Haryana

Yamunanagar

CC/355/2010

Tara Chand Saini S/o Jaswant Singh - Complainant(s)

Versus

ICICI Lombard General Insurance Company Ltd. - Opp.Party(s)

Saurabh Bansal

27 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                    Complaint No.355 of 2010.

                                                                                    Date of institution: 19.4.2010.

                                                                                     Date of decision: 27.06.2016.

 

Tara Chand Saini son of Shri Jaswant Singh, aged 50 years, resident of 142, Kuldeep Nagar, Yamuna Nagar, tehsil Jagadhri, District Yamuna Nagar.

                                                                                                            …Complainant.

                                    Versus

ICICI Lombard General Insurance Company Ltd. Near J.K.Residency, Gobindpuri Road, Yamuna Nagar, tehsil Jagadhri, Distt. Yamuna Nagar.

                                                                                                             … Respondent.

 

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Sourabh Bansal, Advocate, counsel for complainant.   

              Sh. Parmod Gupta, Advocate, counsel for respondent.

 

ORDER

 

1.                     The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 praying therein that respondent (herein after referred as OP-Insurance Company) be directed to pay sum insured on account of damage of truck and also to pay compensation and litigation expenses  

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant is registered owner of Truck bearing registration No.HR-58-C/2884 model 2006 which was insured with the Ops-Insurance company vide insurance policy bearing no.3003/54805449/01/000 valid from 26.8.2009 to 25.8.2010.  The truck in question of the complainant met with an accident on 25.1.2010 and badly damaged and a claim was lodged with the OP-Insurance Company.  Surveyor & Loss Assessor was deputed by the OP-Insurance Company who asked the complainant to get repair his vehicle.  After that complainant got repaired the vehicle in question and spent a sum of Rs.47,000/- approximately on its repair.  After that complainant submitted all the requisite bills and documents with the OP-Insurance Company and completed all the formalities and requested the OP-Insurance Company to release his claim amount.  But, the OP-Insurance company instead of doing so is evading the matter and the complainant was asked to get compensation of Rs.9500/- and sign on the full and final settlement of the claim, whereas the OP-Insurance company is duty bound to release the entire claim.  Complainant had visited so many times to the office of the OP-Insurance Company to release the entire amount of claim but they flatly refused to do so.  Hence, this complaint.  In support of complaint, the counsel for the complainant tendered into evidence short affidavit of complainant as Annexure CW/A, affidavit of Shri Bucha Mistri as Annexure CW/B, Photocopy of Insurance policy as Annexure C.1, Photocopies of bills as Annexure C.2 to C.4, Photocopy of cheque as Annexure C.5 and Photocopy of envelop and postal receipt as Annexure C.6 and closed the evidence on behalf of complainant.

3.                     Upon notice, OP-Insurance Company appeared and filed its written statement by taking some preliminary objections such as complicated question of law and fact is involved; amount assessed by the independent and licensed surveyor amounting to Rs.9399/- has already been released to the complainant on 5.3.2010 vide cheque no.881016, so the complaint is not maintainable and on merits it has been admitted that vehicle bearing no.HR-58-C/2884 was duly insured with the OP-Insurance Company at the time of alleged accident.  It has also been admitted that an intimation of the accident was received and independent and licensed surveyor Pardeep Singh was appointed to assess the loss who inspected the vehicle and took the photographs and assessed the loss for Rs.9540/- vide report dated 16.2.2010.  Thereafter, the claim of the complainant was processed and after applying compulsory excess clause of Rs.1000/- and adjusting the salvage value etc. passed a sum of Rs.9399/- for payment on 17.2.2010 which amount stands released immediately to the complainant vide cheque no.881016, dated 5.3.2010.  The amount assessed by the surveyor and loss assessor amounting to Rs.9399/- had already been released to the complainant as full and final settlement of the claim.  As such there is no deficiency in service on the part of the OP-Insurance company and lastly prayed for dismissal of complaint.  In support of their version, the counsel for the OP-Insurance company tendered into evidence affidavit of Shri Gurpreet Manager (Legal) Claims as Annexure RW/A, Photocopy of surveyor report dated 16.2.2016 along with assessment sheet and as Annexure R.1 to R.3 and Photocopy of payment history as Annexure R.4, Photocopy of Insurance Policy as Annexure R.5 and closed the evidence on behalf of OP-Insurance company.

4.                     We have heard the learned counsel for the parties and gone through the pleadings as well as documents carefully and minutely.  It is not disputed that truck bearing No.HR58-C/2884, which was insured with the OP-insurance company vide its policy no.3003/54805449/01/000 valid from 26.8.2009 to 25.8.2010, met with an accident and was damaged.  It is also not disputed that surveyor and loss assessor was not deputed by the OP-Insurance company who assessed the loss to the tune of Rs.9540/-.  It is also not disputed that an amount of Rs.9399/- has already been paid to the complainant by the OP-Insurance company.  The only version of the complainant that the complainant has spent huge amount Rs.47,000/- on the repair of his vehicle/truck no.HR-58-C/2884 whereas OP-Insurance company has made payment Rs.9399/- which is totally illegal and against the actual expenses occurred by the complainant.  Further, learned counsel for the complainant argued that even the assessed amount Rs.9399/- has been paid by the OP-insurance company vide cheque no.881016, dated 5.3.2010 through registered letter dated 23.7.2010 i.e. after filing of the complaint and before filing the written statement.  Learned counsel for the complainant further argued that surveyor and loss assessor has wrongly assessed the loss on account of damage of the vehicle in question whereas the complainant has spent huge amount on its repair and referred case law titled as New India Assurance Co. Ltd. Vs. Pardeep Kumar, 2009 CPJ P.46 Supreme Court-Wherein it has been held that, “ Section 64UM(2)-Insurance-Assessment of loss-Pre-requisite for settlement of claim-Surveyor’s report not last and final word-It may be basis for settlement of claim but neither binding upon insurer nor insured-Complainant’s claim accepted by Consumer Fora as duly supported by original vouchers, bills and receipts-No interference required in appeal”.  Lastly prayed for acceptance of complaint.

