Complainants Smt.Sunita Devi  and others vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite parties to pay the balance insurance claim amounting to Rs.2,51,958/- alongwith damages to the tune of Rs.5,00,000/- incurred on treatment of late Sh.Parshtam Kumar due the harassment and mental agony and Rs.8,00,000/- on account of death of Sh.Parshotam Kumar due to tension and consequent heart attack alongwith interest @ 9% P.A. on account of mental harassment, agony, inconvenience and insult alongwith litigation expenses, in the interest of justice.

2.       The case of the complainant in brief is that Sh.Parshotam Kumar was the owner of truck no.PB-11-AQ-8745 which is insured with opposite party vide insurance policy no.36160031140100000045 valid from 3.4.2014 to 2.4.2015. The present complaint is being filed through the class-I heirs of the deceased.  The vehicle met with an accident on 7.9.2014 and opposite party had deputed opposite party no.2 H.S.Bawa Surveyor for survey and assessment of the loss. The surveyor of the opposite party has illegally and unlawfully vide his report reported that part of the loss to the vehicle does not come under the preview of the policy terms and conditions and the same is not payable with malafide intentions. In spite of the fact that late Sh.Parshotam Kumar had spent amount of Rs.3,51,958/- for repair of the vehicle. The surveyor assessed the loss as Rs.1,00,000/- only by flouting all the rules and regulations after obtaining signatures of the complainant on various blank printed forms and papers in the name of completion of formalities. All the original bills were submitted by deceased with the office of the opposite party but in spite of that amount of Rs.1,00,000/- was deposited in her account without any intimation. This amount was received under protest and the same was deposited by the opposite party in the account of deceased’s account. The vehicle met with an accident on 7.9.2014 and the vehicle over turned due that fact that earth had gone down with load and the vehicle got damaged due to the accident. Deceased has got his vehicle repaired and paid Rs.3,51,958/- which amount was liable to be reimbursed to late Sh.Parshotam Kumar by the opposite party, as the vehicle was fully insured with the opposite party but the amount of Rs.2,51,958/- is still recoverable from the opposite party by the present complainants being legal heirs of the deceased registered owner of the truck in question. Late Parshotam Kumar had suffered great mental tension, harassment, and inconvenience at the hands of opposite party and due to the constant harassment at the hands of opposite party. He has suffered heart attack and has remained admitted in Max Hospital Mohali and Fortis Amritsar and spent Rs.5 lakh on treatment and ultimately expired on 1.4.2015 due to another heart attack. As such she is entitled to damages to the tune of Rs.7,00,000/- incurred on treatment and Rs.8,00,000/- on account of untimely death of late Parshotam Kumar. It is next pleaded that ate Parshotam Kumar had not been paid the insurance claim which was payable by the opposite party without any reasonable cause, rather the claim has been partly paid on false and frivolous grounds which amounts to deficiency in service and business malpractice on the part of the opposite party. Hence this complaint.

