DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 352 of 19.12.2007<br /> Decided on : 02-04-2008 <br /> <br /> Ashok Kumar S/o Sh. Khem Chand, R/o Old City, Kotkapura, Tehsil & District Faridkot.<br /> ... Complainant<br /> Versus<br /> <br /> 1.I.C.I.C.I Lombard General Insurance Company, through its M.D. Zenith House, Keshav Rao Khadi Marg, Mahaluxmi, Mumbai.<br /> 2.I.C.I.C.I General Insurance Company, Branch Bathinda, Power House Road, Bathinda.<br /> 3.Customer Service, Manager, Bhagwati Bhawan, 2nd Floor, M.I. Road, Govt. Hostel, Crossing Jaipur (Rajasthan).<br /> ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh.V.P. Khurmi, Advocate.<br /> For the Opposite parties : Sh. Vinod Garg, Advocate, for opposite parties No. 1 & 2.<br /> Opposite party No. 3 exparte. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Instant one is a complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as Act) which has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay him Insurance claim of Rs. 2,30,071/- alongwith interet @18% P.A. from the date of accident till realisation; Rs. 50,000/- for mental tension and harassment and Rs. 11,000/- as litigation expenses.<br /> 2. Briefly put the case of the complainant is that he is the owner of one Trailer (Tata Motors) bearing registration No. PB-04K-9963. It was got insured by him with the opposite Insurance Company vide policy No.3003/51730774/00/000 issued on 2.5.07. Policy is valid upto 1.5.08. This vehicle had met with an accident on 7.9.07 at Bye Pass Jaipur Road near Ajmer. Intimation of the accident was immediately given to the Branch Office of opposite party No. 2 on mobile. Surveyor of the opposite Insurance Company namely Mr. Pardeep Kumar Sharma had inspected the damaged Trailer at M/s. Cargo Motors Private Limited, Ajmer. Site of accident was also inspected by him. Thereafter Branch Surveyor had issued letter dated 13.9.07 seeking abundant information from him. Its reply was given. It is alleged that the attitude of the opposite Insurance company as well as its surveyor is indifferent towards him. Demands and clarifications are being sought from him are unnecessary and uncalled for. The replies of them have already been given. Further query has been put for reinspecting the damaged Trailer which was got repaired by him from M/s. Cargo Motors Private Limited, Ajmer. Despite the fact that he has completed all the formalities, payment of the Insurance claim has not been made. Hence, there is deficiency in service and unfair trade practice on their part. Act and conduct of the opposite parties have caused him mental tension, agony, botheration, harassment and financial loss.<br /> 3. Opposite parties No. 1 & 2 filed reply of the complaint taking legal objections that complaint has been filed to injure their reputation and goodwill; intricate questions of law and facts are involved which require voluminous documents and evidence and as such remedy, if any, lies only with the civil court; he has concealed material facts and documents from this Forum; this Forum has got no territorial jurisdiction to entertain and try the complaint as complainant is resident of Kotkapura District Faridkot and alleged accident had taken place at Ajmer (Rajasthan); complainant is not consumer; he has got no locus standi and cause of action to file the complaint; complainant is not maintainable and it is false and frivolous. They do not deny specifically the ownership of the Trailer and the Insurance thereof. Inter-alia their plea is that on receipt of the information regarding accident, they had immediately deputed Sh. Kush Kumar Ubana Licenced Surveyor for conducting spot survey and assessing the loss. Accordingly, survey was conducted by him on 7.9.07 and loss was assessed by him to the tune of Rs. 39,478/- after applying depreciation strictly as per terms and conditions of the policy, other provisions and Indian Motor Tariff. In this case, as per survey report, the Cab i.e. Body Shell was easily repairable. Workshop was ready to repair it but complainant of his own insisted for new Cab/Body Shell and got it replaced without their approval and at his risk. Nothing was given on the Job Card to this effect. It has