ORDER

(Per: Ms. Kumkum Rani, Judicial Member II):

This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against the judgment and order dated 28.04.2018 passed by the learned District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in consumer complaint No. 82 of 2015 styled as M/s Aparna Explosive Vs. Oriental Insurance Co. Ltd. and Anr., wherein and whereby the complaint case was allowed.

2.       The facts giving rise to the present appeal, in brief, are as such that the respondent – complainant had filed a complaint No. 82 of 2015 for claiming a compensation of Rs. 3,05,274/- for the damages to the vehicle, and Rs. 19,000/- towing charges, mental agony and cost of suit against the appellant.

3.       It is alleged in the complaint that the respondent - complainant is the owner of an Explosive Van bearing registration No. UA07-T-6245 financed from State Bank of Bikaner and Jaipur, Dehradun, which was insured with the opposite parties – Insurance Company vide policy No. 253204/31/2015/2882 for the period commencing from 11.07.2014 to 10.07.2015. It is further averred that the accident took place on 23.09.2014 when the vehicle in question was coming with explosive from Nagpur, Maharashtra to Dehradun and in order to save the truck from other side, it collided with road side tree resulting damages to the insured vehicle. The matter was reported to the opposite parties – Insurance Company who appointed its surveyor Sh. Sharad Kumar Sharma, who inspected the spot and the vehicle was towed from the place of occurrence to Dehradun; the opposite parties – Insurance Company has not paid the claim inspite of several request thereby the Insurance Company has committed deficiency in service on its part, hence, the complaint was filed.

4.       In the written statement, the opposite parties – Insurance Company has not admitted the complainant spent as Rs. 3,05,274/- for repairing work of the vehicle in question and has alleged that as per the surveyor report, the costs of repair is only Rs. 72,208/-. It is incorrect to say that the opposite parties – Insurance Company has mislead the complainant.  The answering opposite party is ready to pay the insured amount to the respondent – complainant as per the surveyor report and there was no deficiency in service on the part of the opposite parties – Insurance Company.  Hence, the claim is liable to be dismissed. 

5.       The District commission after perusing the material and evidence available on record passed the judgment dated 28.04.2018 wherein it was held as under:-

“उपरोक्तानुसार, परिवादी द्वारा योजित यह परिवाद उपभोक्ता संरक्षण अधिनियम 1986 की धारा-12 के अन्तर्गत निम्नानुसार स्वीकार किया जाता है।
विपक्षी बीमा कम्पनी को आदेशित किया जाता है कि वह परिवादी को क्लेम धन अंकन 1,83,164/-रू0 अदा करें तथा साथ ही टोइंग चार्जेज की मद में अंकन 19,000/-रू0 का भी भुगतान करे। इसके अतिरिक्त 10,000/-रू0 मानसिक व शारीरिक पीड़ा की एवज में एवं 5,000/-रू0 वाद व्यय के रूप में विपक्षी, परिवादी को अदा करे।
धनराशि की अदायगी 30 दिन के अन्दर सुनिश्चित की जाए। यदि निर्दिष्ट अवधि में भुगतान नहीं किया जाता है तो परिवादी उपरोक्त समस्त धनराशि पर परिवाद प्रस्तुत करने की तिथि से भुगतान तक 9ः वार्षिक दर से साधारण ब्याज भी पाने का पात्र होगा।”

6.       On having been aggrieved by the aforesaid judgment of the District Commission the present appeal has been preferred by the appellant – opposite parties contending that the impugned judgment is against the facts, law and merits of the case.  The District Commission has failed to appreciate the evidence on record; the complainant has filed the manipulated bills with the collusion of the repairer and the District Commission has failed to appreciate that the surveyor has physically assessed the losses of the vehicle before the repair and after repairing of the vehicle, he has seen the repaired vehicle. The surveyor has assessed the loss to the tune of Rs. 72,208/- which was payable subject to the terms and conditions of the policy.  But the District Commission has wrongly granted a compensation of Rs. 1,83,164/- and wrongfully and incorrectly awarded Rs. 19,000/- whereas the liability of the company towards towing charges is clearly mentioned in the terms and conditions of the policy.  It is further averred that the District Commission has wrongly granted the cost of suit Rs. 5,000/- and Rs. 10,000/- towards damages. Therefore, the appeal may kindly be allowed and the impugned judgment be set aside.

