DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 139/2013
Date of Institution : 09.05.2013/09.03.2015
Date of Decision : 13.07.2015
Karamjit Singh, aged about 35 years son of Sh. Guljara Singh, r/o Takhtu Patti, Village Dhaula, Tehsil and District Barnala.
…Complainant
Versus
HDFC ERGO General Insurance Company Limited, First Floor, SCO-11, Chotti Baradari, Patiala, District Patiala through its Branch Manager.
…Opposite Party
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Karan Avtar Kapil counsel for the complainant
Sh. Anuj Mohan counsel for the opposite party
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant namely Karamjit Singh has filed the present complaint under Consumer Protection Act, 1986 (in short the Act) against HDFC ERGO General Insurance Company Limited (in short the opposite party).
2. The facts of the case are that the complainant has purchased a heavy goods vehicle AMW Tipper Model-2518 HL, Engine No. 01K62939069 Chassis No. MBYB43900AKA12580 bearing registration No. PB-19-F-9043 from H.R. Vehicle Pvt. Ltd., Chotti Baradari, Patiala vide invoice dated 5.7.2011 and the said vehicle has been financed by HDFC Bank. The delivery of the vehicle was given at Barnala. The complainant applied for the registration of the said vehicle at Barnala. The complainant has purchased the said vehicle for earning his livelihood by way of self employment.
3. It is further averred that the said vehicle was got insured from the opposite party vide policy dated 6.7.2012 for a period from 6.7.2012 to 5.7.2013. The required premium has been duly paid by the complainant.
4. The complainant alleged that on or about 6.2.2013 at village Dhaula an accident was happened to the said vehicle without any negligence on the part of the driver. Due to such accident the said vehicle was damaged badly. Report of the same was immediately give to the opposite party. The opposite party sent its surveyor at the spot and he took the photographs of vehicle and had also conducted the necessary inquiry and also taken the required documents from the complainant. The surveyor also took the signatures of the complainant on some blank forms and applied the claim on behalf of the complainant. It is further pleaded that as suggested by the opposite party and its surveyor the said vehicle was sent to Raj Agro Aids, Khanna for its repair where the required repair was done. The opposite party has also promised to pay all the expenditure and further promised to pay the claim on the basis of the bills. It is further pleaded that the complainant paid Rs. 3,03,087/- in cash to the said Raj Agro Aids vide bill/invoice No. 755 of Rs. 2,26,682/- and vide invoice No. 756 of Rs. 76,405/-. The copies of the said bills were sent to the opposite party. However the opposite party issued a cheque No. 318636 dated 28.2.2013 only of Rs. 1,30,000/- to the complainant. The said cheque was received by the complainant on or about 18.3.2013 at his village Dhaula and the said cheque was accepted by the complainant under protest and it was not encashed by the complainant till now.
5. The complainant further pleaded that he moved an application dated 22.3.2013 to pay the claim of Rs. 3,03,087/- on the basis of the bills to the opposite party. However, the opposite party has not replied to the said application. Thus, the opposite party is guilty of deficiency in service. Hence the present complaint is filed seeking the following reliefs.-
1) To give the claim of Rs. 3,03,087/- alongwith interest @ 18% per annum.
2) To pay compensation of Rs. 1,00,000/- due to physical harassment and further to pay Rs. 20,000/- for engaging the counsel and litigation costs.
6. Upon notice, the opposite party filed written statement taking preliminary objections on the grounds of concealment of material facts, there is no deficiency in service and complaint is frivolous and vague.
7. On merits, it is submitted that the vehicle in question was insured with the opposite party for the period 6.7.2012 to 5.7.2013 vide policy No. 2315200097970801002 subject to terms and conditions. As per policy the vehicle chassis was insured for an amount of Rs. 17,86,000/- for which the complainant paid the premium. No premium for the vehicle body, trailer, non electrical accessories, electrical accessories, CNG/LPG Kit has been paid. He further submitted that after getting the information regarding the alleged loss caused to the vehicle of the complainant, the claim No. C230012099673 was allotted and opposite party appointed Bansal and Company, Surveyor and Loss Assessor for assessing the loss. The said surveyor visited M/s Raj Agro Khanna and the cause of loss as narrated by the complainant is as under.-
“On 6.2.2013 my driver Jaspal Singh after carrying lime stone from Trident Factory he was going to unload at my field. When he opened the jack to unload the material, suddenly the rakab of the vehicle got broken and the loaded body feel to its conductor side, due to which is got damaged badly.”
8. It is further submitted that the said surveyor inspected the vehicle and assessed the loss to the tune of Rs. 1,30,000/-. The claim of HYVA Hydraulic Cylinder and jack pin was denied by the surveyor as the same is not covered under the policy because the policy in question was a commercial motor policy and the loss caused to the piston and jack are not payable. The surveyor submitted his report dated 26.2.2013 with the opposite party and after getting the report the opposite party immediately sent the cheque of Rs. 1,30,000/- on 28.2.2013. However, the opposite party denied that the complainant has spent Rs. 3,03,087/- on the repair of the vehicle. They have also denied that the signatures of the complainant were obtained on the blank forms. They also denied that the vehicle was sent to the workshop of Raj Agro as suggested by the surveyor. They further submitted that the claim was rightly assessed by the surveyor as per terms and conditions of the policy and the complainant is not entitled to any amount except Rs. 1,30,000/-. The opposite party has denied all the other allegations of the complainant and finally prayed for the dismissal of present complaint.
9. In order to prove his case, the complainant has tendered into evidence copy of detail invoice Ex.C-1, copy of registration certificate Ex.C-2, copy of permit Ex.C-3, copy of insurance policy Ex.C-4, copy of bill No. 755 Ex.C-5, copy of bill No. 756 Ex.C-6, copy of cheque Ex.C-7, copy of application dated 22.3.2013 Ex.C-8, copy of postal receipt Ex.C-9, affidavit of complainant Ex.C-10, copy of authority letter Ex.C-11, copy of invoice Ex.C-12 and Ex.C-13, affidavit of Lakhbir Singh Ex.C-14 and closed his evidence.
10. To rebut the evidence of the complainant the opposite party has tendered affidavit of Pankaj Kumar Ex.OP-1, copy of claim form Ex.OP-2, copy of survey report dated 26.2.2013 Ex.OP-3, copy of policy schedule Ex.OP-4, copy of terms and conditions Ex.OP-5 and closed the evidence.
11. We have heard the learned counsel for the parties and have gone through the record on the file carefully.
12. There is no dispute that the vehicle in question of the complainant was insured with the opposite party vide policy No. 2315200097970801002 for the period 6.7.2012 to 5.7.2013 for an amount of Rs. 17,86,000/- and for that the complainant paid the premium. There is also no contest that the vehicle of the complainant met with an accident and the vehicle was damaged. It is also not disputed that after getting the information regarding the alleged loss caused to the vehicle of the complainant, the opposite party appointed M/s Bansal and Company Licensed Surveyor and Loss Assessor for assessing the loss. The said surveyor visited M/s Raj Agro Aids, Khanna and inspected the vehicle and assessed the loss to the tune of Rs. 1,30,000/- against the estimate of Rs. 3,03,087/- as demanded by the complainant.
13. Now the question arises whether the complainant is entitled to the estimate of Rs. 3,03,087/- based upon the invoice No. 755 Ex.C-5 and invoice No. 756 Ex.C-6 of Raj Agro Aid, Khanna which had taken the repairs of the vehicle in question.
14. It is the case of the complainant that the repairs were undertaken by the said firm namely Raj Agro Aids, Khanna, as suggested by the insurance company. Except this bald statement no document or evidence has been led by the complainant, to prove that the repairs were done from the said Raj Agro Aids, Khanna at the behest of the opposite party. On the other hand, the opposite party has specifically denied in para 5 of the written version. Thus in the absence of any cogent evidence on record it cannot be held that the repairs were got done from the Raj Agro Aids, Khanna on asking by the opposite party or the said licensed surveyor. Even otherwise, the said Raj Agro Aids, Khanna is not the authorized service centre of the opposite party and in this context no evidence is led by the complainant. Now the next question arises whether the report of the surveyor Ex.OP-3 is based upon the fair assessment of the damage caused to the vehicle in question. The report runs into three pages clearly mentioning the cause and nature of the accident, re-inspection and assessment. It is specifically mentioned that they inspected the vehicle after repairing and found that the parts allowed in the survey report have been replaced and labour work is also done accordingly.
15. The summary of assessment as mentioned in the surveyor report as reproduced as under.-
1) Total cost of parts (Before depreciation) : 1,18,100-00
2) Total Labour : 65,168-00
Grand Total : 1,83,269-00
Less depreciation (On plastic parts + Metal parts) (-) 11,810-00
Less Excess Clause (-) 1,500-00
Less Salvage (-) 39,959-00
Net Loss Payable 1,30,000-00
16. Perusal of the report shows that the surveyor has taken into consideration the estimate made by the Raj Agro Aids, Khanna and have also taken into consideration the various factors like depreciation and salvage. Moreover, the complainant has not filed any objection to the said report of the surveyor. The complainant has not produced any report of any other surveyor contradicting the report of the surveyor in question. Therefore, the report of the surveyor is un-rebutted.
17. In this context, reference can be made to the judgment of the Hon'ble Supreme Court reported as Sri Venkateshwara Syndicate Verus Oriental Insurance Company Limited II (2010) CPJ-1 (SC) in which it was held by the Hon'ble Apex Court that the report of the investigator/surveyor is to be given due importance and weight. Keeping in view the supra rulings of Hon'ble Supreme Court, we cannot brush aside the report prepared by the Investigator without any valid reasons.
18. Therefore, in our view the amount which was assessed as Rs. 1,30,000/- is the fair assessment for the damaged vehicle.
19. During arguments it is submitted by the learned counsel for the insurance company that the cheque of Rs. 1,30,000/- was sent to the complainant immediately after receiving the report of the surveyor but the learned counsel for the complainant contended that the cheque was no doubt received by the same was not encashed and it was received under protest. The learned counsel for the insurance company further submitted that they are ready to issue the fresh cheque of Rs. 1,30,000/-.
20. As a result of above discussion the complaint of the complainant is accepted and opposite party is directed to make payment of Rs. 1,30,000/- to the complainant alongwith interest at the rate of 9% per annum from the date of accident i.e. 06.02.2013 till realization. Further, the opposite party is also directed to pay Rs. 2,100/- to the complainant as litigation expenses. This order shall be complied with within 30 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
13th Day of July, 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
