BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.

Complaint No.323/2017.

Date of instt.:06.12.2017. 

                                                                         Date of Decision: 02.04.2019.

Baruwali II Co-op Transport Society Ltd.VPO Baruwali Tehsil Dabwali District Sirsa through its authorized person Gurmail Singh.

                                                                            ……….Complainant.

                                                Versus

HDFC ERGO General Insurance Company Limited, through its Divisional Officer, Ludiana.

..……..Opposite Party.

COMPLAINT UNDER SECTION 12 OF CONSUMER PROTECTION  ACT, 1986.

Before:      SH.R.L.AHUJA…………………………PRESIDENT                              

                       SH.ISSAM SINGH SAGWAL …… MEMBER                                                

                   MRS.SUKHDEEP KAUR………MEMBER.

Present:      Shri R.D.Bishnoi, Adv. for the complainant.

                   Shri Rajesh Arora, Adv. for the OP.

ORDER

                   The complainant has filed this complaint with the averments that complainant society is running a bus No.HR-57-1513 which was insured with the OP vide policy No.VC00070063000100 w.e.f. 15.01.2010 to 14.01.2011. The bus of the complainant met with an accident on 16.01.2010. Due intimation was given to the OP. The official of the Op inspected the spot and asked the complainant to get the vehicle repaired and produced the bill of repair. The complainant has spent an amount of Rs.2 lacs on the repair of the said bus and also paid an amount of Rs.4200/- to Hari Om Crain Service. The claim of the complainant was not settled and paid, as a result thereof, complainant had filed a complaint against the OP, which was allowed on 28.07.2016 and the respondent was   directed to settle the claim in question within 2 months and, however, if any document is required, the complainant will supply the document to the OP. As per directions of this Forum, the complainant deposited all the required documents to the respondent vide registered post dated 06.09.2016.   Even thereafter, the OP did not call the complainant to settle the claim and now on 22.08.2017 the respondent has paid Rs.61054/- only to the complainant, which is much less than the claim/bill amount of Rs.204200/-. The complainant is entitled to recover the remaining amount of Rs.143146/- alongwith interest and an amount of Rs.20000/- as compensation for mental agony and pain alongwith Rs.3300/- as legal fee and Rs.1000/- as litigation expenses. Hence, this complaint.

2.                          In reply to the compliant, the OP has taken preliminary objection that this Forum has no jurisdiction to try the present complaint since the dispute is on the amount of loss, as such, the present complaint is not maintainable.  The respondent has already paid the claim amount of Rs.61054/- through cheque to the complainant as per report of the surveyor, which has been accepted by the complainant as full and final settlement. The respondent is bound by the surveyor report. The complainant cannot come out from the terms and conditions of the insurance contract and made prayer for the dismissal of the complaint.

3.                          Thereafter, both the parties have led their respective evidence.

4.                          We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.

5.                           As per contention of the complainant, the complainant lodged the claim with the OP for the loss of Rs.204200/- but out of which the OP has paid only Rs.61054/- on the basis of the report of surveyor in compliance of the directions issued by this Forum while deciding the complaint No.153/2011 on 28.07.2016.

6.                          During the course of arguments, learned counsel for the complainant has strongly contended that the report of the surveyor is apparently defective and is liable to be rejected.  On the other hand, learned counsel for the OP has strongly relied upon the report of the surveyor and has stated that the claim has been settled and paid to the complainant as per the report of surveyor, who assessed the loss of the vehicle of the complainant.

7.                          Admittedly, the complainant           was owner of the vehicle, which was insured with the OP on the date of accident and due intimation  was given to the OP qua the accident of the vehicle.  The complainant has lodged the claim with the Op, but however, the same was not settled on the grounds that the complainant has not submitted required documents to the Op. Resultantly, the complainant had filed a complaint bearing No.153/2011 and after hearing the learned counsel for the parties, this Forum had disposed of the complaint on 28.07.2016 with a direction to OP to settle the claim in question within two months from today. However, if any document is required from the complainant to settle the claim, OP can call for the same from the complainant through written letters and not verbally. The complainant was also directed to fulfill the requirement of the insurance company, if any, by submitting the relevant papers at the earliest against proper receipt in order to settle the claim within the stipulated period.

8.                          In compliance to the directions issued by this Forum on 28.07.2016, the complainant had submitted the required documents to the OP and thereafter, the Op after taking into consideration the documents as well as the report of the surveyor, which is Ex.R2 on the case file, claim of the complainant was settled to the tune of Rs.61054.35 which was paid to the complainant vide cheque in the execution proceedings.

9.                          The bone of contention between the parties is regarding the quantum the loss. As per the complainant, he has suffered loss of Rs.204200/- but on the other hand, as per the assessment made by the surveyor, the loss was to the tune of Rs.61054.35/-. The  perusal of the surveyor report Ex.R2, reveals that while recording the history of the accident, the surveyor Kavinder Singh Nayal has reported the date and time of accident as 27.01.2017 at 8.30 PM, place of accident, near Pakkakhera, Karnal, request received from company on 29.01.2017 and the report was issued on 22.03.2017, which reflects the sheer negligence of the surveyor while preparing this survey report.  As per record, the accident took place on 16.01.2010 near Pakkakhera in District Sirsa and this fact also find mention in the copy of FIR No.9 dated 16.01.2010 Ex.C21 recorded in P.S.N.S.Chopta on the statement of Rohtash. After perusal of this report, it appears that neither the surveyor nor the officials of the insurance company ever applied their mind in considering the report of surveyor which is quite different from the actual and factual position at the spot. The report further reveals that the surveyor had not mentioned the date of spot survey and survey before and after repair nor he has placed on record, copy of the bills which he collected from the workshop or from the complainant in order to consider and evaluate the amount of loss of the bus of the complainant. Rather, it appears that he has prepared this report in very casual and ordinary manner without going through the actual and factual position without considering the bills, so submitted by the complainant. The report of the surveyor does not inspire any confidence and the same is not reliable and trustworthy rather the same deserves to be rejected. The surveyor report does not find mention the details of all the bills which was submitted by the complainant to the insurance company for consideration.

10.                        In view of the above discussion, we hereby allow the present complaint with a direction to the Op to appoint another surveyor and to handover all the bills for consideration in order to come to right conclusion while calculating and evaluating the loss after considering those bills of repair/replaced parts within 15 days of receipt of copy of order. The Op is further directed to settle and pay the claim of the complainant within 30 days of the receipt of the report of second surveyor. The OP is also directed to pay the amount of loss after deducting the amount, previously paid to the complainant as per terms and conditions of the insurance policy.  The Op is further directed to pay Rs.5,000/- to the complainant as composite compensation for harassment and litigation expenses. If, it is found that the loss of claim is more than the amount already paid, the remaining amount shall be paid by the Op alongwith interest @ 7 % per annum from the date of filing the present complaint till its realization. A copy of this order be sent to both the parties free of costs. File be consigned to the record room.

Announced in open Forum.                                       President,

Dated:02.04.2019.                                      District Consumer Disputes

                                                                   Redressal Forum, Sirsa.

                   Member                         Member                                                             

              DCDRF, Sirsa           DCDRF, Sirsa