(Delivered on 12/07/2019)
PER SMT. U. S. THAKARE , HON’BLE PRESIDING MEMBER.
1. Being aggrieved by the order passed by the District consumer Forum, Akola in consumer complaint No. 238/2012 on 10/09/2014 the original opponent- Oriental Insurance Company has preferred the present appeal. By the impugned order the learned District Consumer Forum, Akola was pleased to allow the consumer complaint filed by the respondent. The learned District Consumer Forum directed the opponent to pay amount of Rs. 59,700/- to the complainant/ respondent with interest at the rate of 8% p.a. since 05/06/2012 till realisation of amount towards loss. The learned District Consumer Forum also directed the opponent to pay amount of Rs. 10,000/- to the complainant towards compensation and amount of Rs. 2000/- towards litigation cost. As per direction order was to be complied within a period of 45 days.
2. Facts giving rise to present appeal in short are as under:-
Complainant – Mr. Manohar Pandurang Mahankar is a auto rickshaw driver. He is registered owner of auto rickshaw bearing No. MH-30/P-8773. Said auto rickshaw was insured with the opponent insurance company. He had obtained insurance policy bearing No. 182200/31/2011/8741 on 28/12/2010. The said policy was inforce till 28/12/2011. The said auto rickshaw was the source of income for the complainant to maintain himself and his family. On 29/09/2011 the auto rickshaw was parked at Pimpalgaon near cattle shed of Mr. Gawande. At that time some unknown person set it on fire. Mischief was caused by fire. The auto rickshaw of the complainant was totally burnt. Major parts, engine and chassis were burnt as a result the complainant sustained damages amounting to Rs. 90,000/-. He lodged report in Police Station. Immediate information was given to the opponent – insurance company. The officers of the opponent insurance company reached on spot and inspected the situation of spot and condition of auto rickshaw. The officers of the insurance company told the complainant that he would get amount of Rs. 85,000/- to 90,000/- towards damages under insurance policy. Signatures of the complainant were obtained on some blank forms.
It is alleged that the complainant did fallow up of his claim for one month. He personally visited the office of the opponent – insurance company and requested the officers to do survey of auto rickshaw . However, evasive answers were given by the officers of the insurance company. In the mean time the complainant had shown his auto rickshaw to Pramod Workshop at Akola and made enquiry about the estimate of repairs of said auto rickshaw . It was informed that amount of Rs. 80,500/- would be required for repairing excluding the cushion and other external parts. The complainant narrated this estimate to the opponent. It was told to the complainant to get the auto rickshaw repaired. On direction of the officers of the opponent burnt auto rickshaw was repaired by taking hand loan of Rs. 33,000/- from close friends and relatives. Auto rickshaw was repaired at Pramod Workshop and Mahalaxmi Cushion Work. Spare parts were purchased from Jain Auto Parts at Akola. Temporarily repairs were made. The complainant could not carry out major repairs for want of money. The complainant did not get amount of damages from the insurance company. The complainant suffered hardship and harassment. He was in difficulty. On 28/02/2012 senior officer of the opponent sent one letter by Registered Post A.D. to the complainant and informed that his claim was allowed to the extent of Rs. 8,025/-. In fact the complainant suffered damage to the tune of Rs. 90,000/-. The claim of the complainant was allowed by the opponent for meager amount without giving any opportunity of hearing to the complainant. The complainant informed to the opponent that he is not satisfied with the claim amount granted by the opponent. The complainant suffered loss as his auto rickshaw was closed for two months. Ultimately the complainant issued notice to the opponent through advocate. Said notice was not complied but false reply was given by the opponent. According to the complainant the opponent is guilty of deficiency in service as the claim of the complainant was allowed for meager amount though valid insurance policy was inforce. Therefore, complainant filed consumer complaint before the District Consumer Forum and requested to direct the opponent to pay an amount of Rs. 90,000/- towards damages, amount of Rs. 30,000/- towards loss of income , amount of Rs. 25,000/- towards compensation for mental pain and agony, an amount of Rs. 25,000/- towards physical harassment. He claimed the amount with interest.
3. The opponent insurance company resisted the claim by filing written statement and denied all the adverse allegations against it. It is specifically denied that the opponent is guilty of deficiency in service. It is submitted that claim of the complainant for loss or damage is properly valued by the opponent. The complainant failed to accept the amount of Rs. 8,025/- in spite of offer.
4. It is the case of the opponent that after receipt of intimation from the complainant about damages and burning of insured auto rickshaw, the opponent had appointed surveyor Mr. M.N. Gadodiya. Surveyor did inspection of auto rickshaw. After survey, he reported about damages of auto rickshaw and information about the spare parts, which are to be replaced due to damage. Mr. V.S. Kalantri was appointed as final surveyor. After complete survey Mr. V.S. Kalantri assessed the loss and submitted report to the opponent on 17/12/2011. It is submitted that the complainant suffered loss of Rs. 16,450/-. As per terms and conditions of policy and after considering the depreciation in value of the auto rickshaw claim of the complainant comes to Rs. 10,700/-. The auto rickshaw of the complainant was manufactured in 2009. At the time of incident the complainant was not having fitness certificate and it was not given to the opponent. After deduction of 25% amount claim of the complainant was calculated for Rs. 8,025/-. The discharged voucher for amount of Rs. 8,025/- was sent to the complainant, but the complainant did not give any response. He has filed consumer complaint on incorrect facts and submissions which is liable to be dismissed with cost. False consumer complaint was filed with the view to extract money, which is liable to be dismissed with costs.
5. Both the parties led evidence by filing affidavits of evidence and relied on several documents. After considering the evidence on record and after giving thoughtful consideration to the argument advanced on behalf of both parties, the learned District Consumer Forum was pleased to allow the consumer complaint and direction was given to the opponent – insurance company. Being dissatisfied with order dated 10/09/2014, dissatisfied opponent is before us in this appeal.
6. We have heard learned counsel Mrs. Mrunal Naik for the appellant and Adv. Mr. Adhe for the respondent . We have perused the brief notes of argument filed by both the parties. It is urged on behalf of the appellant the order passed by the learned District Consumer Forum is illegal and incorrect. It is against the facts and merit of the case. The learned District Consumer Forum failed to consider the evidence and documents in proper perspective. The learned District Consumer Forum failed to consider that it is not the case of total loss of auto rickshaw . It was repaired by the complainant. The complainant /respondent is plying the same. He is entitled for cost of repairs only and not total cost of auto rickshaw as declared in policy. If the vehicle is taken under total loss it was for the respondent to surrender the vehicle to the company and to claim total insured declared value. The respondent failed to submit the fitness certificate of auto rickshaw on demand. The surveyor is qualified person and his report cannot be lightly over looked. Learned counsel Mrs. Mrunal Naik has requested to set aside the illegal impugned order by allowing present appeal to avoid injustice.
7. Learned counsel Mr. Adhe for the respondent has supported the impugned order and findings of the learned District Consumer Forum and has requested to dismiss the appeal for want of merit.
8. It is admitted fact that auto rickshaw bearing No. MH-30/P-8773 is owned and registered in the name of the respondent. It was insured with the opponent –insurance company vide policy No. 182000/31/2011/8741. Policy was inforce for period 28/12/2010 to 28/12/2011. The said auto rickshaw was damaged due to mischief by fire when it was parked at Piampalgaon near cattle shed of Mr. Gawande. Some unknown person set it on fire. Report was lodged in Police Station and intimation was given to the insurance company. Auto rickshaw was repaired by the complainant /respondent by taking hand loan. Repairs of the vehicle were done at Pramod Workshop at Akola. The appellant insurance company initially appointed surveyor Mr. M.N. Gadodiya for survey of spot and burnt auto rickshaw. Mr. V.S. Kalantri was appointed as final surveyor and loss assessor. Surveyor Mr. M.N. Gadodiya submitted his report on 03/10/2011 to the appellant –insurance company. Surveyor /assessor Mr. V.S. Kalantri submitted his report on 17/12/2011. After considering the survey reports the appellant – insurance company valued the damages and claim of vehicle to the tune of Rs.8,025/-. Voucher was sent to the respondent. The respondent refused to accept the meager amount of Rs. 8,025/- as his auto rickshaw was totally burnt. Ultimately the appellant company closed the claim case of the respondent and accordingly informed to the respondent by letter dated 05/06/2012.
