MRS. NEENA SANDHU, MEMBER
1. This is an appeal filed by the OP against order dated 17.8.2009 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 422 of 2009.
2. Briefly stated the facts of the case are that the Ford Fiesta car of the complainant was insured with the OP i.e. New India Assurance Company which was valid from 16.7.2007 to 15.7.2008. On 28.8.2007 the aforesaid vehicle met with an accident when it was on its way from Chandigarh to Ludhiana. It was submitted by the complainant that when the car reached Morinda, the mounted speed brakers on the road touched the lower portion of the car, which caused severe damage to the lower portion of the vehicle but it could not be noticed by the driver and after driving a kilometer away the car stopped working. Thereafter, the car was towed to the authorized service station i.e. Bhagat Ford, A.B. Motors Pvt. Ltd., Chandigarh and a claim was lodged with the OP but the official of the OP did not turn up on receiving the estimate of repairs. On 15.112007, the car was got repaired and the total amount of repairs came to Rs.1,24,790/- but the OP did not turn up to settle the claim and the complainant made the payment on 15.11.2007 and thereafter the complainant requested the OP to settle the claim. The OP asked the complainant to deposit the R.C. Book and driving licence of the person who drive the vehicle at the time of accident, which were supplied by the complainant to the OP but the OP vide letter dated 4.2.2008 again desired the complainant to deposit the said documents. The complainant again deposited the required documents, but the OP rejected his claim on the ground of non-completion of claim formalities. Thereafter the complainant filed Consumer Complaint No. 1226 of 2008, which was disposed of with a direction that the complainant would supply the complete documents as demanded by the OP and thereafter, the complainant supplied the documents as demanded by them. The OP settled the claim of the complainant for Rs.5010/- and issued the cheque dated 6.2.2009 as full and final payment but the actual loss was of Rs.1,26,000/-. The above said acts of OP amounts to deficiency in service and unfair trade practice. Hence, the complaint was filed.
3. Reply was filed by the OP in which it was pleaded that the complainant was paid in full and final settlement by the OP vide cheque dated 13.6.2008 but the complainant refused to accept the same. It was pleaded that the claim of the complainant was partly payable under the policy issued to the complainant and the said amount was previously sent by the OP to the complainant which was refused to be accepted by the complainant. It was further submitted that the OP had paid the amount as per the assessment made by an independent Surveyor & Loss Assessor Er. G.S. Riar vide his report dated 8.10.2007. All other material submissions made by the complainant in the complaint were denied and pleaded that there was no deficiency in service on their part. Hence, it is prayed that the complaint may kindly be dismissed
4. The parties led their evidence in support of their contentions.
5. The District Forum allowed the complaint and directed the OP to make the payment of Rs.1,26,000/- - Rs.5010/- = Rs.1,20,990/- to the complainant within 30 days from the date of receipt of the copy of the order along with Rs.25,000/- as compensation for harassment and Rs.500/- as costs of litigation. If the amount is not paid to the complainant within the aforesaid period, the OP would be liable to pay interest @ 12% p.a. w.e.f 8.11.2007 (one month after the report Annexure R-2 of the surveyor) till the payment is actually made to the complainant.
6. Aggrieved by the order of District Forum, the present appeal has been filed by the OP.
7. In the appeal, it is submitted that the District Forum has failed to appreciate the fact that the appellant/OP has never repudiated the claim of the respondent/complainant. The report of the surveyor is a important document and the same should have been accepted. The learned District Forum has wrongly held that the appellant/OP was biased against the respondent/complainant. It has wrongly held that there is no evidence on record to suggest that the driver drive the vehicle after the accident and the surveyor is an Engineer and he has given his report on scientific lines. The damage due to the accident can also be ascertained due to the physical examination of the engine. This aspect has been ignored by the learned District Forum . The damage is not due to accident but due to the negligence of the driver while continue to drive the vehicle after the accident and the loss falls under consequential losses which are not covered under the policy. In the policy there is a exclusion clause (a) to Section (1) forming part of insurance policy. The same is reproduced as under :-
“The company shall not be liable to make any payment in respect of :-
a) consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failure or breakages.”
It was alleged by the appellant/OP that the question of repudiation of the claim does not arise as the claim was payable and only requirements of the company were not completed by supply of documents. The learned District Forum has fell in error while directing the appellant/OP to make the payment with interest @ 12% p.a. w.e.f. 8.11.2007 in case the amount is not paid within one month from the date of receipt of copy of order. The respondent/complainant is not entitled to pay compensation more than the amount assessed by the surveyor and still he is only entitled to pay interest @ 6% p.a. after four months from the date of receipt of copy of the surveyor report. The District Forum has wrongly awarded the compensation amount of Rs.25,000/- on account of harassment and it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.
8. We have heard Sh.R.K.Bashamboo, Advocate for the appellant, Sh.Anant Kataria, Advocate for the respondent and carefully gone through the file. The main point for consideration before us is whether the exclusion clause of the contract agreement is applicable in this case.
9. After hearing the learned counsel for the parties and perusal of the record, we have come to the conclusion that the respondent/complainant had spent Rs.1,26,000/- on the repair of the car which was damaged due to an accident. A claim was duly filed by the respondent/complainant and appellant/OP offered the respondent/complainant a sum of Rs.5010/- as full and final settlement and alleged that remaining amount of Rs.1,20,990/- was not payable due to the reason that the said loss occurred due to the fault of the driver. Regarding this allegation of the appellant/OP failed to establish that the damage was not due to the accident but due to the negligence of the driver of the vehicle after the accident i.e. due to consequential damages. With these facts of the case, we are of the view that the respondent/complainant is entitled to the amount of Rs.1,26,000/- on account of repairs whereas the appellant/OP settled the claim of Rs.5010/- as full and final settlement on the basis of the report of the surveyor. In view of the observation made above the surveyor has erred in holding that the loss was sub-sequential as this loss falls under consequential losses which are not covered under the policy. As per settled law though the surveyor’s report is an important document and should normally not be brushed aside, yet the same can be ignored in case it is proved that the same is mala fide or is incorrect.
10. With these facts and circumstances, we have come to the conclusion that the appellant/OP should pay the total amount i.e. Rs.1,26,000/- which the complainant has paid for the repair of the said vehicle which was duly insured. Therefore we upheld the order passed by the learned District Forum in toto. Consequently the appeal filed by the appellant is dismissed with no order as to costs.
11. Copies of this order be sent to the parties, free of charge.
Pronounced.
9th March, 2010.
