Order by:
Sh.Amrinder Singh Sidhu, President
1. Sh.Vishav Jindal, complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he is owner of vehicle make Force Tempo bearing RC No.PB-29-M-9831 and said vehicle was insured with Opposite Parties for the period w.e.f. 30.03.2016 to 29.03.2017. The case of the Complainant is that unfortunately on 2.11.2016 said vehicle met with an accident and FIR in this regard was also lodged. After the accident, the Complainant immediately informed the Opposite Parties and as per the directions of the officials of the Opposite Parties, the damaged vehicle was lodged with Nextgen Automobiles, authorized dealer of Force Motors Limited, Ludhiana and they prepared estimate No.101 to 105 and thereafter, said estimate was handed over to the representative of the Opposite Parties. The Complainant further alleges that he also completed all other formalities and supplied the necessary documents to the Opposite Parties. The claim No.MOTO6177682 has been prepared against the insurance policy in question. Again the documents were sent to the company on 30.06.2017 on their request. The insured amount is Rs.5,14,543/- as per the vehicle IDV. After receiving the estimate of the repair of the vehicle in question, the Opposite Parties informed the Complainant that the repair charges are at the higher side and the vehicle will be treated under the total loss scheme. The Complainant agreed to this aspect of the Opposite Parties, but the Opposite Parties did not respond till date and lingering on the matter on one pretext or the other. Lateron the representatives of the Opposite Parties informed that the company has closed the case, but without any written intimation to the Complainant. Hence, there is deficiency in service on the part of the Opposite Parties. It is further alleged that the vehicle in question is utilized for the school, but due to non settlement of claim by the Opposite Parties since 2.11.2016 the vehicle is standing with the authorized dealer at Ludhiana and they are also claiming the rent for keeping the vehicle in their premises @ Rs.500/- per day since the day of parking. Hence this complaint is filed due to deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
- Opposite Parties be directed to make the payment of Rs.2 lacs on account of mental tension etc.
- The Complainant is also entitled the value of the vehicle as per the insurance amounting to Rs.5,14,543/- or costs of the repair i.e. amounting to Rs.6,78,666/- as per the loss estimate.
- The Complainant is also entitled the damage on account of non plying the vehicle since November, 2016 which comes to Rs.30,000/- per month and as per this, upto the filing of the complaint the damages comes to Rs.2,70,000/- from the Opposite Parties alongwith interest @ 12% per annum.
2. Opposite parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. It is further alleged that the Complainant has concealed the material facts and documents from this Forum as well as the Opposite Parties, therefore, the Complainant is not entitled to any relief. The Complainant has concealed the fact that the vehicle No.PB-29M-9831 is repairable and not a case of total loss, but the Complainant is adamant to get the same on total loss basis. The Complainant has not submitted the invoice and AML documents although letters dated 28.02.2017, 21/3/2017 and 09.05.2017 were sent to the Complainant, therefore, the claim is pending for want of documents and thus the complaint is premature. Further, the driver Karaj Singh was not holding a valid driving license to drive the vehicle in question on the date of alleged loss. The Opposite Parties reserve their right to decide the claim as per terms and conditions of the policy as and when the above documents are submitted. On merits, however, it is admitted to the extent that an intimation was received regarding the alleged accident and the Opposite Parties deputed Mr.Gurmeet Singh Bhurjee as surveyor and loss assessor, who conducted the survey and assessed the loss at Rs.2,86,376/- and also found the vehicle to be repairable and not case of total loss. It is wrong that the Complainant has completed all other formalities and submitted all the necessary documents, rather as stated earlier the Complainant has not submitted invoice and AML documents although letters were sent to him. However, the Complainant is not entitled to get the claim on total loss basis as loss assessed was Rs.2,86,376/-, but even that claim is subject to final decision on verification of documents. The claim is pending for decision due to want of documents on the part of the Complainant. Hence, there is no deficiency in service on the part of the Opposite Parties. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C11 and closed his evidence.
4. On the other hand, the Opposite Parties also tendered into evidence the affidavit of Apporva Sharma Ex.OP1,2/1, Affidavit of Sh.Gurmeet Singh Bhurjee, Surveyor Ex.OP1,2/2 alongwith copies of documents Ex.OPs1,2/3 to Ex.OP1,2/9 and closed the evidence on behalf of the Opposite Parties.
