DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 188 of 06.07.2007<br /> Decided on : 11-09-2007 <br /> <br /> Rajwinder Singh S/o Joginder Singh R/o V.P.O. Sham Khera, Tehsil Malout, District Mukatsar through Special Power of Attorney holder Pawan Kumar S/o Late Sh. Kaur Chand R/o 1350, Street No. 1, New Basti, Bathinda.<br /> <br /> ... Complainant<br /> Versus <br /> <br /> National Insurance Company Limited, Divisional Office, The Mall, Bathinda through its Divisional manager. ... Opposite party<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Naresh Garg, Advocate.<br /> For the Opposite party : Sh. M.L. Bansal, Advocate. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. This compliant under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred by the complainant seeking directions from this forum to the opposite party to pay claim amount of Rs. 1,86,2000/-; Rs. 5,000/- as garage charges alongwith interest @18% P.A.; Rs. 25,000/- as damages on account of mental agony and pains and Rs. 10,000/- as litigation expenses.<br /> 2. Briefly put the case of the complainant is that Maruti 800 Car bearing Registration No. PB-53-A/5818 was purchased by him vide invoice No. 41564 dated 29.3.06 from Heera Automobiles Limited, Patiala. Comprehensive Insurance Policy of the opposite party for the car was also purchased through Heera Automobiles Limited (Authorised dealer/agent of Maruti and opposite party) vide certificate No. 1000948 w.e.f. 1.4.06 to 31.3.07 against proposal No. P-00711003. Opposite party issued Insurance Certificate through its agent for a sum of Rs. 1,86,200/- (I.D.V. ) whereas in the invoice the amount recorded is Rs. 1,94,947.01. Opposite party issued the insurance certificate after depreciating the value of the new Car. Policy was not issued against the insurance certificate. This vehicle had met with an accident on 17.2.07 near Bhucho Khurd at Bathinda- Barnala Road. At that time car was being driven by Sh. Amarvinder Singh S/o Gurdev Singh. Intimation regarding accident was given to the opposite party who had deputed Sh. Dinesh Kumar Goyal as spot surveyor. Vehicle was inspected by him at the spot. DDR No. 9 dated 18.2.07 was recorded in Police Station Cantt, Bathinda regarding this accident. There was extensive damage to the vehicle and it was a case of total loss. After the car was inspected by the surveyor, it was shifted to Tara Automobiles, Bathinda, an authorised dealer/agent of the manufacturing Company as per his instructions. Intimation regarding shifting of the car to Tara Automobiles was given to the opposite party. Again Mr. Dinesh Kumar Goyal was deputed by the opposite party as final surveyor. Tara Automobiles estimated the loss on 23.2.07 to the tune of Rs. 1,49,258.30 at the instance of Mr. Dinesh Kumar Goyal, Surveyor. This surveyor made the report on 8.4.07 after about 1-1/2 months from the date of preparation of estimate and final survey. Complainant alleges that at the time of final survey, surveyor had obtained the signatures of his Attorney on some blank papers and vouchers with the understanding that car is badly damaged and as per estimates it is a case of total loss. As per rules of the opposite party if there is any loss above 75% of the Insured's Declared Value, the same amounts the total loss. Copies of the Registration Certificate, Driving Licence, Daily Diary Report and original estimate etc., were delivered to the surveyor. On 10.4.07 letter was written by him to the opposite party withdrawing his blank signed papers, vouchers and consent letters. Opposite party sent letter dated 11.4.07 to him through his Attorney directing him to meet the surveyor. If there is any mis-communication in the assessment, matter could be discussed with him. It is further alleged by the complainant that surveyor is under the thumb of the Insurance Company. He cannot offer to disoblige his master from which he has is to obtain business. He is to toe the line of the opposite party. Copies of the spot or final survey reports were not sent to him in which vehicle was found to be a case of total loss. Survey report was demanded by him under the Right of Information Act and copy of the same was issued against payment of Rs. 12/-. It is the duty of the surveyor to supply the copy of the survey report as and when prepared. It is the duty of the Insurance Company to supply the