Justice Pritam Pal, President

1.       The aforesaid two appeals have arisen out of  one and the same order dated 21.7.2009 passed by the District Consumer Forum-I, U.T. Chandigarh whereby complaint case No.199 of  2009  filed by M/s Mahilpur Oil Store  was allowed  in the following terms ; 

“In view of above discussion, we are of the opinion that the present complaint must succeed. The same is, therefore, allowed.  The OPs are, therefore, directed to pay to the Complainant Rs.82,826/- less - Rs.28,903/- already paid i.e. Rs.53,923/-, along with interest @8% p.a. since 04.12.2008 (30 days after the date of receipt of the report of the Surveyor Annexure O-2) and Rs.5,000/- as costs of litigation, within 30 days from the date of receipt of the copy of the order, failing which the OPs would be liable to pay the entire amount along with penal interest @12% p.a. since the filing of the present complaint i.e. 11.02.2009 till the amount is actually paid to the Complainant.”

 2.        In fact appeal No.453 of 2009 has been filed by  the complainant for enhancement of compensation whereas appeal case NO.454/2009 has been filed by National Insurance Company- OP No.1  seeking dismissal of the complaint by setting aside the impugned order. Since common questions of law and facts are involved in these two  appeals,  therefore, we propose to dispose of them  by  this common judgment.    The parties   hereinafter shall be    referred to as per their ranking before the District Forum.

3.     In nutshell, the facts culminating to the commencement of these  appeals  may be recapitulated thus ;

The complainant firm got its  Ford Icon Car bearing Regn. No. HR-01-L-0335  comprehensively insured from OP No.1 for the period from 14.5.2008 to 13.5.2009. On 18.8.2008, the said car abruptly stopped in rain water flooded street in Sector 35-B, Chandigarh and despite strenuous efforts did not start. Thereafter, the vehicle was towed to workshop of OP No.2 and intimation regarding this accidental break down was given to OP No.1, but they did not depute their Surveyor despite repeated requests due to which act the car remained parked in the Workshop unattended for days together causing great hardship, harassment and loss of business to the complainant firm.  As a last resort, a legal notice dated 29.8.2009, was served on the OP No.1, in response to which they realized their legal responsibility and deputed a Surveyor to be present at the Workshop of OP No.2 and get the estimate for repairs. OP No.2 examined the damaged car and prepared estimate amounting to Rs.82,826/- in the presence of the said Surveyor deputed by OP No. 1 . After getting nod from OP No.1, the repair work of the car was carried out by the OP No.2 and final bill amounting to Rs.1,02,503/- was raised, which was paid by the Complainant to OP No.2. The complainant thereafter  submitted the original bills and receipts to OP No. 1 on 24.10.2008 seeking indemnification of the loss sustained by the vehicle .  However,  OP No.1 after   about two months, issued Cheque dated 10.12.2008 for Rs.28,903/- only against the claim of Rs.1,02,503/-, thereby withholding a sum of Rs.73,600/- for unexplained reasons.  Again, a legal notice dated 25.12.2008 was served upon the OP No. 1 to release the balance payment of Rs.73,600/-, but to no avail. It was alleged that even after repairs, the AC compressor and vacuum pump was not working, which fact was mentioned in a handwritten note on the  bill dated 21.10.2008 by the Workshop Manager and to make these damaged parts functional as before, the Complainant had to spend another sum of  Rs.40,000/-.  Hence , alleging  deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before the District Forum.

            On the other hand, the case of OP No.1 before the District Forum was that  as the Complainant had received the amount of claim towards full and final settlement of the case vide receipt Annexure O-1, so its complaint was not maintainable.   It was asserted that the  Surveyor - Sh. Rajnish Bhardwaj prepared the estimated loss and then submitted his final loss survey report (Annexure O-2) as per terms and conditions of Insurance Policy and market value. Accordingly the amount was paid to the Complainant, which the Complainant had accepted without any protest.  It was pleaded  that there was no deficiency in service on their part and  a prayer was  made for dismissal of the complaint.

