Haryana

Kurukshetra

202/2017

Gaurav - Complainant(s)

Versus

ICICI Gen Ins - Opp.Party(s)

In Person

28 Mar 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

                                                     Complaint Case No.202 of 2017.

                                                     Date of institution: 26.09.2017.

                                                     Date of decision: 28.03.2019.

 

Gaurav son of Sh. Jay Beer, resident of V.P.O Ban, Sub- Tehsil Ladwa, Tehsil Thanesar, District Kurukshetra.

                                                                        …Complainant.

                        Versus

1. ICICI Lombard General Insurance Company Ltd., ICICI Lombard House, 414, Veer Savarkar Marg, near Siddhi Vinayak Temple, Prabhadevi, Mumbai 400 through its Managing Director.

 

2. Shakti Car Care, Opp. Easy Day, Pipli Road, Kurukshetra, Kurukshetra, through its Proprietor. 

….Opposite parties.

Before:      Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Trikha, Member.

 

Present:     Sh. J.S. Sunarian, Advocate, for the complainant.   

                Sh. Mohit Goel, Advocate for opposite party no.1.

                Opposite party no.2 exparte.

               

ORDER

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Gaurav against ICICI Lombard General Insurance Company and another, the opposite parties.

2.            Brief facts of the present complaint are that complainant is owner of one Skoda Fabia car bearing registration No.HR-07U-4040 and the said car was insured with op no.1 at the office of op no.2 for the period from 9.1.2017 to 8.1.2018 vide policy No.3001/125808677/00/Boo dated 31.1.2017. That the car of complainant met with an accident on 25.2.2017 at about 7.00 a.m. near village Jogimajra District Kurukshetra and suffered damages. At that time, car was being driven by complainant who is having valid driving licence. The car in question was brought to op no.2 for repairs and an estimate of Rs.76,850/- was prepared by op no.2. It is further alleged that due intimation was given to op no.1 regarding the accident and the agents of the op no.1 had visited the workshop of op no.2 and had inspected the vehicle in question. The copy of DL, RC and insurance cover note and all other documents were given to the agents of op no.1 who had assured to submit the report within 5/7 days for the settlement of claim. The agents of op no.1 had visited regularly during the repair of the car and had taken photographs of the damaged car. It is further alleged that car in question was got repaired from op no.2 and a sum of Rs.76,850/- was paid by complainant to op no.2 and intimation in this regard was given to op no.1. That the complainant had contacted the op no.1 time and again and also visited op no.1 and every time assurance was given to him but on 25.5.2017, the op no.1 only paid Rs.44,500/- out of Rs.76,850/- and the complainant is legally entitled to receive the remaining amount alongwith interest @18% per annum. That the above said act and conduct on the part of ops amounts to deficiency in service and unfair trade practice. Hence, this complaint seeking direction to ops to pay claim amount of Rs.32,350/- alongwith interest and further to pay Rs.50,000/- as compensation for harassment and mental agony as-well-as Rs.11,000/- as litigation charges.   

3.            Upon notice, the OP no.1 appeared before this Forum and contested the complaint by filing reply raising certain preliminary objections. It is submitted that upon getting the information of the accident, the answering op has appointed their IRDA approved Surveyor to assess the actual loss to the vehicle. The Surveyor submitted his report to the company and based on that report the answering op paid the claim amount to the complainant. Remaining contents of the complaint are denied and prayer for dismissal of complaint made.

3.             Op no.2 failed to appear despite notice and was proceeded against exparte.

4.             The complainant tendered into evidence affidavit Ex.CW1/A and documents Ex.C1 to Ex.C6 and thereafter, closed the evidence.

5.           On the other hand, the Op no.1 tendered into evidence affidavit of Sh. G.S. Virk, surveyor Ex.R1 and documents Ex.R2 and Ex.R3 and thereafter, closed the evidence.

6.             We have heard the learned Counsel for both the parties and perused the record carefully.

7.             Undisputedly the car of the complainant bearing registration No. HR-07U-4040 was insured with the opposite party no.1 for the period from 9.1.2017 to 8.1.2018. It is also admitted fact that car of the complainant met with an accident on 25.2.2017 and suffered damages. According to the complainant, a sum of Rs.76,850/- was paid by complainant to op no.2 on account of repair of the car in question but op no.1 only paid Rs.44,500/- out of the above said amount of Rs.76,850/- and he is entitled to the remaining amount. Whereas, according to op no.1 the payment of Rs.44,500/- has been made on the basis of the surveyor report. The complainant has placed on file copy of cash memo dated 30.3.2017 Ex.C3 which shows that op no.2 charged an amount of Rs.76,850/- from the complainant on account of repair of the car in question. The Surveyor in his report Ex.R2 has not mentioned the reason for depreciation of the amount. Ex.C3 cash memo is the final bill and not an estimate. The Surveyor report Ex.R2 upon which reliance has been placed by the insurance company shows that the vehicle got extensively damaged in the accident. Its bonnet, front bumper, bonnet strip, front grille upper and lower, tie member, radiator assembly, condenser assembly, fan assembly, A.C Gas, intercooler, front bumper bar, fog lamp cover right and left, hood monogram had sustained major damage. The Hon’ble Supreme Court in case titled as NIAC Versus Pradeep Kumar, CA No.3253 of 2002 decided on 9.4.2009 has held that “ Although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor’s report is not the last and final word. It is not that 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.” Reliance can also be placed on the observations of the Hon’ble National Commission in case titled as Shri Ram General Ins. Co. Ltd. Vs. Suresh Kumar, RP No.598 of 2015 decided on 4.1.2019 relied upon by learned counsel for complainant in which it has been held that “The report of the surveyor cannot be accepted as it is, and requires justifiable modification as above.” The above said authorities are fully applicable to the facts and circumstances of the present case. In our view, the complainant is entitled to the balance amount of Rs.32,350/- from the op no.1 and non payment of the same amounts to deficiency in service on the part of op no.1.

8.             In view of above, we allow the present complaint qua opposite party no.1 and direct the opposite party no.1 to pay the amount of Rs.32,350/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of order till actual payment. We also direct op no.1 to further pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.

Announced in open court:

Dt.: 28.03.2019.    

                                                                        (Neelam Kashyap)

                                                                        President.

 

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.