copy of the survey report as and when received by it. Surveyor after submitting his report dated 8.4.07 sent letters dated 7.5.07 and 8.6.07 with malafide intention under the instructions of the opposite party. This further shows that he is working under the instructions of the opposite party. Complainant wrote letters dated 26.5.07, 4.6.07, 7.6.07 and 18.6.07 to the surveyor as well as to the opposite party demanding the claim amount on the basis of total loss. Letters dated 11.4.07 and 24.5.07 were sent to him by the opposite party with malafide intention and to harass him. Opposite party was approached by him with the request to pay the claim amount of Rs. 1,86,200/- as per Insured's Declared Value as car was totally damaged. Neither loss was paid nor reply was given. Vide letter dated 28.6.07, opposite party has held the claim as No Claim. He assails it as illegal and against the principles of natural justice. He is bearing garage charges as damaged car is lying with Tara Automobiles and opposite party did not settle/pay the claim. The act of non-payment of claim by the opposite party has caused him mental agony, pains and sufferings.<br /> 3. Opposite party filed its version taking legal objections that complainant has not come with clean hands; he has not made compliance of the terms and conditions of the policy and this forum has got no jurisdiction to adjudicate the complaint as claim of the complainant has been filed as No Claim as he did not co-operate with it. He wants to get the claim according to his own wishes. Claim was not payable on total loss basis. It was payable on repair basis for which he did not agree. He has no locus standi to file the complaint as he has already sold the vehicle to Sh. Varinder Kumar. It did not refuse to make the payment of the amount of loss as assessed by the surveyor. On merits, it admits that complainant was the owner of the car which was purchased from Heera Automobiles Limited, Patiala, There is no denial about the fact that car was got comprehensively insured with it through Heera Automobiles and its Insured's Declared Value is Rs. 1,86,200/-. It denies that detailed policy with terms and conditions was not issued to the owner. There is no specific denial about the fact that car had met with an accident on 17.2.07 and its information was given to it and that Sh. Dinesh Kumar Goyal was appointed surveyor who had inspected the vehicle at the spot and that Daily Diary Report No. 9 dated 18.2.07 was recorded in Police Station, Cantt Bathinda. Shifting of the Car to Tara Automobiles is admitted but the version of the complaint that it was shifted as per instructions of the surveyor is denied. Tara Automobiles has issued estimate after inspection of the vehicle to the tune of Rs. 1,41,258/- . According to it, estimate was not given at the instance of any body. As regards delay in the submission of the report dated 8.4.07 by the surveyor, its plea is that it was due to the fact that at the time of inspection for final survey dated 23.2.07 documents were not submitted like Registration Certificate. After more than 10 months of the date of purchase i.e. 1.4.06, consent letter dated 30.3.07 was submitted to the surveyor on 5.4.07. It denies that surveyor had taken signatures of the Attorney of the complainant on some blank papers and vouchers. Inter-alia its plea is that complainant had given his consent letter of his own accord which was subsequently withdrawn by him vide letter dated 10.4.07. It is not a case of total loss. Vehicle is repairable by way of spending Rs. 92,774/- as per report of the surveyor. It is less than 50% of the Insured's Declared value i.e. Rs. 1,86,200/-. There is no specific denial about the submission of the documents by the complainant before the surveyor. According to it, car is repairable and it is ready to settle the claim as per surveyor's report. To the contrary, complainant was not ready to settle it and was adamant to get claim on total loss basis. Surveyor was not instructed by it to write letter dated 7.5.07. It cannot be presumed that letters were written by surveyor with malafide intention. Deficiency in service and the remaining averments in the complaint are denied.<br /> 4. In support of his averments contained in the complaint, complainant has produced in evidence affidavit of Sh. Pawan Kumar his Attorney (Ex. C-1), photocopy of Registration Certificate of Vehicle No. PB-53A/5818 (Ex. C-2), photocopy of Certificate-cum-Policy Schedule (Ex. C-3), photocopy of Driving Licence of Sh. Amarvinder Singh (Ex. C-4), photocopy of DDR No. 9 dated 18.2.07 (Ex. C-5), photocopy of Invoice (Ex. C-6), photocopy of Estimate dated 23.2.07 (Ex. C-7), photocopy of letter dated 10.4.07 alongwith postal receipt (Ex. C-8), photocopy of letter dated 11.4.07 (Ex. C-9), photocopy of letter dated 7.5.07 (Ex. C-10), photocopy of letter dated 26.5.07 aongwith postal receipt (Ex. C-11), photocopy of letter dated 24.5.07 (Ex. C-12), photocopy of letter dated 4.6.07 alongwith postal receipt (Ex. C-13), photocopy of letter dated 7.6.07 alongwith postal receipt (Ex. C-14), photocopy of letter dated 8.6.07 (Ex. C-15), photocopies of letter dated 18.6.07 and postal receipt (Ex. C-16 & Ex. C-17), photocopy of letter dated 28.6.07 (Ex. C-18), photocopy of circular of Insured's Declared Value (Ex. C-19), photocopy of Special Power of Attorney dated 19.3.07 (Ex. C-20), his affidavit (Ex. C-21) and photocopy of survey report (Ex. C-22).<br /> 5. In rebuttal, on behalf of the opposite party affidavit of Sh. S C Sharma, Divisional Manager (Ex. R-1), affidavit of Sh. Dinesh Kumar Goyal (Ex. R-2), photocopies of letters dated 26.3.07, 30.4.07, 27.4.07, 20.4.07, 17.4.07, 2.4.07, 11.4.07, 30.3.07 (Ex. R-3 to Ex. R-10 respectively), photocopy of letter dated 9.4.07 alongwith survey report (Ex. R-11), photocopy of letter dated 26.3.07 (Ex. R-12), photocopy of Motor Claim Form (Ex. R-13), photocopy of Ration Card (Ex. R-14), photocopy of Special Power of Attorney (Ex. R-15), photocopy of Driving Licence of Harvinder Singh (Ex. R-16), photocopy of preliminary report (Ex. R-17), photocopy of Registration Certificate of vehicle no. PB-53A/5818 (Ex. R-18), photocopy of letter dated 23.2.07 (Ex. R-19), photocopy of service estimate (Ex. R-20), photocopy of letter dated 17.2.07 (Ex. R-21) and photocopy of terms and conditions of the policy (Ex. R-22 & Ex. R-23) have been tendered in evidence.<br /> 6. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the complainant.<br /> 7. Some facts do not remain in dispute. They are that complainant was the owner of Maruti Car Registration No. PB-53A-5818 which was purchased by the complainant from Heera Automobiles Limited, Patiala. It was comprehensively insured with the opposite party vide Certificate-cum-Policy, copy of which is Ex. C-3 for the period from 1.4.06 to 31.3.07. It had met with an accident on 17.2.07. Information about the accident was given to the opposite party. Sh. Dinesh Kumar Goyal was deputed by the opposite party as spot surveyor and he had inspected the vehicle at the spot. There is no denial about the recording of Daily Diary Report No. 9 dated 18.2.07 in Police Station, Cantt Bathinda and copy of the same is Ex. C-5. Opposite party vide letter dated 28.6.07 copy of which is Ex. C-18 has closed the claim file as No Claim as complainant did not start the repair work of the car in question till date.<br /> 8. First argument pressed into service by Mr. Bansal, learned counsel for the opposite party is that complainant has already sold car in question to one Varinder Kumar. Accident was reported by Varinder Pal. Hence, complainant has nothing to do with the opposite party and complaint deserves dismissal as he has no locus standi to file it. This argument has no substance. There is no document on the record to show that complainant has sold the car in question either to Varinder Kumar or to any other person. Most important document on the record is the copy of the Registration Certificate. A perusal of this document reveals that still complainant is the registered owner of this vehicle. Mr. Sharma Divisional Manager of the opposite party in his affidavit Ex. R-1 reiterates the version in the reply of the complaint including the plea that vehicle has been sold to Varinder Pal but there is no document to support it. Hence no weight can be attached to Ex. R-1. Ex. C-21 is the affidavit of the complainant dated 17.8.07 in which he has supported his version in the complaint on all material particulars. Through Special Power of Attorney Ex. C-20 complainant appointed Mr. Pawan Kumar as his Attorney. Ex. C-20 is dated 19.3.07 and was attested on 26.3.07. In this document as well complainant has declared himself to be the owner of this car. Accordingly, conclusion is that complainant is still owner of this vehicle and he has got the locus standi to file this complaint. For this reference can be made to the authority Oriental Insurance Company Limited and Another Vs. Dharampal I(2007) CPJ 150.