ORDER

SH. RAKESH KAPOOR, PRESIDENT

 The complainant is the registered owner of a Tempo Trawler
bearing registration No. UK -077-0797.   He had purchased a policy of
insurance in respect of the aforesaid vehicle from OP1  which was
valid for the period 14.1.2013 to 13.1.2014. On 27.11.2013, the
vehicle was being driver through an underpass near Tyagraj Stadium
,New Delhi when its upper portion got struck with a lose concrete slab
as a result of which , the top portion of the vehicle and the AC
fitted thereon got badly damaged.  On being informed about the
accident, the OP appointed a surveyor who inspected the vehicle  and
gave his report. He had assessed the loss to the tune of Rs. 31,238/-.
  The Ops, however,  repudiated the claim on the ground that the
vehicle had already been repaired before the inspection was done by
the surveyor The complainant has alleged that the act of repudiation
is unjust and uncalled-for. Hence, the complaint.

     The OPs have contested the complaint and have filed a written statement .

Paras 1 , 8  and 9 of the  Preliminary    objections of the written
statement are relevant and are reproduced as under:-

1.That there is no deficiency in service on the part of the
respondent. The respondent has already wrote letter dated 09.02.2014,
11.03.2014 to the complainant to explain why the vehicle was got
repaired before the inspection by the surveyor. But' the complainant
did not explain the same. Therefore, this claim is liable to be
dismissed with costs.

9.    That a vehicle bearing No. UK-077-0797 was insured vide policy
No. 361800/1/12/6100005292 for the period 14.01.2013 to13.01.2014 in
the name of Shri Lalit Sahai for a sum of Rs. 594393/- and the
liability of the company, if any, is subject to terms and conditions
of the policy. On receiving the claim form along with    in late
December, 2013, the company
appointed Sh: Sunil Dhawan, surveyor &, loss assessor to assess the
loss who visited the workshop at Manesar and found that the vehicle
had already got repaired by the complainant. Therefore, an opportunity
to inspect and survey the vehicle was denied.

9.The surveyor wrote a letter dated 09.02.2014 to the complainant to
explain why the repairing job started prior to the survey. But no
reply was received by the surveyor. Therefore, he submitted his report
dated 08.03.2014 on the basis of estimate given by the workshop owner
and assessed loss as Rs. 31,237/ -. On receiving the survey report the
respondent wrote a letter dated 11.03.2014 but no satisfactory reply
was received. The complainant even did not submit the bill of repair
and receipt for making payment against the said bill. Therefore, the
claim was repudiated and the same was informed to the complainant vide
letter dated 18.03.2014. Therefore, the present complaint is not
maintainable and is liable to be dismissed.





 The Ops have contested  the complaint on merits. However, it has been
admitted that  the Ops had issued a policy of insurance in respect of
the aforesaid vehicle which was valid for the period 14.1.2013 to
13.1.2014.  While denying that the vehicle had met with accident on
27.11.2013,  the OP has denied  that its Divisional Manager  of
Divisional  office 29 was informed of the accident on the same day.
The Ops rather took up the stand that the complainant should have
informed  the motor claim hub about the accident    It is stated that
the motor claims forms were received in the office of the OP  in late
December 2013 where after Sh. Sunil Dhawan  Surveyor and Loss
assessor, was entrusted  with the task  of assessing the loss.  It is
stated that Sh. Sunil Dhawan  visited the workshop at Manser on
4.1.2014  and found  that the vehicle  had already been repaired  The
OP has, therefore,  claimed that it was within its rights  to
repudiate the claim lodged in this case.  It has prayed that the
complaint be dismissed.

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

The learned counsel for the complainant has taken us through  the
e-mail dated    27.11.2013  which is addressed to  Sh.  Ashok K. Arora
of the National Insurance Company.  It inter-alia reads as under:

 “ It is to inform you that my above mentioned vehicle had met with an
accident. I have sent the vehicle to the workshop for repairs at Plot
no. 56, Sector 3 , Manesar Industrial Area , Haryana.”

  A perusal of the above mentioned e-mail, therefore , makes it amply
clear that the insurance company had been informed by the complainant
about the factum of the accident as well as of the fact that the
vehicle had been removed to a workshop at Manesar for repairs.  The
complainant had , therefore, complied with  requirement  of informing
the insurance company immediately about the loss.  It was, therefore,
for the insurance company to have appointed a surveyor immediately  to
assess the loss.  Admittedly, the surveyor was appointed in the month
of January 2014 i.e. after a delay of more than a month.   The
complainant was, therefore, not obliged to keep on waiting for the
intended inspection by the surveyor and was within his rights to get
it repaired.   The stand taken in the written statement, therefore,
that the vehicle had already been repaired before it could be
inspected by the surveyor is not tenable.  The OP insurance company
was itself at fault in not appointing a surveyor at the earliest after
having been informed about the accident on 27.11.2013 itself.

       Mr. Sunil Dhawan was appointed as a surveyor in this case. A
copy of his report has been placed on record by the Ops. We have gone
through the surveyor report. The report shows that the repairer had
produced the estimate for  replacement of roof top , AC console,
luggage carrier , two nos of cooling coil , AC pipe etc. On the basis
of this estimate, an assessment of the loss was carried out by the
surveyor.    While assessing the loss,  the  surveyor had deducted a
sum of Rs. 37,237.5 paise on account of depreciation at the rate of
50%.  However, he has failed to give any reason  for  deduction on
account of depreciation at such a high rate.   The learned counsel for
the complainant has contended that the deduction on account of
deprecation at the rate of 50 % was uncalled-for and is unreasonable.
He has further  contended that the surveyor had not allowed any labor
charges but had done the assessment only on the basis of the basis of
the cost of parts.   He has contended that the report of the surveyor
is liable to be struck down as it is not founded on sound reasons. We
are in agreement with the learned counsel for the complainant.  While
making an assessment of the loss, the surveyor ought to have based his
report on sound reasons and accepted norms.     The surveyor did not
give any reason as to why a deduction of 50% was being made from the
cost of the parts on account of the depreciation.  It has to be borne
in mind that  the vehicle was insured   for the period 14.1.2013 to
13.1.2014  at the IDV of Rs. 628315/- and would not have depreciated
to the extent of 15% at the time of the accident. We are, therefore,
in agreement with the learned counsel for the complainant that the
surveyor had misdirected the report by allowing  such a huge
depreciation.  The surveyor had then failed to take into account the
labor charges incurred on the repairs.   An estimate of the repairs
was given to the surveyor by the repairer.  The surveyor has given no
reason as to why he has not made any assessment on account of the
labor charges.   We are, therefore, left with no other alternative but
to hold that the report of the surveyor is unreasonable and not based
on any sound grounds.  We hold that the insurance company was bound to
pay the entire cost of repairs as claimed by the complainant.  In this
regard  we quote  the following  judgments from which we have gathered
strength in order to arrive at our findings.

  In the case of New Indian Insurance Company  V/s Pradeep IV (2009)
CPJ 46 (SC), the Hon’ble Supreme Court had held :

14. Section 64-UM(2) of the Act 1938 reads:

"No claim in respect of a loss which has occurred in India and
requiring to be paid or settled in India equal to or exceeding twenty
thousand rupees in value on any policy of insurance, arising or
intimated to an insurer at any time after the expiry of a period of
one year from the commencement of the Insurance (Amendment) Act, 1968,
shall, unless otherwise directed by the Authority, be admitted for
payment or settled by the insurer unless he has obtained a report, on
the loss that has occurred, from a person who holds a licence issued
under this section to act as a surveyor or loss assessor (hereafter
referred to as "approved surveyor or loss assessor"):

Provided that nothing in this sub-section shall be deemed to take away
or abridge the right of the insurer to pay or settle any claim at any
amount different from the amount assessed by the approved surveyor or
loss assessor."

15. The object of the aforesaid provision is that where the claim in
respect of loss required to be paid by the insurer is Rs.20,000/- or
more, the loss must first be assessed by an approved surveyor ( or
loss assessor) before it is admitted for payment or settlement by the
insurer. Proviso appended thereto, however, makes it clear that
insurer may settle the claim for the loss suffered by insured at any
amount or pay to the insured any amount different from the amount
assessed by the approved surveyor (or loss assessor). In other words
although 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 insurer, but surveyor's 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'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.



 In the case of Bajaj Allianz Insurance Company V/s Sushil Sharma  II
(2012) CPJ 201 (NC) , the National Commission has held as under:-



He seeks to challenge the orders passed by the Fora below primarily on
the ground that both the Fora below erred in awarding Rs. 1,16,932.46
towards insurance claim as against Rs. 52,501, the net loss assessed
by the surveyor.  The For a below have taken pains in examining the
matter in great details and by reasoned orders have held that the net
loss as assessed by the Surveyor could not be justified in the facts
and circumstances of the case more particularly; when the cause on the
strength of which the insured was sought to be deprived of almost 50 %
of his insurance claim were not communicated to the complainant
agreeing  with terms and conditions of the policy. The view taken by
the For a below in consonance with the view taken b y the Supreme
Court in the case of M/s Modern Insulators Ltd v Oriental Insurance
Co. Ltd. , I 2000 CPJ 1 SC.





In another case titled Mallikarjun Sakri V/s Branch Manager Oriental
Insurance Company  (Revision Petition  No. 171/2011 ) decided on
14.2.2013, the National Commission has observed as under:



Even in the loss assessment report of the Surveyor it was stated that
the repairs included dismantling and thereafter reconstructing the
damaged cabin and replacing a number of important items. However, in
its report, the Surveyor has substantially reduced the repair costs as
projected by the Petitioner/Complainant purportedly on the grounds
that it was in consonance with current market price. The costs have
been further reduced by 50% on grounds of depreciation which is not
plausible since the vehicle had been insured just about a year prior
to the accident. Similarly, in respect of the labour charges without
any plausible reason the amount has been reduced to Rs.3500/-.
Further, the report of the Surveyor has not been backed by any
affidavit. On the other hand, we have also gone through the repair
documents filed by the Petitioner/Complainant in support of his
contention that the cost of repairs was Rs.55,000/-. We note that in
this document the repair cost of each damaged items has been listed
out.

The details have also been given in respect of labour charges of
Rs.20,200/-. This statement has been backed by an affidavit of the
concerned mechanic.

11. No doubt, it is a settled principle of law that the report of a
Surveyor being an important document has substantial evidentiary value
unless it is displaced by more credible evidence to the contrary. In
the instant case, we note that the documents submitted by the
Petitioner/Complainant, namely, the bill indicating the repairs done
carries more credibility than the Surveyors report because it clearly
indicates item-wise damage caused to the vehicle as also the cost of
repairs. It is also supported by an affidavit of the mechanic whereas
we note and as also observed by the District Forum no affidavit has
been filed by the Surveyor to support its report. Further, it is
difficult to accept that the vehicle, which had suffered such
extensive damage as noted by the Surveyor in his report, could be
repaired for a relatively small amount of Rs.32,500/-. It has to be
kept in mind that it was a major accident in which the vehicle had
collided with a culvert and fallen 15 ft. into a canal.

Such type of accidents would undoubtedly cause extensive damage to the
vehicle involved in the accident.

We , therefore, direct OP1 as under:-



1.Pay to the complainant a sum of Rs. 74,889/- along with interest at
the rate of 10% p.a. from  the date of institution of this complaint
i.e. 26.3.2015 till payment.

2.Pay to the complainant a sum of Rs. 25,000/- as compensation for
pain and agony suffered by him.

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



The OP1 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 OP1 company 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.

  Files be consigned to record room.

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