7.       We have heard learned for both the sides and perused the material available on record.

8.       It is admitted that the accident took place on the ill-fated date.  It is also admitted that the vehicle in question was insured with the appellant – opposite parties on the relevant date on which the accident took place.  It is also admitted that the information about the accident was duly conveyed to the appellant – insurance company. It is also not in dispute that the appellant – insurance company has deputed its surveyor who prepared the surveyor report and assessed the loss to the tune of Rs. 72,208/-.

9.       Learned counsel for the appellant has stated that the surveyor report is admissible in evidence and in several cases it has been held that the surveyor report cannot be brushed aside until and unless there is cogent and reliable evidence against it.

10.     We have perused the surveyor report available on record (paper Nos. 9 to 12 of the appeal file).

11.     The surveyor has admitted that at the time of accident all the documents including driving license of the driver Sh. Harender Singh was valid and effective on the date of accident, i.e. 23.09.2014. As per the surveyor report, the surveyor has also conceded the cause of accident as alleged by the respondent – complainant stating that at the place of accident, ongoing vehicle suddenly applied brakes and said vehicle could not stop and struck into it, causing damages to the vehicle. The surveyor has also conceded that the spot survey was carried out by Sh. Sharad Kumar Sharma, Orai, UP and we have gone through spot report before assessing the loss.  The final survey and assessment report was prepared by Navneet & Co., wherein in the assessment sheet, summary of assessment has been given, labour charges is shown as Rs. 1,75,465/- and total cost of parts Rs. 1,28,400/-.  The break-up of (cost of material and labour charges of cabin) are not included herein.  As per the break-up of costs of material, with the labour charges has shown as Rs. 40,000/- in the surveyor report which should be added to the assessed amount of Rs. 72,208/-, but the same was not added in the summary of assessment of the report.  Hence, in the surveyor report, the surveyor has left to include the cost of material and labour charges as mentioned in the break-up column, hence, after adding such amount of Rs. 40,000/-, the total amount comes to the tune of Rs. 1,12,208/-.  

12.     Learned counsel for the appellant – Insurance Company has averred that as per the surveyor report, the Insurance Company is ready to pay the insured amount to the respondent – complainant regarding the loss to his insured vehicle.

13.     We have also perused the impugned judgment, wherein the learned District Commission has awarded Rs. 1,83,164/- as insured amount including Rs. 19,000/- as towing charges. 

14.     Here it is pertinent to mention that as per the terms and conditions of the insurance policy towing charges is payable to Rs. 2,500/- for other commercial vehicles, which are included in the surveyor report. Hence, the respondent – complainant is not entitled to get Rs. 19,000/- as towing charges because it is included in the survey report as per the terms and conditions of the insurance policy.

15.     We have also found that there is no need to modify the amount in respect of litigation charges.  We are of opinion that at the prevalent date, the bank rate of interest is 6% to 8%, not 9%.  Hence, the respondent – complainant is entitled to get simple interest @ 7% per annum. Accordingly, we are of the view that the impugned judgment needs some modification and the appeal is liable to be allowed partly.

16.     Appeal is partly allowed to such extent and the impugned judgment is modified accordingly. Appellant – Insurance Company shall pay Rs. 1,12,208/- (Rupees One Lakh Twelve Thousand Two Hundred Eight only) in place of Rs. 1,83,164/- (Rupees One Lakh Eighty Three Thousand One Hundred Sixty Four only) to the respondent – complainant.  It is also directed to the appellant to pay simple interest @ 7% per annum from the date of filing of the complaint, i.e. 05.05.2015 till its actual realization alongwith Rs. 5,000/- towards costs of litigation to the respondent – complainant. Both the parties shall bear their own costs of appeal.

17.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.  The copy of this judgment be sent to the concerned District Commission for record and necessary information.

18.     File be consigned to record room along with a copy of this Order.