DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.161/2014

Mr. Sardool Singh Bhullar

S/o Late Sh. G. S. Bhullar

R/o E-69, Greater Kailash Enclave-I,

New Delhi-110048                                                         ….Complainant

Versus

1.       ICICI Lombard General Insurance Co. Ltd.

          through its Managing Director

          ICICI Lombard House,

          414, Veer Savarkar Marg,

          Near Siddhi Vinayak Temple,

          Prabhadevi, Mumbai

          Also at:

          Plot No.18, Block-K,

          Lajpat Nagar-II, New Delhi-110024

2.       VD Motors

          through its Manager

          Suratgarh Road,

          Sriganganagar 

          Rajasthan-335001                                      ….Opposite Parties

                                                  Date of Institution        :23.04.14        Date of Order      : 27.10.18   

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Brief facts of the case in nutshell are:-

1. The complainant, Mr. Sardool Singh Bhullar is the owner of a Scorpio vehicle which was insured by ICCI Lombard General Company Ltd. Insurance (OP No.1) issued on 15.03.13 and was valid till 28.02.14.  
2. The vehicle met with an accident in the first week of May, 2013 in Sriganganagar as a result of which the car suffered major damages and the assessment  for repairs and necessary replacement of parts was estimated by VD Motors (OP No.2) at Rs.2,97,459/- which was well within the Insured Declared Value i.e. Rs.10,65,624/-. The estimate invoice and copy of the complainant’s insurance policy are annexed as Annexure A and Annexure B respectively.
3. It is stated that when complainant sent the estimate invoice to the OP No.1, it refused to clear the replacement of the chassis, claiming that it could be repaired instead. The complainant further states that being a senior citizen and otherwise also the safety of his family as well his own life is of paramount importance. Therefore, he was not comfortable getting the chassis of the car repaired.
4. The complainant averred that the surveyor of the OP No.1 was not technically qualified to give the report that the chassis was to be repaired or replaced hence the OP No.1 should have not adhered to his advice. It is next averred by the complainant that by virtue of agreeing to undertake repair and by reimbursing the part of the claim amount i.e. Rs.83,066/- vide cheque dated 03.10.13 drawn on ICICI Bank the OP No.1 had effectively admitted that the complainant was entitled to the insured amount. The fact that OP No.1 was suggesting repairs instead of replacement was not due to some stipulation in the insurance policy but was an irresponsible effort on their part to save money, at the cost of safety of the complainant.  The complainant further admits that part payment of Rs.83,066/- of the services was reimbursed by the OP No.1
5. The complainant further states that the conduct of the OP No.1 shows that they were doing everything within their powers to evade and minimize their liability, regarding the services which were promised to the complainant  according to the terms of the insurance policy. Hence, the present complaint for issuing direction to the OP No.1 to pay an amount of Rs.2,14,393/- alongwith with interest on  account of deficiency in service and loss suffered by the complainant, to direct the OPs to pay  jointly and severally damages to the tune of Rs.5 lakhs on account of harassment, mental agony and inconvenience caused to the complainant and  to direct the OPs to pay  jointly and severally cost of the complaint.

2. OP No.1 resisted the complaint inter-alia stating that OP No.1 had given a car package policy to the complainant  subject to the terms and conditions of the policy and as per the submissions by the complainant  a surveyor was appointed and the claim was reimbursed to the complainant on the basis of the surveyor report.
   1. The OP No.1 averred that the OP No.2 is not an authorized service centre of OP No.1 and the OP No.1 cannot go beyond the Rules and Regulations of the IRDA. It is further stated that it is a settled law that a survey report of the appointed IRDA licensed independent surveyor is an important piece of document carrying legal sanctity under section 64 UM of  the Insurance Act, 1938 which is to be given due consideration while determining the liability of the Insurance Company. Therefore, the OP No.1 has rightly given the claim to the complainant which was duly accepted by him. It is next submitted that the insurance is a policy of indemnity, the insured is liable to the actual loss and if the vehicle can be repaired, insurer will not allow for the replacement. It is prayed that the complainant be dismissed.
3. No one appeared on behalf of OP No.2 to contest the claim of the complainant.
4. Rejoinder and evidence by way of affidavit has been filed by complainant wherein everything that is said in the complaint has been reiterated. The complainant has filed following documents to support his case:-

1. Estimate invoice by OP No.2.
2.  Private car package policy certificate-cum policy schedule.
3.  The copy of legal notice and photocopy of a cheque dated 03.10.13 amounting to Rs.83066/-.

