BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Sahil Sharma, # 3994, Sector 22-D, Chandigarh-160022.

…..Complainant

                           V E R S U S

1.  Krishna Automobiles, 177 E Industrial Area Phase-I, Chandigarh

2.  The Oriental Insurance Company Ltd., R.O: SCO-109-111, Surendra Building, Sector 17-D, Chandigarh-160022.

                                  ……Opposite Parties

CORAM: SH.ASHOK RAJ BHANDARI                    PRESIDING MEMBER

                SH.RAJINDER SINGH GILL                    MEMBER

                DR.(MRS) MADANJIT KAUR SAHOTA       MEMBER

Argued by: Complainant in person.

Sh. Jagvir Sharma, Adv. for OP-1.

Ms.Anamika Mehra, Adv. for OP-2.

PER DR.(MRS) MADANJIT KAUR SAHOTA, MEMBER

              Succinctly put, the complainant`s motorcycle was damaged in an accident on 26.09.2009. The estimate was prepared by OP-1 on 30.09.2009  but the OP-1 had omitted many parts in the estimate due to which he did not receive the full claim amount from the OP-2. In the absence of his consent, OP-1 had replaced those parts also which had not been approved by the surveyor. The parts which were omitted by OP-1 in the first/initial estimate were later on added in the bill by OP-1 was also not intimated to him. The surveyor of OP-2 visited the workshop to pass the vehicle for insurance without intimating him the date of survey and had passed the vehicle fraudulently in his absence. When he visited the office of OP-2 for receiving the claim, it was told by OP-2 to sign a document for the claim and later on he came to know that the document on which he was made to sign was of declaration of full and final payment received. Hence, the OP-2 has cheated and duped him by not disclosing the amount of claim before asking him to sign the said document. He was not given any detail regarding the parts which were approved or rejected by the surveyor appointed by the insurance company. The insurance claim was passed for only 6 items out of 14 and the rest 8 items were not passed by the surveyor but were included in the bill. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2.            Notice was served to the OPs. In their written reply the Learned Counsel for OP-1 submitted that  the estimate supplied to the complainant was on the basis of ‘as it is and where it is’ without dismantling the vehicle in question and after dismantling of the vehicle, it was found that some of damaged parts were required to be changed and the same were replaced.  The list of the spare parts which were to be replaced were included in the estimate supplied to the complainant and after including some more spare parts, the list was sent to the insurance company. Hence, the 11 items were shown in the estimate supplied to the complainant vide Annexure-1 and rest of the items were shown in the copy which was supplied to OP-2 for settlement of claim. OP-2 was to make the payment of the bill according to the list provided to them but the same has not been paid by OP-2.  Denying all the material allegations of the complainant, OP-1 pleaded that there has been no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. 

3.            In the written reply the Learned Counsel for the OP-2 submitted that immediately on intimation by the complainant regarding the accident, they deputed the surveyor to assess the loss, so that the complainant could be compensated. The surveyor appointed by them was an independent and IRDA authorized person, who was competent and had given the estimate as per details provided by OP-1, who had repaired the vehicle. They are bound by the survey report, which was prepared by the surveyor with assistance of OP-1, hence for all the parts which were included in the invoice by OP-1, the complainant was compensated.  The cheque of Rs.3908/- was given to the complainant to compensate the loss. The complainant had willingly signed the final payment and claiming the extra amount was only an afterthought.

4.            The Parties led evidence in support of their contentions.

5.            We have heard the complainant in person and Learned Counsel for the parties and have also perused the record.

6.            The main grouse of the complainant is that he had received a sum of Rs.3908/- only against the claim of Rs.6,710/-.  Annexure OP-I is the survey report which shows that the total loss assessed by the surveyor of OP-2 is Rs.3,908/-. Annexure (now marked as OP-II) is the invoice prepared by OP-1 which shows that the complainant had paid a total sum of Rs.6,710/- to OP-1 towards the repair of the motorcycle in question.

7.            After comparing the survey report Annexure OP-1 and the invoice (Annexure OP-II), forwarded by OP-1 to the complainant for the repair of the motorcycle, we find that the claim against the parts mentioned at sr. no 1,3,4,5,9 and 12 of the invoice (Annexure OP-II), details of which are as under, was not passed by the surveyor:-

       Sr. No.    Part/Job Description             Qty  Amount

       1            Set Illust, R Side           01    269.21

       3            Set Illust, L FR CO         01    470.26

       4            Grommet, Aircleane        01        2.88

       5            Sealset, FR.Fork            01    166.33

       9            Fork Assy, R FR (DI        01    1248.30

                                                                        (Rs.1814.30 less Rs.566/-)

       12           Axle, FR Wheel              01       75.95                                                          Total        2232.93

       A perusal of the report shows that without giving any specific reasons or due justification, the surveyor has not passed the payment of the parts mentioned above.  The complainant in support of his contentions has also referred to the case of National Insurance Company limited vs. Dev Spinners Ltd., and another 2004 (2) CPC 185, the operative part of which is quoted below:-

It was found by the Ld. District Forum that loss assessed by the surveyor was wrong and directed the insurance company to pay the balance amount with 6% interest and cost Rs.5000 which was upheld by the Hon`ble State Commission. The Hon`ble State Commission also held that Acceptance of money given by the insurance company earlier under protest does not debar appellant from claiming further amount.

 Hence, we find that OP-2 has been deficient in service while settling the insurance claim of the complainant and therefore complaint qua it deserves to be allowed.

8.           Keeping in view the above detailed analysis of the case, in our considered opinion the present complaint has a lot of merit, weight and substance and it must succeed.  We, therefore, decide the complaint in favour of the complainant and against the OP - 2 and pass the following directions :-

a.      The OP- 2 shall pay the amount of Rs.2232.93 (say Rs.2233/- as shown above) to the complainant which was wrongly deducted from the insurance claim of the complainant based on the final invoice prepared and submitted by OP-1 to OP-2.

b.      The OP-2 shall further pay a sum of Rs.5,000/- as compensation for causing physical harassment, mental agony and pain to the complainant .

c.       The OP-2 shall also pay a sum of Rs.2,500/- as costs of litigation to the complainant.

              The aforesaid order be complied by OP-2 within a period of 30 days from the receipt of its certified copy, failing which they shall pay the amount of Rs.2233+Rs.5000=Rs.7233/- to the complainant, alongwith interest @18% per annum w.e.f. 15.10.2009 (i.e. the date when the cheque of Rs.3908/- was issued to the complainant) till its realization besides paying the litigation costs of Rs.2,500/-.

9.             Since the complainant has not been able to prove any deficiency in service against OP-1, therefore the complaint as against OP-1 is dismissed.

                 Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.