BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.98 of 2018
Date of Instt. 12.03.2018
Date of Decision: 18.03.2020
Amrit Pal Singh son of S. Sukhwinder Singh R/o 64, Beant Nagar, PO PAP Lines, Jalandhar.
..........Complainants
Versus
1. HDFC ERGO General Insurance Company Limited Registered & Corporate Office. HDFC ERGO General Insurance Company Ltd. 1st Floor, HDFC House, Backbay Reclamation, H. T. Parekh Marg, Churchgate, Mumbai-400020, through its office Head.
2. HDFC ERGO General Insurance Company Limited, office Address: 3rd Floor, Eminent Mall, 261, Lajpat Nagar, Near Guru Nanak Mission Chowk, Jalandhar, Punjab 144001 through its office head.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Manuj Aggarwal, Adv. Counsel for the Complainant.
Sh. R. K. Sharma, Adv. Counsel for the OPs.
Order
Karnail Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the complainant is owner of truck bearing registration No.PB08-DG-6190 make Ashoka Leyland and complainant has also got insured the said vehicle from OP, vide Policy No.2315201457797500000 for a period of 29.07.2016 to 25.07.2017. The complainant complied all the conditions as per the terms and conditions of the policy in relates to the said vehicle.
2. That the vehicle of the complainant was met with an accident on 11.07.2017 at about 09:00 PM in District Tarantaran and regarding that intimation was given to the OP on 12.07.2017 and in which it was specifically mentioned by the complainant to the OPs that the said accident occurred due to “Stray Animal”. In the said intimation, it was also informed to the OPs that due to the said accident, no loss of life caused, only loss was caused to the vehicle. It was also informed to the OP that the vehicle in question was being driven by Driver Satnam Singh at the time of said accident. Thereafter, the OPs appointed a Surveyor to get assess the loss to the vehicle and complainant submitted total claim a sum of Rs.2,84,539.60/- to OP, as per actual expenses born by the complainant. The complainant alongwith claim amount sent the original bills to OPs, but its utter surprise to the complainant that OPs only released an amount of Rs.43,749/- and paid to complainant by transferring the same into account of the complainant directly. Even the OPs did not call to the complainant before releasing the amount and also not sent any reason/letter to the complainant qua declining of rest of the claim amount of the complainant. The claim application submitted by the complainant as per the policy, complainant is entitled to the full claim amount. The complainant has approached to the OPs numbers of the times to pay the full claim amount. Even many reminders to the OPs were given, but the OPs failed to pay the remaining amount and as such, there is a deficiency in service on the part of the OPs, which gave cause of action to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the remaining balance amount of Rs.2,40,790/- along with interest @ 18% per annum from the date of payment qua the claim of insurance reimbursement and further, OPs be directed to pay compensation of Rs.50,000/- for causing mental harassment to the complainant and further, OPs be directed to pay litigation expenses of Rs.11,000/-.
3. Notice of the complaint was given to the OPs, who duly served and appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the claim of the complainant has already been settled in as much as the answering OP had already paid a sum of Rs.43,749/- on account of repairs of the damaged vehicle of the complainant. It is further submitted that on receiving intimation about the accident of the insured vehicle, the answering OP appointed the approved surveyor namely Innovative Insurance Surveyors & Loss Assessors Pvt. Ltd. for spot inspection and the same was conducted and the surveyor submitted his report. That the spot surveyor in his observation found that “Cause of accident as verbally stated by the insured, does not co-relate with the incident/damage. As the Jack Assembly was opened and bent, it is impossible when the vehicle overturned during the unloading of material, otherwise, the Hydrolic Jack assembly in as it is condition folded/closed”. Thereafter, the OP again appointed approved surveyor namely Rahul Sethi, in order to assess the loss and damages sustained upon the insured vehicle, who submitted its final report and assessed the liability, during assessing the loss and damages, the surveyor took into consideration the observation made by the spot surveyor, and accordingly, assessed the repair liability and thereafter, considering the survey report the OP decided the claim of the complainant by paying the repair liability, as assessed by the surveyor of the insured vehicle and thereby a sum of Rs.43,749/-, on account of repair liability of the vehicle was paid to the insured. Thus, complainant is not entitled to any compensation or any other amount from the answering OPs and in view of the above circumstances, there is no question of any deficiency on the part of the OPs and therefore, the complaint is liable to be dismissed. It is further averred that the complainant has suppressed the material facts from the Forum, therefore the complainant is not entitled for the relief claimed and even no cause of action has ever accrued to the complainant to file the present complaint. On merits, it is admitted that the vehicle of the complainant was insured with the OP and the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Replication not filed.
