Per Shri Bhaskar B. Yogi – Hon’ble President
1. The consumer complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Insurance company and It’s manager for not settling full amount as per actual bills.
2. The brief facts of the complaint are that she has purchased one car for her personal use bearing RTO No. MP 20 CB 5619 model Maruti SX4 zdi bearing chasis No. 19 3662. The complainant has insured the vehicle with the opposite party No. 1 and 2 under policy dated 22-10-2013 the said policy of the vehicle is valid from 22-10-2013 to 21-10-2014 and had paid premium towards Insurance policy.
3. Unfortunately, said vehicle of the complainant met with an accident on 13th December 2013 where insured vehicle had been completely damaged. The complainant has reported the matter to opposite party No. 3-the Dealer, immediately and there after to opposite party No. 1 and 2. As per the complainant opposite party No. 3 dealer has estimated the loss of total amount of Rs.4,40,017/- . The complainant has taken the package policy for the vehicle for an insured declared value (IDV) for Rs.7,00,000/-.
4. Opposite party No. 1 Insurance company has appointed one surveyor and the surveyor has submitted his report on the basis of the Bill Check Report. The claim was settled for an amount of Rs.1,32,100/-. The complainant has accepted the part settlement of a claim amount for Rs.1,32,100/- and noted her objection many times but the opposite party has never paid any attention to her grievance, therefore, lastly she has to send a legal notice through her advocate to which the opposite party has not replied ultimately she has to file this Consumer complaint before this Hon’ble Forum.
5. The opposite party No. 1 and 2 appeared through their advocate and file their respective reply. Opposite party No. 3 appear through their advocate but not file the written version instead they have filed an application for discharging him from the consumer complainant being formal party.
Complainant has filed his Affidavit of Evidence and Written Notes of arguments. The opposite party No. 1 and 2 has filed written version and filed Pursis mentioning that the written version may be considered as their affidavit of Evidence and they does not wish to file written notes of Arguments and they are ready to argue orally.
6. The opposite party 1 & 2 specifically mentioned that no cause of action accrued to complainant to file complaint within jurisdiction of this Hon’ble Forum. The opposite party also stated that as per surveyor report 28/02/2014 they have settled the claim of the complainant for Rs. 1,32 100/- and insisted for dismissal of the consumer complaint with compensatory cost in the interest of Justice.
7. Issues
i) Whether this Hon’ble Forum have Jurisdiction to entertain,
try and decide the present Consumer Complaint? - YES.
ii) Whether the opposite party or the complainant is
bound by the surveyor report? - No.
iii) Whether opposite party No. 1 and 2 are guilty in
providing deficiency in service ? - Yes
iv) What order? Allowed Partly.
8. The Opposite Party has issued the insurance policy at the address of Complainant Block No. 102, 2nd floor Shree sai complex Balaghat road, Gondia. and also communicated at gondia address for the purpose of settlement of claim. Insurance policy is issued from gondia branch bearing office code 281301. Hence this Hon’ble Forum have Jurisdiction to entertain, try and decide the present Consumer Complaint U/s 11 (2) (c). There fore our finding to issue No. (i) is YES.
9. The bone of contention in this consumer complaint whether the surveyor report is final? Are the insured and the insurer are bound by the surveyor report? Opposite party has placed Reliance upon Hon’ble National Consumer Dispute Redressal Commission New Delhi in case of Chanan Preet Singh Vs United India Insurance Company Limited and others decided on 17/11/2011 where and it was held by the Hon’ble National Commission that - Report of surveyor is credible document which must be relied upon unless controverted by credible proof of any infirmity in its findings - Petitioner has not been able to lead any such evidence to controvert finding of surveyor in its report - Details of actual damage caused as a result of accident were clearly recorded by surveyor - Quotation form of garage only listed out costs of various items but this cannot be give much credence as it is not clear from this that whether these pertain to repairs required because of damages caused to vehicle by accident or otherwise.
The surveyor of the opposite party No. 1 has submitted one page Bill Check Report (BCR) dated 20th February 2014 in which 15% less depreciation for Metal parts and 50 % depreciation for Rubber parts and Rs.1000 has been deducted as excess and Rs.7000/- for Salvage and mentioned a figure of Rs.1,32,184/-.
The surveyor has noted that actual bill amount of spare part considered for item No. 23, 49 and 74 only.
The complaint has submitted, estimated bill dated 16/12/2013 of the opposite party No. 3 - Arya cars for net estimate amount of Rs. 4,40,107/- and also submitted actual invoice bill dated 29/01/2014 for total amount of Rs. 2,80,386/-. The surveyor has not mention any reason why he has debited only few amount from the actual Bill and only considered item No. 23, 49 and 74 for spare parts. Complaint has also produced the ledger account of opposite party No. 3 for an amount of Rs. 2,80,386/- in which the said amount has been showed as paid.
10. It is to noted here the case between New India Assurance Co. Ltd. v. Pradeep Kumar, Civil Appeal No. 3253 of 2002, wherein the Apex court held that the surveyor report is not the last and final word. It has been observed that the approved surveyor report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured, but such report is neither binding upon the insurer nor upon the insured".
We are also placing reliance on the following judgments:-
i) "NEW INDIA ASSURANCE COMPANY v. CHAMKAUR SINGH" IV(2010) CPJ 339;
ii) "NEW INDIA ASSURANCE CO. LTD. v. PRADEEP KUMAR"
IV (2009) CPJ 46 (SC). (Supra)
It was held therein that the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand Rupees. or more by insured but Surveyor report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved Surveyor 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.
11. Therefore, the moot question is whether the surveyor report produced by the opposite party is proper or not? We have to look the contents of the one page Bill Check Report (BCR). From the one page BCR it is clear that the surveyor has not considered all the actual amount of bill and no specific reason has been mentioned - why he has not considered other amounts and has also not cited the terms and conditions from the insurance policy. Then how much depreciation has to be allowed on which parts and on what basis Is also not mentioned? He has allowed only labor charge of Rs. 31,757/-but on what basis has not been explained. The Opposite Party has not filed the terms and conditions stating which part has to be considered and which part has to be discarded. When the vehicle has been repaired and certain metal parts and Labor charges has been used to repair it, then all the metal parts and rubbers parts are new - then in such situation depreciation could not be allowed on new parts. It is further noted that the complainant has prayed for the actual payment not for the estimated amount, actual payment as per the bill which she has paid i.e Rs. 2,80,386/-. Thus the difference between the actual amount and the amount which is paid by the opposite party No. 1 and 2 is Rs.1,48,286/- which has to be paid to the complainant in absence of specific finding by surveyor why not considered the item shown in actual bill & what are the exclusion as per policy term and condition. Hence our finding to issue No. ii is. NO and opponent has not paid the amounts to the Complainant as per actual bill without specifying any cognate reason, amounts to deficiency in service. Hence our finding to point No. iii is YES.
12. In view of issue No. (i),(ii) & (iii) for the reason mention above we are inclined to allow the complaint as under;
ORDER
1. The consumer complaint is partly allowed.
2. The Opposite party 1 & 2 is directed to pay Rs.1,48,286/- along with interest @ 6% p.a. to the complainant.
3. The Opposite party No. 1 & 2 are directed to pay Rs.10,000/- for mental pain & Rs. 5,000/- towards cost of litigation to the complainants .
4. Order No. 2 & 3 be complied within 30 days from the date of receipt of the order, else pay along with interest @ 9 % P.A. till realization.
5. The complaint against opposite party No. 3 is rejected.
6. Parties to be provided free copy of this order.
7. Extra set be returned to the complainant.
