MRS. NEENA SANDHU, MEMBER

1.    This is an appeal filed by the OPs against order dated 13.10.2009 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No.1059 of 2009.

2.       Briefly stated the facts of the case are that the complainant got insured his Innova Car bearing No. CH-02-2488 with the OPs i.e. Oriental Insurance Company Limited, which was valid from 21.3.2008 to 20.3.2009 and the car met with an accident on 22.10.2008 at Thanesar.  An FIR No. 318 dated 22.10.2008 was lodged with the Police Station, Thanesar, District Kurukshetra and the OP deputed the surveyor, who inspected the vehicle and found that there was a total loss to the vehicle. The OPs agreed to pay the assessed amount of Rs.5,70,000/- which was outstanding loan towards the vehicle, to the concerned bank within a few days and the OPs agreed to pay Rs.3,25,000/- to the complainant to settle the claim on cash loss basis. A legal notice dated 8.4.2009 was served upon the Ops but noting was done by the Ops. The above said act of Ops amounts to deficiency in service and unfair trade practice. Hence, the complaint was filed.

3.       Reply was filed by the Ops, in which it has been pleaded that the Innova Car was insured for a sum of Rs.7,19,530/- for the period 21.3.2008 to 20.3.2009. The car met with an accident at Thanesar and in accident one person was killed. The car was impounded by the Police against FIR No. 318 dated 22.10.2008. The complainant got the car released on Supardari and on 31.10.2008 claim intimation was received by the Ops. The Ops deputed Er.G.S.Riar, Surveyor to investigate the matter and to assess the loss. He submitted his report with the Ops in which vehicle was shown to be total loss and a sum of Rs.5,42,822.84 paise was assessed as total repair basis loss.  It was pleaded that since the said vehicle was released on Supardari, it could not have been settled on total loss basis and in such a situation, the complainant had only one option to retain the said car with him and get the claim settled on cash loss basis. The surveyor got the consent of the insured to settle the claim on cash loss for a sum of Rs.3,25,000/- and the Ops sanctioned and settled the claim on cash loss basis. The Ops prepared a cheque of Rs.3,25,000/- dated 15.7.2009 and dispatched the cheque to the complainant by registered post but the envelope was received back with the remarks that house of the complainant was found locked on 18.7.2009 and 20.7.2009, it also had a stamp of unclaimed on the envelope. All other material allegations made by the complainant in the complaint were denied and pleaded that there was no deficiency in service on the part of Ops and prayed for dismissal of the complaint.

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

5.    The District Forum allowed the complaint and complainant was entitled for a sum of Rs.6,77,231/- as compensation and if the car cannot be transferred in view of the criminal case, the same would be retained by the complainant, for which a sum of Rs.8500/- had already been deducted from the admissible amount of compensation. The amount of Rs.6,77,231/- be paid to the complainant along with interest @ 8% p.a. w.e.f. 15.2.2009 till the amount is paid to the complainant along with costs of litigation of Rs.5,000/-. The order be complied with by the Ops within 30 days from the date of receipt of copy of this order, failing which penal interest shall be charged @ 12% p.a. w.e.f. the date of filing of the complaint till the amount is actually paid to the complainant.

6.       Aggrieved by this order, an appeal has been filed by the OPs in which it has been contended by the appellants that the learned District Forum has failed to make note of the fact on record file that the appellants had handed over a cheque of Rs.3,25,000/- on 24.8.2009 and the learned District Forum has exceeded its jurisdiction in disbelieving the contents of the survey report. The learned District Forum has arbitrarily observed a sum of Rs.35,000/- is required to be added to the net amount payable on repair basis, which is Rs.5,41,322.84 paise. The cost of the body shell assessed by the surveyor is Rs.2,32,000/- whereas the learned District Forum opined it should be Rs.3,03,474/- + Vat. It is pertinent to mention that the learned District Forum suo motto brought up certain issues which were neither agitated nor argued by the respondents. The learned District Forum erred in holding that the consent letter was obtained even before the surveyor submitted his report. The appellants had argued that the surveyor had negotiated the amount payable on cash loss basis and had obtained consent letter from the insured. Hence, the consent letter has to be prior to the date the surveyor submits his report. The learned District Forum erred in holding that ‘even if the vehicle being on supardari could not be transferred, the complainant could be paid the total insured amount less salvage but it was not done. Hence again the learned District Forum has exceeded its jurisdiction in holdings things against the terms and conditions of the policy. It has been alleged by the appellants that the bottom line here is that in case of payment of claim on total loss basis, the vehicle was got transferred in the name of the insurer and the physical possession of the same along with keys, letter of subrogation etc. are delivered to the insurer. In the instant case it was not possible since the vehicle was a case property in a criminal case and it was released on supardari. The learned District Forum has allowed the complaint without applying mind on the material on record and the findings of the learned District Forum are not sustainable in the eyes of law. The learned District Forum has erroneously exceeded its jurisdiction on many issues. The appellants have paid the claim amount on cash loss basis to the respondent/complainant for a sum of Rs.3,25,000/- and nothing more is payable by the appellants. The said loss was settled on cash loss basis against free consent of the respondent/complainant, in writing and hence, there is no deficiency in service on the part of appellants. Hence, it is prayed by the appellants that the appeal may kindly be allowed and set aside the impugned order passed by the learned District Forum.

7.    We have heard Sh.G.S.Ahluwalia, Advocate for the appellants and Sh.Puneet Chauhan, Advocate for the respondent/complainant and carefully gone through the file. The main point for consideration before us is whether the District Forum has rightly awarded the amount of compensation. 

8.    After hearing the learned counsel for the parties and perusal of the record, we have come to the conclusion that the surveyor under the head summary of assessment assessed the net payable amount to the appellant/complainant to the tune of Rs.5,41,322.85 paise as there was note on page No. 5 of the report of the surveyor Annexure R/1 that the amount of damages of engine, gear box, ECM and censors will be added after dismantling the vehicle but he assessed the cost of dismantling approximately to a sum of Rs.35,000/-. Therefore, the total assessed amount according to the surveyor is Rs.5,76,322.85 paise. While assessing the amount, the surveyor assessed the value of the body shell component to the tune of Rs.2,32,000/-. Though the surveyor gave a note under column (c) that the “ body shell cost is Rs.3,03,474/- plus VAT whereas the local repairer has taken only Rs.2,32,000/-. Keeping in view this remark of the surveyor, the District Forum was of the opinion that value of the body shell component should be Rs.3,03,474/- as per the market value and after adding VAT @ 12.5% the total value of the body shell comes out to be Rs.3,41,408.25 paise. Moreover, the learned District Forum has also observed that as the amount is above Rs.1,000/- so the policy clause would not be applicable and the amount of Rs.1,000/- as deducted by the surveyor cannot be allowed and the learned District Forum after deducting the salvage value i.e. Rs.8500/- awarded the amount of compensation of Rs.6,77,231/-.

9.    In this view of the matter, we are of the opinion that the learned District Forum has rightly awarded the amount of compensation after considering every aspect. Hence, the order passed by the learned District Forum is well reasoned, just and proper. Hence, no interference is required for. Consequently we find no merit in the appeal and the same is hereby dismissed, leaving the parties to bear their own costs.

10.       Copies of this order be sent to the parties, free of charge.    

Pronounced.

23^rd March, 2010