Order dictated by:

Mr.Anoop Sharma, Presiding Member

1.       Sh.Shehzad Luthra  has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that  the complainant got insurance for his vehicle Toyota Innova car bearing registration No.PB-02-CG-1696 from Opposite Party No.1 covering the risk period 12.10.2014 to 11.10.2015. Said vehicle was to be used by the complainant for his personal use. Said vehicle unfortunately met with an accident on 26.5.2015 near village; Meeliyan and the police authorities were also informed and the Opposite Party was intimated and the vehicle was taken to the service station of Opposite Party No.2 and the Opposite Party appointed its surveyor who surveyed said vehicle and the said service station made the preliminary estimate of the repair of the vehicle to the tune of Rs.46,000/-. It is pertinent to mention over here that the IDV of the said vehicle is Rs.1158312/-.  Opposite Party was time and again requested to settle the claim of the complainant, but Opposite Party No.1 dilly dallied the matter on one pretext or the other and ultimately without assigning any reasons disallowed the claim of the complainant verbally and the complainant had to pay out of his pocket to the authorized service centre of Opposite Party No.2. The aforesaid acts of the Opposite Party in not settling the genuine claim of the complainant is an act of the deficiency in service, unfair trade practice, mal practices and is not  sustainable in the eyes of law and has caused the agony and harassment to the complainant and for which the Opposite Party is  liable to pay compensation of Rs.50,000/- to the complainant.   Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party be directed to pay the claim of Rs.45,775/- alonwith interest @ 12% per annum from 26.10.2015 till realization.

b)      Opposite Party be directed to pay compensation of Rs.50,000/- to the complainant.

c)       Opposite Party be directed to pay the adequate cost of the present litigation. 

Hence, this complaint.

2.       Upon notice, Opposite Party No.1 appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that complainant has not come to this Forum with clean hands and has suppressed the material facts from the knowledge of this Forum. Opposite Party No.1 has already made the payment to the tune of Rs.21,408/- to Opposite Party No.2 vide fund transfer dated 25.7.2015 through cheque bearing No.CMS 324608836 after deducting an amount of Rs.412/- as TDS and this fact has been concealed by the complainant at the time of filing the present complaint. The true facts are that Opposite Party No.1 received the claim form of the complainant with regard to the alleged accident and after receiving the intimation with regard to the alleged accident the Opposite Party appointed its surveyor who surveyed the said vehicle and after making  through investigation the Opposite Party has made the payment for an  amount of Rs.21,408/- to Opposite Party No.2 where the car in question was got repaired by the complainant. Said payment was made as per the terms and conditions of the policy and as per the survey report of the surveyor, but at the time of filing of the present complaint, the complainant has concealed  the fact of making payment to Opposite Party No.2, so the present complaint is liable to be dismissed on this score only. On merits, the Opposite Party No.1 has taken the same and similar pleas as taken up by them in the preliminary objections.   Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       Upon notice, Opposite Party No.2 appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that  the present complaint is not maintainable against the answering Opposite Party. The complainant has wrongly mentioned the address of Opposite Party as an office of Opposite Party No.1. In fact, Opposite Party No.2 is not branch office of said insurance company. Moreover, the persons like complainant should contact their respective insurance companies directly if they are having any grievance with them, thus the complaint is not maintainable against Opposite Party No.2.  The complainant has got no cause of action accrued in favour of the complainant. Opposite Party No.2 has no concern  with the subject matter of complaint. It is only insurance company of vehicle who is concerned.  On merits, it is submitted that the complaint is not consumer qua  Opposite Party regarding  subject matter in dispute. The subject matter in dispute pertains to insurance claim which is to be paid by Opposite Party No.1. It is pertinent to mention over here that as and when the said vehicle was brought to Opposite Party No.2 for  repairs, the same was duly intimated by Opposite Party No.2 to concerned Opposite Party No.1 who has  repudiated the claim of the complainant for the reasons best known to them. The answering Opposite Party is having no concern with the repudiation of claim of the complainant. The contract of insurance is between the said complainant and Opposite Party No.1 and not with Opposite Party No.2 as such, there is no privity of contract with said Opposite Party No.2.     Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

4.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C6  and closed his evidence.

5.       On the other hand, to rebut the evidence of the complainant, the Opposite Party No.1 tendered into evidence the affidavit of Ms.Vidhi Ex.Op1/6  alongwith copies of documents Ex. OP1/1 to Ex.OP1/5 to Ex.C6. Similarly Opposite Party No.2 tendered into evidence the affidavit of Sh.Rakesh Kapoor Ex.Op2/1 and closed the evidence on behalf of the Opposite Party No.2.