            OP No.2, however  in its  reply before the District Forum  admitted the factual aspects of the case and  pleaded that the Complainant towed the vehicle in question and parked the same at their Workshop for the purpose of repair.  It was pleaded that   the  complaint was not maintainable against them as there was no delay, defect, deficiency or negligence in rendering service on their part and it mainly related to OP No.1.  It was also admitted that they expressed their inability to examine the accidental car in the absence of the Surveyor of OP No.1.  Payment of the bills by the Complainant has also not been denied. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint. However,   after filing reply and evidence, nobody turned up on behalf of OP No.2; hence it was  proceeded against ex-parte on  8.6.2009.

 5.          The learned District Consumer Forum after going through the  evidence  and hearing   learned counsel for the  parties  allowed the complaint as indicated in the opening part of this judgment.  This is how feeling aggrieved, National Insurance Company- OP No.1 as well as complainant    have come up in   their   respective appeals. 

6.            We have heard learned counsel for the parties   and gone through the file carefully.  The main point of arguments  raised on behalf of the National Insurance Company  was  that although reasonable and due care was not observed by the insured and drove the car in a flooded area yet   the loss assessed by the surveyor to the tune of Rs.28903/- was paid which was accepted by the complainant in full and final settlement of its claim by signing the voucher towards discharge of the liability of the insurance company, so the complaint of the complainant was not maintainable. On the other hand, the learned counsel for complainant repelled the arguments of  OP No.1 and submitted that the accidental breakdown of the car was beyond the control of the complainant and as such insurance company was liable to pay the total claim of the complainant to tune of Rs.1,02,503/- because prior to accidental breakdown  the car was functioning properly and  repairs/replacement of parts was necessary to bring the car to its pre-accident normal functional position.  In support of his contention he placed repliance upon an authority of Hon’ble Supreme court in case titled New India Assurance Co. Ltd. Vs Pradeep Kumar IV(2009)CPJ 46 (SC).   

7.              We have given our holistic view to the rival contentions of parties and find that the accident in question took place on 18.8.2008  and on the next day the vehicle was brought to the workshop of OP NO.2  but it refused to prepare the estimate without the presence of the surveyor  but OP No.2 did not send the surveyor. Complainant then had to serve legal notice upon OPs dated 29.8.2008 and ultimately surveyor received instructions from insurance company on 1.9.2008 and inspected the damaged vehicle in  the workshop on 4.9.2008 where estimate to the tune of Rs.82,826/- was prepared but the surveyor passed the claim for Rs.28903/-. The complainant under these circumstances felt that in view of the attitude of OPs  he would not be able even to get this amount, so he signed the voucher but immediately thereafter served notice upon OPs on 25.12.2009 explaining therein that the payment was accepted under protest without any prejudice to the right of complainant and called upon OPs to pay the balance amount. The complainant had challenged the report of surveyor who assessed the compensation amount of Rs.28903/-  by assessing depreciation of 50% on metal parts and 40% on pastic parts. The learned District Forum observed in its impugned order that OP No.1 had not placed on file any such document in view of which any such depreciation was to be claimed and as such the depreciation allowed by the surveyor was without any basis and  the report which was not substantiated by any agreement, cannot sustain. Thus, mere execution of discharge voucher cannot deprive the complainant of balance amount  because no general terms and conditions of the policy in view of which depreciation was to be counted had  been conveyed to the complainant alongwith the policy annexure P-1,so, OP NO.1 now cannot be allowed to introduce fresh terms and conditions.  In a recent judgment titled New India Assurance Co. Ltd. Vs Pradeep Kumar (supra), the Hon’ble Supreme court held that surveyor’s report is not last and final word. It may be basis for settlement of claim but it is neither binding upon the insurer nor insured as the claim of claimant is to be accepted on the basis of bills and receipts etc.  Thus, we do not find any illegality in the impugned order in allowing the complaint of complainant. 

The claim of the complainant  in excess of Rs.82,826/- was not allowed by the District Forum because  the excess amount was neither brought to the notice of surveyor, nor it was approved by him. Thus, the District Forum rightly  directed OPs to pay to the complainant Rs.82,826/- alongwith interest @ 8% p.a. by deducting the amount of Rs.28903/- already received by it.  In view of facts and  circumstances of the case ,we are of the considered opinion that the amount of compensation and costs  awarded  to the complainant   is quite reasonable and justified, so, no interference is called for therein.    

            In the result, both appeals are hereby dismissed and parties are left to bear their own costs.

             Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.