing the consumer complaint till the date of payment.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Gautam Rawat is the owner of the vehicle Ford Ikon 1.6 SXI bearing registration No. HR26-N-2321, which was insured with the opposite party No. 1-insurnace company from 18.05.2009 to 17.05.2010 for a sum of Rs. 1,94,000/-. On 26.02.2010 the said vehicle met with an accident at Muzzafarnagar by-pass. No one injured in the said accident, but the vehicle was badly damaged. The complainant took the said vehicle by towing to AB Motors Pvt. Ltd., Dehradun, because AB Motors Pvt. Ltd. was the authorized service center of opposite party No. 1. The surveyor has inspected the said vehicle at AB Motors Pvt. Ltd. on 03.03.2010 and estimated Rs. 2,22,500/- for the cost of repair and labour charges are also mentioned. The estimate of surveyor was more than the ID value of the vehicle. So the vehicle comes under total loss and, therefore, the complainant is entitled to get insured value Rs. 1,94,000/- from the insurance company. The complainant has filed his claim before the insurance company and it is quite astonishing that on 18.05.2010, the opposite party No. 1-insurance company wrote a letter to the complainant in which the insurance company directed him to get his damaged vehicle repaired as per the surveyor’s report. The opposite party No. 1 was also aware of the fact that the estimated cost of repair of the damaged vehicle provided by the surveyor is more than the IDV of the vehicle. Hence, no mentally sound person can go for the repair of the vehicle, when the estimate is more than the IDV of the vehicle. The insured-complainant sent a legal notice to the insurance company on 23.06.2010 and enlightened the insurance company with all the known facts and requested the insurance company to pay the insured value of the vehicle, i.e. Rs. 1,94,000/- to him. However, the insurance company has not paid the insured amount to the complainant, which shows deficiency in service on the part of the insurance company, due to which the complainant has filed a consumer complaint before the District Forum, Dehradun.
3. The insurance company-opposite party No. 1 has filed its written statement before the District Forum and has objected to the claim made by the complainant and presented their reply through documents (paper Nos. 11 & 13). The answering opposite party has replied in documents No. 1 that there is no ambiguity and no reason for the case to be filed. The answering opposite party said that the damaged vehicle can be repaired. The surveyor wrote a letter to the complainant and requested him to get the repair done according to the instructions written in the letter. The answering opposite party claims that the complainant intentionally did not get the vehicle repaired and neither gave any bill of repair to the insurance company. The answering opposite party also claims that they have provided all the services to the complainant as per the agreement between insurance company-insurer and the complainant-insured.
4. The opposite party No. 2-Sh. Preetesh Joshi, Surveyor and Loss Assessor has filed his written statement before the District Forum (paper Nos. 13ka/1 to 13ka/4). The answering opposite party has mentioned in the letter written on 18.05.2010 to the complainant that the insured-complainant to get his vehicle repaired and to produce the bill of repair and charges levied on the repair. However, the complainant has not got his vehicle repaired and that’s why the complainant has filed a consumer complaint before the District Forum.
5. The District Forum, after hearing both the parties, has allowed the consumer complaint No. 195 of 2010 vide order dated 29.08.2012. Aggrieved by the said order, the opposite party No. 1-insurance company has filed the present appeal.
6. We have heard learned counsel for the appellant and respondent No. 1 and perused the material placed on record. None has appeared on behalf of respondent No. 2.
7. The appellant-opposite party No. 1 has submitted in its appeal that as per the report of the surveyor, the vehicle was repairable and inspite of many letters written by the surveyor to respondent No. 1-complainant to carry out the repair of his vehicle, which was not done by the respondent No. 1, as such there is no deficiency in service on the part of the appellant-insurance company. The Forum below failed to appreciate the documents on record and awarded total loss of the vehicle on the basis of estimate prepared by the dealer/repairer. The respondent No. 1-complainant has also conducted independent survey after two years of the accident and the District Forum has also awarded against that survey report. The District Forum has wrongly allowed the claim of the complainant-respondent No. 1 on total loss basis against the appellant-insurance company inspite of the clear evidence on record, that this was not the case of total loss and given its own finding without any logic and law. There was no deficiency on the part of the appellant. The appellant was ready to settle the claim of the respondent No. 1 on the basis of repair. The District Forum has wrongly awarded the claim against the appellant for a sum of Rs. 1,94,000/- without deducting the salvage value and other deductions. The District Forum has failed to appreciate that the estimate is always inflated and the estimate of the vehicle prepared by the workshop.
8. Learned counsel for the appellant-insurance company argued that the insurance company has not repudiated the claim of the complainant-respondent No. 1 and ready to pay according to the estimate made by their surveyor Mr. Preetesh Joshi. In support of his contention, learned counsel for the appellant has referred the report of the surveyor appointed by the insurance company (paper Nos. 25 to 29), who observed that net assessed loss was Rs. 94,302.96ps., whereas the labour charges Rs. 17,206/- were also included.
9. Learned counsel for respondent No. 1 while refuting the contention made on behalf of the appellant, submitted that it is incorrect to say that the appellant-insurance company is ready to pay the repairing cost of the vehicle. The appellant is ready to pay the only amount estimated by its own surveyor Mr. Preetesh Joshi. The appellant has overlooked the fact that the vehicle was also inspected by another surveyor, S.K. Handa & Co., Surveyors and Loss Assessors, who was appointed by respondent No. 1-complainant, who estimated Rs. 2,22,500/- for the cost of repair on 03.03.2010. The total repair cost exceeds from IDV of the vehicle, therefore, the vehicle was categorized as total loss. The appellant-insurance company was aware that no prudent person will get his vehicle repaired, when the estimate of repair costs exceeds from IDV. The vehicle has been stranded at the workshop since 03.03.2010 and the same is depleting day by day.
10. There is no dispute regarding the insurance of the vehicle, but only dispute is regarding loss occurred due to accident, whether the vehicle was badly damaged (total loss) or it was in a repairable condition. The opposite party No. 2 has submitted in his written statement that the appellant has deputed him as surveyor to assess the damage vehicle. In his written statement, he disclosed about the IDV Rs. 1,94,000/-, but he did not disclose the repairing amount according to his survey. The insurance is a cashless policy, so M/s A B Motors, an authorized service center of the opposite party No. 1, has to repair the vehicle and should be hand over the vehicle to the complainant in a fit condition, if there was any dispute regarding repairing amount was between the opposite party No. 1 and its authorized service center. The repair estimate of Rs. 2,22,500/- was also made by the insurance company’s authorized service center.
11. The objections filed by the surveyor–Sh. Preetesh Joshi against the survey report of S.K. Handa & Co., Surveyors and Loss Assessors, is not very clear. It seems that the objections filed very lightly. According to the Insurance Regulatory and Development Authority (IRDA) it is surveyor’s duty to provide its report within 30 days to the complainant after his appointment.
12. Learned counsel for the appellant has cited, in support of its surveyor’s report, a decision of the Hon’ble National Commission in the case of IFFCO Tokio General Insurance Co. Ltd. vs. Beena Raghav; III (2015) CPJ 75 (NC). In this case the Hon’ble National Commission has held that “the report prepared by the surveyor was of a significant and evidentiary value cannot be ignored and dismissed as such by saying that the “assessed loss cannot be considered trustworthy”, without giving valid reasons.” The said citation is not applicable in this case, because in the above case, the repairer infact had not assessed the loss as total loss, it was the insured who had alleged that the vehicle was total lost, but in the present case, insurance of the vehicle was cashless. The complainant had taken damaged vehicle to the authorized service center of the insurance company and repairing estimate was more than IDV. The appellant has also cited another decision of the Hon’ble National Commission in the case of Jaimata Spinners Ltdd. Vs. New India Assurance Co. Ltd.; III (2015) CPJ 35 (NC). In the said case, the Hon’ble National Commission has held that “appointment and report of second surveyor are non est. No reason to discard report of first surveyor.” This citation is also not applicable in the instant case. In the case, the second surveyor was appointed by the respondent No. 1-complainant, not by the insurance company.
13. When respondent No. 1 took his accidented vehicle to the service center of the insurance company, the insurance company appointed the surveyor Sh. Preetesh Joshi, who inspected the vehicle and assessed loss of Rs. 94,302.96ps. Respondent No. 1 was not satisfied by the report of appellant’s surveyor, because repairer estimate was more than survey estimate, so respondent No. 1 appointed second surveyor on his own cost. As the respondent No. 1 could furnished his independent proof in support of his claim that he had incurred higher amount towards replacement of damaged parts and repairing charges. An appointment of second surveyor-Respondent No. 2, a surveyor and loss assessor, is provided under Section 64 UM(2) of the Insurance Act, 1938. In support of his contention, learned counsel for the respondent No. 1 cited a decision of the Hon’ble Supreme Court in the case of New India Assurance Company Limited vs. Pradeep Kumar; (2009) 7 Supreme Court Cases 787. In the said case, the Hon’ble Supreme Court has held that “although assessment of loss by approved surveyor is a prerequisite for payment or settlement of claim of twenty thousand rupees or more by insurer, yet 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. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured, but such report is neither binding upon the insurer nor insured.”
14. After perusal of all the evidence and submissions raised by learned counsel for the appellant and respondent No. 1, we are of the view that the insurance of the vehicle was cashless and the insured-respondent No. 1 was only responsible to take the accidented vehicle to the authorized service center of the appellant-insurance company. It was the duty of the appellant-insurance company and its authorized service center to conduct survey of the vehicle and repaired the vehicle. So in these circumstances, if the vehicle was repairable, there was no need of respondent No. 1-complainant’s consent. Authorized workshop should repaired the said vehicle and should be handover the same to the complainant-respondent No. 1. But the repair estimate was more than vehicle’s IDV, so the vehicle in question was not repaired.
15. The said vehicle met an accident on 26.02.2010. The appellant-insurance company has not fulfill the respondent No.1-complainant’s claim. Therefore, this the deficiency in service on the part of the appellant-insurance company.
16. While concluding our findings, we find that the order passed by the District Forum is little bit on higher side. Therefore, the order in respect of mental agony is liable to be reduced from Rs. 50,000/ to Rs. 10,000/- and the cost of litigation is also to be reduced from Rs. 10,000/- to Rs. 5, 000/-. To this extent, the impugned judgment and order dated 29.08.2012 is liable to be modified. Consequently, the appeal succeeds partly and is to be allowed accordingly.
17. Accordingly, the appeal is partly allowed. The impugned judgment and order dated 29.08.2012 passed by the District Forum, Dehradun is modified to the extent that the appellant-insurance company is directed to pay to the respondent No. 1-complainant a sum of Rs. 1,94,000/- against insured amount, Rs. 10,000/- for mental agony and Rs. 5,000/- towards litigation expenses. Cost of the appeal is made easy.
(MRS. VEENA SHARMA) (JUSTICE B.S. VERMA)