5. We have heard the ld.counsel for the parties, perused the written arguments of the Complainant and also carefully gone through the documents placed on record.
6. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the vehicle of the complainant make Force Tempo bearing RC No.PB-29-M-9831 was insured with Opposite Parties for the period w.e.f. 30.03.2016 to 29.03.2017 and during the insurance period i.e. on 2.11.2016, unfortunately said vehicle met with an accident and FIR in this regard was also lodged. After the accident, the Complainant immediately informed the Opposite Parties and as per the directions of the officials of the Opposite Parties, the damaged vehicle was lodged with Nextgen Automobiles, authorized dealer of Force Motors Limited, Ludhiana and they prepared estimate No.101 to 105 and thereafter, said estimate was handed over to the representative of the Opposite Parties. Ld.counsel further contended that the complainant also completed all other formalities and supplied the necessary documents to the Opposite Parties. The claim No.MOTO6177682 has been prepared against the insurance policy in question. Again the documents were sent to the company on 30.06.2017 on their request. It is further contended that the insured amount is Rs.5,14,543/- as per the vehicle IDV. After receiving the estimate of the repair of the vehicle in question, the Opposite Parties informed the Complainant that the repair charges are at the higher side and the vehicle will be treated under the total loss scheme. The Complainant agreed to this aspect of the Opposite Parties, but the Opposite Parties did not respond till date and lingering on the matter on one pretext or the other. Lateron the representatives of the Opposite Parties informed that the company has closed the case, but without any written intimation to the Complainant. Hence, deficiency in service is writ large on the part of the Opposite Parties. It is further contended that the vehicle in question is utilized for the school, but due to non settlement of claim by the Opposite Parties since 2.11.2016 the vehicle is standing with the authorized dealer at Ludhiana and they are also claiming the rent for keeping the vehicle in their premises @ Rs.500/- per day since the day of parking.
7. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contentions of the ld.counsel for the complainant on the ground that the Complainant has concealed the fact that the vehicle No.PB-29M-9831 is repairable and not a case of total loss, but the Complainant is adamant to get the same on total loss basis. The Complainant has not submitted the invoice and AML documents although letters dated 28.02.2017, 21/3/2017 and 09.05.2017 were sent to the Complainant, therefore, the claim is pending for want of documents and thus the complaint is premature. Further, the driver Karaj Singh was not holding a valid driving license to drive the vehicle in question on the date of alleged loss. The Opposite Parties reserve their right to decide the claim as per terms and conditions of the policy as and when the above documents are submitted. It is further contended that an intimation was received regarding the alleged accident and the Opposite Parties deputed Mr.Gurmeet Singh Bhurji as surveyor and loss assessor, who conducted the survey and assessed the loss at Rs.2,86,376/- and also found the vehicle to be repairable and not case of total loss. It is wrong that the Complainant has completed all other formalities and submitted all the necessary documents, rather as stated earlier the Complainant has not submitted invoice and AML documents although letters were sent to him. However, the Complainant is not entitled to get the claim on total loss basis as loss assessed was Rs.2,86,376/-, but even that claim is subject to final decision on verification of documents. The claim is pending for decision due to want of documents on the part of the Complainant and hence there is no deficiency in service on the part of the Opposite Parties.