9. The policy bearing No. 182200/31/2011/8741 issued by the appellant in favor of the respondent is for Rs. 59,700/-. Sum assured under policy is Rs. 59,700/-. In the insurance policy the value of vehicle was shown as 59,700/-. Premium was valued and calculated on basis of said value. In fact value of the auto rickshaw was more when it was purchased. The auto rickshaw of the respondent was manufactured in the year 2009. Policy was taken in the year 2010. At that time value was declared as Rs. 59,700/-. This fact is not seriously challenged.
10. The police papers, surveyor reports and other documents show that in a fire auto rickshaw of the respondent was completely burnt. Incident was occurred on 29/09/2011. First surveyor Mr. M.N. Gadodiya has filed his survey report. He observed that auto rickshaw was completely burnt in the mishape. He noted damages. He found following parts were totally burnt.
i. Complete Rexin Hood with its Pipe Cage badly burnt.
ii. Driver Seat and Passenger Seat completely burnt.
iii. Passenger Body completely burnt and its M.S. Sheets, Angles, Chanels loosen, its strength due to heavy heat and metallurgical degrading took place in the metal work.
iv. Some Aluminum Alloy Castings/Parts of Engine Assly. seen melted and droped below the vehicle.
v. Handle Bar, Instrumental Panel, Dash Board completely burnt.
vi. All glasses burnt and damaged.
In his report he submitted that only front panel and front wheel assly. seen safe. The report of own assessor of the appellant shows that auto rickshaw of the complainant was badly damaged.
11. Final surveyor /assessor Mr. V.S. Kalantri in his report dated 17/12/2011 gave assessment of total repairs. He assessed the cost of parts and labour charges as Rs. 98,080/- but he lowered down the estimate and assessed loss only to the tune of Rs. 17,390/-. He also did 15% depreciation on metal parts and 50% depreciation on plastic /rubber parts and finally assessed the loss to the tune of Rs.12,672.50. The insurance company again lowered down the estimate by submitting that the fitness certificate and other documents are not given by the complainant as he was not having material documents with him. On perusal of survey report, we do not find justification for calculating amount of damage only to the tune of Rs. 12,672.50. On the other hand, surveyor Mr. V.S. Kalantri has given detailed list of parts which were burnt and required replacement. It is specifically observed that those parts were beyond the scope of repair. The estimate of burnt part was calculated to the tune of Rs. 93,460/-. Estimate of labour charges was given as Rs. 4620/- but net loss was assessed only for amount of Rs. 12,672.50. Net liability was calculated at Rs. 12,400/-.
12. Considering the fact that auto rickshaw of the respondent was completely burnt. Repairy of the said auto rickshaw was not possible in meager amount of Rs. 8,025/-. Respondent was sole earning member of his family and burnt auto rickshaw was only the source of livelihood. The respondent has no alternative but to get it repaired for temporary use by obtaining hand loan from relatives and close friends .
13. The surveyors did not come forward to file affidavit in support of reports. Therefore, the respondent did not get any opportunity to cross examine the surveyors and to make attack on the calculations of damage done by them. Nothing is on record to hold that the appellant company by sending letters demanded fitness certificate and other documents from the respondent.
14. The learned counsel for the respondents has drawn our attention to the observation of the learned District Consumer Forum in para No. 8 of the judgment. The learned District Consumer Forum observed that while calculating the amount the insurance company /opponent had deducted 25% i.e. an amount of Rs. 2675/- on the ground that the respondent was not having fitness certificate. It is further observed that the complainant /respondent had filed on record fitness certificate issued by Maharashtra Institute of Technology Department of Mechanical Engineering Certificate and receipt issued by R.T.O. Those documents were filed before the District Consumer Forum as documents Nos. D-21, to D-24. The learned District Consumer Forum rightly observed that the respondent was holding those documents. He could have produced those documents before the surveyor or before the appellant –insurance company on demand. The appellant failed to prove that such documents at any time were demanded from the respondent.
