Order dictated by:

Sh.Anoop Sharma, Presiding Member  

1.       Sh.Atul Arora has brought the instant complaint under section 12 of the Consumer Protection Act, 1986 on the allegations that he got insured his vehicle bearing registration No.PB-02CC-6805 from Opposite Party covering the risk period from 17.4.2015 to 16.4.2016 and the said vehicle was to be used by the complainant for earning his livelihood by means of self employment. Said  vehicle unfortunately met with an accident on 9.12.2015 while coming from Doraha and the Opposite Party was immediately intimated and the vehicle was towed to the nearest Ashok Leyland Service Station, Paragpura, Jalandhar and the Opposite Party appointed its surveyor who surveyed the said vehicle, said service station made the preliminary estimate of the repair of the vehicle for more than Rs.11 lacs. It is pertinent to mention over here that the IDV of the said vehicle  is Rs.11 lacs and the surveyor assessed the loss as total loss of the vehicle. The complainant made several futile visits to the Opposite Party to settle the genuine claim, but the Opposite Party instead of settling the genuine claim of the complainant, putting off the complainant on one pretext or the other and is not settling the genuine claim of the complainant till the filing of the present complaint. The aforesaid acts of the Opposite Party in not settling the genuine claim of the complainant is an act of deficiency in service, unfair trade practice, mal practices and is not sustainable in the eyes of law and has caused the agony and harassment to the complainant. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party may please be directed to pay the claim of Rs.11 lacs alongwith interest @ 12% per annum from 9.12.2015 till realization.

b)      Opposite Party be directed to pay compensation of Rs.50,000/- to the complainant.

c)       Opposite Party be directed to pay the adequate costs of the present litigation.

Hence, this complaint.

2.       Upon notice, Opposite Party appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that the complainant has not come to this Forum with clean hands and has concealed the material facts from this Forum;  that the complaint is pre-mature one because the claim of the complainant has not been settled due to non cooperation of the complainant and not submitting the requisite documents required for the settlement of the claim as such the present complaint is liable to be dismissed; that the present complaint is not maintainable because after receiving the information of accident of the concerned  vehicle, the Opposite Party immediately deputed Khanna Sanjiv Engineer Surveyor and Loss Assessor to assess the loss of the said vehicle. The vehicle was lying at the service centre  of Ashok Leyland and they have submitted his estimate for accident repair to the tune of Rs.7,67,654/- and on the basis of that estimate the surveyor deputed by the Opposite Party assessed the loss to the tune of Rs.5,49,000/- subject to submitting the requisite document necessary for the settlement of the claim. The surveyor has requested the complainant number of times to submit those documents and even sent a registered letter dated 12.2.2016 to the complainant which are necessary for the settlement of the claim and inspite of the oral request and by the registered letter, the complainant has  not provided those documents to the surveyor. Thereafter, the surveyor submitted the report with the Opposite Party and Opposite Party assessed the loss of the vehicle to the tune of Rs.5,49,000/-. It is pertinent to mention over here that the complainant has not cooperated with the surveyor deputed by the Opposite Party and the complainant has not submitted those documents with the surveyor and inspite of handing over the documents, the complainant has filed the present complaint without any basis which is abuse an process of law and without any cause of action. The matter is still pending with the Opposite Party due to non cooperation of the complainant, as such, the present complaint is pre mature one and the same is liable to be dismissed on this  score. Moreover, the present complaint is not covered under the Consumer Protection Act because the complainant is not a  consumer and he was using this vehicle for commercial purposes which is not covered under the Act. On merits, the Opposite Party has taken up the same and similar pleas as taken by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2  and Ex.C3  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.Sanket Gupta, Ex.OP1, affidavit of Khanna Sanjeev, Surveyor Ex.OP2 alongwith copies of documents Ex.OP3 to Ex.OP10 and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       Ld.counsel for the Opposite Party has vehemently contended that after receiving the information of accident of the concerned  vehicle, the Opposite Party immediately deputed Khanna Sanjiv Engineer Surveyor and Loss Assessor to assess the loss of the said vehicle. The vehicle was lying at the service centre  of Ashok Leyland and they have submitted his estimate for accident repair to the tune of Rs.7,67,654/- and on the basis of that estimate the surveyor deputed by the Opposite Party assessed the loss to the tune of Rs.5,49,000/- subject to submitting the requisite document necessary for the settlement of the claim. The surveyor has requested the complainant number of times to submit those documents and even sent a registered letter dated 12.2.2016 to the complainant which are necessary for the settlement of the claim and inspite of the oral request and by the registered letter, the complainant has  not provided those documents to the surveyor. Thereafter, the surveyor submitted the report with the Opposite Party and Opposite Party assessed the loss of the vehicle to the tune of Rs.5,49,000/-. It is pertinent to mention over here that the complainant has not cooperated with the surveyor deputed by the Opposite Party and the complainant has not submitted those documents with the surveyor and inspite of handing over the documents, the complainant has filed the present complaint without any basis which is abuse an process of law and without any cause of action. The matter is still pending with the Opposite Party due to non cooperation of the complainant, as such, the present complaint is pre mature one and the same is liable to be dismissed.

7.       On the other hand, ld.counsel for the complainant has repelled the aforesaid contentions of the ld.counsel for the Opposite Party on the ground that   the IDV of the said vehicle  is Rs.11 lacs and the surveyor assessed the loss as total loss of the vehicle. The complainant made several futile visits to the Opposite Party to settle the genuine claim, but the Opposite Party instead of settling the genuine claim of the complainant, putting off the complainant on one pretext or the other and is not settling the genuine claim of the complainant till the filing of the present complaint, but however, the surveyor deputed by the Opposite Party assessed the loss to the tune of Rs.5,49,000/- subject to submitting the requisite document necessary for the settlement of the claim. Ld.counsel for the complainant has further contended that the report of  the surveyor is not ultimate document to reach at the conclusion to allow or not to allow the claim, in this regard, he also produced citation of Hon’ble Delhi State Consumer Commission.  Hence, the aforesaid        acts of the Opposite Party in not settling the genuine claim of the complainant is an act of deficiency in service, unfair trade practice, mal practices and is not sustainable in the eyes of law and has caused the agony and harassment to the complainant.

8.       Undisputedly, the complainant got his vehicle insured bearing registration No.PB-02CC-6805 (copy of registration of the vehicle is Ex.C3) from Opposite Party covering the risk period from 17.4.2015 to 16.4.2016, copy of the cover note accounts for Ex.C2. It is also not disputed that said  vehicle met with an accident on 9.12.2015 while coming from Doraha and the Opposite Party. It is also not disputed that the vehicle in question has been damaged as total loss. On receipt of information, the Opposite Party deputed surveyor Khanna Sanjiv Engineer Surveyor and Loss Assessor to assess the loss of the said vehicle who submitted his estimate for accident repair to the tune of Rs.7,67,654/- and on the basis of that estimate the surveyor assessed the loss to the tune of Rs.5,49,000/- subject to submitting the requisite document necessary for the settlement of the claim. The surveyor has requested the complainant number of times to submit those documents, but the complainant has  not provided those documents to the surveyor. On the other hand,  ld.counsel for the complainant has specifically mentioned that the complainant has already submitted the requisite documents to settle  his claim, with the Opposite Party. Moreover, it is not the fun and  not believable that the  complainant has to retain the documents to delay his own claim.  Furthermore, it is also  not believable that  without any document, the surveyor has assessed the estimate for accident repair to the tune of Rs.7,67,645/- and on the basis of that, he assessed the loss to the tune of Rs.5,49,000/-, hence this contention of the Opposite Party that due to non submission of the requisite documents by the complainant, the claim could not be settled finally.

9.       Now come to the second point. Admittedly,  on receipt of information, the Opposite Party deputed surveyor Khanna Sanjiv Engineer Surveyor and Loss Assessor to assess the loss of the said vehicle who submitted his estimate for accident repair to the tune of Rs.7,67,654/- and on the basis of that estimate the surveyor assessed the loss to the tune of Rs.5,49,000/-.  In this context, Hon’ble Delhi State Consumer Disputes Redressal Commission New Delhi in case Suresh Chand Jain Vs. Universal Sompo General Insurance Company Limited 2016(2) CLT has held that the report of the expert surveyor is not ultimate documents to reach at a conclusion to allow or not to allow the claim- Courts had to apply their mind also. Reliance in this respect can be had on New India Assurance Company Limited Vs. Pardeep Kumar (2009) CPJ 46 (SC), wherein it has been laid down that Surveyor’s report is not the last and final word. It is not that sacrosanct that it can not be departed from; it is not conclusive. The approved Surveyor’s report may be basis or foundation for settlement of a claim by the insurer in  respect of the loss suffered by the insured, but surely such report is neither binding upon the insurer nor insured. Not only this, the Opposite Party has no where mentioned on what account, the surveyor has reduced the IDV of the vehicle. It is pertinent to mention over here that at the time of insurance of the vehicle in dispute, the Opposite Party itself has assessed the IDV of the vehicle in question at Rs.11 lacs and took the premium according to the IDV of the vehicle, but at this stage, the Opposite Party can not wriggle out from its liability to make good the loss to the vehicle in dispute, only on the basis of report of surveyor, which is not likely to be admitted as correct in view of the supra ruling. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted,  wherein it  was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts, Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 has held to the following effect:-

“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.       

The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy.

10.     From the aforesaid discussion, it transpires that repudiation of claim has erroneously been made by the Opposite Party. The complainant is entitled to claim compensation to the tune of Rs.11 lacs as per IDV of the vehicle in question on total loss basis.

11.     Consequently, the instant complaint succeeds  and the Opposite Party is directed to pay a sum of Rs.11 lacs (Rupees Eleven lacs only) to the complainant as compensation as IDV of the vehicle in question,  subject to furnishing the letter of subrogation, power of attorney for transfer of RC of the vehicle in question  in favour of the Opposite Party, by the complainant. Compliance of this order be made within 30 days from the receipt of copy of the order, failing which amount awarded will carry interest @ 9% per annum from the date of order until full & final recovery.  Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 13.02.2017.