been duly signed by the complainant. It being so, they are not liable to pay any amount for replacement of the Body Shell/Cab. They had also deputed Sh. Pardeep Kumar Sharma for conducting final survey which was conducted by him at M/s. Cargo Motors Private Limited at Ajmer on 10.9.07. He had inspected the damaged vehicle and observed that steel made cabin of accidental vehicle was slightly dented and pressed at its left hand side and it was very much repairable. Only repairs were allowed of the Cabin considering the minor damages. Complainant was called upon to instruct the repairer for dismantling the vehicle for repairing job. Despite this, complaint at his own risk and cost got the Cabin replaced. Surveyor had requested him to supply the documents mentioned in the letter dated 13.9.07 but to no effect. Accordingly, claim file was closed for non-submission of the documents vide letter dated 22.12.07. They deny that information sought was unnecessary. Rather it was required for determining the quantum and liability under the claim. In the alternative their plea is that if this Forum comes to the conclusion that they are liable to pay any amount, in that eventuality, they are not liable to pay more than Rs. 39,478/-. Insurance has been obtained for commercial vehicle which is being used for commercial purposes and as such, complainant is not entitled to any relief. They deny the remaining averments in the complaint.<br /> 4. Notice of the complaint was sent to opposite party No. 3 through registered A.D. post on 27.12.07. Neither registered cover nor AD was received till 28.1.08. 30 days had passed. Accordingly, opposite party No. 3 was deemed to have been duly served. No one came present on its behalf. Hence, it has been proceeded against exparte.<br /> 5. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of letter dated 13.9.07 (Ex. C-2), photocopy of certificate cum policy schedule (Ex. C-3), photocopy of Tax Invoice (Ex. C-4), his another affidavit (Ex. C-5), photocopy of letter of Cargo Motors (Ex. C-6), Photocopy of new paper (Ex. C-7), photocopy of repayment schedule (Ex C-8), photocopy of his account statement (Ex. C-9), photocopy of receipt (Ex. C-10), photocopy of repayment schedule (Ex. C-11), photocopy of his account statement (Ex. C-12) and photocopy of receipt (Ex. C-13).<br /> 6. In rebuttal, on behalf of opposite parties No. 1 &2 affidavit of Sh. Sat Parkash, authorised signatory (Ex. R-1), affidavit of Sh. Pardeep Kumar Sharma (Ex. R-2), affidavit of Sh. Kush Kumar Ubana (Ex. R-3), photocopy of Truck spot cum final report (Ex. R-4), photocopy of loss assessment sheet (Ex. R-5), photocopy of Job Card (Ex. R-6), photocopy of letter dated 22.12.07 (Ex. R-7), photocopy of Claim Form (Ex. R-8), photocopy of Insurance Certificate and Policy (Ex. R-9) and photocopies of photographs (Ex. R-10 & Ex. R-11) have been tendered in evidence.<br /> 7. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of opposite parties No. 1 & 2.<br /> 8. Admittedly complainant is the owner of Trailer bearing Registration No. PB-04K-9963. It was insured with the opposite Insurance Company vide Certificate-cum-policy schedule, copy of which is Ex. C-3. Insurance is valid from 2.5.07 to 1.5.08. This vehicle had met with an accident on 7.9.07 and was damaged. Intimation of the accident was given to the Branch Office of opposite party No. 2. Opposite Insurance Company had appointed Sh. Kush Kumar Ubana, surveyor for spot survey. Request was made by the complainant for getting the Insurance claim but it has been repudiated vide letter dated 22.12.07, copy of which is Ex. R-7 by observing that file regarding claim of his vehicle has been closed as he has failed to submit the necessary documents (Fitness Certificate).