STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Reliance General Insurance Co. Ltd., through its Manager, Regional Office, SCO  No.135-137, Sector 9C,Chandigarh.

…….Appellant

Versus

Gurpinder Singh Grewal, s/o Sh.K.S.Grewal, r/o H.No.1417, Sector 68, SAS Nagar, Mohali (earlier resident of V&PO Killa Raipur, District Ludhiana.

……Respondent.

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

BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by: Sh.Rajneesh Malhotra, Advocate for the appellant.

               Sh.Parminder Singh, Advocate for the respondent.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.           This appeal is directed against the order dated 28.03.2011, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint, and directed the Opposite Party, as under:-

“In view of the foregoing finds, this complaint merits success and the same is allowed with a direction to OP to pay to the complainant a sum of Rs.2,03,784/- being the expenses incurred on the repair of the truck. OP is also directed to pay a sum of Rs.15,000/- to the complainant as compensation for mental agony and harassment besides Rs.5000/- as costs of litigation.

This order be complied with by the OP within 30 days from the date of receipt of its certified copy, failing which OP shall be liable to pay the entire amount to the complainant along with penal interest @18% p.a. from the date of filing of the complaint i.e. 29.11.2010 till its realization besides costs of litigation”.

2.                     The facts, in brief, are that Ashoka Leyland truck, bearing registration number PB-10-C-6904, belonging to the complainant (now respondent) was insured with the Opposite Party (now appellant), for the period from 18.09.2009 to 17.09.2010. The said truck, turned turtle on 13.01.2010, and suffered damage. The matter was reported to the Opposite Party, which deputed Sh.Chander Shekhar, Surveyor and Loss Assessor. The complainant got his vehicle repaired, after spending Rs.2,03,784/-, on the advice of the Surveyor, and Loss Assessor, aforesaid. Thereafter, the complainant submitted the claim, alongwith all the relevant documents, with the Opposite Party, but the same was repudiated by it (Opposite Party), on the ground, that the cause of loss was out of the scope of coverage, provided under the Insurance Policy. It was stated that repudiation of the claim of the complainant, on the part of the Opposite Party, was illegal and invalid. It was further stated that, the aforesaid act of the Opposite Party, amounted to deficiency, in rendering service. 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.

3.                     The Opposite Party was duly served, but neither it, nor any Authorized Representative, on its behalf, put in appearance. Accordingly, it was proceeded against exparte.

4.                     The complainant, led evidence, in support of his case.

5.                     After hearing the Counsel for the complainant, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

6.                     Feeling aggrieved, the instant appeal, has been filed by the Appellant/Opposite Party.

7.                     Since, the Opposite Party/Appellant, was exparte in the District Forum, it moved an application for admitting into additional evidence A1, copy of the Insurance Policy, alongwith the terms and conditions thereof, A2, copy of the report of the Surveyor, A3, copy of the letter of repudiation of claim, and A3A, copy of the consent letter dated 25.03.2010, duly signed by the complainant, duly supported by an affidavit of Krishna Kant, Deputy Manager (Legal). The application was allowed vide order dated 16.11.2011. Thus, the documents aforesaid, were admitted into additional evidence.

8.                     In rebuttal, the complainant/respondent submitted his affidavit, by way of evidence.

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

10.                  The Counsel for the appellant submitted that, no doubt, the vehicle, in question, was insured with the Opposite Party, for a sum of Rs.11 lacs, and the policy was valid from 18.09.2009 to 17.09.2010. He further submitted that  the damage was caused to the vehicle, when it turned turtle. It was further stated that the vehicle was neither parked at the time of the accident, nor the damage was caused to the same, due to  natural calamity. He further submitted that the vehicle was working, as a tool, for the construction of road, at the relevant time and, thus, it got overturned and got damaged. He further submitted that such a damage to the vehicle, was not covered under the terms and conditions of  the policy, and, as such, the claim of the complainant was legally and validly repudiated. He further submitted that though the Opposite Party was proceeded against exparte, in the District Forum, yet, even if, this Commission, comes to the conclusion, that repudiation was illegal and invalid, the District Forum, was wrong in granting, the amount of indemnification, more than what was assessed by the investigator/loss assessor. He further submitted that even the complainant, submitted his consent letter dated 25.03.2010 Annexure A3A, to the effect, that he was ready to receive a sum of Rs.1,20,000/-, in full and final settlement of the claim, in pursuance of the assessment, made by the investigator/loss assessor. He further submitted that the District Forum, thus, fell into a grave error, in directing the Opposite Party, to pay a sum of Rs.2,03,784/-, to the complainant. He further submitted that the order of the District Forum, being illegal and invalid,  is liable to be set aside.

11.                  The Counsel for the respondent/complainant, on the other hand, submitted that it was, on account of the accident, that damage, was caused to the vehicle. He further submitted that, such a damage, to the vehicle, on account of the accident, fell within  the purview of the terms and conditions of the insurance policy, copy whereof is Annexure A-1. He further submitted that the Opposite Party, was wrong, in repudiating the claim of the complainant, in toto. He further submitted that the report of the investigator/loss assessor, only granting a sum of Rs.1,20,000/-, was not based on any tangible data and material and, therefore, it was not taken into consideration by the District Forum. He further submitted that, even the consent letter Annexure A3A, was not signed by the complainant, voluntarily. He further submitted that this document, was signed by the complainant, on the asking of the investigator/loss assessor, who misrepresented the facts, to him. He further submitted that the order of the District Forum, being legal, is liable to be upheld.

12.                        After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties,  and the evidence, on record, we are of the considered opinion, that the appeal is liable to be partly accepted, for the reasons to be recorded, hereinafter. Undisputedly, the complainant, got insured his vehicle i.e. Ashoka Leyland truck bearing registration number PB-10-C-6904,  with the Opposite Party for the period from 18.09.2009 to 17.09.2010. This truck, turned turtle on 13.01.2010, and damage was caused to the same. The question, that arises for consideration, is, as to whether, such a damage, fell within the purview of the terms and conditions of the policy, or not. Section 1 of the policy A1, relating to the loss or  damage to the vehicle insured, reads as under:-

“Section 1-Loss of or damage to the vehicle insured

1.       The company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon:

i.        by fire explosion self ignition or lightning;

ii        by burglary housebreaking or theft;

iii       by riot and strike;

iv       by earthquake(fire and shock damage);

v.            by flood, typhoon ,hurricane, storm, tempest, inundatior, cyclone, hailstorm, frost;

vi.          by accidental external means;

vii.         by malicious act;

viii.       by terrorist activity;

ix.          whilst in transit by road rail inland waterway lift elevator or air;

x.            by landslide rockslide”.

13.                  According to Section 1, aforesaid of the policy, it was obligatory on the Company, to indemnify the insured, in case, damage was caused to the vehicle insured, by accidental external means. In the instant case, the vehicle, according to the complainant, turned turtle. No doubt, according to the Counsel for the appellant/Opposite Party, the vehicle was being used, as a tool, for construction, when it turned turtle and, thus, the damage did not fall within the purview of clause (vi) of Section 1 of the policy Annexure A-1. No tangible evidence, was produced by the Opposite Party, in this regard. Since the vehicle could not be controlled and it turned turtle, when it was in operation, on the bumpy road, as per the report of the Surveyor and the  damage was caused to the same, it could very well be said, that the same (damage) was accidental by external means. Even otherwise, if two views are possible, on the interpretation of the terms and conditions of the policy, then the one, which is favourbale to the consumer, shall be taken into consideration. In this view of the matter, the submission of the Counsel for the appellant/Opposite Party, to the effect, that the damage caused to the vehicle, did not fall within the purview of the terms and conditions of the policy, being devoid of merit, must fail and the same stands rejected.