6.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

7.       Ld.counsel for the complainant has reiterated the facts as narrated in the complaint and submitted that the complainant got insurance for his vehicle Toyota Innova car bearing registration No.PB-02-CG-1696 from Opposite Party covering the risk period 12.10.2014 to 11.10.2015. Said vehicle was to be used by the complainant for his personal use. Said vehicle unfortunately met with an accident on 26.5.2015 near village; Meeliyan and the police authorities were also informed and the Opposite Party was intimated and the vehicle was taken to the service station of Opposite Party No.2 and the Opposite Party appointed its surveyor who surveyed said vehicle and the said service station made the preliminary estimate of the repair of the vehicle to the tune of Rs.46,000/-. It is pertinent to mention over here that the IDV of the said vehicle is Rs.1158312/-.  Opposite Party was time and again requested to settle the claim of the complainant, but Opposite Party No.1 dilly dallied the matter on one pretext or the other and ultimately without assigning any reasons disallowed the claim of the complainant verbally and the complainant had to pay out of his pocket to the authorized service centre of Opposite Party No.2. The aforesaid acts of the Opposite Party in not settling the genuine claim of the complainant is an act of the deficiency in service, unfair trade practice, mal practices and is not  sustainable in the eyes of law

8.       On the other hand, ld.counsel for Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that Opposite Party No.1 has already made the payment to the tune of Rs.21,408/- to Opposite Party No.2 vide fund transfer dated 25.7.2015 through cheque bearing No.CMS 324608836 after deducting an amount of Rs.412/- as TDS and this fact has been concealed by the complainant at the time of filing the present complaint. The true facts are that Opposite Party No.1 received the claim form of the complainant with regard to the alleged accident and after receiving the intimation with regard to the alleged accident the Opposite Party appointed its surveyor who surveyed the said vehicle and after making  through investigation the Opposite Party has made the payment for an  amount of Rs.21,408/- to Opposite Party No.2 where the car in question was got repaired by the complainant. Said payment was made as per the terms and conditions of the policy and as per the survey report of the surveyor, but at the time of filing of the present complaint, the complainant has concealed  the fact of making payment to Opposite Party No.2, so the present complaint is liable to be dismissed. The contention of the  Opposite Party No.2 is that the contract of insurance is between the said complainant and Opposite Party No.1 and not with Opposite Party No.2 as such, there is no privity of contract with said Opposite Party No.2, hence there is no deficiency in service on the part of Opposite Party No.2. The complainant has placed on record the bill Ex.C3  amounting to Rs.45775/- from approved Toyota Company i.e. M/s.A.N.R.Motors i.e. Opposite Party No.2, but the surveyor of the Opposite Party No.1 has reduced the repair amount to the extent of  Rs.21408/- and has directly paid to Opposite Party No.2-M/s.ANR Motors  on 25.7.2015, but the surveyor of  Opposite Party No.1 has failed to explain under which account they have deducted the amount from the bill prepared by the authorised service centre of Toyota Company i.e. Opposite Party No.2.  But the Opposite Party No.1 has declined the remaining claim of the complainant only on the basis of surveyor report. In such a situation, the surveyor report can not be relied upon for assessing the compensation/ insurance claim, submitted by the Opposite Party No.1. Reliance in this respect can be had on New India Assurance Company Limited Vs. Pardeep Kumar (2009) CPJ 46 (SC), wherein it has been laid down that Surveyor’s report is not the last and final word. It is not that sacrosanct that it can not 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. The authority supra is applicable to the facts of the present  case.  The complainant has submitted bill Ex.C-3 regarding expenditure incurred by him on the repair of the vehicle in dispute, which comes to Rs. 45,775/-  in all. Out of which only a sum of Rs. 21,408/- and has directly paid to Opposite Party No.2-M/s.ANR Motors  on 25.7.2015, but the surveyor of  Opposite Party No.1 has failed to explain under which account they have deducted the amount from the bill prepared by the authorised service centre of Toyota Company i.e. Opposite Party No.2 while remaining claim to the tune of  Rs. 24,367/- have been rejected on the basis of surveyor report, which in our opinion, could not have been relied upon for assessing the claim of the complainant.

9.       In our considered opinion, the complainant is entitled to insurance claim in full and  as such balance claim amount of Rs. 24,367/- be paid by Opposite Party No.1  to the complainant within 30 days from the date of passing the order.   The complainant is also awarded  Rs.5,000/- on account of compensation for causing mental tension and harassment besides litigation expenses to the tune of Rs.3,000/-.  However, the complaint against Opposite Party No.2 stands dismissed. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum.

Dated: 24.05.2017.