8. It is not the denial of the case that the vehicle of the complainant make Force Tempo bearing RC No.PB-29-M-9831 was insured with Opposite Parties for the period w.e.f. 30.03.2016 to 29.03.2017 with Insured Declared Value (IDV) as Rs.5,14,543/-, copy of the policy placed on record Ex.C3. It is also not disputed that during the insurance period i.e. on 2.11.2016, said vehicle met with an accident and FIR in this regard was also lodged, copy of FIR registered under section 154 Cr.P.C. with P.S.Fatehgarh Panjtoor is placed on record as Ex.C11. The case of the complainant is that after the accident, he immediately informed the Opposite Parties and as per the directions of the officials of the Opposite Parties, the damaged vehicle was lodged with Nextgen Automobiles, authorized dealer of Force Motors Limited, Ludhiana and they prepared estimate No.101 to 105 and thereafter, said estimate was handed over to the representative of the Opposite Parties, copies of estimate are placed on record as Ex.C4 to Ex.C8. Ld.counsel further contended that the complainant also completed all other formalities and supplied the necessary documents to the Opposite Parties and the claim No.MOTO6177682 has been prepared against the insurance policy in question. Again the documents were sent to the company on 30.06.2017 on the request of the officials of the Opposite Parties. But on the other hand, ld.counsel for the Opposite Parties has rebutted the contention of ld.counsel for the complainant that the vehicle in question is repairable and not a case of total loss, but the Complainant is adamant to get the same on total loss basis. The Complainant has not submitted the invoice and AML documents although letters dated 28.02.2017, 21/3/2017 and 09.05.2017 were sent to the Complainant, therefore, the claim is pending for want of documents and thus the complaint is premature. But we do not agree with the aforesaid contention of the ld.counsel for the Opposite Parties because after issuance of the letters of the Opposite Parties, the complainant wrote letter to Sh.Varun Gandhi, customer Service Manager, ICICI Lombard General Insurance company, Ludhiana on 30.06.2017 requesting them that the required documents for above claim have already been submitted, copy of the said letter is placed on record as Ex.C10. Not only this, in his additional affidavit Ex.C2 the complainant has specifically deposed that he has already supplied the complete documents twice which were required by the surveyor as well as the respondent company and they also got completed the formalities, but the Opposite Parties are delaying the claim inspite of the various requests, reminders and legal notices. But however, the Opposite Parties have nowhere denied these factum of the complainant, by producing on record any cogent evidence, but however, the Opposite Parties had sufficient opportunity to deny these averments of the complainant by filing the counter affidavit of the competent authority of the company in their defence evidence which are led after the completion of the evidence of the complainant. Hence at this stage, the Opposite Parties can not claim the documents time and again from the complainant which are already supplied and completed by the complainant. Moreover, the further contention of the Opposite Parties that the driver Karaj Singh was not holding a valid driving license to drive the vehicle in question on the date of alleged loss, is also not sustainable because the Opposite Parties have not placed any document or proof or record of the Transport Department or other competent authority, to prove that as to which reason or mode, the licence of the driver of the vehicle was not valid.
9. Further, the contention of the complainant that due to non settlement of claim by the Opposite Parties since 2.11.2016 the vehicle is standing with the authorized dealer at Ludhiana and they are also claiming the rent for keeping the vehicle in their premises @ Rs.500/- per day since the day of parking, but in this regard, the complainant has not produced any receipt of rent or certificate of the authorized dealer of the company to support their contention.
10. It is not disputed that after receiving the intimation regarding the accident to the vehicle in question, the Opposite Parties deputed Mr.Gurmeet Singh Bhurjee, Surveyor Loss Asssessor & Valuer who conducted the survey and prepared his detailed report of 4 pages dated 26.12.2016, copy of which is placed on record as Ex.Ops 1 & 2/9 and said surveyor assessed the loss at Rs.2,86,376/- to the insured vehicle. On the other hand, the complainant has not denied the said detailed report by filing any other valid report of some independent surveyor. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports can not be brushed aside without any cogent reasons.”
11. Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
12. In view of the aforesaid facts and circumstances of the case, the instant complaint is partly allowed and the Opposite Parties are jointly or severally directed to make the payment of Rs.2,86,376/- (Rupees two lacs eighty six thousands three hundred and seventy six only) to the complainant as compensation against his claim of insured vehicle in question, on the basis of report of surveyor alongwith interest @ 9% per annum from the date of filing the complaint i.e. 06.10.2017 till its realization. The Opposite Parties are also directed to pay lump compensation amounting to Rs.15,000/- (Fifteen thousands only) for his harassment and litigation expenses. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
13. Reason for delay in deciding the complaint. This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Forum since 15.09.2018. Moreover, the President of this Forum is doing additional duty at District Consumer Forum, Barnala and Administration Duty at District Consumer Forum, Sri Muktsar Sahib. There are only two working days in a week when the quorum of this Forum remains complete.
-Announced in Open Forum
Dated: 17.05.2019.
(Parampal Kaur) (Amrinder Singh Sidhu)
Member President