<br /> 9. Onus to prove that repudiation of the claim made by the complainant regarding the damage to his vehicle is justified, is upon opposite parties No. 1 & 2. Complainant in his affidavit Ex. R-1 reiterates his version in the complaint by stating that requisite formalities have already been completed by him. Contention of opposite parties No. 1 & 2 is that letter dated 13.9.07, copy of which is Ex. C-2 was issued to the complainant but he did not supply the required information and documents and on that account claim file has been closed, is not tenable. As mentioned above, claim file has been closed merely on the ground of non-submission of fitness certificate. Sh. Kush Kumar Ubana was deputed by opposite Insurance Company for spot survey. He is the representative of the company. A perusal of spot survey report, copy of which is Ex. R-4 reveals that fitness certificate and other documents were produced before him. He has mentioned the fitness certificate in the enclosures with the report. Moreover, no provision has been shown to us that on the basis of fitness certificate alone Insurance claim regarding the damage to the vehicle can be thrown to the winds by the opposite Insurance Company. In these circumstances, repudiation of the claim by opposite Insurance Company through letter dated 22.12.07 is certainly illegal and not justified. Hence it is set aside.<br /> 10. Mr. Khurmi, learned counsel for the complainant argued that opposite Insurance company had previously appointed Sh. Kush Kumar Lubana as surveyor and loss assessor and his report is Ex. R-4. Thereafter Sh. Pardeep Kumar Sharma was deputed by opposite parties No. 1 & 2 and his affidavit is Ex. R-2. On the basis of the assurance given by Sh. Pardeep Kumar Sharma complainant had got replaced the Cabin/Body shell of the Trailer as it was extensively damaged and was not repairable as is evident from the letter issued by M/s. Cargo Motors Private Limited to the opposite Insurance Company. He further argued that complainant has made payment of Rs.2,30,071/- to M/s. Cargo Motors Private Limited for repairs of this vehicle and for replacement of the Body Shell. A sum of Rs. 1,90,600/- has been paid by him for replacement of Body Shell as is evident from Ex. C-4 copy of the Tax Invoice issued by M/s. Cargo Motors Private Limited and as such, complainant is entitled to claim Rs. 2,30,071/- paid by him to M/s. Cargo Motors Private Limited, Ajmer.<br /> 11. Mr. Garg, learned counsel for opposite parties No. 1 & 2 argued that complainant has claimed Rs. 2,30,071/- including Rs. 1,90,600/- on account of replacement of Assembly Body Shell. Opposite parties No. 1 & 2 have assessed the loss at Rs. 39,478/- including Rs. 25,500/- as repair charges of Assembly Bare Cabin. If this Forum comes to the conclusion that some amount is payable to the complainant, a sum of Rs. 39,478/- can be allowed.<br /> 12. We have considered the respective arguments.<br /> 13. Material question for determination is as to whether Cabin/Body shell of the vehicle in question was repairable or not. To prove that it was not repairable, complainant is relying upon the copy of the letter Ex. C-6 written by M/s. Cargo Motors Private Limited to the opposite Insurance Company. In our view no weight can be attached to this document. It is undated. No name of the person by whom it has been issued has been disclosed. His qualification and expertise to give opinion that cabin was extensively damaged are not known. Complaint has not mustered courage to submit the affidavit of the person who has allegedly signed the letter, copy of which is Ex. C-6. He has not proved that this letter was actually sent or received by opposite parties No. 1 & 2. No postal receipt regarding issuance of it and the acknowledgement concerning its receipt are on the record. Even mode through which letter was allegedly sent is not known. To the contrary Sh. Sat Parkash their authorised signatory has stated in his affidavit Ex. R-4 that this letter was not sent to them nor was it received by them. In these circumstances, very genuineness of this document is doubtful and as such it is not worth placing credence.