<br /> 9. Mr. Garg, learned counsel for the complainant vehementally argued that claim of the complainant for Rs. 1,86,200/- has been illegally held No Claim by the opposite party vide letter copy of which is Ex. C-19. Report of the surveyor dated 9.4.07 copies of which are Ex. C-22 and Ex. R-11 is not worth placing reliance. Tara Automobiles which is the authorised agent of Maruti estimated the loss to the tune of Rs. 1,49,258.30 as is evident from the copy of the service estimate Ex. C-7 but the surveyor through his report dated 9.4.07 assessed the liability to the tune of Rs. 70,000/- (net of salvage)) and further observed in his preliminary report dated 2.4.07 that insured has given his consent for Rs. 1,50,000/- on net of salvage basis. Surveyor has wrongly reduced the net loss to Rs. 92,793.89 in his report dated 9.4.07. In fact surveyor was working under the thumb of the opposite party and was out to favour it. Facts and circumstances clearly show that he got consent letter from the complainant under compelling circumstances which was withdrawn by him (complainant) through letter dated 10.4.07, copy of which is Ex. C-8. No convincing reasons have been assigned by the surveyor for reducing the amount of loss assessed by Tara Automobiles. He further aargued that since claim has been wrongly held as no claim by the opposite party and it is a case of total loss of the vehicle, opposite party was required to pay the Insured's Declared Value i.e. Rs. 1,86,200/- to the complainant which has not been paid and as such, there is deficiency in service on the part of the opposite party.<br /> 10. Mr. Bansal, learned counsel for the opposite party argued that surveyor assessed the net loss as Rs. 92,793.89 which is less than 50% of the Insured's Declared Value and as such, it is not a case of total loss of the vehicle. Report of the surveyor copies of which are Ex. R-11 and Ex. C-22 is worth placing credence. As complainant did not co-operate and did not get repair work of the car started, file has been rightly closed as No Claim vide letter dated 28.6.07.<br /> 11. We have considered the respective arguments. Opposite party has failed to establish by way of leading cogent and convincing evidence that terms and conditions of the insurance policy of the vehicle in question were supplied to the complainant in any manner after the vehicle was insured. Insured's Declared value is the sum insured for the purpose of the policy as is clear from Ex. C-19 which is the copy of the Circular concerning Insured's Declared Value. It is treated as the market value throughout the policy period without any depreciation for the purpose of Total loss/constructive total loss. The insured value will be treated as CTL if the aggregate cost of retrieval and/or repair of the vehicle subject to terms and conditions of the policy exceeds 75% of the IDV of the vehicle. Accident was reported to the opposite party. Sh. Dinesh Kumar Goyal was appointed to survey the spot. Spot was surveyed by him on 17.2.07. As is evident from the evidence on the record car in question was shifted to Tara Automobiles. Its final survey was conducted by Mr. Dinesh Kumar Goyal on 23.2.07. Tara Automobiles prepared the estimate of loss to the tune of Rs. 1,49,258.30. Loss estimated by Tara Automobiles comes beyond 75% of the IDV. Report dated 9.4.07 was submitted by Mr. Dinesh Kumar Goyal. Before that, surveyor prepared preliminary report dated 2.4.07, copy of which is Ex. R-17. It is not known what prompted the surveyor to prepare preliminary report dated 2.4.07 and what was the necessity for preparing it. If he was to mention the facts recorded in the preliminary report, he could make mention of them in the final report itself. His Motor Survey Report is dated 9.4.07 but he obtained the consent of the attorney of the complainant dated 30.3.07 as is evident from Ex. R-10. Plea of the complainant is that signatures of his (complainant's) attorney on the blank papers and vouchers were obtained with the understanding that car is badly damaged and as per estimates it amounts to total loss. There is substance in this version of the complainant. Surveyor prepared the document copy of which is Ex. R-10 before submission of the final report dated 9.4.07. Similarly preliminary report dated 2.4.07 was prepared before Motor Survey Report dated 9.4.07. Opposite party admits that complainant has withdrawn the consent through letter dated 10.4.07. Through this letter, he raised hue and cry that signatures were obtained by Mr. Dinesh Kumar Goyal on blank vouchers and blank consent letter with malafide intention. As per Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000, a Surveyor & Loss Assessor is bound to submit his report to the Insurer as expeditiously as possible, but not later than 30 days of his appointment. In this case, final survey was conducted on 23.2.07 but surveyor prepared the report on 9.4.07 against this regulation. Before that, he was busy in preparing preliminary report and collecting the consent letter etc., which indicate his interestness in favour of the opposite party and prejudice towards the complainant. In para No. 11 of the reply of the complaint, opposite party has given the reasons for delay in submission of the report. They are that registration certificate was not submitted by the complainant and consent letter dated 30.3.07 was submitted by him to the surveyor on 5.4.07. Plea of the opposite party that registration certificate was not submitted is belied by the report of the surveyor dated 9.4.07. A perusal of this document reveals that original registration certificate was produced and checked by the surveyor on 28.2.07 and it was found in order. Surveyor was to submit the survey report as per mandatory regulations of 2000 within the time frame. He was not to wait for the consent letter. In these circumstances, the contention of the learned counsel for the complainant that consent taken from the attorney of the complainant was on blank form and it was not voluntary, carries conviction. Not to speak of this, surveyor against the estimate of Rs. 1,49,258.30 prepared by the authorised Maruti Dealer i.e. Tara Automobiles reduced the net loss assessed to the tune of Rs. 92,793.89 in his report dated 9.4.07 without sufficient cause and reason. He has assessed the loss to the car on repair basis. Value of the damaged car has been assessed as Rs. 80,000/-. In the facts and circumstances of this case, the assessment of the net loss assessed by the surveyor is arbitrary. Consent letter obtained cannot be said to have been given by the attorney of the complainant of his free will. For this, reference may be made to the authority Oriental Insurance Company Limited Vs. Ramesh Singh I(2007) CPJ 236. When the loss was assessed by Tara Automobiles i.e. authorised agent of the manufacturer, the amount could not be arbitrarily reduced by the surveyor. For this, we get support from the observations of the Hon'ble National Commission in the case of K.L. Malhotra Vs. Oriental Insurance Company Limited I(2003) CPJ 107 (NC). No basis or convincing reasons have been given for reduction. Hence, report of the surveyor become incredible. For this, reference can be made to the authority Virendra Singh Rathore Vs. Regional Manager, United India Insurance Company Limited III(2000) CPJ 431, Mrs. Gurmeet Dhillon Vs. The Branch Manager, New India Assurance Co. Ltd., & Ors., II(2000) CPJ 453 and Sangat Singh Chauhan Vs. State Bank of India & Anr II(1999) CPJ 12. As discussed above, the report of Sh. Dinesh Kumar Goyal is not worth placing credence. When amount has been arbitrarily reduced by the surveyor in this case, report was required to be ignored by the insurance Company. For this, we are fortified from the observations of the Hon'ble National Commission in the case of Tanda Textiles and Processing Mills Private Limited Vs. United India Insurance Company Limited and Others 2007 CTJ 362 (CP)(NCDRC).<br /> 12. Claim file of the complainant has been closed as No Claim vide letter dated 28.6.07 merely on the ground that he did not start repair of the vehicle. As discussed above, opposite party has not proved that the terms and conditions of the policy were supplied to the complainant at the time when vehicle was comprehensively insured with it or immediately thereafter. As per estimate prepared by the authorised dealer of the manufacturing company, it becomes a case of total loss and not of repair of the vehicle. Hence, question of getting the vehicle repaired by the complainant did not arise. There was no justification for the opposite party to ask the complainant to get the repair of the car started particularly when as per estimate of the authorised dealer of the manufacturing company, the loss was beyond 75% of the Insured's Declared Value. For this, we get support from the observations of the Hon'ble State Commission, Punjab in the case of Sadeev Singh Sandhu and Sons Vs. United India Insurance Company Limited II(1999) CPJ 118. Hence holding the claim as No Claim is arbitrary and order through letter dated 28.6.07 is liable to be set aside.<br /> 13. Since the claim of the complainant has been arbitrarily held as No Claim, report of the surveyor is arbitrary and incredible,. there was no scope for the Insurance Company to throw away the estimate prepared by Tara Automobile, claim has not been paid on total loss basis which is proved in this case, deficiency in rendering service on the part of the opposite party is proved.<br /> 14. Question that now arises is as to which relief should be accorded to the complainant in the given situation. Once a vehicle was comprehensively insured in this case and it became case of the total loss in view of copy of Circular of Insured's Declared Value Ex. C-19, then Insured's Declared Value is payable as has been held by the Hon'ble State Commission of Punjab in the case of United India Insurance Company Limited Vs. Gurjant Singh & another First Appeal No. 1342 of 2005 decided on 31.01.2006. Hence, it is fit case for issuing direction to opposite party to pay the Insured's Declared Value under the policy i.e. Rs. 1,86,200/- alongwith interest @9% P.A. w.e.f. 18.05.07 (The date calculated on expiry of three months period from 17.2.07 a period required for processing the claim in an effective manner in normal course) till realization subject to complainant's executing Letter of Subrogation as per its requirements in its favour conferring all rights in the car including ownership with it i.e. National Insurance Company Limited through its Divisional Manager and delivering salvage of the car. Complainant is claiming garage charges to the tune of Rs. 5,000/- alongwith interest. There is no convincing evidence to prove it. He is also seeking damages/compensation to the tune of Rs. 25,000/- towards mental agony and pains. In our view, there is no case to allow it in the face of relief going to be accorded as above particularly in view of the authority in the case of Life Insurance Corporation of India Vs. Miss Bhupinder Kaur (Minor) and Others 2002(2) CLT 646 wherein Hon'ble State Commission of Punjab held that interest is not granted within the contract between the insured and insurer, but within the provisions of Section 14(1)(d) of the Act on deficiency in rendering service being established for compensating the complainant.<br /> 15. No other point was urged before us at the time of arguments.<br /> 16. As a result of our foregoing discussion, complaint is allowed against the opposite party with cost of Rs. 1,000/-. In the circumstances of this case, parties are directed to do as under :-<br /> i) Complainant would execute Letter of Subrogation as per requirements of the opposite party in its favour conferring all the rights in the car including ownership with it i.e. opposite party – National Insurance Company Limited through its Divisional Manager, within 15 days from the date of copy of this order.<br /> ii) Complainant would deliver the salvage of the car to the opposite party through its Divisional Manager within 15 days from the date of receipt of copy of this order.<br /> iii) After the complainant executes Letter of Subrogation as mentioned above and delivers salvage of the car against receipt, opposite party would pay Rs.1,86,200/- to him (complainant) alongwith interest @9% P.A. from 18.5.07 till payment within one month.<br /> iv) In case complainant does not execute Letter of Subrogation and deliver salvage of car within the above referred stipulated period to the opposite party, he will not be entitled to interest on the amount of Rs. 1,86,200/- after 1-1/2 month after the receipt of copy of this order. <br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room.<br /> Pronounced :<br /> 11-09-2007 <br /> (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br /> <br />