14.                  The next question, that arises, for consideration, is, as to what amount of indemnification, the complainant was entitled to. In this case, Mr.Chander Shekhar, Investigator/Loss Assessor, was appointed, to assess the loss. He gave his final survey report Annexure A-2(colly.) dated 26.03.2010. After taking into consideration the facts and circumstances of the case and the material and data available with him, he, ultimately, came to the conclusion that the net loss, which was caused to the vehicle, was to the tune of Rs.1,20,000/-. This report of the Investigator/Loss Assessor, aforesaid, could not be successfully challenged, by the complainant, by producing any tangible evidence. Not only this, there is a consent letter Annexure A3A, which was signed by the complainant, wherein, he stated that the loss to the vehicle be assessed at Rs.1,20,000/-, only, including  towing charges. It is further evident, from this document, that this consent letter, was signed by the complainant, after having due discussion with the surveyor, to his entire satisfaction, in his full awareness/attention and under no indirect or direct pressure. No doubt, even after this consent letter, the claim of the complainant was repudiated. The report of the Surveyor/Loss assessor, is an important and significant document, reliance, whereupon is required to be placed. In Pradeep Kumar Sharma Versus National Insurance Company III (2008) CPJ 158 (NC), the surveyor assessed the loss to the tune of Rs.4,40,000/-, after deducting salvage value of Rs.1,65,000/- and settlement of claim at Rs.2,74,500/-, was recommended, after catering Rs.500/- for excess charges. The claim was allowed by the State Consumer Disputes Redressal Commission, on the basis of Surveyor’s report and the same was upheld by the National Consumer Disputes Redressal Commission, New Delhi, holding that the Surveyor’s report, being an important document, could not be wished aside, without any compelling evidence to the contrary. In Suryachem Industries Vs. Oriental Insurance Co. Ltd, I (2007) CPJ 278 (NC), it was held, that the report of the surveyor, could only be successfully challenged, by producing tangible, evidence, by the complainant. Annexure C-2, is an estimate of repairs, in  the sum of Rs.1,83,700/-, and C-6 is a copy of the invoice dated 04.03.2010, produced by the complainant. These documents were not supported by the affidavits of the persons, who issued the same. No reliance, on such documents, therefore, could be placed by the District Forum. The complainant, in our considered opinion, was, thus, only entitled to a sum of Rs.1,20,000/-, the amount assessed by the Surveyor/Loss assessor, on account of  loss to the vehicle, in question. The District Forum, was, thus, wrong in awarding the amount of Rs.2,03,784/-, being the expenses, allegedly incurred on the repair of the truck on the basis of unauthentic documents produced by the complainant. The findings of the District Forum, to this extent, are liable to be modified.

15.                  The Counsel for the respondent/complainant, submitted that Annexure A-2 (colly.), report of the Surveyor, could not be taken into consideration, as the same was not supported by an affidavit. He further submitted  that A3A, consent letter was procured from the complainant, as his signatures were obtained on blank papers, on the pretext that some documents/papers, were required to be signed for the clearance of claim. The submission of the Counsel for the respondent/complainant, in this regard, does not appear to be correct. The consent letter is dated 25.03.2010, which was signed by the complainant, as admitted by him. No tangible evidence, was produced by the complainant, that his signatures were obtained on the same, when it was blank. Once, any person signs some document(s), the only presumption which could be drawn, is that he signed the same, after fully understanding the contents thereof.After having signed the consent letter towards full and settlement of the claim, in the sum of Rs.1,20,000/-, now it does not lie, in the mouth of the complainant, to say, that such a document was blank, when it was got signed from him by the Surveyor/Loss assessor, by misrepresenting the facts to him. Since the consent letter, is not proved to have been obtained from the complainant, under pressure, duress or by holding out some promise to him, it cannot be discarded. It is therefore, held, that consent letter was validly executed, by the complainant, on his own accord. The report of the Surveyor was also supported by the affidavit of Krishna Kant, Deputy Manager (Legal) of the Opposite Party.  The submission of the Counsel for the respondent/complainant, therefore, being devoid of merit, must fail and the same stands rejected.

16.                  The District Forum, granted penal interest @18% per annum, from the date of filing the complaint, which is not fair and reasonable. The District Forum was required to grant the penal interest, at a fair and reasonable rate. Even, on the fixed deposits, now a days, the interest ranges between 8% per annum to 10% per annum. Had the penal interest, at a rate somewhat higher than that been granted by the District Forum, the same would have been said to be fair and reasonable. Therefore, we are of the considered opinion, that the penal interest @12% p.a., if awarded, shall not only be fair and reasonable, but also meet the ends of justice.

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

18.                  For the reasons recorded above, the appeal is partly accepted, with no order as to costs, with the modification, in the following manner:-

                                         i.    The appellant/Opposite Party, is directed to pay Rs.1,20,000/-, by way of indemnification, on account of damage, caused to the vehicle, in question, instead of Rs.2,03,784/-, awarded by the District Forum.

                                       ii.    The appellant/Opposite Party, shall pay penal interest @12% p.a., instead of 18% p.a., as awarded by the District Forum.

                                      iii.    The other relief’s, granted and the directions given, by the District Forum, shall remain unaltered.

19.              Certified Copies of this order be sent to the parties, free of charge.

20.              The file be consigned to record room.

Pronounced.

January 13, 2012.                                                                                            

                                                                                                                                                                                     Sd/-

 [JUSTICE SHAM SUNDER]

          PRESIDENT

          Sd/-

[NEENA SANDHU]

                                                                             MEMBER

Sd/-

 [JAGROOP SINGH MAHAL]

MEMBER

Rg.