Per Justice Sham Sunder , President This appeal is directed against the order dated 27.4.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only),vide which it accepted the complaint and directed the OP to pay to the complainant the balance amount of Rs.23,646/- which had been deducted illegally from the assessed loss of Rs.60,120/- as per recommendation of the surveyor in his final report. It was also directed that the OP shall pay a sum of Rs.20,000/- as compensation for physical harassment, mental agony and pain caused to the complainant, on account of illegal deduction, in his insurance claim, and delaying the settlement of the claim in full. It was also directed that the OP shall pay a sum of Rs.5,000/- as costs of litigation. It was also directed that the OP shall pay the aforesaid amount to the complainant, within a period of 6 weeks, from the date of receipt of a copy of the order, failing which the OP shall pay the aforesaid amount of Rs.23646+Rs.20000 = Rs.43,646/- along with interest @18% per annum from the date of making part payment of the claim i.e. 9.11.2009 till actual realization, besides paying the cost of litigation of Rs.5000/-. 2. Truck bearing No.HR-68-7409 which was insured with the OP (now appellant) met with an accident. The complainant lodged a claim with the OP. The amount of the claim was settled at Rs.36,474/- only, after deducting a sum of Rs.37,022/-. It was stated that the OP Company illegally and unjustifiably deducted a sum of Rs.37,022/-, out of their total claimed amount of Rs.73,496/-, in spite of the fact, that all the necessary formalities, as desired, were completed by the complainant company. It was stated that the acts of the OP amounted to deficiency in service and unfair trade practice, due to which, the complainant company had to suffer a lot. When the grievance of the complainant, was not redressed, left with no other alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be referred to as the Act only) was filed by it. 3. In reply, the OP admitted the factual matrix, with regard to the insurance of the truck, in question, for the relevant period. It was stated that on getting information with regard to the accident of said truck, the loss was assessed and a sum of Rs.36,474/- was paid to the complainant through cheque. It was further stated that initially Sh.Shamsher Chand was deputed as Surveyor & Loss Assessor, who conducted the spot survey and submitted his report dated 12.5.2009 Annexure R-3. Thereafter, Sh.R.P.Singh, was deputed as Surveyor and Loss Assessor for conducting the final survey, who assessed the loss to the tune of Rs.60,120/- vide report AnnexureR-4 and recommended the same. It was further stated that the front Jalli and intercooler of the truck were not damaged when the spot survey was conducted by the first surveyor. It was further stated that, as per statement of the complainant, the front Jalli and intercooler were damaged, during towing of the truck, because it jumped and its front side hit the crane and this loss was assessed to the tune of Rs.19,947/-. It was further stated that it was consequential loss, hence, it was not payable by the OP as per terms and conditions of the Policy. It was denied that there was any deficiency, in rendering service, on the part of OP, or it indulged into unfair trade practice. 4. The Parties led evidence. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, as stated, in the opening para of this order. 6. Feeling aggrieved, the instant appeal, was filed by the Appellant/ OP. 7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the appellant, submitted that, after the accident when the accidental vehicle was being towed, with a crane, it jumped resulting into further damage, to it. He further submitted that this amounted to consequential loss, and, as such, was not payable to the complainant, as per the terms and conditions of the Policy. It was further submitted that, under these circumstances, the Insurance Company was right in making payment of the amount of Rs.36,474/-, after deducting the balance amount of Rs.37022/- from the total amount of Rs.73,496/- in respect whereof the claim was lodged. 9. On the other hand, the Counsel for the respondent/complainant, submitted that, the order of the District Forum, being legal and valid, is liable to be upheld. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. Admittedly, the vehicle, in question, was insured with the OP. There is, also, no dispute, about the factum, that the vehicle, in question, met with an accident. Undisputedly, the claim was lodged by the complainant with the OP, for a sum of Rs.73,496/-, the amount which was spent by him on repairs. There is also, no dispute, that the Insurance Company after deducting Rs.37022/-, paid a sum of Rs.36474/- to the complainant. Sh.R.P.Singh, the Surveyor and Loss Assessor, who was appointed for the second time, assessed the loss to the tune of Rs.60,120/-. The question, in dispute, is, as to whether, the second accident of the truck, which took place, when it was being towed, after the first accident, with the crane, for the purpose of taking it to the workshop, amounted to consequential loss, and the Insurance Company was not liable to pay the same. The insurance Policy in this regard is A-2, which was taken by the complainant. The Counsel for the appellant placed reliance on Section- III of this Policy, which reads as under ; “Section III Towing Disabled Vehicle The Policy shall be operative whilst the insured vehicle is being used for the purpose of towing or any disabled mechanically propelled vehicle and the indemnity provided by Section II of this Policy shall subject to its terms and conditions be extended to apply in respect of liability. Provided always that a)such towed vehicle is not towed for reward. b)the company shall not be liable by reason of this section of this Policy, in respect of damage, to such towed vehicle, or property being conveyed thereby” 11. The front Jalli and intercooler were not damaged when Shamsher Chand, Surveyor, in the first instance, inspected the vehicle. These parts were found damaged after the second accident, and thus, R.P.Singh, second surveyor mentioned the same, in his report. No doubt, Section- III of the Policy, extracted above, reveals that if during the course of towing, damage is caused to the vehicle, then it would be considered as consequential damage, and the Insurance Company would not be liable to pay any insurance amount, in respect thereof. However, there is no clause in the Policy, if such damage, is caused to the vehicle, during the currency of the insurance Policy, on account of accident, the Insurance Company was not liable, to pay the amount of damage, assessed by the surveyor merely on the ground that it was a consequential loss. There was no fault, on the part of the complainant, in hiring the crane services, for removing the vehicle to the workshop, when it met with an accident. As stated above, even R.P.Singh, Surveyor, assessed the loss to the tune of Rs.60120/- when it inspected the vehicle second time, after it met with second accident. Since, the vehicle was comprehensively insured, the Insurance Company was liable to pay for such loss, irrespective of the number of accidents. Similar principle of law was laid down in Amrti Pal Sood Vs Kaushalaya Devi Thapar-1998 (2) PLR 665. There is no such exclusion Clause, in the policy, that in respect of the second accident, the claim of the complainant could not be paid. In these circumstances, the District Forum, was right, in holding that the OP was not justified in refusing the claim of the complainant to the extent of Rs. 19,947/- in respect of the second accident. The District Forum was also right in holding that the assessment of damage made by R.P.Singh, Surveyor to the tune of Rs.60,120/- was correct and the Insurance Company was liable to pay the same minus Rs.36,474/- already paid by it. The District Forum, was right, in holding that the Insurance Company was not only deficient, in rendering service, but also indulged into unfair trade practice, by repudiating the genuine claim of the complainant. The order of the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 12. For the reasons, recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs, quantified at Rs.5000/-. 13. Certified Copies of this order be sent to the parties, free of charge. 14. The file be consigned to the record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
