ORDER

SH. RAKESH KAPOOR, PRESIDENT



The complainant is the registered owner of vehicle bearing
registration no. DL 8C S 1511.  He had purchased a policy of insurance
in respect of the aforesaid car from OP1 and OP2. The car was insured
for a total sum of Rs  315588/-.  It is alleged that on the night
intervening 12th & 13th 2009 this car was involved in a fire and was
fully burned.  DD no. 12 D dated 13.6.2009 was registered at the
concerned Police Station in respect of the above incident.  On being
informed about the incident OP nos 1 and 2 had appointed OP3  , a
surveyor to assess the loss.  It is further alleged that OP3 had
informed the complainant that the loss on the vehicle had to be
assessed on total loss basis and the insurance company will pay the
IDV of Rs 315588/- to the complainant. It is further alleged that OP3
had informed that the vehicle had to be handed over to him.  It is
also alleged that OP3 had paid  a sum of Rs. 1,85,000/- to the
complainant towards part payment of the claim amount and had promised
to pay the balance amount of Rs 130588/- after a few days. The
grievance of the complainant is that the balance amount of Rs 130588/-
is still due from nos 1 and 2 and had not paid to him. This despite
the fact that the complainant had served a legal notice on the Ops
dated 12.12.2009. The complainant has, therefore, filed the present
complaint seeking the refund of the balance amount of Rs 130588/-
along with compensation and cost of litigation.

     Ops 1 and 2 have contested the complaint and have filed a written
statement.

 Paras 1 to 7 of the preliminary objections of the written statement
of oP1 and OP2 are relevant  for the disposal of the present complaint
and are being reproduced as under:-

1.  The instant complaint is false, malicious, incorrect and malafide
and is nothing but an abuse of the process of the law and is it is an
attempt at wasting the precious time of this Hon'ble Forum, and has
been fib by the Complainant just to avail undue advantage. The
complaint is liable to be dismissed under section 26 of the Consumer
Protection Act, 1986 (the Act).

2.  The complaint is also liable to be dismissed against the Opposite
Party on the ground that there is no negligence, carelessness or
deficiency in service on the part of the opposite party as laid down
under the Act. The complainant is guilty of suppressing material facts
from this Hon'ble Forum and he concealed the said facts with the sole
objection to obtain favorable order.



3. That it is submitted upon a intimation the respondent nol deputed
the respondent3 for assessment of loss and after inspecting the
vehicle by surveyor i.e respondent no.3 (herein) assessed loss for
Rs.72,762.88 after deduction of the salvage value of Rs.750.00. It is
made clear the vehicle was very much in repairable condition and there
was no need to assessed the vehicle on total loss basis. ( The copy of
the surveyor report dated 18.12.2009 is attached as Annexure —A
(Colly).

4.  That it is submitted the complainant was pressuring the respondent
no.3 for assessed the loss on total loss basis but respondent no.3 not
allowed the same and granted only repair permission as the complainant
vehicle was required repair and could not have considered on total
loss basis.

5.  That after getting approval of repair permission of said vehicle
the complainant did not repaired the burnt vehicle and kept the said
vehicle in same condition in workshop garage for long period and the
said fact can be proved through the workshop record. The complainant
himself sold the said vehicle to third party and blaming the same for
respondents particularly respondent no.3 as the complainant was not
desired to settle the said claim on repair basis.

6.  That it is submitted the complainant alleging the respondents
without any proof just to avail undue advantage through the present
complaint. It is further submitted that the complainant not showed the
single document in respect of vehicle sold by the respondents.

7.  That respondent no.2 sent a letter dated 20.01.2010 to complainant
to submit the bills/ cash memos of repair of vehicle for the
settlement of the claim but complainant failed to submit the repair
bills ai4 d on 27.07.2010 a final reminder was sent to the complainant
for compliance of formalities but the complainant this time also not
submitted the bills of repair and finally vide letter dated 08.04.2011
the claim was repudiated on non compliance of formalities.



    Ops 1 and 2 have contested the complaint on merits. They have
admitted that the complainant have purchased an insurance policy with
an IDV of Rs. 315588/- from them. They have denied for want of
knowledge that the vehicle was involved in a fire incident on the
night intervening 13.6.2009.   They have , however, admitted that on
being informed they have admitted OP3 for assessment of the loss.
They have denied that OP3 had informed the complainant that the
assessment had to be done on total loss basis. They have further
denied that OP3 had paid a sum of Rs. 1,85,000/- to the complainant
and has promised to pay the rest of the amount of Rs 130588/-. They
have claimed that OP3 had refused assessment on total loss basis and
has assessed the loss at Rs 72762.28 on repair basis.  The Ops have
further claimed that the complainant had failed to comply with
requirements of the assessment of the claim and had failed to supply
relevant documents as a result of which the file had been closed.  It
has claimed that the complaint has no merits and the same is liable to
be dismissed. It has prayed accordingly.

OP3 M/s M M Puri , surveyors who were appointed  by OP 1 and OP2 to
assess the loss did not contest th complaint and have been ordered to
be proceeded with ex-parte. We therefore, do not have the version of
OP3 on the record of the present case.

 We have heard arguments advanced at the bar and have perused the record.

 There are many facts which are in dispute between the parties whereas
it is the case of the complainant that it was agreed to by OP3 that
the assessment would be made on total loss basis, it is the case of
OP1 and OP2 that OP3 had refused assessment on total loss basis and
had rather assessed the loss on repair basis. It is the case of OP1
and OP2 that as per OP3 , the loss was less than 75% of the IDV and ,
therefore, the assessment could not have been made on total loss
basis. The learned counsel for OP1 and OP2 has referred to the report
of the surveyor (OP3) , a copy of which has been placed on record. A
perusal of this report shows that the surveyor had assessed the loss
on repair bass and had also come to the conclusion that the assessment
on the basis of total loss is not permissible as the repair charges
did not concede 75% of the IDV.  Our attention has also been drawn to
the part of the report wherein the surveyor has assessed the loss @
72,762.88.  In his report, the surveyor had also stated that the
vehicle was got repaired by the complainant from outside and was
reinspected  after repairs. The surveyor report also notes that all
visible repairs/ replacement had been carried out.  OP1 and OP2 in
their  written statement as well as evidence had claimed that after
the surveyor had filed his report , they had asked the complainant to
submit bills/ cash memo of the repairs but the complainant had failed
to do so where after the case was closed due to noncompliance of
formalities. In our opinion, this was not permissible as the surveyor
in his report had already indicated that all the repairs/ replacement
as recommended had been carried out. OP1 and OP2 ought to have
released the assessed amount after the submission of the report of the
surveyor. Therefore, while we do not subscribe to the plea of the
complainant that he had already received a sum of Rs. 1,85,000/- from
OP3 and it had been promised that the balance amount of Rs. 1,30588/-
was payable and was still due , we hold that the complainant was
entitled to the assessed amount of Rs. 72,762.88. Accordingly,   we
hold OP1 and OP2 guilty of deficiency of service and direct them
jointly and severally as under:-

Pay to the complainant a sum of Rs. 72,762.88 along with interest @
10% p.a. from the date of the receipt of the surveyor report i.e.
29.12.2009 till payment.

Pay to the complainant a sum of Rs. 30,000/- as compensation for pain
and agony suffered by him.

Pay to the complainant a sum of Rs. 5,000/- as cost of litigation.

      The OP shall pay this amount within a period of 30 days from the
date of this order failing which they shall be liable to pay interest
on the entire awarded amount @ 10% per annum.  IF the OP fails to
comply with this order, the complainant may approach this Forum for
execution of the order under Section 25/27 of the Consumer Protection
Act.

    Copy of the order be made available to the parties as per rule.

    File be consigned to record room.

    Announced in open sitting of the Forum on.....................