Chandigarh

DF-I

CC/921/2022

ARVIND KUMAR UPADHYAY AGE ABOUT 43 YEARS SON OF KAILASH BIHARI UPADHYAY - Complainant(s)

Versus

IFFCO TOKIO GENERAL INSURANCE COMPANY THROUGH ITS OFFICE INCHARGE - Opp.Party(s)

DEEPIKA CHAUDHARY

02 Apr 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/921/2022
Date of Institution	:	11/11/2022
Date of Decision	:	02/04/2024

 

Arvind Kumar Upadhyay, aged about 43 years, son of Kailash Bihari Upadhyay, Resident of House No.172, Street No.6, Jujhar Nagar, Patiala.

… Complainant

 

V E R S U S

1. IFFCO-Tokio General Insurance Company, through its office in-charge, Plot No.2B & C Sector 28-A, Madhya Marg, Chandigarh, 160002.

2. Lally Motors Private Limited, through its Director/owner, Rajpura Patiala Road, Bahadurgarh, Patiala - 147001.

3. Manager, Lally Motors Private Limited, Rajpura Patiala Road Bahadurgarh, Patiala 147001.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Ms. Vidhushi Goel, Advocate, Proxy for Ms.Deepika Chaudhary, Advocate for complainant (through VC)
	:	Sh. J.P. Nahar, Advocate for OP-1
	:	OPs 2 & 3 ex-parte.

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Arvind Kumar Upadhyay, 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 on 26.4.2016, complainant had purchased a Honda City car bearing registration No.PB11BX8299 (hereinafter referred to as “subject car”).  The subject car remained insured throughout and the latest insurance policy (Annexure C-2) with OP-1 was valid w.e.f. 16.4.2022 to 15.4.2023 (hereinafter referred to as “subject policy”).  On 27.6.2022, when the complainant was driving the subject car, a speeding vehicle, bearing registration No.PB11BA1476, hit against it, as a result of which the subject car was badly damaged. The matter was reported to the police in pursuance to which FIR No.0136 was registered at P.S. Samana, Patiala.  The complainant had applied for release of subject car on Superdari, which was impounded by the police and the same was released vide release order dated 11.7.2022 (Annexure C-3). After getting the subject car released on 12.7.2022, complainant handed over the same to OPs 2 & 3 for repair and copy of the delivery certificate is Annexure C-4. On 12.7.2022, the subject car was thoroughly surveyed by OP-2 and report (Annexure C-5) was prepared wherein the loss was assessed and it was found that the subject car was not in drivable condition.  On 25.7.2022, Manager of OP-2 called the complainant and intimated that the subject car will go in total loss according to the surveyor of insurance company (OP-1) and the company would sell the vehicle and the complainant would receive a sum of ₹5,11,000/- against the same.  The complainant agreed with the said offer and OP-1 told to initiate documentary proceedings.  On 6.8.2022, Manager of OP-2 namely Gurpreet Singh telephonically called the complainant and informed him that instead of putting the vehicle in total loss, OPs 2 & 3 would repair the same as surveyor of OP-1 has assessed the loss to the subject car less than 75% and the subject car cannot be assessed as total loss. Thereafter OP-3 asked the complainant to pay a sum of ₹50,000/- and the remaining amount was to be borne by insurance company and believing the words of the Manager, complainant agreed to get the subject car repaired. Thereafter for about 10 days there was no correspondence between the complainant and OPs, as a result of which, complainant went to the office of OP-1 and the officials of OP-1 assured him that the subject car would be got repaired as per policy. From 15.7.2022 onwards, complainant had taken two cars on rent on payment of ₹2,000/- per day as per receipts (Annexure C-6).  However, later on OP-1 refused to give total amount according to insured declared value and market value of the car which was approximately ₹5,11,000/-, rather OP-1 informed the complainant it is only liable to pay an amount of ₹1,87,000/- as the subject car is on Superdari and since the vehicle has been released in his favour on Superdari only, the aforesaid amount can be paid.  It is further alleged that even OP-1 had not informed the complainant that in case the insured vehicle is on Superdari, total claim amount cannot be released in favour of the insured in the case of accident. In this manner, OP-1 has committed breach of terms & conditions of the subject policy by not settling the claim of complainant, which amounts to deficiency in service and unfair trade practice on its part. OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP-1 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability on the ground that the consumer complaint of the complainant is premature as he did not submit the required documents to enable OP-1 to pay the claim and also that the claim has already been approved by the answering OP vide letter dated 23.8.2022 (Ex.OP-1/1) on net of salvage basis.  On merits, admitted that the subject car was insured by the answering OP and the same met with an accident on 27.6.2022.  It is further alleged that since the subject car has already been released on Superdari to the complainant by the Hon’ble Court and the complainant has not been authorised to sell the subject car to anybody, the claim of complainant was accordingly processed and approved by the answering OP and the complainant was requested to receive an amount of ₹1,89,273/- and to retain the salvage and sell it whenever the Hon’ble Court grants permission for its sale/repair/disposal.  It is further alleged that the subject car was inspected by the surveyor deputed by the answering OP and the surveyor has assessed the loss of the subject car exceeding 75% of its insured value and accordingly the claim of the complainant was approved under net of salvage settlement since the salvage value to the tune of ₹3,11,000/- was assessed by calling the salvage quotations (Ex.OP-1/3) and accordingly the liability of the insurer was computed as under :-