<br /> 14. Ex. R-4 is the copy of the report of Sh. Ubana, surveyor and loss assessor. Note has been given by him underneath of his report that Cab was easily repairable and garage was also ready to repair it, but insured was insisting for new Cab which was not possible as Cabs with more damaged are being repaired with high callibre and accuracy. Insured got the Cab replaced at his own risk without approval from the Insurer. His this report stands corroborated with his affidavit Ex. R-3. Sh. Pardeep Kumar Sharma was admittedly appointed surveyor for final survey for assessing the loss. His affidavit is Ex. R-2. After inspection of the vehicle, he observed that steel made cabin/body shell of the accidental vehicle was slightly dented and pressed at its left hand side and it was very much repairable. He came to the conclusion that it was repairable and that the demand of the complainant for its replacement was not genuine. Perusal of Ex. R-8 copy of the claim form reveals that it was not a major accident. On the way, suddenly a cow came in front of the vehicle and there was accident. Photographs Ex. R-10 & Ex. R-11 also indicate that there was no major damage to the Cabin/body shell of the vehicle. Complainant has himself brought on record copy of the letter of Sh. Pardeep Kumar Sharma, surveyor & Loss assessor as Ex. C-2. Through this letter, he informed the complainant that during inspection of the vehicle it was observed that Steel made Cabin of the accidental vehicle was slightly dented and pressed at its left hand side and it was very much repairable. Ex. R-6 is the copy of the Job Card dated 8.9.07 issued by Cargo Motors Private Limited. Note has been given in it that Insurance surveyor has permitted repair of the cabin and replacement of the affected parts but customer (complainant) insisted to replace the Cabin. Accordingly, they have replaced the bare Cabin on customer's approval. This letter bears the signatures of the complainant. There is no copy of complaint on record to show that complainant had preferred complaint against Sh. Ubana. Hence, the plea of the complainant in his affidavit Ex. C-5 that it was preferred against him with the opposite parties appears to us an after thought. No amount of evidence can be considered if it is beyond the averments of the party. In these circumstances, report of Sh. Ubana, his affidavit and the affidavit of Mr. Sharma have to accepted as there is no material on the record to disbelieve them. It has been held by the Hon'ble National Commission in the case of Oriental Insurance Company Limited Vs. Mehta Wool Store 2007(3) CLT 530 that surveyor are independent assessors. Their report has to be given due importance and weightage unless there is overwhelming evidence to the contrary. In this case, complainant has not led any cogent and convincing evidence before this Forum to nullify report of Sh. Ubana and the view expressed by Sh. Sharma in his affidavit. To the same effect are the authorities New India Assurance Company Limited Vs. S P Rajendran 2007(3) CLT 479, Sarvalaxmi Marines Vs. Oriental Insurance Company Limited & Anr 2007(3) CLT 559 and Anuj Agarwal Vs.United India Insurance Co. Ltd., 2005(3) CLT 419.<br /> 15. In view of our foregoing discussion, conclusion is that Cabin/Body shell was repairable. Despite this, complainant got it replaced of his own.. It being so, he is not entitled to the price of the replaced Body Shell i.e. Rs. 1,90,600/-. There is deficiency in service on the part of opposite parties No. 1 & 2 in repudiating the claim of the complainant as has been discussed above. Sh. Ubana has assessed the loss to the vehicle at Rs. 39,478/-. Opposite parties No. 1 & 2 are liable to pay this amount alongwith interest @9% P.A. from 15.9.07 i.e. the date on which he made payment to M/s. Cargo Motors Private Limited, Ajmer, till realisation. Complainant is craving for compensation of Rs . 50,000/- on account of mental tension, agony, botheration and harassment. There is no case to allow it in view of the relief which is going to be accorded as above. Out of compensation and interest one can be allowed.<br /> 16. In the result, complaint is partly allowed against opposite parties No. 1 & 2 with cost of Rs. 1,000/-. It stands dismissed against opposite party No. 3. Opposite parties No. 1 & 2 are directed to do as under :-<br /> i) Pay Rs. 39,478/- to the complainant alongwith interest @9% P.A. from 15.9.07 till payment.<br /> Compliance of this order be made within 30 days from the date of its receipt.<br /> Copy of this order be sent to the parties concerned and file be consigned to record room.<br /> Pronounced :<br /> 02-04-2008 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member