| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi-110016 Case No. 412/2010 Shri Samsher Singh 385, Jharoda Kalan, Najafgarh, New Delhi-110072 ….Complainant Versus ICICI Lombard General Insurance Company Ltd. (through its Branch Manager) Upahaar Cinema Complex Green Park Ext., S-13, New Delhi-110016 ….Opposite Party Date of Institution : 18.06.10 Date of Order : 30.04.19 Coram: Sh. A.S. Yadav, President Ms. Kiran Kaushal, Member Ms. Kiran Kaushal, Member ORDER Succinctly put, the complainant, Samsher Singh insured his vehicle (truck) bearing No. HR-63-A-3819 from ICICI Lombard General Insurance Co. Ltd. (OP) for a period of 28.03.2009 to 27.03.2010 for the total sum assured of Rs.9,99,860/- and accordingly paid premium of Rs.20,899/- to OP. - The complainant’s vehicle met with an accident on intervening night of 1st and 2nd September, 2009 when the same was returning to Delhi after delivering of goods from Patan, Rajasthan. The complainant averred that the accident occurred due to sudden appearance of one stray cow in front of the said vehicle which resulted in the driver losing control over the vehicle, consequently the vehicle hit an electricity poll which completely damaged the front portion of it apart from other damages.
- It is averred that driver of the complainant lodged a police report dated 02.09.09 of the said accident which is annexed as Annexure CW2. The complainant also reported the said accident to OP, subsequently an authorised surveyor of OP conducted the survey of the accidental vehicle.
- It is next stated that the said vehicle was repaired at Pearely Lal and Sons (E.P) Ltd., the authorized service centre of Ashok Leyland and the total repair cost incurred was Rs.2,26,429/- which was duly paid to the service centre by the complainant. It is further mentioned that the due to the accident two front tyre and tubes of the vehicle also got damaged hence the complainant got the two tyres replaced with new ones which incurred a cost of Rs.25,300/-. The complainant submitted requisite documents along with the total repair cost bill of Rs.2,26,429/- to OP, but OP after settling the claim sent a cheque of Rs.90,551/- dated 21.12.2009 to the complainant. In protest, the complainant visited the office of OP and the concerned official therein advised the complainant to accept the amount without prejudice to his right and assured that OP will consider rest of the claim and intimate the outcome to the complainant very soon.
- It is further averred that the complainant on the aforesaid assurance of the OP encashed the said cheque. Thereafter complainant visited OP’s office several times to get the remaining claim amount from OP but to no avail.
- Aggrieved by the circumstances above, the complainant approached the Forum with the prayer to direct OP to pay the complainant an amount of Rs.1,61,178/- with interest @ 36% from the date of claim. Additionally to direct the OP to pay an amount of Rs.1,00,000/- as compensation for mental agony and harassment and Rs.25,000/- towards cost of litigation.
- OP resisted the complaint inter-alia on the ground that the vehicle in question being a goods carriage vehicle, run by a paid driver, is being used as a commercial vehicle. Therefore, the complainant is not entitled to invoke the provisions of Consumer Protect Act.
- It is submitted by OP that the claim disbursed to the complainant was subject to assessment by the licensed surveyor who had assessed the liability of OP to the tune of Rs.90,551/-.
- It is next averred that the circumstances of the alleged accident whereby the subject vehicle had hit the electricity poll from its front portion nowhere shows any occasions of the tyres and tubes getting damaged. As such the front tyres of the vehicle are much behind the engine thereof.
- It is further submitted that the claim of the complainant on account of invoice dated 07.10.2009 for Rs.9,410/- is not part of the repair conducted on account of accident rather the same has been on account of consumables and other additions made to the subject vehicle post repair thereof. Additionally the claim of the complainant towards tyres and tubes is misconceived as the same does not pertain to the repair post accident.
- It is further submitted that while OP had put forth that it is bound by its surveyor report and it cannot consider paying more than Rs.90,551/-. The complainant accepted and encashed the said amount. Thereafter the claim of the complainant was closed. Therefore, it is prayed that the complaint be dismissed in view of the submission made by OP.
- Rejoinder and evidence by way affidavit is filed by the complainant wherein the averments made in the complaint are reiterated. Evidence of Ms. Pooja Sharma, Area Manager Law, has been filed on behalf OP.
- Written arguments have been filed on behalf of the parties.
- After having heard the arguments on behalf of the parties and perusing the material placed on the record it is noticed that the main contention between the parties is that the OP made the payment of Rs.90,551/- only, against the claim of Rs.2,51,729/- which was incurred on the repair of vehicle in question by the complainant. The invoice of ‘Ashok Leyland’ which was paid by the complainant to the service centre is annexed as Annexure CW-1/3. It is the case of the complainant that the OP called the complainant to his office and asked the complainant to settle the matter at Rs.95,000/- which the complainant refused to accept but OP deliberately sent a cheque of Rs.90,551/- to the complainant. The complainant immediately visited the office of the OP and made it clear that he is entitled for total claim of Rs.2,51,729/- with interest but the concerned official of the OP advised the complainant to accept this amount without prejudice to his right and assured that the rest of the claim will be considered and he would intimate the outcome to the complainant very soon. Thereafter the complainant encashed the said cheque.
- The OP submitted that the invoice/job estimate and VAT invoice had been duly considered by the surveyor towards assessment of the actual loss and the share of insurance company payable, and pursuant thereto the surveyor submitted its report explaining that the liability of the insurance company shall be limited to Rs.90,551/-. The copy of the report of surveyor is annexed as Annexure R-3.
- In support of his contentions, the complainant has relied upon the judgment of Hon’ble Supreme Court of India titled as New India Assurance Co. Ltd. Vs. Pradeep Kumar MANU/SC/1032/2009 wherein it is held that surveyor report is not the last and final word, it is not that sacrosanct that it cannot be departed from; it is not conclusive. We are of the considered view that the principles laid down in the decision relied upon by the learned counsel for the complainant is well settled. However, the facts of the judgment are different from the facts of the present complaint, as accidental vehicle was surveyed by three surveyors but in the present case the complainant has nowhere sought that the survey be conducted by another surveyor. The complainant after not being convinced by the amount assessed by the surveyor in question has nowhere pressed for another survey.
- Further the complainant nowhere in his pleading has justified as to why the cost of two front tyres, consumables, plastic parts and depreciation of the parts of the vehicle should not be deducted from the job estimate or invoice provided by the complainant. Therefore, we find no reason to disbelieve the surveyor’s report. Hence, the amount awarded by OP is not open to challenge.
- In view of the discussion above, we do not find any merit in the complaint, accordingly the complaint is dismissed with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room. (Kiran Kaushal) (A.S. Yadav) Member President Announced on 30.04.19 | |
