Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 321.
Instituted on : 23.08.2013.
Decided on : 03.05.2016.
Swami Gurcharan Dass, Sanatan Dharam, Senior Secondary School, Kalanaur through its Principal.
………..Complainant.
Vs.
- The ICICI Lombard General Insurance Co. Ltd. through its Zonal Manager, Sector 8C, SCO 24-25, Near Gopal Sweets, Madhay Marg, Chandigarh.
- The ICICI Lombard General Insurance Co. Ltd., through its Divisional Manager/Incharge, ICICI Bank Towers, Bandra Kurla Complex, Mumbai.
- The ICICI Lombard General Insurance Co. Ltd. through its Divisional Manager, IInd Floor, Appu Ghar Shopping Complex, Civil Road, Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH.VED PAL, MEMBER.
Present: Sh.K.K.Luthra, Advocate for the complainant.
Sh.Yogesh Sharma, Advocate for the opposite parties.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he is owner of Bus No.HR-46C-0194 and the same was insured with the opposite parties for the period from 31.03.2011 to 30.03.2012 vide policy cover note no.PCVM 9255641 for an assured amount of Rs.880000/-. It is averred that on 26.03.2012 the said Bus owned by the complainant school, was coming back to the school after leaving the students at their destination and the said vehicle reached in front of Gaushala Kalanaur, suddenly it caught fire due to short circuit and burnt completely i.e. total loss and the matter was reported to police station concerned on the very same day. It is averred that the opposite parties were also informed regarding the said incident and the required documents were submitted to the opposite parties. It is averred that opposite parties appointed a surveyor who duly inspected the vehicle and assessed the loss but the opposite parties are avoiding the claim on one pretext or the other. It is averred that the act of opposite parties of not disbursing the lawful claim of the complainant is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to disburse the insurance claim of Rs.880000/- alongwith interest, compensation and litigation expenses.
2. On notice, the opposite parties appeared and filed their written reply submitting therein that it is correct to the extent that the vehicle caught fire without an accident or external impact rather the same caught fire due to manufacturing or mechanical defect. Hence the claim of the complainant is not payable at all by the answering opposite parties. It is the manufacturer or dealer who can be held liable for this alleged loss if any. It is averred that as per the surveyor report the loss is assessed as Rs.253000/- and the liability of opposite party company cannot exceed Rs.253000/-. It is further submitted that it is admitted case of the complainant that there was no accident or external factor causing loss of the vehicle rather it is specific pleading of the complainant that the vehicle caught fire due to short circuit and burnt. Hence, from the averments of the complainant himself, it is evident that the loss on the vehicle, if any, is only because of manufacturing or mechanical defect of the vehicle and without any external factor. Hence claim of the complainant is not payable. It is prayed that complaint may kindly be dismissed with costs.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence tendered affidavits Ex.CW1/A, documents Ex.C1 to Ex.C12 and closed his evidence. On the other hand, ld. Counsel for the opposite party in his evidence tendered affidavits Ex.R1 to Ex.R2, documents Ex.R3 to Ex.R10 has closed his evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per policy Ex.C1, the vehicle of the complainant was insured with the opposite parties and that the IDV of the vehicle is Rs.880000/-. It is also not disputed that as per copy of D.D.Report Ex.C3 the alleged vehicle was burnt due to short circuit in the bus. After the accident complainant filed the claim with the opposite parties. Opposite parties appointed the surveyor who as per his report Ex.R3 has assessed the loss amounting to Rs.253000/- but the opposite party vide its letter Ex.R4 and Ex.R5 has submitted that the claim of the complainant remains unprocessed for want of some documents. The contention of ld. counsel for the opposite party is the surveyor is an expert to assess the loss and at any circumstances liability of opposite parties company cannot exceed Rs.253000/-. It is further contended that the loss of the vehicle was due to mechanical defect hence the manufacturer or the dealer of the vehicle is responsible for the alleged loss if any. On the other hand contention of ld. counsel for the complainant is that vehicle caught fire due to short circuit and there is no question of any manufacturing defect. It is further contended that all the documents have been duly supplied to the opposite parties and that the loss assessed by the surveyor is very meager.
7. After going through the file and hearing the parties it is observed that all the documents have been supplied by the complainant to the opposite parties and after receiving the required documents, the surveyor has assessed the loss. The other plea taken by the opposite party is that company is not liable for any loss because of manufacturing or mechanical defect and without any external factor. But neither the surveyor in his report has submitted that company is not liable to pay the loss nor any terms and conditions have been placed on record by the opposite parties to prove that the company is not liable to pay the claim for the loss other than external means. It is also observed that as per the report of surveyor Ex.R3, the net loss assessed is Rs.372059/- but after deducting the amount of Rs.119058/- on account of cash loss settlement, the net loss is assessed for Rs.253000/-. But it is not proved on file that the complainant has agreed for the loss on cash loss settlement basis as no consent letter has been placed on record by the opposite parties. In this regard reliance has been placed upon the law cited in 1975 CLJ 501 titled Behari Lal Uppal Vs. Swarn Singh whereby Hon’ble Punjab & Haryana High Court has held that: “Oral evidence-A weak evidence-Reasons stated-Rule of prudence demand corroboration of the same from other evidence and circumstances”, as per Vol.CLVII- (2010-1) 627, titled New India Assurance Co. Ltd. Vs. Pradeep Kumar Hon’ble Supreme Court has held that: “The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of loss suffered by the insured but surely such report is neither binding upon the insurer nor insured”, as per II(2010)CPJ12(NC) titled as CIMMCO Birla Limited Vs. National Insurance Company Ltd. & Ors. Hon’ble National Commission has held that: “Stocks submerged in water for days, could not be segregated-Settlement on basis of indemnification of loss agreed by insurer-Loss assessed by surveyors, reduced on flimsy grounds-Deficiency in service on part of insurer proved-Relief entitled”, and as per 2013(3)CPC 18 titled as Kum Kum Silk and Sarees Vs. United India Insurance Co. Ltd. Hon’ble National Commission, New Delhi has held that: “As the report of the surveyor is not based on cogent evidence and certain amount has been excluded from total compensation the report cannot be given significant importance-Respondent is directed to pay total sum of Rs.705860/- as a valid claim-Petition allowed”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that the complainant is entitled for the Net amount of loss i.e. Rs.372059/- as assessed by the surveyor as per his report Ex.R3 as no consent has been given by the complainant for cash loss settlement .
8. In view of the facts and circumstances of the case it is directed that the opposite parties shall pay the amount of Rs.372059/-(Rupees three lac seventy two thousand & fifty nine only) along with interest @ 9% p.a. from the date of filing the present complaint i.e.23.08.2013 till its realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of order. Complaint is disposed of accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
03.05.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
………………………..
Ved Pal, Member.