15. It is brought to our knowledge that surveyor Mr. M.N. Gadodiya visited the spot and informed about the damage and required expenses to the appellant company. The said report was not filed on record. Surveyor Mr. V.S. Kalantri in his report observed as under,
“Spot surveyor has been already incorporated the details of damages in his spot survey report. I am giving here below the major damages only.”
16. The learned District Consumer Forum rightly held that report filed by surveyor Mr. M.N. Gadodiya with the appellant company is not filed on record and subsequent surveyor furnished his report after considering the major damages only.
17. We find substance in the argument advanced on behalf of the respondent that without claiming fitness certificate and other documents the appellant – insurance company did deduction of 25% amount from the claim. The respondent had shown value of the auto rickshaw Rs. 59,700/- as auto rickshaw of the respondent is old.
18. The learned counsel for the respondent argued that the respondent /complainant had failed to file credible evidence on record to controvert the finding of the surveyor. The estimate of the surveyor shows that the insurance company /appellant was liable to indemnify to the complainant to the extent of Rs. 12,672/- only on the repair basis since the cost of repair was assessed and the vehicle was repaired. There is no question of settling the claim on total loss basis. The learned counsel Mrs. Mrunal Naik has placed her reliance in the ruling led down by the Hon’ble National Commission in case of Iffco- Tokio General Insurance Vs. Beena Raghav passed on 27/02/2015 in revision petition No. 3217/2014. In para No. 8 of the said judgment it is observed as under.
“Learned counsel for the petitioner has further contended that the respondent /complainant had failed to file any credible evidence on record to controvert the findings of the surveyor. The assessment of the surveyor was that the respondent was liable to indemnify only to the extent of Rs. 97,619.42 on repair basis, since the cost of the repair was assessed at Rs. 97,619.42 and the vehicle was repairable. Further, as the cost of the repair being les than 75% of the IDV, the question of settling the claim on total loss basis did not arise.”
19. With due respect we submit that judgment cited on behalf of the appellant is not applicable to the case in hand. In case in hand the auto rickshaw of the complainant was totally brunt. As per report of the surveyor major parts of the auto rickshaw were brunt and those parts are allowed for replacement as they are beyond the scope of repair. The report of Mr. V.S. Kalantri make this fact very clear. Estimate of part was calculated for Rs. 93,460/-. It is a question before us why the appellant company did not rely on said estimate of his own surveyor. The case in hand is not of claim for repairs but claim is that loss of auto rickshaw. The claim application of the respondent is not for claiming repairs. The complainant/respondent himself filed estimate issued by Pramod Workshop. Two estimates are there first quotation of Rs. 80,510/- and another quotation of Rs. 12,950/-. Bills of Rs 32,000/- to 33,000/- are filed on record. When the auto rickshaw was fully burnt in fire. Certainly the respondent /owner will not claim repairs charges only.
20. It was for the surveyor of appellant –insurance company to visit Pramod Workshop where auto rickshaw was repaired and to find out what repairs were carried out and how much amount was spent towards repairs of vehicle. Information and documents were not collected by the surveyor from Pramod Workshop. Without following the diligent process the claim of respondent – auto rickshaw driver was allowed for the meager amount by ignoring the fact that his source of income was totally damaged in the fire. The insurance company should have given opportunity to the respondent before allowing the meager claim. We find no hesitation to hold that the insurance company is guilty of deficiency in service. Order passed by the learned District Consumer Forum is just, legal and correct and it is based on sound reasoning. The learned District Consumer Forum has rightly held that the opponent – insurance company was deficient while rendering services to the complainant /respondent. Valid insurance policy was inforce and when it was issued after accepting due premium it was for the appellant –insurance company to indemnify the respondent in case of loss to the auto rickshaw due to fire. We do not find any reason to interfere in the reasoned order passed by the learned District Consumer Forum. As a result, appeal deserves to be dismissed. Hence, the following order.
ORDER
i. The appeal is dismissed.
ii. No order as to costs
