Chandigarh

DF-I

CC/211/2023

ARUN KUMAR - Complainant(s)

Versus

ICICI LOMBARD GENERAL INSURANCE COMPANY LTD - Opp.Party(s)

ANUJ GARG AND M.M.PANDEY

02 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/211/2023
Date of Institution	:	21/04/2023
Date of Decision	:	02/11/2023

Arun Kumar aged 33 years s/o Sh. Dharam Bir r/o H.No.358, Ground Floor, Sector 7A, Chandigarh.

… Complainant

V E R S U S

1. ICICI Lombard General Insurance Company Ltd., Plot No.149, 4^th Floor, The Statement, Industrial Area, Phase – I, Chandigarh through its Manager.
2. Saluja Motors Private Limited, Plot No.C-43, Industrial Area, Phase 3, Mohali, through its Manager.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

               

ARGUED BY	:	Sh. Umesh Pandey, Advocate for complainant
	:	Sh. Ankur Gupta, Advocate for OP-1
	:	Sh. Ankur Bali, Advocate for OP-2

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Arun Kumar, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that complainant is the registered owner of Ford Endeavour car bearing registration No.PB-60C-0067 (hereinafter referred to as “subject car”) as per registration certificate (Annexure C-1). The subject car was insured with OP-1/insurer vide insurance policy (Annexure C-3) w.e.f. 28.10.2021 to 27.10.2022 with IDV of ₹33,03,360/- on payment of premium of ₹65,764/- (hereinafter referred to as “subject policy”).  On the late evening of 20.10.2022 at around 10.30 p.m. at village Naloai, District Bhiwani, the subject car, being driven by the complainant, met with an accident when a cow (Neelgaaye) came on the road, all of a sudden, and when the complainant tried to save the said cow, the car struck against a tree and at the same time a container going through that road also hit the car of the complainant from backside, as a result of which the subject car was badly damaged.  At that time the complainant was all alone in the subject car and had suffered injury.  He called up his friend and thereafter went to the nearby hospital with him.  As there was no loss of life, matter was not reported to the police.  Copy of the medical treatment card is Annexure C-4. The subject car was towed away at around 2.30 a.m. in the night with the help of a towing van and it was brought to the workshop of OP-2 on 21.10.2020 and copy of bill issued by T.S. Towing Service is Annexure C-5.  All the papers pertaining to the claim, including the claim form, were submitted by the complainant to OP-2 on 22.10.2022, who further submitted the same to OP-1 for settlement of claim.  Thereafter on 12.10.2022, complainant had again got the subject car insured/renewed from OP-1 w.e.f. 28.10.2022 to 27.10.2023 vide policy (Annexure C-6) by paying premium of ₹72,697/-.  On 30.10.2022/1.11.2022, OPs had jointly conducted survey of the damaged car lying at the premises of OP-2 and thereafter prepared estimate report (Annexure C-7) of ₹19,49,097/-. OPs had also recorded one statement of the complainant dated 19.11.2022 (Annexure C-8) about the said accident.  The complainant remained under good faith and trusted the words of OPs that they were in the process of taking approval of higher officials for the settlement of the claim, but, nothing was done. The complainant approached the OPs for settlement of the claim, but, with no result.  In this manner, the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.  OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their separate written versions.
3. In its written version OP-1, inter alia, took preliminary objections of maintainability, cause of action, jurisdiction and also that the claim of the complainant has not been processed due to his non cooperation as he has not submitted the documents requested by the answering OP alongwith his consent.  On merits, admitted that the subject car was insured with the answering OP at the relevant time.  However, it is denied that the answering OP had jointly conducted the survey of the damaged car with OP-2 and thereafter prepared estimate for ₹19,49,097/-.  It is further denied that the answering OP had recorded the statement of complainant on 19.11.2022.  In fact, deputed surveyor had given his final survey report (Annexure R-1/1) as the complainant had not submitted the documents, which were asked by the answering OP, required for the assessment of the claim.  The claim cannot be settled on inflated estimate.  The facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
4. In is written version OP-2, inter alia, took preliminary objections of maintainability, cause of action and jurisdiction.  It is alleged that, in fact, the complainant has no cause of action against the answering OP so far as the claim of the complainant is concerned and also that the complainant has suppressed material facts from this Commission. The factum of accident of the subject car and sustaining of injury by the complainant in the said accident are also denied for want of knowledge. In fact, the answering OP was always ready and willing to start the repair of the car, subject to approval from the complainant and the insurer.  The facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
5. The complainant chose not to file the rejoinder.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is the registered owner of the subject car, as is also evident from the RC (Annexure C-1) and the same was insured with OP-1 w.e.f. 28.10.2021 to 27.10.2022, as is evident from the subject policy (Annexure C-3) and the subject car met with an accident on the night of 20.10.2022 in which the complainant had suffered injuries, as is also evident from the OPD card of the Civil Hospital, Siwani (Annexure C-4) and after the accident the subject car was brought to the workshop of OP-2 for repairs and thereafter complainant had lodged claim with OP-1 through OP-2 and the subject car is still lying in the workshop of OP-2 without any repair and further that the claim of the complainant has not been settled by OP-1/insurer, till date, despite of the fact that the surveyor has assessed the loss of the subject car to the tune of ₹15,49,648.05 on repair basis, as is also evident from the survey report (Annexure R-1/1), the case is reduced to a narrow compass as it is to be determined if OP-1/insurer is unjustified in not settling the claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint of the complainant, being premature and not maintainable, is liable to be dismissed, as is the defence of OPs.
   2. In the backdrop of foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the registration certificate (Annexure C-1), subject policy (Annexure C-3), estimate (Annexure C-7) prepared by the repairer and the surveyor report (Annexure R-1/1) and the same are required to be scanned carefully.
   3. Perusal of the registration certificate (Annexure C-1) indicates that the complainant is the registered owner of the subject car.  Annexure C-3 is the copy of insurance policy of the subject car which clearly indicates that the same was valid w.e.f. 28.10.2021 to 27.10.2022 with IDV of ₹33,03,360/-. Annexure C-7 is the copy of estimation details issued by OP-2, which clearly indicate that OP-2 has assessed the cost of repair to the tune of ₹19,49,047/-.  However, the complainant has not tendered any invoice showing he has spent any amount for the repair of the subject car. Annexure R-1/1 is the surveyor report which clearly indicates that the surveyor, after inspecting the subject car in the workshop of OP-2, had assessed the net loss of the subject car to the tune of ₹15,49,648.05 on repair basis (less A/C salvage and excess clause and after adding towing charges) and ₹10,98,000/- on cash loss basis.
   4. As per the case of the complainant, he intended to get the subject car repaired from OP-2, in whose workshop the subject car is still lying for repair, and as OP-1 has not settled the genuine claim of the complainant, rather has delayed the same on flimsy ground of non-submission of documents, the consumer complaint be allowed. 
   5. On the other hand, the consumer complaint is resisted by OP-1/insurer on the ground that as the complainant has failed to tender the documents as requested by it through email (Annexure C-10) and reminders (Annexure C-11 to C-13), the claim has not been adjudicated by OP-1 and the consumer complaint, being premature, be dismissed with costs. 
   6. However, perusal of the letter (Annexure C-12) sent by OP-1 clearly indicates that OP-1 has been asking the complainant to provide purchase proof of the vehicle. Since Annexure C-1 clearly proves that the complainant is the registered owner of the subject car in whose name the subject car has already been registered, it appears that OP-1 has intentionally delayed the settlement of the claim of the complainant on flimsy ground as till date neither OP-1 has allowed the claim nor has denied the same, which itself amounts to deficiency in service and unfair trade practice and the present consumer complaint deserves to succeed.
   7. Now coming to the quantum of compensation, no doubt the complainant has tendered/proved the estimation details (Annexure C-7), but, since it is only estimate of repair issued by OP-2, much weightage cannot be given to the same in order to determine the repair cost of the subject car in the light of the fact that the surveyor deputed by OP-1 has given detailed report (Annexure R-1/1) and thereby assessed the net amount on repair basis at ₹15,49,648.05.  Though the complainant has resisted the said detailed report of the surveyor, but, since the complainant has himself failed to prove the actual repair cost of the subject car, the said detailed surveyor report cannot be ignored simply on the ground that the same has been objected by the complainant just for the sake of objection.
   8. Surveyor report is an important piece of evidence and has to be given due weightage and can only be ignored if there is any other cogent evidence to the contrary.  The Hon’ble National Commission in New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC) held as under:-