       IDV                             ₹5,01,273/-

       Wreck Value (Less)        ₹3,11,000/-

       Policy excess (less)        ₹1,000/-

Net liability of insurer    ₹1,89,273/-

In this manner, there is no deficiency in service or unfair trade practice on the part of the answering OP since the loss of the subject car was assessed as per terms & conditions of the subject policy and the complainant was asked to submit the documents for release of the amount, which he has failed to submit. On merits, 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.

3. OPs 2 & 3 did not turn up before this Commission, despite proper service, hence they were proceeded against ex-parte vide order dated 25.1.2023.
4. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the contesting 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, which was insured by OP-1 w.e.f. 16.4.2022 to 15.4.2023, as is also evident from the subject policy (Annexure C-2) and the subject car met with an accident on the relevant day, time and place and was badly damaged and assessed as total loss by the surveyor deputed by OP-1, which fact has also not been disputed by the complainant, as is also evident from the survey report and also that the subject car has only been released to the complainant on Superdari by the Court, being accidental car, and the complainant has not sought permission from the Court for the sale of the subject car/salvage till date, despite of seeking several adjournments even from this Commission,  the case is reduced to a narrow compass as it is to be determined if OP-1/insurer is unjustified in not releasing the entire amount to the tune of ₹5,00,273/- to the complainant and he is entitled to the reliefs prayed for, as is the case of the complainant, or if OP-1 has rightly assessed the claim amount to the tune of ₹1,88,273/- on net of salvage basis and the consumer complaint of the complainant, being not maintainable, is liable to be dismissed, as is the defence of the OP.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the documentary evidence placed on record by them and the same is required to be scanned carefully to determine the real controversy between the parties.
   3. Perusal of the surveyor report (Ex.OP-1/4), which has not been challenged by the complainant, clearly indicates that the surveyor, on finding that the net assessed amount on repair basis is exceeding prescribed limit of CTL i.e. 75% of the IDV, assessed the net amount of insurer on total loss basis to the tune of ₹5,00,273/- and ₹1,88,273/- on net of salvage loss basis with RC. The relevant portion of the surveyor report is reproduced below for ready reference :-

4. It is pertinent to mention here that 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.  Here we are strengthened by the judgment of Hon’ble Apex Court in Khatema Fibres Ltd. Vs. New India Assurance Company Ltd. & Anr., Civil Appeal No.9050 of 2018 decided on 28.9.2021 in which it was held as under:-

       “38.  A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.”

 

Further, 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.”

 

5. Perusal of copy of settlement letter dated 23.8.2022 (Ex.OP-1/1) clearly indicates that OP-1 had sent the same to the complainant with the request to submit the following documents :-

        “1. Net of Salvage (NOS) Consent.

2. Buyer Seller Agreement along with his KYC documents.

3. Form 35 & NOC and insured NEFT (If hypothecation is cleared/removed)

4. Financier NEFT (If payment need to made to financier)

5. Clearance order from Hon. Court regarding "Superdari" of subject vehicle.”

 

6. As it is an admitted case of the complainant that till date the complainant has not been permitted by the court to sell the subject car or the salvage, it is safe to hold that OP-1 is not able to take over the salvage of the subject car and sell the same and in such a scenario, there is no other option with OP-1 except to make assessment on net of salvage basis with RC to the tune of ₹1,88,273/-, especially when the complainant has right to dispose of the said salvage to any person only after seeking permission of the Court, if so permitted later on.
7. In view of the aforesaid discussion, it is safe to hold that the complainant has partly proved the cause of action set up in the consumer complaint against OP-1 since OP-1 has not even settled the claim to the extent of ₹1,88,273/- on net of salvage basis and the said act on the part of OP-1 amounts to deficiency in service and the present consumer complaint deserves to succeed partly against it. OP-1/insurer is held liable to pay an amount of ₹1,88,273/- to the complainant, on net of salvage basis with RC, alongwith compensation etc. for the harassment caused to 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 the aforesaid amount of ₹1,88,273/- to the complainant alongwith interest @ 9% per annum from the date of institution of the present consumer complaint i.e. 11.11.2022 onwards.
2. to pay an amount of ₹10,000/- 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 OPs 2 & 3, the consumer complaint against them 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.

02/04/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Surjeet Kaur] Member
	Sd/- [Suresh Kumar Sardana] Member