Sh.Anoop Sharma, Presiding Member

1.       Sh.Ramesh Chaudhary has brought the instant complaint under section 12 of the Consumer Protection Act, 1986 on the allegations that the complainant got his vehicle Skoda Laura bearing RC No.PB-02-BN-0063 from Opposite Party, covering risk period from 17.9.2014 to 16.9.2015 and the said vehicle is being used by the complainant for his personal use only. Unfortunately, the vehicle of the complainant met with an accident on 11.6.2015 during the insurance period and the vehicle was sent to Prabhat Motors, G.T.Road, Amritsar and Opposite Party appointed surveyor Mr.Subash Chawla, who inspected and surveyed the vehicle and prepared preliminary  estimate of repair of vehicle to the tune of approximately Rs.1,60,000/-, but when the vehicle was put to repairs, further damages revealed and total costs of repair of said  accidental damage came to the tune of Rs.4,20,674/- which included the repair charges by the aforesaid service station. The certification as well as loss was given to Opposite Party by the complainant as well as  repairing dealer. It is pertinent to mention over here that IDV of the said vehicle is about Rs.8,40,000/-. Thereafter time and again, the complainant intimated about the loss to Opposite Party as well as said surveyor, but the surveyor never bothered to inspect the vehicle during repair. However, when the vehicle was fully repaired, it was inspected by the surveyor in the absence of the complainant and Prabhat Motors handed over all the bills to said surveyor and subsequently, the salvage was also handed over to the complainant. However, subsequently, the complainant came to know that surveyor has not taken the revised estimate, although has taken all the bills with him regarding purchase of spare parts by the complainant for repair of his vehicle.  Immediately, the complainant served notice dated 4.4.2016 to the Opposite Party that the complainant has spent an amount of Rs.4,20,674/- on repair of the vehicle and Prabhat Motors has also handed over all the bills of repair to the surveyor, but as the surveyor has not taken the estimate for repair of vehicle, hence there is an apprehension that the surveyor may not assess the exact loss as per the estimate given.  It was also duly brought to the notice of Opposite Party that earlier there was mistake in calculation  of amount and in fact the exact amount spent on spare parts purchased and labour charges  comes to Rs.4,20,674/-, but no reply was given by the Opposite Party. On the other hand, in the meantime, the Opposite Party managed to obtain favourable report  from surveyor in their favour and it seems that the Opposite Party has obtained some ante-dated report  from the surveyor. However, again a reminder dated 6.6.2016 was issued to the Opposite Party and in reply the Opposite Party finally issued letter dated 7.7.2016 to the complainant whereby the Opposite Party finally assessed the loss to the tune of Rs.77,103/- only which is arbitrary on the part of the Opposite Party, without considering bills of repairs and certificate issued by the repairer. Hence the genuine claim of the complainant has not been assessed by the Opposite Party in connivance with the surveyor. Said non payment of genuine claim of the complainant to the tune of Rs.4,20,674/- and not considering the same in letter dated 7.7.2016 is against true facts and law. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party be directed to pay the claim of Rs.4,20,674/- alongwith interest @ 12% per annum from 11.6.2015 till realization.

b)      Opposite Party be directed to pay compensation to the tune of Rs.50,000/- to the complainant.

c)       Opposite Party be directed to pay the adequate  cost of present litigation. 

Hence, this complaint.

2.       Upon notice, Opposite Party appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that  the complaint is pre mature and without any cause of action and therefore, the same is liable to be dismissed.  In this regard, it is submitted that in the light of loss assessed by the independent surveyor, the complainant was called upon by the Opposite Party vide letter dated 7.7.2016, requesting the complainant to submit the bank details (cancelled cheque of his account) enabling the Opposite Party  to release the payment of loss as assessed by surveyor to the tune of Rs.77,103/-.  However, no response was received from the complainant in this regard, therefore reminder dated 27.7.2016 and final reminder dated 23.8.2016 were also served.  In the final reminder, it was made clear that if nothing is heard from the insured within seven days, the Opposite Party presume that the insured is not interested in this claim. As no papers were received  from the complainant, therefore, in the light of the final reminder dated 23.8.2016 the claim preferably by the complainant stands closed as ‘no claim’. The complainant has himself admitted that after accident, the vehicle was sent to Prabhat Motors at Amritsar and the  independent surveyor inspected and surveyed the vehicle at the about said service station. The complainant submitted estimate  of Rs.1,57,600/- from Prabhat Motors, Amritsar and the independent  surveyor finally prepared his survey  report  assessing the loss to the tune of Rs.77,103/- as per motor policy. The plea now taken in the complaint that  subsequently  the said damage came to the tune of Rs.4,20,674/- regarding which additional estimate  was given to the surveyor. However, this version is totally wrong because on  receipt of intimation in this regard from the complainant, the matter was taken up with the said surveyor to give his  comments regarding any subsequent estimate and the said surveyor submitted clarification with the Opposite Party clearly confirming  that he inspected the vehicle on 24.6.2015 at the repairer’s workshop M/s.Prabhat Motors after getting estimate from the office amounting to Rs.1,60,000/-. The vehicle was inspected by him on the basis of estimate submitted by the repairer and onward submitted by the insured to the office for deputation of surveyor. After his inspection the vehicle was not  dismantled till December, 2015 and the fate of the vehicle was unknown during this period and  ultimately, the repairer was asked to dismantle the vehicle and produce for inspection and it was again inspected on the basis of  estimate submitted as mentioned in his report. Thereafter, neither the insured nor the repairer submitted any supplementary or additional estimate till at the time of final inspection after the repairs. In the light of these facts, he concluded in his clarification that the losses are used to be inspected by us on the basis of estimate submitted  by the insured and no additional consideration is done at our own behalf. In the light of these facts, it is apparent that except only one estimate which was between Rs.1,57,000/- to Rs.1,60,000/-, no other estimate had ever been given by the complainant or by the repair, therefore, the loss was rightly assessed on the basis of said estimate by the independent surveyor and re-inspection was  also done in the light of the said estimate  and repairs. In order to wriggle out of this problem, the complainant has managed  to submit one document i.e. letter from Prabhat Motors in which it has been stated that they made  estimate of repairs for Rs.1,60,000/-. The vehicle was not dismantled and estimate was made on visual inspection. After dismantling number of parts were found damaged and soon to the surveyor visit and took photographs, the rate of parts given by the Opposite Party in the estimate was also approximately the total cost of repairs was Rs.5,08,784/- for pars and labour. The parts were purchased by the owner and he has taken bills for the same. In this letter, it is nowhere mentioned that whether any fresh estimate was submitted to the surveyor by the said repairer or by the said repairer or by the insured and whether any bills were subsequently submitted as additional claim by the complainant to the surveyor or to the insurance company. The plea taken by the repairer that the said surveyor took photographs again is totally wrong because as per version of the surveyor he was never informed regarding any additional estimate or bills either by the repairer or by the insured complainant. Hence the said letter is of no value because the Opposite Party has to follow the procedure for settling the claim on the basis of estimate and submission of repair  bills/ cash memos and salvage of the damaged parts which has not been done in the present case except for the first estimate of Rs.1,57,600/- submitted by Prabhat Motors and Rs.1,60,000/- submitted by the insured with the Opposite Party and the said estimate was considered by the independent surveyor who assessed the loss finally to the tune of Rs.77,103/- and the said amount is payable by the Opposite Party subject to submission of repair bills, cash memos and adjustment of salvage to the tune of Rs.1,000/-. However, this payment could not be made as the complainant even failed to submit his bank details for remaining the said payment through NEFT as per present banking and insurance procedure. In light of the aforesaid objections, it is submitted that there is no question of any deficiency in service or unfair trade practice on the part of Opposite Party. On merits, the Opposite Party took almost same and similar pleas as taken by them in the preliminary objections.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C 19  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.Puneet Kandia, Divisional Manager Ex.OP1 alongwith copies of documents Ex. OP2 to Ex.OP46 and copies of documents Mark A to Mark D and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record and also gone through the written synopsis filed by Opposite Party.

6.       Ld.counsel for the Opposite Party has vehemently contended that  on the receipt of intimation about the accident, the Opposite Party apoined Mr.Subhash Chawla as surveyor who inspected and surveyed the vehicle and also considered the estmate  of repairs issued by Prabhat Motors to the tune of Rs.1,60,000/-, but  said surveyor has assessed the loss to the tune of Rs.77,103/- and informed the complainant to submit his bank particulars so that the said amount can be remitted in his bank account through NEFT. Although the complainant has  submitted all these facts, but has alleged in para No.5 of the complaint that the loss assessed by the surveyor is  arbitrary and without considering the bills of repairs and certificate issued by the repairer. However, this version of the complainant is incorrect and as far as law relating to the loss assessed by the surveyor and right of the Forum to interfere with the same or not will be detailed out herein afterwards. It is further contended that main problem started when the complainant alleged that in fact when the vehicle was put for repair, further damage was  revealed and  total costs of repair of the said accident damage come to the tune of Rs.4,20,674/- which includes repair charges. The certificate of said loss was given to the Opposite Party by the complainant as well as repairing dealer. In light of the aforesaid circumstances, the comments were called for from the concerned surveyor Mr.Subhash Chawla, Surveyor & Loss Assessor that whether he had received any papers from Prabhat Motors with respect to subsequent damages as alleged and claimed by the complainant in the present complaint.  On the other hand, the ld.counsel for the complainant has contended that Prabhat Motors has already issued certificate Ex.C6 and  has specifically mentioned that the total cost of repair was Rs.5,08,784/- appox. for parts and labour. The parts were purchased by the owner and he has taken bills for the same.   It was also duly brought to the notice of Opposite Party that earlier there was mistake in calculation  of amount and in fact the exact amount spent on spare parts purchased and labour charges  comes to Rs.4,20,674/-, but no reply was given by the Opposite Party. On the other hand, in the meantime, the Opposite Party managed to obtain favourable report  from surveyor in their favour and it seems that the Opposite Party has obtained some ante-dated report  from the surveyor. However, again a reminder dated 6.6.2016 was issued to the Opposite Party and in reply the Opposite Party finally issued letter dated 7.7.2016 to the complainant whereby the Opposite Party finally assessed the loss to the tune of Rs.77,103/- only which is arbitrary on the part of the Opposite Party, without considering bills of repairs and certificate issued by the repairer. Hence the genuine claim of the complainant has not been assessed by the Opposite Party in connivance with the surveyor. Said non payment of genuine claim of the complainant to the tune of Rs.4,20,674/- and not considering the same in letter dated 7.7.2016 is against true facts and law. In such a situation, the surveyor report can not be relied upon for assessing the compensation/ insurance claim, submitted by the complainant. Reliance in this respect can be had on New India Assurance Company Limited Vs. Pardeep Kumar (2009) CPJ 46 (SC), wherein it has been laid down that Surveyor’s report is not the last and final word. It is not that sacrosanct that it can not be departed from; it is not conclusive. The approved Surveyor’s report may be basis or foundation for settlement of a claim by the insurer in  respect of the loss suffered by the insured, but surely such report is neither binding upon the insurer nor insured. The authority supra is applicable to the facts of the present  case.  Since the report of the surveyor is of dated 5.3.2016, whereas the certificate was given by Prabhat Motors on 23.3.2016 regarding the total costs of repair at Rs.508784/-, the surveyor did not consider the subsequent bills of the repair of the vehicle in question The complainant has submitted bill Ex.C-7 to C17 regarding expenditure incurred by him on the repair of the vehicle in dispute, which comes to Rs. 4,20,674/- in all.

7.       In our considered opinion, the complainant is entitled to insurance claim in full and  as such the complainant is entitled to Rs.4,20,674/- alongwith interest @ 9% per annum from the date of passing of the order until full and final recovery.   The complainant is also awarded litigation expenses to the tune of Rs.2,000/-.  Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum