Haryana

Kaithal

CC/18/2022

SANJY - Complainant(s)

Versus

IFFCO TOKIO GEN INSURANCE CO. - Opp.Party(s)

SH.RAJESH MAJRA

06 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.18/2022.

                                                     Date of institution: 19.01.2022.

                                                     Date of decision:06.10.2023.

Sanjay Kumar S/o Ishwar Singh, resident of 94, Village Phurlak, Tehsil and District Karnal. 

                                                                        …Complainant.

                        Versus

Iffco-Tokio General Insurance Co. Ltd., Serving Office at Indra Gandhi Public School Dhand Road, Kaithal, District Kaithal, through its Branch Manager.

….OP.

        Complaint under Section 35 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Rajesh Majra, Advocate, for the complainant.   

                Sh. Dinesh Bhardwaj, Advocate for the OP.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Sanjay Kumar-Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the OP.

2.             In nutshell, the facts of present case are that the complainant  got insured his tractor Model EICHER 557 bearing registration No.HR91A-4499 with the OP under Commercial Vehicle Policy bearing No.60156948 valid for the period w.e.f. 22.06.2021 to 21.06.2022.  On 26.06.2021 when the above-said vehicle of complainant was parked in the street in proper manner, then the wall of the adjoining house was broken and fallen on the tractor, as a result of which the said vehicle was damaged.  Information was given to the OP, who appointed the surveyor.  The surveyor directed the complainant to bring the tractor at New Kissan Machinery Store, Ambala Road, Kaithal.  The complainant got repaired the said tractor and incurred the amount of Rs.76,026/- on its repair.  The complainant got lodged the claim with the OP and submitted all the necessary documents and bills but the OP only credited the amount of Rs.23,144/- in his account.  So, it is a clear cut case of deficiency in service on the part of OP and prayed for acceptance of complaint.     

3.            Upon notice, the OP appeared before this Commission and contested the complaint by filing their written version raising preliminary objections with regard to locus-standi; cause of action; that the present complaint is not maintainable since the claim in question of the complainant has already been settled by the OP-insurance company and the admissible claim amount of Rs.23,144/- has also already been disbursed to the complainant bank account as per the assessment made by the surveyor.  There is no deficiency in service on the part of OP.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C8 and thereafter, closed the evidence.

5.             On the other hand, the OP tendered into evidence affidavit Ex.RW1/A alongwith documents Annexure-R1 to Annexure-R4 and thereafter, closed the evidence.

6.             We have heard the learned Counsel for both the parties and perused the record carefully.

7.             Ld. counsel for the complainant has argued that the complainant got insured his tractor Model EICHER 557 bearing registration No.HR91A-4499 with the OP under Commercial Vehicle Policy bearing No.60156948 valid for the period w.e.f. 22.06.2021 to 21.06.2022.  On 26.06.2021 when the above-said vehicle of complainant was parked in the street in proper manner, then the wall of the adjoining house was broken and fallen on the tractor, as a result of which the said vehicle was damaged.  Information was given to the OP, who appointed the surveyor.  The surveyor directed the complainant to bring the tractor at New Kissan Machinery Store, Ambala Road, Kaithal.  The complainant got repaired the said tractor and incurred the amount of Rs.76,026/- on its repair.  The complainant got lodged the claim with the OP and submitted all the necessary documents and bills but the OP only credited the amount of Rs.23,144/- in his account.  So, it is a clear cut case of deficiency in service on the part of OP.  Ld. counsel for the complainant has placed reliance upon the case law titled as Mallikarjun Sakri Vs. Branch Manager, OIC 2014(1) CLT 476 decided by Hon’ble National Commission; Future Generali India Insurance Co. Ltd. Vs. Davinder Bindal 2018(1) CLT 86 decided by Hon’ble National Commission and NIA Vs. Banwari Lal Chaddha and another 2013(1) CPC 574 decided by Hon’ble National Commission.

8.             On the other hand, ld. counsel for the OP has argued that the claim in question of the complainant has already been settled by the OP-insurance company and the admissible claim amount of Rs.23,144/- has also already been disbursed to the complainant bank account as per the assessment made by the surveyor.

9.             There is no dispute between the parties that the vehicle in question was insured by the complainant with the OP for the period valid w.e.f. 22.06.2021 to 21.06.2022 as per Annexure-C2.  There is also no dispute that on 26.06.2021, the wall of adjoining house was broken on the tractor in question.  The grievance of the complainant is that the complainant incurred the amount of Rs.76,026/- on its repair as per bill-Annexure-C3, whereas the amount of Rs.23,144/- was paid by the OP to the complainant.  On the other hand, the contention of ld. counsel for the OP is that the amount of Rs.23,144/- was assessed by the surveyor and the said amount was paid to the complainant.  To rebut the said contention, ld. counsel for the complainant has placed reliance upon the case law titled as Mallikarjun Sakri Vs. Branch Manager (supra), wherein it is held that “Surveyor report-No doubt, it is a settled principle of law that the report of a Surveyor being an important document has substantial evidentiary value unless it is displaced by more credible evidence to the contrary-Further, held-That the bill indicating the repairs done carries more credibility than the Surveyor’s report because it clearly indicates item-wise damage caused to the vehicle as also the cost of repairs”.  The surveyor's report is not the last and final word. It is not that sacrosanct that it cannot 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.  In this regard, we can rely upon the judgment titled as New India Assurance Company Ltd. Vs. Pardeep Kumar, date of decision: 09.04.2009 bearing Civil Appeal No.3253 of 2002 decided by Hon’ble Apex Court.  So, in view of facts and circumstances of the case as-well-as ratio of law laid down in the aforesaid authorities, we are of the considered view that there is deficiency in service on the part of OP.

10.            Thus, as a sequel of aforesaid discussion, we direct the OP to pay the balance amount of Rs.52,882/- (Rs.76,026/- less the amount of Rs.23,144/- which the OP has already paid to the complainant) to the complainant within 45 days from today, failing which, the aforesaid amount shall carry interest @ 7% p.a. from the date of this order till its realization.  The OP is further directed to pay the amount of Rs.5,000/- as compensation on account of physical harassment and mental agony as–well-as Rs.5,000/- as litigation charges.  Hence, the present complaint is accepted accordingly.     

11.            In default of compliance of this order, proceedings against OP shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:06.10.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.