(Passed this on 10^th March,  2017)

Shri. S.P. Muley, President –

1.      The complaint is for not settling insurance claim in respect of damaged vehicle by the Opposite Parties.

2.      The Opposite Parties 1 and 2 are local and Main offices of HDFC ERGO GIC Ltd. the complainant had insured his new vehicle bearing No. MH-40-Y-389 for IDV Rs. 11,52,000/- with the OP. The policy period was from 22/5/2012 to 21/5/2013. During subsistence of the policy, the vehicle met with an accident in the wee hours of 6/11/2012. the matter was reported to the O.P. immediately. The O.P. deputed a surveyor, who inspected the vehicle and asked him to tow it to an authorised service station for repairs. Accordingly it was towed to work shop of Eicher, which had tie-up with the O.P. under cashless repairs. An estimate of Rs.10,21,660/- was given, which was submitted with documents to  O.P. 1 and asked it to depute a surveyor for final survey for assessment of loss and for repairs on cashless basis. It was a case of total loss of the vehicle. He was assured cashless repairs. But thereafter the service center asked the O.P.1 to make part payment but no amount was paid. The O.P. asked the complainant to pay the amount, who refused to pay. The O.P. offered only Rs.2,50,000/- against estimated cost Rs.10 lakh. Despite several requests his claim was not settled, which amounts to deficiency in service. He is entitled to IDV and garage charges Rs. 250/- par day with 12% interest. He has claimed this amount along with compensation and cost.

3.      The OPs filed reply at Ex.7 and stated that the O.P.1 issued policy for the vehicle classified under the category of Goods Carrying Vehicle. It is denied that the vehcle met with an accident and it was of total loss. It is denied that the claim was made with all necessary documents. A surveyor was deputed for survey, but there was no cooperation from the complainant and no documents were provided to the surveyor. The surveyor assessed the loss to the extent of Rs.3,50,775.50/- from which an amount of Rs. 19,275.50/- was required to be deducted towards salvage. The complainant wants reimbursement of those parts which were not damaged and which were not covered under the policy. He wants to settle the claim on total loss basis, when the vehicle was repairable. The surveyor has assessed the loss considering actual damage, salvage value and compulsory excess and so its liability is restricted for the amount assessed by its surveyor. Hence, it is urged to dismiss the complaint.

4.      Heard both the Learned counsels. Perused documents, affidavit and notes of argument. On consideration of the same we record our findings and reasons as under.

FINDINGS  AND  REASONS

5.      In view of the W.S. of the O.P., the only dispute is what amount the complainant is entitled to get for the damage of his vehicle. Counsel for the complainant has placed on record estimate of repairs, which is Rs. 10,21,660/-. Since the IDV of the vehicle was Rs.11,52,000/-, it is said to be total loss. On the other hand, the O.P. got the loss assessed through its surveyor, who assessed it at Rs.3,50,775.50/-. Besides, it is argued that there is no FIR or police panchnama, therefore the O.P. denied damage could be termed as  total loss.

6.      It is a fact that no FIR was lodged ans so no panchnama was made. Counsel for the complainant submitted as there was no third party injury in the accident and it was own damage, no FIR was given. The complainant has categorically stated that the service station had given estimated cost of repairs at more than Rs.10 lakh. To this averment, there is no specific denial from the O.P. The offer made by the O.P. for reimbursement was Rs.2.50 lakh only as against Rs.10 lakh estimate. Counsel for the complainant argued that the surveyor did not explain why he did not consider the estimate and on what basis he reduced the cost of the parts/components. Even in the reply to the complaint, no such disclosure is made by the O.P. counsel for the complainant relied on some judgments, which in our opinion are applicable to the facts of the case.

7.      National Commission in National Ins. Co v/s Rama Nanda REvision Pet. No. 1649/ 2015 decided on 23/2/2016 under similar facts and circumstances observed that when an estimate is given by the insured to the einsurer/surveyor, the surveyor, if he does not agree with the such estimate, should either obtain an estimate/quotation from the market or he should rely upon the cost of the parts and repairs fixed by the manufacturer of the vehicle. Alternatively, the surveyor can make local inquiry to ascertain the cost of various components of the vehicle which need replacement. Unless such an exercise is undertaken, there will always be a case for terming the report of the surveyor to be wholly arbitrary and irrational.

          Few more judgments are also relevant.

1. Dharmendra Goel v/s Oriental Ins. Co. (2008) 8 SCC 279
2. The New India Assurance Co. v/s Devrajbhai Bhojani RevPet No. 1571/2012 (NC) decided on 12/7/2012
3. National Ins Co. v/s Katragadda Sankara Lingaiah Rev Pet No. 4291/2012 (NC) decided on 11/3/2013
4. United India Ins Co. v/s Manjit Kaur Rev Pet No. 2382/2015 (NC) decided on 4/12/2015
5. Vijay Singh Tomar v/s National Ins Co. Rev Pet No. 4270/ 2012 (NC) decided on 7/8/2013
6. Jagadri Yamuna Nagar, Haryana v/s Bajaj Allianz Gen Ins Co Rev Pet No. 3916/2011 (NC) decided on 31/1/2012

8.      In all the above judgments the question involved is about quantum of payment of compensation in view of discrepancy in the assessment of the surveyor and estimate given by the complainant. What has been held in the above judgments can be applied in this case. Here the surveyor in his affidavit has not mentioned a word why estimated cost is not considered. It apperas without considering the estimate, he made assessment to suit the interest of the O.P. the valuation done by the surveyor is very low. If the O.P. did not agree with the estimate given by the complainant, it could have repaired the vehicle at its own cost. From the surveyorś affidavit it appears that he has filed the affidavit in casual manner. Because he has mentioned in it that he had asked the complainant to provide various documents like driving license, load challan, bills of repair and receipts, route permit, etc. But in his survey report dated 26/11/2012 all particulars of driving license, challan, etc are mentioned. That means he had knowledge of all the particulars which were asked for. He filed his affidavit on 3/5/2016 alleging non supply of documents, which were mentioned in survey report much before. This shows how casually he filed the affidavit to suit the interest of the O.P. hence, we do not attach much weight to his affidavit. Since there is nothing contrary to discard the estimated cost, which amounts to total loss, the O.P. is liable to pay IDV of the vehicle after deducting salvage value.

9.      Another fact argued is that as per the letter dated 26/3/2013 by the O.P., the complainant was asked to provide re inspection photo and repair bill or give consent letter for cash loss settlement. Counsel for the O.P. submitted the complainant did not comply this letter and therefore the claim could not be settled. Counsel for the O.P. submitted since the vehicle is not repaired there is no question of submitting repair bill and re inspection photo. We agree with this submission of the complainant.

10.    The overall facts and circumstances on record make it amply clear that it is a case of total loss, where the damage to the vehicle is much more than 75%. The vehicle was purchased new brand on 23/5/2012 and met with an accident on 5/11/2012 i.e. 6 months later. Some depreciation in the value of the vehicle must be made and accordingly value of the vehicle should be reduced by Rs.10,000/-.

          Hence, without deliberating further, we allow the complaint and pass the following order.

ORDER

1. The complaint is allowed.
2. The OPs, HDFC Ergo GIC Ltd shall pay a sum of Rs. 11,42,000/- being IDV of the vehicle to the complainant within 30 days, otherwise it shall bear 7% p.a. interest from the date of the complaint.
3. The O.P. shall also pay compensation of Rs. 10,000/- for mental and physical agony and Rs.3000/- litigation cost to the complainant.
4. The order shall be complied within 30 days from receipt of copy of the order
5. copy of the order shall be given to both the parties, free of cost.