3.       Upon notice, the opposite party no.1 appeared through its counsel and filed its written version taking the preliminary objections that the present complaint is not maintainable because the insured has been paid the compensation on account of loss/damage to his vehicle, which was duly assessed, not only by one but two loss assessors and surveyors. The insured had accepted the compensation amounting to Rs.1,00,500/-. The insured had provided the particulars of his account and also duly signed cancelled cheque. On receiving the said particulars and also his yes, the amount was transferred to his bank account. The complainant is raising this issue after the death of insured. It is absolutely wrong that the insured accepted Rs.1,00,500/- under protest. There is nothing on record that the insured had accepted the amount of Rs.1,00,500/- under protest; the complainant has challenged the surveyor report, his qualification and license without the knowledge that the license is provided to the surveyor by the IRDA of India, which is statutory body under the Government of India and the surveyor is duly qualified and licensed by IRDA of India which is statutory body. He is an independent professional like any other professional. He is not an employee of the replying opposite party. All the claims are settled after the assessment by the surveyor. On merits, it was submitted that the surveyor is an independent professional like any other professional, therefore, it is not accepted that his report is illegal and unlawful. It was further submitted that the compensation was paid to the insured/owner of the vehicle as per his willingness and assessment of the surveyor. Mr.H.S.Bawa, the Surveyor is duly licensed by the IRDA. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.         Upon notice, the opposite party no.2 appeared through its counsel and filed its written version taking the preliminary objections that the present complaint is not maintainable qua opposite party no.2 as there exists no consumer and seller provider relationship between opposite party no.2 and the complainant i.e. Purshotam Kumar. The opposite party did not render any sort of services to complainant but provided service to opposite party no.1, as an independent surveyor and loss assessor duly qualified and licensed by the IRDA, a statutory body; the complainant has challenged the surveyor’s report, his qualification his license and his integrity without the knowledge that the opposite party no.2 is a ‘FELLOW’ of Indian Institute of Insurance Surveyors & Loss Assessors having Membership No.FIN/03783 and is duly licensed by the Insurance Regulatory authority of India (IRDA) vide License No.IRDA/IND/SLA-310 which is valid upto 31.05.2020. The complainant was satisfied with survey report & loss assessed therefore accepted the insurance claim been paid by the insurer without any objection or complaint against the survey report of the opposite party no.2 and the complaint qua opposite party no.2 is bad for misjoinder of opposite party no.2 and is liable to be dismissed on this score only. On merits, it was admitted that opposite party no.2 surveyed and furnished his loss assessment report after dual inspection of the vehicle Truck No.PB-11-AQ-8745 in question. The opposite party no.2 is a competent and independent authority been recognized and authorized by the IRDA, having more than 45 years of experience in this profession. The survey report is not illegal or unlawful but it has been prepared by following the approved and set method, technique, rules and regulations and insurance policy as well. It was further submitted that final survey and assessment of loss report was prepared after re-inspection of vehicle on 28.10.2014 when repairs were carried out as per estimates given by the different motor garages/workshops. Some damaged parts were replaced by re-fabricated parts, labour rates were exaggerated as compared to prevailing market rates of different workshops. Tipping Jack was repaired not replaced with new one. The loss assessed report was prepared systematically, item wise by following the approved and set method, technique, norms, rules and regulations and terms of the insurance policy as well. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

5.       Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1 along with the other documents exhibited as Ex. C2 to Ex.C18 and closed the evidence.

6.        On the other hand, Sh.Shiv Lal Branch Manager of the opposite party no.1 tendered into evidence his own affidavit Ex.OP-1/1, alongwith the other documents Ex.OP-1/2 to Ex.OP-1/5 and closed the evidence.

7.       Opposite party no.2 Sh.H.S.Bawa Surveyor and Loss Assessor has tendered into evidence his own affidavit Ex.OP-2/1 alongwith other documents Ex.OP-2/2 to Ex.OP-2/4 and closed the evidence.

8.      We have carefully examined all the documents/evidence produced on record and have also duly heard & considered the arguments as put forth by the learned counsels for the present litigants. We find that the present complaint has resulted on account of ‘partial-settlement’ at Rs.1,00,500/- (by the OP1 Insurers) of the complainant’s ‘accident-repair claim’ for Rs. 3,51,958/- allegedly spent by him on the repair of his accidented Truck. The Ex.C9 to Ex.C17 are the copies of the 9 nos. of Repair & Expenses Bills in support of the complainant’s insurance claim. The OP1 insurers claim to have settled the impugned insurance claim on the strength basis of the Surveyor’s Appraisal Ex.OP1/4 & the Final Survey Report Ex.OP1/5 (duly supported by affidavits Ex.OP1/1 & Ex.OP2/1) stating therein the basis & logic of settlement at Rs.1,00,500/-. Further, we find that the complainants have expressed ‘grievance & bias’ towards the appointment of the Surveyor OP2 and have been contesting his merits and appointment etc but have not even attempted to contest/challenge the calculations and/or their basis etc adopted in the Surveyor’s Report. None of the item-wise calculations have been contested/rebutted during the entire proceedings and thus its findings shall deem to have been admittedly proved. We also observe that the repair/labour Bills etc form a bunch of stray-collection and apparently do not conform to one systematic and designed set to execute planned repairs to the accidented Truck in one systematic manner. No estimates/quotations etc from some approved/reputed workshop etc have been produced on records to justify that the claim amount was indeed necessary to affect repairs to the accidented Truck. We have respectfully studied the complainant cited apex court judgment in CA 3253 of 2002 titled New India Assurance Co. Ltd., vs. Pradeep Kumar and state that even this legal proposition shall be of little assistance to the present complainants in the absence of any other measure produced as an acceptable alternative on records. Thus, we do not see any actionable ‘merit’ under the statute, in the present complaint.                

9.       In the light of the all above, we find the present complaint to be devoid of all actionable merit as statutorily envisaged under the adjudicatory C.P. Act and thus ORDER the dismissal of the same with however no orders as to its costs.

10.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

          (Naveen Puri)

                                                                              President   

Announced:                                                     (Jagdeep Kaur)

April 11, 2016                                                           Member

*MK*