Date: 01.08.2017

ORDER                                  

     Mrs.  Manju Bala Sharma, Member

1. Instant complaint has been filed by complainant on 09.07.2014 against the OP stating therein that complainant is the registered owner of the Vehicle bearing N0. HR 63B 2966 and the same was insured with the OP vide Insurance Policy No.360300/31/12/6300000813 valid from 4.5.2012 to 3.5.2013. On 13.7.2012, the complainant was going towards Tikri Village at about 4.00 AM when the  insured vehicle reached at PVC Road it met with an road side accident and got heavily damaged. Complainant alleged that driver of the offending vehicle with his vehicle ran away from the spot in high speed and due to this the complainant could not locate the number of offending vehicle. Complainant reported the incident to the S.H.O. PS. Mundka, Delhi immediately and OP was also intimated regarding the said accident. The surveyor deputed by OP took various photographs of all corners  of the vehicle and after mechanical inspection the complainant was instructed by the surveyor of the company to take the vehicle at the above said workshop for repairing.  Following the instructions of Surveyor , the complainant took the said damaged vehicle at Dharampal Eicher Canter Workshop where the mechanical inspection was carried out by the mechanic in the presence of Surveyor and Rs. l,50,000/- approximately was estimated for repairing the aforesaid damaged vehicle. The surveyor took the repairing estimate report from the said workshop and the complainant was suggested to get repair and take delivery of the said vehicle after removal of damages. Complainant further alleged that he approached the surveyor of  OP and demanded the copy of estimate Report but the surveyor told that the estimate report has been sent for approval and after the approval the estimated charges will be paid accordingly. The complainant got shocked and surprised after knowing that the OP  has approved only Rs.52,000/- instead of  Rs.1,50,000/- (charges of estimated repair). Complainant also alleged that OP had assured him  to make the payment of estimated charges of Rs. 1,50,000/- when  he raised an objection with the OP  at the  time of receiving the amount of Rs.52,000/- but OP failed to do so despite various efforts and visits made by him. A legal notice dated 25.10.2013 was sent by complainant to OP but even after service of the same OP did not replied nor  paid the due amount of Rs. 1,00,000/-. Aggrieved from this complainant approach this forum and prayed to direct the OP to pay Rs. 1,00,000/- (due amount) with interest @ 24% p.a. with future interest till its realization. Complainant further prayed to direct OP to pay a sum of Rs. 1,00,000/- as compensation towards mental agony and financial loss and litigation cost.
2. OP filed its written statement admitting that the truck was insured with O.P. at the relevant time. It is however stated that the  subject vehicle was met with an accident on 13.07.2012 and OP appointed Mr. S. Kumar  as Surveyor and Loss Assessor to assess the loss. The surveyor assessed Rs. 53,046/- as the net loss caused to the vehicle due to the accident and OP after requisite deductions OP  transferred a sum of Rs. 52,000/- in the account of the complainant through NEFT on 02.02.2012 in full and final settlement of the claim of the complainant. OP prayed to dismiss the complaint against it with heavy cost.
3. Complainant has filed his own affidavit affirming the facts alleged in the complaint. On the other hand Mr. Matim Ahmed,  Administrative officer  has filed affidavit in evidence on behalf of O.P. testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case as well as written submissions filed by both the parties and have also heard the submissions of Ld. Counsel  for the parties.
5. The main controversy present in the present claim is as to whether the complainant  is entitled to claim amount as alleged in the complaint or not? The plea of the OP is that complainant was entitled to Rs. 53,046/- as assessed amount of repair work. The report of surveyor showed that substantial deductions have been carried towards the repair work of the vehicle in question. The OP has failed to justify the deductions because the terms and conditions which were made a tool for assessment of the repair work were never served upon the complainant.  It is now well settled law that the insurance company cannot be permitted to have recourse to the terms and conditions which are not  furnished to the insured at the time of inception of the policy.
6.  In case titled Sri Vekanteswara Syndicate Vs Oriental Insurance Co. Ltd. (2009) 8 SCC 507, the Hon’ble Supreme Court has held as under:

 “ the assessment of loss, claim settlement and relevance of the survey report depends upon various factors. Whenever a loss is reported by insured, loss adjustor, popularly known as loss surveyor, is deputed who assess the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are link between the insured and insurer when the question of settlement of loss/ damages arises.  The report of surveyor could become the basis for settlement of a claim.  There is no disputing the fact that the surveyors  are appointed by Insurance company under Insurance Act and  their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also hold that under the  provisions of the Insurance Act insurance company cannot go on appointing surveyors  one after another so as to get a tailor-made report to  the satisfaction of officer concerned of insurance company. If for any reason the report of surveyor is not acceptable, the insurer has to give valid reason for not accepting the report.”

7. In view of the facts and circumstances of the case , we are of the opinion that the complainant is entitled to the full assessed repair amount of the vehicle i.e. Rs. 1,91,428.75 out of which OP has already made payment of Rs. 52,000/-, therefore, the amount of which is left to be paid  is Rs. 1,39,428.75/-. We have minutely perused the bills filed by the complainant about repair work of the vehicle. Certain bills do not inspire us to be given to the complainant such as  bill no. 033 for Rs. 38500/-  which does not mention specific details of work done and also having overwriting over the amount, bill no. 207 tow away charges for Rs. 3000/-, bill no.  222 pertaining to tow away of the vehicle for Rs. 3,000/-, bill no. 433 for Rs. 3500/- having no details of work done, bill no. 651 overwriting over the amount in the bill, bill no. 658 overwriting on date and number of the vehicle in the bill and bill dated 16.08.2012  having no bill no. and also overwriting on the bill. The m,    of the aforesaid bills shall comes to Rs. 71800/-. Thus, complainant is entitled to a sum of Rs. 1,39,428/- – Rs. 71800/- = Rs. 67628/-.
8. It is for the foregoing reasons that we pass a award in favour of complainant a sum of Rs. 67628/- with interest @ 6% and Rs. 10,000/- as compensation for mental pain and harassment which also includes cost of litigation.
9.   This order shall be complied with by the OP within a period of 30 days from the date of receipt of this order failing which interest @ 10% shall be payable on the entire above mentioned amount from the date of this order till realization. 
10. Copy of this order be sent to all the parties free of cost.   File be consigned to Record Room. 

                        Announced this ___________day of __________2017.