“The Report submitted by the Surveyor is an important piece of evidence and has to be given due weight and relied upon until and unless it is proved by some cogent and reliable evidence that the Report submitted could not be relied upon.”

Further the Hon’ble National Commission in Oriental Insurance Co. Ltd vs. Arss Infrastructure Project Ltd., II (2023) CPJ 468 (NC) held as under:-

            “Insurance — Surveyors’ report — Survey and investigation are one of fundamentals in settling claim, and cannot and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that survey or investigation should be convincing and pass test of credence in scrutiny — State Commission has not gone into contents of surveyors’ reports at all on ground that reports were filed belatedly before it — Reports were in any case available before State Commission and as such it ought to have examined their contents rather than dismissing them outright — Depending upon circumstances State Commission could have even imposed terms including cost for belatedly filing reports but to treat them as suspicious and to perfunctorily dismiss them outright merely because they were filed belatedly was not approach either justified or called for — No need to examine surveyors’ reports at this stage at any great length since both parties agree that settlement may be made on basis of respective surveyor’s assessment of actual loss in each case.”

The Hon’ble National Commission in Detco Textiles Pvt. Ltd. Vs. New India Assurance Company Ltd. & Anr., II (2023) CPJ 535 (NC) held as under:-

       “The Surveyor conducted a very detailed inspection of the premises and assessed the loss after due verification of documents. He assessed the total loss to the building, plant & machinery and furniture etc. at Rs.11,21,18,099/- after making necessary deductions of Rs.5,605,905/- towards excess clause and taking care of the process charges, debris removal, architects fee and goods held in trust arrived at the net adjusted loss of Rs.10,65,12,194/-. For every item, the Surveyor had explained the basis of arriving at the amount. The Complainant on the other hand had not placed any evidence to establish that the assessment made by the Surveyor was incorrect. The Complainant, therefore, cannot be allowed the amount beyond the assessment of the Surveyor. We see no reason not to agree with the assessment made by the Surveyor.”

9. In view of the foregoing discussion and the ratio of law laid down above, it is safe to hold that OP-1/ insurer is liable to pay to the complainant the net amount assessed by the surveyor on repair basis i.e. ₹15,49,648.05 (rounded off to ₹15,49,648/-) alongwith interest and compensation etc. for the harassment suffered by him.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP-1 is directed as under :-

1. to pay ₹15,49,648/- to the complainant alongwith interest @ 9% per annum from the date of institution of the present consumer complaint i.e. 21.4.2023 onwards.
2. to pay an amount of ₹50,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OP-1 within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Since no deficiency in service or unfair trade practice has been proved against OP-2, consumer complaint against it stands dismissed with no order as to costs. 
7. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
8. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 02/11/2023 hg		Sd/- [Pawanjit Singh] President
		Sd/- [Surjeet Kaur] Member