5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-13 and closed the evidence.
6. Similarly, counsel for the OPs tendered into evidence affidavit of Shweta Pokhriyal Asst. Manager as Ex.OA and affidavit of Rahul Sethi, Surveyor as Ex.OB alongwith some documents Ex.O-1 to Ex.O-5 and then evidence of the OPs was closed by order on 02.07.2019.
7. We have heard the learned counsel for the respective parties and have also gone through the written arguments submitted by learned counsel for the complainant as well as case file very carefully.
8. In nutshell, the case of the complainant qua ownership of the truck bearing No.PB08-DG-6190 make Ashoka Leyland and it was got insured from the OP for the period 29.07.2016 to 25.07.2017 and the said truck was met with an accident on 11.07.2017 and regarding that accident, a major loss was caused to the said truck and then insurance claim was filed by the complainant to the tune of Rs.2,84,540/- and out of that total claim amount, the OP made reliance upon the Surveyor Report and paid the amount whatsoever assessed by the Surveyor i.e. Rs.43,749/- and upto this extent, there is no dispute between the parties.
9. Now, we have to see whether the lesser amount paid by the OPs by making base the surveyor report is acceptable in the law or not, for that purpose, the counsel for the OPs made reliance upon two judgments, cited in 2008 (3) CPJ 93, titled as “Champalal Verma Vs. Oriental Insurance Co. Ltd.”, wherein his Lordship held as under:-
“Consumer Protection Act, 1986 Section 21(b) Insurance Act, 1938 Sections 64UM(ii)2, 64UM(ii)3, 64UM(ii)4- Consumer complaint - Deficiency in service alleged on part of Insurance Company- Quantum dispute- The State Commission has already awarded Rs.12,829/- as assessed by the Surveyor- Claim of petitioner is for Rs.1,94,922.82ps, spent by him on repair of the truck- Consumer Fora cannot go into the question of quantum dispute as it will involve a detailed investigation, which cannot be dealt in the summary proceedings expected from the Consumer Protection Act – Petitioner shall be free to either approach the Civil Court or approach to IRDA under provision 64 UM of the Insurance Act, or invoke the condition of the policy relating to reference to arbitration in case of quantum dispute.”
and the second judgment referred by the learned counsel for the OP is cited in 2009 (3) CPJ 194, titled as “Nand Kishore Jaiswal Vs. National Insurance Co. Ltd.”, wherein his Lordship held as under:-
“Consumer Protection Act, 1986 Section 2(1) (g) Loss caused on account of burning vehicle – Assessment of loss by insurer – Loss assessed by Surveyor reduced, paid towards full and final settlement of claim – No valid reasons given for reducing Surveyor’s assessment- delay in part payment for 20 months after Surveyor’s report – Rule of law laid down by Apex court that Surveyor’s report valuable document, should be given due credence unless there are adequate reasons to discard it – Deficiency in service on part of insurer established – Insurer held liable to pay balance amount with interest – Revision petition dismissed.”
10. We have gone through the aforesaid judgments and in the first judgment (Supra) 2008 (3) CPJ 93, the Hon'ble National Commission has categorically hold that “Consumer Fora cannot go into the question of quantum dispute as it will involve a detailed investigation, which cannot be dealt in the summary proceedings expected from the Consumer Protection Act ”.
11. Admittedly, in the instant complaint, the dispute is obviously also involved a dispute qua quantum of the loss caused to the vehicle, because the complainant alleged the total loss caused to the vehicle as per receipts Ex.C-5 to Ex.C-9 is Rs.2,84,540/-, whereas the Surveyor of the OPs assessed the amount liable to be paid by the OPs to the complainant is only Rs.43,749/-. Now we have fully agreed that in view of the aforesaid judgment of the Hon'ble National Commission, Consumer Fora cannot go into the question of quantum dispute of the loss caused to the insured vehicle.
12. But here we like to discuss an other judgment of the Hon’ble Supreme Court, in Civil Appeal No.3253 of 2002, decided on 09.04.2009 by the Hon’ble Bench of D. K. Jain, R. M. Lodha, Hon’ble Justice, the title of the said judgment is “New India Assurance Company Limited Vs. Pradeep Kumar”. We have gone through the aforesaid judgment and find the similar dispute was arisen in the aforesaid judgment as the dispute of present case. In the aforesaid judgment, the Hon’ble Supreme Court categorically holds in Para No.15 of the judgment that “Surveyor’s report is not the last and final word. It is not the 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 the loss suffered by the insured, but surely such report is neither binding upon the insurer nor insured”. In the aforesaid citation, the complainant claimed the total loss caused to the vehicle as per original voucher and bills of Rs.1,58,409/-, but the surveyor assessed the amount of Rs.63,771/- and accordingly, the insurance company ready to pay the said amount as assessed by the insurer, but as per view taken in the aforesaid judgment, the report of the Surveyor is not a final and accordingly, directed the insurance company to pay the actual amount incurred for repair of the vehicle.
13. If we see the judgment referred by the counsel for the OPs (Supra) 2008 (3) C.P.J. 93, then we can say that the judgment of the Hon’ble Supreme Court will prevail upon and in view of the judgment of the Supreme Court, the complainant is entitled for the total loss amount as per vouchers/bills.
14. In support of above observation, we further like to refer an other judgment of Hon’ble State Commission Delhi, cited in 2016 (2) CLT 409, titled as “Suresh Chand Jain Vs. Universal Sampo General Insurance Co. Ltd & Others”. In the aforesaid judgment, the Hon’ble State Commission, Delhi has categorically held as under:-
“Consumer Protection Act,1986, Section 2(1) (g)- Insurance Claim- Surveyor report – Held – Report of the expert surveyor is not ultimate document to reach at a conclusion to allow or not to allow the claim –Courts had to apply their mind also.”
15. Further, we have gone through the judgment referred by learned counsel for the OPs, cited in 2009 (3) C.P.J. 194 and in the said judgment, Hon'ble National Commission has categorically held that “a due weightage should be given to the surveyor’s report unless there are adequate reasons to discard it”. In the instant complaint, the OP has not given any adequate reason for accepting the surveyors’ report, why the Surveyor assessed the amount less than the amount claimed by the complainant. Even the OP did not bother to send any intimation to the complainant why the amount is reduced from the claimed amount of Rs.2,84,540/-. So, accordingly, we find that this judgment of the Hon'ble National Commission is not helpful to the OP in any manner.
16. Ultimately, we reached to conclusion that in view of the judgment of the Hon’ble Apex Court as discussed by us in the relevant para and accordingly, we find that the complainant is not bound by the Surveyor’s report, being reason the surveyor did not bother to explain the reason why he is decreasing the actually claimed amount, rather he prepared the report on his own surmises and conjectures, which are not acceptable in the eyes of law. So, accordingly, we find that the complainant is entitled for the remaining insurance amount as well as compensation and litigation expenses.
17. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to pay the balance amount of Rs.2,40,790/- to the complainant with interest @ 12% per annum from the date of filing complaint i.e. 12.03.2018, till realization. Further, OPs are directed to pay compensation to the complainant for causing mental tension and harassment, to the tune of Rs.30,000/- and also directed to pay litigation expenses of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
18. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Karnail Singh
18.03.2020 Member President