5.                     On the other hand, learned counsel for OP-Insurance company hotly argued at length that claim of the complainant has rightly been settled by the OP-Insurance company amounting to Rs.9399/- which was assessed by the surveyor and loss assessor vide its report dated 16.2.2010(Annexure R.1) and the same has already been paid to the complainant after deducting value of salvage as well as excess clause vide cheque no.881016, dated 5.,3.2010 which is duly evident from the payment history Annexure R.4.  It is further argued that when the complainant had already received the amount assessed by the surveyor as full and final settlement of claim, so the complaint of the complainant is liable to be out rightly dismissed and referred case law titled as Jain Invest and Lease Finance Private Limited vs. Oriental Insurance Company Ltd. 2010(3) CLT P.293 NC-In which it has been held, “Insurance Claim-Surveyor’s report-Loss to the accessories of the car which was stolen and recovered assessed by the Surveyor only at Rs.10718/- Complainant directed to get the repairs done through their authorized workshop at Gurgaon-Instead of getting the repair from authorized workshop receipt produced from some other party-Held that both the Fora below have very rightly relied upon the estimate of Surveyor and have directed the respondent/OP/Insurance company to pay the said amount with 9% interest from the date of filing of the complaint till payment, which is just, fair and equitable in the facts of the case”.

6.                     Further referred the case law titled as SRI VENKATESWARA SYNDICATE versus ORIENTAL INSURANCE COMPANY LTD. AND ANOTHER 2009 CJ 10187 (S.C.),” B.Insurance Act 1938-Section 64 UM (2)-Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000-Insurance-Role of Surveyor-Surveyors are appointed under statutory provisions and they are link between insurer and insured when question of settlement of loss or damage arises-Report of Surveyor could become basis for settlement of a claim by insurer in respect of loss suffered by insured-Insurance Act only mandates that while settling a claim, assistance of Surveyor should be taken but it does not go further and say that insurer would be bound whatever Surveyor has assessed or quantified-If for any reason, insurer is of the view that certain material facts ought to have been taken into consideration while framing a report by Surveyor and if it is not done, it can certainly depute another Surveyor for purpose of conducting a fresh survey to estimate loss suffered by insured-If reports are prepared in good faith, due application of mind and in absence of any error or ill motive, Insurance Company is not expected to reject report of Surveyor”.

7.                     Further in another case referred titled as Kaur Singh vs. National Insurance Co. Ltd. 2013 (3) CLT P.126-Wherein it has been held that, “ Consumer Protection Act 1986, Section 2(1)(g)-Insurance claim(vehicle)-Surveyor’s report-Survey report is an important document and can not be brushed aside, particularly, when it is based on immediate sport survey”.  Lastly prayed for dismissal of complaint.

8.                     After hearing the learned counsel for the parties and going through the law cited by the counsel for the parties, we are of the view that there is no deficiency in service on the part of the OP-Insurance Company as the complainant has totally failed to prove any deficiency in service on the part of the OP-Insurance Company.  We have perused the bills submitted by the complainant Annexure C.2 to C.4 and the amount mentioned in these bills has been duly considered by the surveyor in his report and no ambiguity has been pointed by the complainant, even the complainant has not placed on file any private surveyor report to controvert the report of the Company’s surveyor and loss assessor (Annexure R.2) and in the absence of any controvert report this Forum is unable to held that the amount assessed by the Surveyor Pardeep Singh is on lower side.  It is well settled law that surveyor report is an important document and could not be brushed side, particularly, when it is based on immediate spot survey and the same view has been held in case titled as Kaur Singh vs. National Insurance Co. Ltd. (supra).  Case law referred by the complainant is not disputed but not identical to the facts and circumstances of the case in hand

7.                     Second, version of the complainant is that OP-Insurance Company has made payment vide cheque no.881016, dated 5.3.2016, after filing the present complaint i.e. on 23.7.2010, is not tenable as the complainant has withheld the best evidence to prove that OP-Insurance  has made payment/issued cheque on 23.7.2010, as no statement of account has been placed on file to prove this fact, mere filing of Photocopy of cover of registered envelop is not sufficient to prove that through that envelop cheque in question was sent to the complainant by the OP-Insurance Company on 23.7.2010 whereas from the perusal of the Photocopy of cheque and payment voucher (Annexure C.5), it is evident that assessed amount Rs.9399/- was paid to the complainant vide cheque dated 5.3.2010.  Further this fact is also corroborated with the payment history (Annexure R.4) filed by the  OP-Insurance   Company.      As    no    cogent    evidence    has    been    placed    on   the file by the complainant, so, this Forum is unable to consider that OP-Insurance Company has actually issued cheque in question to the complainant on 23.7.2010 as alleged by the complainant.

                        Resultantly, in the circumstances noted above, as the complainant has failed to prove any deficiency in service and unfair trade practice on the part of the OP-Insurance Company, so, we have no option except to dismiss the present complaint and the same is hereby dismissed  with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules.  File be consigned to the record-room after due to compliance.

Announced in open court.27.06.2016

                                                                                                (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER