Haryana

Yamunanagar

CC/758/2010

Rajiv Kumar S/o Manga Ram - Complainant(s)

Versus

National Insurance Company Ltd. - Opp.Party(s)

G.S.Manipur

08 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                              Complaint No. 758  of  2010.

                                                                                              Date of institution: 16.08.2010

                                                                                              Date of decision: 08.06.2016.

Rajiv Kumar aged about 31 years son of Shri Manga Ram, resident of Village Lawana,Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                                                                                                                                                                                                                                     …Complainant.

                                    Versus

1. National Insurance Company Ltd. Division XV, National Insurance Building ( Ist Floor) 8, India Exchange Place, Kolkata-700001, through its authorized signatory.
2. National Insurance Co. Ltd. Divisional Office-1, SCO No.133-135, Sector 17-C, Chandigarh, through its Divisional Manager.
3. National Insurance Co. Ltd. Opposite Hindu Girls College, Old Court Road, Jagadhri, through its Branch Manager.

    

                                                                                                                                                … Respondents.

 

                         

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. G.S,Manipur, Advocate, counsel for complainant.   

              Sh. Karnesh Sharma, Advocate, counsel for respondents. 

 

ORDER

 

1.                     Complainant Rajiv Kumar filed the present complaint under section 12 of the Consumer Protection Act 1986 praying therein that respondents (hereinafter referred as OPs) be directed to pay Rs. 5,00,000/- spent on repair of JCB Machine alongwith interest and also to pay compensation as well as litigation expenses.  

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant has purchased JCB Machine for earning his livelihood and got it insured with the OPs Insurance Company vide special contingency policy bearing No. 9500001659 and TP Policy No. 6700020636 valid from 17.11.2008 to 16.11.2009 for covering the all types of risk. Unfortunately, the aforesaid JCB machine was met with an accident and in this regard a FIR bearing No. 198 dated 27.08.2009 under section 279/337 IPC has been registered in the police station Chhappar and the complainant also immediately informed the OPs Insurance Company. On the instructions of the officials of the Ops, complainant brought the aforesaid JCB Machine at repair centre, Zirakpur by hiring a crane on rent. A surveyor and Loss Assessor Mr. Arora was  deputed by the Ops Insurance Company. However, later on with the permission of surveyor complainant had repaired his JCB machine at Saini Mechanical Workshop,  Naraingarh. Some parts were purchased from M/s Saini Auto Mobiles, Naraingarh and some parts from Punjab Tractors and Motors, Yamuna Nagar. After that, all the original bills of repair and parts were handed over to the appointed surveyor Mr. R.S.Arora as well as Mr. Vijay Kumar who is care taker of the Ops in all type of cases. The complainant has spent a sum of Rs. 5,00,000/- on the repair of the JCB machine in question. However, OPs Insurance Company paid Rs. 26495/- on dated 26.4.2010 as full and final payment on account of repair. The complainant contacted the OPs insurance Company so many times and asked them that why they have sent a cheque of Rs. 26495/- instead of Rs. 5,00,000/- but the Ops gave no satisfactory reply and asked the complainant to knock the door of the competent court. The complainant has encashed the cheque of R. 26495/- in compelling circumstances because the complainant was in dire need of money as the OPs insurance company has not paid any heed to the genuine request of the complainant. Hence, there is a deficiency in service and unfair trade practice on the part of OPs.

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; complaint is bad for non- joinder and mis joinder of necessary parties; complainant has no locus standi to file the present complaint; a sum of Rs. 26495/- have already been paid to Megma Fincorp. Ltd. The complainant has concealed the true and material facts whereas the true facts are that on receiving the intimation regarding the accident of said earth moving equipment (JCB), the OPs insurance company immediately registered the claim and Mr. R.S. Arora Automobile Engineer, Surveyor and Loss Assessor was deputed for final survey. The said surveyor and loss assessor had submitted his final surveyor report dated 27.11.2009 (Annexure R-3) and had assessed a loss of Rs. 70853/-. However, an amount of Rs. 19575.- which was assessed on account of labour charges by the Surveyor & Loss Assessor has been deducted as the complainant/insured did not submit corresponding repair bills. Further, an amount of Rs. 16904/- has also been deducted as difference amount on account of reconditioned part instead of new parts assessed by the surveyor and official of the OPs Insurance Company. Further, an amount of Rs. 1152/- has also been deducted as the complainant has also not submitted the corresponding bills and cash memos against some items at serial No. 66, 68, 75 and 77. An amount of Rs. 5800/- has also been deducted on account of salvage as the surveyor had not deducted the amount on account of salvage and policy excess clause which is Rs. 35000/- and depreciation of Rs. 1834/- in the instant case, the net amount of Rs. 26,495/- has been paid to the Megma Fincorp Ltd. against receipt. Hence, there is no deficiency in service or unfair trade practice on the part of the Ops and the claim of the complainant has been rightly settled by the Ops Insurance Company. On merit, reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CA, Affidavit of Sh. Rishi Pal Saini Proprietor of M/s Saini Automobiles Naraingarh as Annexure CB and affidavit of Sh. Rajnish Kumar Proprietor of M/s Saini Mechanical Workshop as Annexure CC and affidavit of Balbir Sen Nanda as partner of M/s Punjab Motors as Annexure CD and documents such as Photo copy of quotation as Annexure C-1, Photo copies of Bill as Annexure C-2 to C-12, Photo copy of insurance special contingency policy as Annexure C-13 and TP Insurance policy as Annexure C-14, copy of FIR bearing No.198 as Annexure C-15, Photo copy of external estimate as Annexure C-16 and photo copy of cheque amounting to Rs. 26495/- as Annexure C-17 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs insurance company tendered into evidence affidavit of Sh. V.K.Sethi, Assistant Manager NIC as Annexure RX, affidavit of Sh. R.S. Arora, Surveyor and Loss Assessor as Annexure RY and documents such as Photo copy of receipt of payment of Rs. 26,495/- dated 26.08.2009 as Annexure R-1, Photo copy of TP Insurance Policy as Annexure R-2, Surveyor and Loss Assessor report as Annexure R-3 and closed the evidence on behalf of OPs.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely & carefully.  Learned counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for the opposite parties reiterated the averments made in the reply and prayed for its dismissal.

7.                     It is not disputed that JCB Machine bearing registration No. HR-58-8027 was not insured under the special contingency policy bearing No. 9500001659 and TP Policy bearing No. 6700020636 valid from 17.11.2008 to 16.11.2009 IDV for a sum insured of Rs. 12,95,000/- with the OPs Insurance Company which is evident from the Annexure C-13 and C-14. It is also not disputed that the said JCB Machine not met with an accident which is evident from the copy of FIR bearing No. 198 dated 27.08.2009 Annexure C-15. The only version of the complainant is that he had spent Rs. 5,00,000/- on account of repair of the JCB Machine in question which is duly evident from the copy of estimate (Annexure C-1) as well as copy of repair/labour bills Annexure C-2 to C-12. However, Ops Insurance Company has made a payment of Rs. 26495/- which was accepted by the complainant under protest due to need of money as per version of the complainant. From the perusal of surveyor and loss assessor report (Annexure R-3) it is evident that an amount of Rs. 70853/- was assessed by the surveyor in respect of repair of JCB Machine in question but the huge amount wrongly without any base  has been deducted by the Surveyor as well as official of the OPs Insurance Company. An amount of Rs. 19575 has been deducted by the official of the OPs Insurance Company illegally from the amount assessed by the surveyor on account of non submitting corresponding repair bills, whereas as per version of the complainant all the bills were handed over to the Surveyor and Loss Assessor and after taking into consideration the bills of the labour charges amounting to Rs. 20,000/- the surveyor and loss assessor assessed only Rs. 19575/- which is evident from his report Annexure R-3, so, we are of the considered view that Ops insurance company has wrongly and illegally deducted this amount i.e. Rs. 19575/-. Secondly an amount of Rs. 16904/- has also been wrongly and illegally deducted by the official of the Ops Insurance Company from the surveyor report on account of difference in the rate of reconditioned part instead of new parts. The surveyor and loss assessor when allowed the reconditioned part instead of new parts against item No. 45, 46, 62, 71, 87 and 88 after deducting 40% of the actual cost of new parts/ surveyor recommendation amount then how the official of the Ops Insurance Company deduct the amount of 40% on the bill of recondition part. The official of the Ops Insurance Company cannot adopt double yard stick against the complainant. So, this amount has also been wrongly deducted by the OPs Insurance Company. Further an amount of Rs. 1152/- has been wrongly deducted by the Insurance Company on account of corresponding bills/cash memos against the item No. 68, 75 and 77 as earlier stated when the complainant handed over all the bills to the surveyor and loss assessor then how the official of the OPs Insurance Company can deduct the amount on this account. We have perused the affidavit submitted by the said surveyor and loss assessor Sh. R.S.Arora (Annexure RY) wherein it is nowhere mentioned that the complainant has not handed over the bills of the spare parts as well as labour charges to him as alleged by the OPs Insurance Company in their written statement. Furthermore, when the complainant used recondition parts then how the OPs insurance company can further deduct an amount of Rs. 1834/- on account of depreciation. So, this amount i.e. Rs. 1834/- has also been wrongly and illegally deducted by the OPs Insurance Company. Further from the perusal of the surveyor report, it is also evident that no  amount has been given by the surveyor/loss assessor on account of toeing charges whereas the complainant might have spent some amount on  this account also. So, the complainant is entitled to get some amount on this account. Even, the surveyor and loss assessor has specifically mentioned in his affidavit Annexure RY that he had assessed the loss of Rs. 70853/- whereas OPs Insurance company made only a payment of Rs. 26495/-, so, we are of the considered view that there is a clear cut deficiency in service or unfair trade practice on the part of the OPs and the arguments advanced by the counsel for the OPs that claim of the complainant has been rightly repudiated and the complainant had already received the settled amount as full and final without any protest is not tenable as the present complaint has been filed within a short span of time by the complainant.

8.                     In the circumstances and facts noted above, we are of the considered view that as it is settled proposition of the law held by the Hon’ble National Commission as well as State Commission in various cases that surveyor is the best technical person to assess the loss and credence should be given to the surveyor report in the absence of any discrepancy or ambiguity in the surveyor report. In the present case, the surveyor and loss assessor has assessed an amount of Rs. 65053/- after deducting an amount of Rs. 5800/- on account of salvage from the assessed amount of Rs. 70853/-. As such the OPs have wrongly deducted an amount of Rs. 39465/- ( Rs. 19,575 + 16904+1152+1834). As such the complainant is entitled for some relief.

9.                     Resultantly, we partly allow the complaint of complainant and direct the Ops to pay a sum of Rs. 44465/- ( 39,465 wrongly deducted by the OPs Insurance Company from the Surveyor Report plus Rs. 5000/- as Toeing charges) alongwith interest at the rate of 9% per annum from the date of filing of complaint till its realization and further to pay a sum of Rs. 5000/- as compensation for mental agony and harassment as well as Rs. 5000/- as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 08.06.2016

 

                                                                                                ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER