MR. PRABODHA KUMAR DASH, PRESIDENT:-             

                    This present C.C.Case No. 13/2021 arising out of non-settlement of insurance claimed by the insured due to accident of his vehicle during availed Policy inforce. The Complainant categorically alleged against the inaction of surveyor cum loss Assessor appointment by the Ops. Heard Ld. Counsel on behalf of Complainant Bijoy Kumar Sahoo with Associates and Ld. Counsel Md. Nayeem & Associates for Op, perused the materials filed by both the parties on record.

Brief Facts:-

                     Complainant purchased one TATA Tipper LPT 2518 BS-IV Reg. No. OD-29-F-8656 financed by Cholomandalam Insurance & Finance, Paradeep Branch. The vehicle was insured under insurer(OP) vide Policy No. 345893/31/2021/451 valid from03/07/2020 to 21/07/2021. Unfortunately the vehicle met an accident on 09.11.2020 when the driver loaded vehicle from Kodiga Mali to Kakirguma, reported to Police, to insurer. The Op sent surveyor, who visited the spot, vehicle and directed to Complainant to toed the vehicle to authorized service station L.N. Motors at Rayagada. The Op appointed another Surveyor who took 30 days to survey and assess the quantum of damage of said Tipper. The service center demanded Rs. 5,66,021/- for repairs(invoice Annexed) but the surveyor accessed at Rs. 3.94,000/-. The Complainant protested above arbitrary act of Op, the vehicle remain un repaired till today exposed to sun and rain at service station. The Complainant demanded appropriate repaired value which was denied by Op. Being aggrieved by such inaction of Op filed present C.C. Case to adjudicate the dispute along with mental agony and other consequential reliefs.

We are farming following issues to determine the dispute-

1. Whether the Complainant is an consumer ?
2. Whether non-settlement of appropriate damage under a contract of insurance Policy is deficiency in service?
3. What will be the legal view when  there is a dispute between actual damage caused  different amount assessed by a Surveyor appointed by the Insurance Company having availed licensee for access the loss?
4. Whether the Complainant entitled to any relief sought?
5. What will be the just & proper amount the Complainant entitled to?

Issue No.1

              The Complainant filed C.C.Case on dt. 12.03.2021, accident was happened in 09.11.2020 within the prescribed period of limitation as per C.P.Act, 2019. The Complainant filed present C.C.Case as a consumer because he paid premium as consideration for which the Op shall liable to indemnify in case of any future misfortune. The Ops did not provided appropriate service within prescribed time in the regulations. The Ld. Counsel for Op submitted that the Complainant have two vehicle therefore he is not a consumer, but the real facts is that one of his vehicle already sold by the financer to other and at present the Complainant has only one vehicle. It is not a straight Jaket formula that whoever has two vehicles is not a consumer. Today nobody can yean Rs.8 laks from two vehicle in a year. Central Govt. declared below Rs. 8 Lakhs income groups are economically backward, therefore the Op could not established all their questions to decide Complainant is a consumer or not?. The Op only to excape from its liability raised such issues not strictly following the contractual Policy of Insurance.

Issue No.2

              Non settlement of damage under a policy is a deficiency when it was inforce coming under Sec-2(11) of C.P.Act, 2019.

Issue No.3

              In the present dispute the insurer appointed two surveyor, one at the time of accident visited spot and another when the vehicle kept in service centre. The Op neither filed 1^st surveyor report not 2^nd surveyor report. The 1^st surveyor who visited spot might not be as per direction of the insurer therefore ignored such report and appointed 2^nd surveyor and compelled the insured to accept such less amount below the actual loss. In mullagie spintex Pvt. Ltd. Vs New India Assurance Co. Ltd. 2007(2)CPR 87(NCDRC), Honbl’e bench said that the surveyors of the Insurance Company can rain the insured underestimating the loss suffered due to contemplated peril and how Insurance Company can coerce the insured to accept it in full and final settlement . Both things are deficiency in service and unfair trade practice. The Practice of appointment of one after another should be restrained. We have gone through the written version of Op but no assessment submitted by either the 1^st surveyor or by the 2^nd surveyor which created doubt on the mind of this Commission.

                In Ramesh Agarwall vs Branch Manager, the Oriental Insurance Co. Ltd. 2007(2) CPR 204. The Complainant claimed Rs. 6,00,000/- but insurer ready to settle Rs. 3,64,000/- in which Honbl’e State Commission set-a –side DCDRC order and allowed full amount Rs. 6,00,000/-. Therefore the service Center proforama invoice accepted by this Commission where no details of surveyors report available in record.

Issue No.4

              Sum assured of vehicle above Rs. 40 Lakhs and the Op received premium Rs. 66.766/-. The Insurance Company cannot deny claim after accepting premium amount P132 CPR, 2014. The Complainant claimed Rs. 5,66,021/- with appropriate  invoice given by a authorized service station, and given appropriate document for  acceptance of the same. The Op did not submitted any report to contradict the evidence on record. Therefore where sufficient material available without any contradiction by Op. We can’t accept the contention of Op. The insured entitled to claimed amount in toto.

Issue No.5

              The Complainant entitled to damage suffered due to accident repair Rs. 5,66,021/- from date of accident with @9% interest and a amount Rs. 50,000/- for mental agony suffered from dt. 09.11.2020 till today without claimed amount unable to use the vehicle kept at service center till today with Rs. 5,000/- as litigation cost, which is just & proper.

                    All the averments made by Op are devoid of merit and not accepted to this Commission. The case referred by Op are so old that has been over ruled by various higher Courts and Tribunals. Finally in our considered view the issues gone in Complainant’s favour.

 O R D E R

                     It is directed that, the Op shall pay to the Complainant Rs. 5,66,021/- from date of accident(09.11.2020) with @9% interest with Rs. 50,000/- for mental agony and Rs. 5,000/- as litigation cost within a period of one month from the date of receipt of this order, failing which the Op shall liable to @12% interest till its realization so also liable to the legal consequences available under C.P.Act, 2019. On the above order C.C.Case No. 13/21 is allowed .

                      Issue extract of the order to the parties for compliance.           

                     Pronounced in the open Court, this the 1^st  day of March,2023.             

                              I, agree.

                                 Sd/-                                     Sd/-

                           MEMBER                             PRESIDENT