PRESENT: Sh.Harmandeep S.Saini, Adv. Proxy for the Complainant, along with Complainant in person.

Sh.Gaurav Bhardwaj, Adv. Proxy for OPs

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, the Complainant got his Mitsubishi Lancer LX D.2.0 Car (Regn.No. CH-03-Z-9196) insured with the OPs, which was valid from 01.03.2008 to 28.02.2009 (Midnight), vide Cover Note No. PG 6713637 (Annexure C-1). However, during the currency of the said Policy i.e. on 19.8.2008, the Complainant met with an accident while driving his aforesaid vehicle when his car struck against the stray cow sitting in the middle of the road at Village Humjher, near Patran, District Patiala, Punjab and was badly damaged and stopped at once. Thereafter, the car was towed to the Premier Motor Garage on 20.8.2008. OP No.2 was also informed by the Complainant, pursuant to which one Mr. Avinash Jha, Surveyor, visited the Premier Motor Garage on 21.8.2008 and took photographs of the damaged car and also made estimate of the same. The Complainant had also filed claim on the same date i.e. 21.8.2008 vide claim No.M0T00870821. It was alleged that thereafter, on the advice of the OPs, the Complainant got repaired his vehicle from the Premier Motor Garage, but even after repairs, the vehicle kept standing in the Garage, as the OP did not divulge any information about the settlement of the claim of the Complainant regarding his damaged car, despite approaching one Mr. Naresh Silvani, Regional Manager of OP, umpteen number of times. It was submitted that at the instance of said Mr. Silvani, the Complainant had made the payment of final bill amounting to Rs.1,10,183/- on 13.10.2008 and submitted the copy of the bill to the concerned official of the OP on 14.10.2008, for settlement of his claim, whereupon, the OPs were putting him off on one pretext or the other and he was asked to come again after 5-6 days. When he again visited the office of OP after 6-7 days, to his utter dismay, the OP flatly refused to pay the claim amount to him. It was alleged that due to delay on the part of the OPs in settling the matter, he suffered unnecessarily physically as well as mentally, had to hire a private taxi for his work and spent Rs.80,000/- towards its fare (Annexure C-6) for traveling for his business purposes. A legal notice dated 17.12.2008 was also served upon the OPs, but to no avail. Hence this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed that the OPs be directed to indemnify him for Rs.1,10,183/- on account of the damage to the vehicle of the Complainant; Rs.1,00,000/- as compensation for mental harassment & agony; Rs.80,000/- towards rent of the taxi hired for his work, besides Rs.20,000/- as litigation expenses, along with interest @12% per annum, till its realization.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OPs No. 1 & 2 in their joint reply, while admitting the factual matrix of the case, pleaded that immediately upon intimation of the claim, they deputed an independent and duly licensed surveyor for the proper assessment of the loss, and the said Surveyor vide report dated 21.10.2008 (Annexure R-2) assessed the claim to the tune of Rs.10,583.17P. Further, the Surveyor had returned a finding that the loss to the vehicle was consequential in nature as after the accident and drainage of the engine oil, the insured vehicle was driven to a considerable period, causing consequential damage to the vehicle. Resultantly, the claim was repudiated vide letter dated 5.12.2008 (Annexure R-1), hence, there was no delay in settlement of the claim, as alleged by the Complainant. While denying the receipt of legal notice, all other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4]      Parties led evidence in support of their contentions.

5]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainants / OP. We also heard the arguments put forth by the learned counsel for the Complainant and OP No. 1 & 2. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having got his Mitsubishi Lancer LX D.2.0 Car (Regn.No. CH-03-Z-9196) insured with the OPs, valid from 01.03.2008 to 28.02.2009 (Midnight), vide Cover Note No. PG 6713637 (Annexure C-1) and that the vehicle in question had met with an accident on 19.08.2008, after striking against a stray cow sitting in the middle of the road in District Patiala, thereby suffering damage, have all been admitted. It is also a fact that the Complainant had informed the OP No. 2 with regard to the said accident and damage caused to his car, as a result of which, the OP appointed a Surveyor, who visited Premier Motor Garage on 21.8.2008 and took photographs of the damaged car and also prepared an initial estimate of the same. The Surveyor later submitted his final Survey Report dated 21.10.2008 to the OPs. On the basis of the said Survey Report, the OPs repudiated the insurance claim of the Complainant on 05.12.2008, giving the following reason for repudiation: -

             “Consequential Damages.”   

ii] The only dispute between the Complainant and the OPs is that whereas, as per the Complainant, he had taken the accidental vehicle at the instance of the OPs to M/s Premier Motor Garage, who are authorized dealers for Hindustan Motors Limited for repairs and replacement of parts of the damaged car, on the contrary, after he got the work done, the OPs illegally rejected his claim on the ground of ‘Consequential Damages. Even the Surveyor, in his report, had passed the claim for Rs.10,583.17P only, against the actual expenditure incurred by him for Rs.1,10,183/-. The Surveyor, in his report, had given the following remarks: -

“Insured had driven his vehicle after the engine oil drain out from the engine after the accident. This cause engine damages which are consequential loss and thus, not covered.”