5. Evidence by way of affidavit of Sh. Vikash Goyal, working as Legal Manager has been filed by OP No.1.
6. We have heard the arguments advanced on behalf of the parties and have also carefully gone through the file. 
7. Complainant has relied upon on various judgments to support his case. In New India Assurance Co. Ltd. Vs. Pradeep Kumar IV (2009) CPJ (SC) it was the third surveyor’s report that was held final and the claim was reimbursed accordingly. Since amount in the vouchers and bills submitted by the complainant was much more than what was being assessed by the surveyor hence the surveyor’s report was not considered as the last and final word. But in the present case the facts are different as no voucher or bill has been placed on record which is in excess to the claim amount given to the complainant by the insurer.
8. Similarly in New India Assurance Company Ltd. Vs. Mahesh Kr. Nikhra, Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal –II (1993) CPJ 645 wherein it was held that the surveyor’s report could not be accepted as the surveyor had scaled down the amounts claimed to have been spent by the complainant and he had not given reasons for doing so. The facts of the case are again very different from the present case as no such claim has been shown by the complainant which is more than the amount dispensed with by the insurer.
9. The complainant has further relied upon the judgment of Mr. Mayur Batra Vs. ICICI Lombard Gen. Ins. Co. Ltd.  & Anr. in case No.2007/216 rendered by the Hon’ble State Commission, Delhi on 21.01.09. Even in this case the facts of the complaint are different from the present complaint as in this case the estimate was prepared by the duly authorized dealer and the service centre of the manufacturing company of the vehicle in question and the estimated loss was more than the IDV  of the vehicle and it was assessed that the vehicle in question required the repairs to the accidental vehicle amounting to Rs.14 lacs which was more than the value of the vehicle and the major part of the vehicle needed to be replaced. It is further the case that even after repairs the vehicle was not road worthy, hence total loss damage was declared by the surveyor of the OP. But in the instant case though the IDV is more than the claim sought by the complainant, OP No.1 relying on the opinion of the surveyor insisted on the repairing of the chassis stating what can be repaired would not  be replaced.
10. After hearing the Ld. Counsel of the parties and perusing the record it is noticed that the main issue between the parties is whether the chassis of the damaged vehicle needed repair or needed replacement. It is stated that the assessment for repairs and necessary replacement including the replacement of chassis was estimated by the OP No.2 at Rs.2,97,459/-. This was not acceptable to OP No.1 as the vehicle was surveyed and as per the surveyor’s remark “Chassis frame was repairable hence repair was allowed. However, insured got replaced with new one.” As per OP No.1 it cannot go beyond the Rules and Regulations of the IRDA, it is a settled law that a survey report of the appointed IRDA licensed independent surveyor is an important piece of document carrying legal sanctity under section 64 UM of the Insurance Act, 1938, which is to be given due consideration while determining the liability of the Insurance Company.
11. The complainant insisted on getting the chassis replaced as he was relying on the opinion of the mechanics at VD Motors (OP No.2). Bu no such opinion has been placed on record. It was further stated that the OP No.1’s surveyor lacked the requisite technical knowledge to make judgment on the present issue. It is pertinent to mention that OP No.2 is not the authorized service centre of OP No.1 therefore relying on the opinion of OP No.2 would not be justifiable. The claim of the complainant would have been more authentic if he would have sent his vehicle for repairs to some authorized service centre of OP No.1. As regard the surveyor, he is presumed to be duly qualified in terms of Sec. 64UM, of the insurance Act, 1938, unless proved to the contrary. Bald averment on this aspect by the complainant is not sufficient to rebut this presumption.
12. Further it is admitted by the complainant that OP No.1 has already reimbursed his claim as per the surveyor’s report vide cheque dated 03.10.13 for the amount for Rs.83,066/- and the complainant had duly accepted the said cheque. No document has been placed on record by the complainant to show that the money was accepted by him under protest or as part payment,
13. Hence, the complainant after having accepted the claim amount without any protest is estopped from further raising issues regarding repairs or replacement of the damaged vehicle.
14.  Therefore for the reasons noticed above, 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.

Announced on 27.10.18.