iii]  The main grievance of the Complainant against OPs is that the OPs have wrongly and illegally refused his accidental claim on the basis of the casual remark given by the Surveyor, which is totally baseless on account of the fact that after the vehicle had met with an accident, he did not drive the vehicle any longer, because the engine of the car was damaged and the car stopped at once on the spot. Hence, there was no question of driving the same any further, which was even physically and mechanically not possible. As per the Complainant, on 20.8.2008, in the morning, he arranged one TATA Sumo vehicle from the nearby Village and towed his car to the Premier Motor Garage. Therefore, there was no question of any consequential damages caused to the vehicle on account of driving it after the accident.

iv] It has been clearly observed that in none of the documents produced by the OPs and not even during arguments, the OPs have been able to produce any document, paper or any other kind of evidence or any expert report, except the statement of the Surveyor, who has also not filed his affidavit in support of the contentions of OPs, stating that the vehicle was ever dragged or used/driven for some period by the Complainant after the accident. It is also quite obvious even to a layman that after the vehicle had met with a major accident, requiring extensive repairs/replacements of parts, as a result of damage to the engine and leakage of oil etc., the same could not have been driven by the Complainant or anybody else. The only choice in such a situation was to tow the vehicle to an Authorized Motor Garage and this was precisely what the Complainant did and rightly so. The sole basis of all the contentions of the OPs in their pleadings, evidence and arguments is the report of the Surveyor. Even the Surveyor, in his three page report, has accepted all the facts with regard to the accident to the said vehicle and also that the same was repaired by an authorized garage, but who finally, put a small foot note, giving the cause as consequential loss and hence, not covered by the Insurance Cover. This casual remark is not supported by any document or evidence on record, whatsoever.

v]   The entire focus of the OPs is on the statements made by them stating that immediately upon intimation of the claim, they had deputed an independent and duly licensed surveyor for the proper assessment of the loss and that the said Surveyor vide his report dated 21.10.2008, categorically assessed the loss to the tune of Rs.10,583.17P only and once the Surveyor returned a finding that the loss to the vehicle was consequential in nature as after the accident and drainage of the engine oil, the insured had driven the vehicle for a considerable period causing consequential damage to the vehicle, which resulted in the repudiation of the claim on 05.12.2008.

vi]  There is no doubt that the Survey Report is a significant document, which cannot be brushed aside casually and it has been repeatedly established that the report of the Surveyor is an important document and sufficient reasons must be shown to reject it or reasons for not accepting it.  At the same time, the latest law on the subject has been that the Survey Report is not the last and final word for settling insurance claims. In support of this point, two latest authorities are available on the subject, the Head notes of which are as under: -

(A) “New India Assurance Company Ltd. Vs. Pradeep Kumar, 2009 CTJ 599 (SC)(CP).  Accident of vehicle, fell into a Khud 300 ft deep below the road. Respondent claimed Rs.1,58,409/- for repairs and interest paid to the bank for obtaining loan from the Bank for making payment to repairer – Insurer offered Rs.63,771/- based on assessment made by the Surveyor – District Forum awarded/ granted Rs.1,58,403/- - SC/NC confirmed. The Supreme Court held that the Surveyor’s Report is not the last and final word for settling insurance claim. It is not that sacrosanct or conclusive that it cannot be departed from – Appeal dismissed being devoid of any substance.”   

(B) “Oriental Insurance Vs. Mehar Chand, RP No. 3499 of 2009, decided on October 9, 2009 (NC) - Pointing out that the Surveyor had given no plausible explanation for disallowing the estimate of the authorized garage, the National Commission held that the State Commission was fully justified in setting aside the Surveyor’s report and making its own assessment of what needs to be paid by the insurer – which was Rs.2,20,699/- along with 9 per cent interest from the date of filing the complaint till the date of payment of the amount, and also costs of Rs.2,500/-.”

    In the light of the above stated latest authorities on the subject, it is quite clear that although the Survey Report is an important document, which has to be kept in view, while settling insurance claim, yet at the same time, the Survey Report is not something, which cannot be challenged. For example, in this case, the Survey Report is quite faulty in the sense that against the actual expenditure incurred by the Complainant to the extent of Rs.1,10,183/-, the Surveyor has recommended only Rs.10,583.17P and even this amount has not been paid by the Insurance Company to the Complainant on the false ground of consequential damages. In view of this, the Survey Report is not credible and cannot be taken into account, while settling the insurance claim. We do not find any reason to disbelieve the version of the Complainant and also the detailed invoices produced by the Complainant from M/s Premier Motor Garage in respect of the repairs and replacements amounting to Rs.1,10,183/-.

6]      In the light of the foregoings and in view of the detailed analysis of the entire case, it is our considered view that the present complaint has a lot of merit, substance and weight in favour of the Complainant and against the OPs and, therefore, deserves acceptance. We, therefore, allow the complaint and direct the OPs to make the following payments, jointly and severally, to the Complainant:-

(a)    a sum of Rs.1,10,183/- as the cost of repairs/replacement of parts for the accidental car duly covered by the Insurance Policy of the OPs.

(b)    a sum of Rs.50,000/- as compensation for causing physical harassment, mental agony and pain to the Complainant on account of wrongful repudiation of the insurance claim on purely hypothetical and superficial grounds.

(c)    Litigation costs of Rs.5,000/-. 

The above said order be complied with by the OPs within a period of six weeks from the date of receipt of the certified copy of the order, failing which, the OPs shall pay Rs.1,60,183/-, along with interest @18% per annum, from the date of repudiation i.e. 05.12.2008, till the date of realization, besides costs of litigation of Rs.5,000/-.

7]     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

08.12.2009